ACQUISITION AGREEMENT
THIS AGREEMENT is made and entered into as of the 13th
day of May, 1997, by and among HOUSECALL MEDICAL RESOURCES, INC.,
a Delaware corporation ("PARENT"); HFI ACQUISITION CORP., a
Delaware corporation ("PURCHASER"); HFI MANAGEMENT, INC., a
Delaware corporation ("GENERAL PARTNER"); the individuals and
entity whose names and signatures appear in the signature pages
hereto under the caption "Shareholders" (collectively,
"SHAREHOLDERS"); and the individuals and entity whose names and
signatures appear in the signature pages hereto under the caption
"Limited Partners" (collectively, "LIMITED PARTNERS").
RECITALS:
A. HFI Home Care Management, L.P., a Delaware limited
partnership ("PARTNERSHIP"), is engaged in the business of
providing home health care management, billing and data
processing, information systems, and consulting services relating
to any of the foregoing (the "BUSINESS").
B. General Partner is the sole general partner of
Partnership, and the Limited Partners are the sole limited
partners of Partnership, and collectively, General Partner and
the Limited Partners own, of record and beneficially, all of the
partner interests in Partnership.
C. In reliance on and subject to the terms and
conditions contained herein, Purchaser desires to purchase (i)
the Shares (as defined below)from the Shareholders and (ii) the
Partnership Interests (as defined below) from the Limited
Partners.
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT:
1. PURCHASE OF SHARES
1.1 PURCHASE AND SALE OF SHARES
In reliance upon and subject to the terms and
conditions hereinafter set forth, at the Closing (such term and
other capitalized terms used herein being defined in either
PARAGRAPH 14.1 hereof or those paragraphs of this Agreement
identified in PARAGRAPH 14.2 hereof), the Shareholders shall
sell, assign, transfer, convey and deliver to Purchaser the
Shares, in each case free and clear of all Liens. The aggregate
purchase price (the "SHARE PURCHASE PRICE") for the Shares is
$107,500, which amount shall be paid among the Shareholders and
in the manner specified in ARTICLE 3.
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2. PURCHASE OF PARTNERSHIP INTERESTS
2.1 PURCHASE AND SALE OF PARTNERSHIP INTERESTS.
In reliance upon and subject to the terms and
conditions hereinafter set forth, at the Closing, the Limited
Partners shall sell, assign, transfer, convey and deliver to
Purchaser the Partnership Interests, in each case free and clear
of all Liens. The aggregate purchase price (the "LP PURCHASE
PRICE") for the Partnership Interests is $10,642,500, which
amount shall be paid among the Limited Partners and in the manner
specified in ARTICLE 3.
3. CLOSING
3.1 CLOSING
Subject to the conditions contained in ARTICLES 8 AND 9
having been satisfied or waived in accordance with the terms of
this Agreement, the consummation of the transactions contemplated
in this Agreement (the "CLOSING") shall take place at the offices
of Xxxxxxxxxx Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx, at 10:00 a.m., Atlanta time, on May 13, 1997
(the "CLOSING DATE"). Should the transactions contemplated by
this Agreement not close on or before such date, the parties'
rights, duties and obligations under and pursuant to this
Agreement shall be governed by ARTICLE 12.
3.2 TRANSACTIONS AND DOCUMENTS AT CLOSING.
(a) PURCHASE OF SHARES. At the Closing:
(i) Each Shareholder shall deliver to Purchaser
certificates representing the Shares to be sold by such
Shareholder, duly endorsed for transfer, with signatures
guaranteed by a bank or trust company and all required stock
transfer stamps, if any, affixed, in each case free and clear of
all Liens; and
(ii) Purchaser shall pay to Shareholders the Share
Purchase Price by wire transfer of immediately available federal
funds to the demand deposit account in the United States
designated by each Shareholder to Purchaser at least three (3)
Business Days prior to the Closing Date. The Share Purchase
Price shall be paid to each of the Shareholders as set forth in
Schedule 3.2(a) attached hereto.
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(b) PURCHASE OF PARTNERSHIP INTERESTS. At the Closing:
(i) by their execution and delivery of this
Agreement on the Closing Date, each of the Limited Partners does
hereby sell, convey, transfer and assign to Purchaser, effective
as of the Closing Date, all of its right, title and interest as a
limited partner in Partnership, in each case free and clear of
all Liens; and
(ii) Purchaser shall pay to Limited Partners the
LP Purchase Price in the amounts and in the manner set forth in
SCHEDULE 3.2(B) attached hereto. The amount of the LP Purchase
Price to be paid to any Limited Partner shall be paid by wire
transfer of immediately available federal funds to the demand
deposit account in the United States designated by such Limited
Partner to Purchaser at least three (3) Business Days prior to
the Closing Date.
3.3 DEFERRED PAYMENTS TO MANAGEMENT LIMITED PARTNERS; CERTAIN
FORFEITURES BY MANAGEMENT LIMITED PARTNERS.
(a) One third of the number of shares of Parent Stock
payable to R. Xxxxxx Xxxxxxxx, an individual resident of the
State of Tennessee ("XXXXXXXX"), shall, subject to forfeiture
pursuant to PARAGRAPH 3.3(B), be paid on the first, second, and
third anniversaries of the Closing Date by delivery of that
number of shares of Parent Stock determined in accordance with
SCHEDULE 3.2(B). Promptly following the lapse of the forfeiture
restrictions set forth in PARAGRAPH 3.3(B), Parent shall cause
its stock transfer agent to issue such number of shares of Parent
Stock in the name of Xxxxxxxx. At all times until delivered, the
Parent Stock payable to Xxxxxxxx shall be subject to forfeiture
in accordance with the provisions of PARAGRAPH 3.3(B).
(b) The unpaid portion of the LP Purchase Price
payable to Xxxxxxxx in Parent Stock shall at all times be subject
to forfeiture as set forth in this PARAGRAPH 3.3(B). If Xxxxxxxx
employment with Purchaser is terminated by Xxxxxxxx for other
than "good reason" or by Purchaser for "cause", as each such term
is defined in Xxxxxxxx' written employment agreement with
Purchaser prior to the third anniversary of the Closing Date,
then Xxxxxxxx shall forfeit, and thereafter have no right
whatsoever, in or to any portion of Parent Stock which is due and
payable after the effective date of any such termination of
Xxxxxxxx' employment with Purchaser.
(c) Anything to the contrary in this PARAGRAPH 3.3
notwithstanding, if Xxxxxxxx dies or becomes permanently disabled
or if Xxxxxxxx' employment with Purchaser is terminated for any
reason other than a termination by Purchaser for "cause" or a
termination by Xxxxxxxx without "good reason", then any unpaid
portion of the LP Purchase Price shall be paid to Xxxxxxxx or his
personal representative, if applicable, within 30 days of the
date of Xxxxxxxx death, permanent disability or termination of
employment.
3.4 INTERDEPENDENCE OF TRANSACTIONS.
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All deliveries, payments and other transactions and
documents relating to the Closing shall be interdependent and
none shall be effective unless and until all are effective
(except to the extent that the party entitled to the benefit
thereof has waived in writing satisfaction or performance thereof
as a condition precedent to Closing).
3.5 FURTHER ASSURANCES.
From time to time and at any time, at any party's
reasonable request, whether on or after the Closing Date, and
without further consideration, each party shall execute and
deliver such further documents and instruments of conveyance,
assignment, and transfer and shall take such further reasonable
actions as may be reasonably necessary or desirable to carry out
the intent of this Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GENERAL
PARTNER, LIMITED PARTNERS AND SHAREHOLDERS
To induce Parent and Purchaser to enter into and perform
this Agreement, to consummate the transactions contemplated
hereby, and to pay the consideration as provided herein, General
Partner, Limited Partners and Shareholders, jointly and
severally, represent and warrant to, and covenant and agree with,
Parent and Purchaser as follows:
4.1 ORGANIZATION AND AUTHORITY.
(a) Partnership is duly organized, validly existing and
in good standing as a limited partnership under the laws of the
State of Delaware, and has all requisite power and authority to
carry on its business as it is now being conducted.
(b) General Partner is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware. Partnership's and General Partner's principal
offices and places of business are at the locations specified in
SCHEDULE 4.1(A). General Partner has all requisite corporate
power and authority to carry on its business as it is now being
conducted.
(c) Each of General Partner and Partnership is duly
authorized, licensed and qualified in the jurisdictions listed in
SCHEDULE 4.1(B) hereto, which are all jurisdictions where such
authorization, licensure or qualification is necessary to avoid a
material adverse effect upon their current businesses or their
property or other assets. SCHEDULE 4.1(B) lists, with respect to
both General Partner and Partnership, (i) each office or place of
business, (ii) all names under which the General Partner or
Partnership or their predecessors have operated since their
formation or incorporation, as appropriate, if different from
their present name, (iii) all locations where any of their
respective assets where the net book value of such assets at such
location, in the aggregate, exceeds $10,000 are currently located
(together with a list of such assets) if such location is not
otherwise disclosed pursuant to any of the other sub-clauses of
this PARAGRAPH 4.1(C), and (iv) all subsidiaries or former
subsidiaries of such entities existing at any time since the date
of such entities' formation or incorporation, as appropriate.
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4.2 OWNERSHIP OF SHARES AND INTERESTS.
(a) The recitals clauses of this Agreement set forth
the authorized, issued and outstanding capital stock of General
Partner. Each Shareholder signatory hereto, and only with
respect to itself, represents and warrants that it is the sole
record and beneficial owner of that number of shares of the
capital stock of General Partner set forth on SCHEDULE 4.2(A)
hereto, in each case free and clear of any and all Liens (all of
such issued and outstanding shares collectively are referred to
herein as the "SHARES"). All the Shares are duly authorized,
validly issued, fully paid and nonassessable. There are no
outstanding securities convertible into the shares of, or rights
to subscribe for or to purchase, or any options for the purchase
of, or any agreements or arrangements providing for the issuance
(contingent or otherwise) of, or to the knowledge of General
Partner, Shareholders or Limited Partners, any Actions relating
to, the capital stock of General Partner. None of the Shares has
been issued, offered, sold, registered or recorded in violation
of the preemptive or other rights of any past or present
shareholder of General Partner or any other Person. General
Partner does not have any interest, direct or indirect, or any
commitment to purchase or otherwise acquire any shares or other
equity interests, direct or indirect, in, or to make any loans to
or other investments in, any other Person. There are no
outstanding contracts, demands, commitments, or other agreements
or arrangements under which any Shareholder is or may become
obligated to sell, transfer or assign any of the Shares.
(b) The Limited Partners collectively own all of the
beneficial title, rights and interests in and to the interests as
limited partners in Partnership (all of such interests as limited
partners in Partnership collectively are referred to herein as
the "PARTNERSHIP INTERESTS"). The Partnership Interests consist
of the percentage interest (reflecting percentage of capital
contributions) or a number of partnership units in the
Partnership set forth on SCHEDULE 4.2(B) hereto. The respective
Partnership Interests of each Limited Partner are owned by such
Limited Partner free and clear of any and all Liens. There are
no outstanding commitments or plans by Partnership to issue any
additional interests or units in Partnership, to admit any
additional partners, or to purchase or redeem any interests in
Partnership, nor are there outstanding any securities or
obligators which are convertible into or exchangeable for any
beneficial interest in the Partnership, and no other person or
entity has any legal, valid or enforceable rights to any of the
assets, profits, losses or other interests of or in the
Partnership. General Partner is the sole general partner of
Partnership and it has a one percent (1%) interest in
Partnership.
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4.3 AUTHORITY; INCONSISTENT OBLIGATIONS.
(a) General Partner, Limited Partners and Shareholders
each have the full right, power and authority to execute and
deliver and to perform and comply with this Agreement in
accordance with its terms. All proceedings and actions required
to be taken by Partnership, General Partner, Limited Partners or
Shareholders to authorize the execution, delivery, and
performance of this Agreement have been properly taken, or will
be taken prior to the Closing. This Agreement has been duly and
validly executed and delivered on behalf of General Partner,
Limited Partners and Shareholders by them, if individuals, or
their duly authorized officers or representatives, if an entity,
as appropriate. This Agreement constitutes the valid and legally
binding obligation, subject to general equity principles, of
General Partner, Limited Partners and Shareholders, in each
instance enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or
similar Laws affecting the rights of creditors generally.
(b) Except as disclosed in SCHEDULE 4.3(B), neither
the execution and delivery of this Agreement nor the consummation
of the transactions contemplated herein will result in a
violation or breach by General Partner, Limited Partners or
Shareholders of, or constitute a default by General Partner,
Limited Partners or Shareholders under, (i) the Partnership
Agreement or Certificate of Limited Partnership of Partnership,
or Certificate of Incorporation or By-Laws of General Partner,
(ii) any term or provision of any indenture, note, mortgage,
bond, security agreement, loan agreement, guaranty, pledge, or
other agreement, instrument or document, (iii) any material Law,
(iv) any other commitment or restriction, to which General
Partner, Partnership, any Limited Partner or Shareholder is a
party or by which any of them or any of their assets, properties
or businesses is subject or bound; nor will such actions result
in (v) the creation of any Lien on any of the assets of General
Partner or Partnership, (vi) the acceleration or creation of any
obligation of General Partner or Partnership, or (vii) the
forfeiture of any material right or privilege of General Partner
or Partnership.
4.4 CONSENTS.
The execution and delivery of this Agreement by General
Partner, Limited Partners and Shareholders and the consummation
of the transactions contemplated by this Agreement (a) do not
require the consent, approval or action of, or any filing with or
notice to, any Person or Government, except as specified in
Schedule 4.4, and (b) do not require the consent or approval of
any shareholders or partners, except such as have been obtained
or will be obtained prior to the Closing.
4.5 NO VIOLATION; COMPLIANCE WITH LAWS.
Neither General Partner nor Partnership is in default
under or in violation of its Partnership Agreement or Certificate
of Limited Partnership, or its Certificate or Articles of
Incorporation (as appropriate) or By-laws. To the knowledge of
General Partner, Limited Partners, and Shareholders, General
Partner and Partnership have complied in all material respects
with all Laws applicable to their respective businesses. Neither
General Partner nor Partnership has received any notification of
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any asserted present or past failure to comply with any Laws.
4.6 FINANCIAL STATEMENTS.
Prior to the date hereof, General Partner and
Partnership have delivered to Parent and Purchaser copies of
their respective unaudited Balance Sheets as of December 31, 1995
and 1996, and related unaudited Statements of Operations,
Retained Earnings, and Cash Flows for the fiscal years then ended
(the "UNAUDITED YEAR-END FINANCIAL STATEMENTS"). General Partner
and Partnership have also delivered to Parent and Purchaser
copies of their respective unaudited Balance Sheets as of March
31, 1997, and unaudited Statements of Operations, Retained
Earnings, and Cash Flows for the 3-month period then ended
(collectively, the "UNAUDITED INTERIM FINANCIAL STATEMENTS").
The Unaudited Year-end Financial Statements and the Unaudited
Interim Financial Statements are sometimes referred to in this
Agreement collectively as the "UNAUDITED FINANCIAL STATEMENTS."
The Unaudited Financial Statements are attached hereto as
Schedule 2.6 Except as disclosed in SCHEDULE 4.6(A), the
Unaudited Financial Statements (including any related notes and
schedules thereto) are true and correct, have been prepared from
the books and records of General Partner and Partnership in
accordance with GAAP consistently applied, and present fairly the
financial condition of General Partner and Partnership, as
appropriate, as of the respective dates thereof and the results
of their operations for the periods then ended.
4.7 LIABILITIES.
General Partner and Partnership do not have any
accrued, absolute, known or contingent debt, liability or
obligation except (i) those reflected on the Unaudited Interim
Financial Statements, (ii) liabilities incurred in the regular
and ordinary course of business consistent with General Partner's
and Partnership's past practices since the date of the Unaudited
Interim Financial Statements (the "REFERENCE DATE"), and (iii) as
specifically disclosed in Schedule 4.7 (collectively, the
"DISCLOSED LIABILITIES").
4.8 TITLE TO PROPERTIES.
Each of General Partner and Partnership has good and
complete title to all its respective properties and assets
reflected in their Unaudited Interim Financial Statements, except
assets which have been disposed of in the regular and ordinary
course of business since the Reference Date, and all other
properties and assets necessary to conduct their businesses as
currently being conducted (other than any leased property), free
and clear of Liens, except as may be set forth in the Unaudited
Financial Statements, including the notes thereto, or
specifically on any Schedule to this Agreement.
4.9 RECEIVABLES.
All notes and accounts receivable shown on the
Unaudited Financial Statements, and all such receivables now held
by General Partner or Partnership are valid obligations and, to
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the knowledge of General Partner, Shareholders and Limited
Partner, were not and are not subject to any offset or
counterclaim.
4.10 PERSONAL PROPERTY.
(a) Except as set forth in SCHEDULE 4.10(A), all of
the equipment, vehicles and other items of tangible personal
property used by General Partner or Partnership in the conduct of
their businesses are owned or leased by General Partner or
Partnership, and are in good condition and repair and, to General
Partner's, Limited Partners' and Shareholders' knowledge, have
been so maintained, subject to normal wear and tear, are suited
for the use intended and, to General Partner's, Limited Partners'
and Shareholders' knowledge, have been operated in conformity
with all applicable Laws, manufacturer's operating manuals,
manufacturer's warranties, and insurance requirements of General
Partner and Partnership.
(b) Except as set forth in SCHEDULE 4.10(B), to the
knowledge of General Partner, Limited Partners, and Shareholders,
(i) all lessors of any equipment or other tangible personal
property leased to General Partner or Partnership have fully and
completely performed and satisfied their respective duties and
obligations under such leases, and (ii) neither General Partner
nor Partnership has any claims, actions or causes of action
against any such lessor for failure to fully and completely
perform and satisfy its duties and obligations thereunder.
4.11 REAL PROPERTY.
(a) Except as set forth on SCHEDULE 4.11, neither
General Partner nor Partnership own, or have the right or option
to acquire, or lease, use or occupy any real property.
4.12. AUTHORITY TO CONDUCT BUSINESS AND INTELLECTUAL PROPERTY
RIGHTS.
Except as set forth on SCHEDULE 4.12, each of General
Partner and Partnership has the right and authority required to
sell, offer for sale and use the items and perform the services
as presently being offered for sale, sold, used or performed by
General Partner or Partnership, including, without limitation,
the rights and authority required to offer for sale, sell and use
all such items and perform all such services without incurring
any liability for license fees or royalties or any claims of
infringement of patents, trade secrets, copyrights, trademark,
service xxxx or other proprietary rights. Neither General
Partner nor Partnership is party to, either as licensor or
licensee, nor is it bound by or subject to, any license agreement
for any patent, process, trademark, service xxxx, trade secrets,
trade name, service name or copyright, except as described in
SCHEDULE 4.12. All patents, copyrights, trademarks, service
marks and trade names, and applications therefor or registrations
thereof, owned or used by General Partner or Partnership are
listed in SCHEDULE 4.12 and, to the extent indicated thereon,
have been duly registered in, filed in or issued by the Patent
and Trademark Office, the Copyright Office or the corresponding
agency or office of the Forum identified therein. To the
knowledge of General Partner, Limited Partners, and Shareholders,
there are no rights of third parties with respect to any patent,
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patent application, invention, copyrights, trademark, service
xxxx, trade secrets, trade name or device which would have an
adverse effect on the operations of General Partner's or
Partnership's businesses.
4.l3 CONTRACTS.
SCHEDULE 4.13 identifies and, in the case of oral
contracts or commitments, describes all existing contracts and
commitments of General Partner and Partnership (a) which are
necessary to conduct their businesses in the same manner as
currently conducted by General Partner or Partnership, other than
contracts or commitments which may be canceled with not more than
30 days notice without further obligation to the General Partner
or Partnership, or (b) which are otherwise material to General
Partner or Partnership or their businesses, in each case whether
written or oral (collectively, the "CONTRACTS"). General Partner
and Partnership have heretofore delivered to Parent and Purchaser
a true, correct and complete copy of each such written Contract
and a complete and accurate summary of each such oral Contract.
All of the Contracts have been entered into in the ordinary
course of General Partner's or Partnership's businesses. None of
the Contracts constitute an illegal restraint of trade under any
applicable Law.
4.14 INSURANCE.
SCHEDULE 4.14 contains a complete list and description
of all fire, theft, casualty, health, life, accident, title,
automobile, liability, product liability, worker's compensation
and other policies of insurance maintained by General Partner or
Partnership, all of which are, and will be maintained through the
Closing Date, in full force and effect. SCHEDULE 4.14 also
lists and describes the limits and deductibles for all such
policies. General Partner and Partnership have or, prior to the
Closing Date, will deliver to Parent and Purchaser a true,
correct and complete copy of each such insurance policy. All
premiums due thereon have been paid and neither General Partner
nor Partnership has received any notice of cancellation with
respect thereto. All such policies taken together provide
adequate coverage to insure the properties, business and
operations of General Partner and Partnership against such risks
and in such amounts as are prudent and customary. Neither
General Partner nor Partnership will as of the Closing Date have
any liability for premiums or for retrospective premium
adjustments for any period prior to the Closing Date, except as
set forth in SCHEDULE 4.14. SCHEDULE 4.14 also lists and
describes all known occurrences which may form the basis for a
claim by or on behalf of General Partner or Partnership under any
such policy; and General Partner and Partnership, have, to the
knowledge of Limited Partners and Shareholders timely given
notice to the appropriate insurer of any occurrence which may
form the basis for a claim by or on behalf of General Partner or
Partnership and have not waived (either intentionally or
inadvertently) their right to make the related claim under any
such policy.
4.15 CUSTOMERS.
Schedule 4.15 sets forth the names and addresses of
each customer of General Partner or Partnership that purchased
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$100,000 in goods or services from General Partner or Partnership
in any of the three prior years or that accounted for five
percent (5%) or more of General Partner's or Partnership's
revenues in any such year ("SIGNIFICANT CUSTOMERS"). To the
knowledge of General Partner, Limited Partners or Shareholders,
except as disclosed in SCHEDULE 4.15, (a) no Significant Customer
has advised General Partner or Partnership of its intention to
discontinue or substantially diminish or change its relationship
with General Partner or Partnership or the terms thereof, or (b)
no supplier of General Partner or Partnership has advised General
Partner or Partnership that it intends to increase prices or
charges for goods or services presently supplied.
4.16 CONTINGENCIES.
Except as set forth in SCHEDULE 4.16, there are no
Actions pending or, to the knowledge of Limited Partners or
Shareholders, threatened against, by or affecting General Partner
or Partnership or any of their assets, properties or businesses
in any Forum, nor to the knowledge of Limited Partners or
Shareholders do there exist any other "LOSS CONTINGENCIES" (as
such term is defined in Statement of Financial Standards No. 5 of
the Financial Accounting Standards Board), the eventual outcome
of which would have a materially adverse effect on General
Partner or Partnership, their assets, properties or businesses or
the operation of their businesses as currently conducted, or
which would prevent or materially impede the transactions
contemplated by this Agreement. Except as set forth in SCHEDULE
4.16, General Partner and Partnership have not been charged with,
nor, to the knowledge of Limited Partners or Shareholders, are
they under investigation with respect to any charge concerning
any violation of any provision of any Law. There are no
unsatisfied judgments against General Partner or Partnership, or
any Orders to which General Partner or Partnership, or any of the
assets, properties or businesses of General Partner or
Partnership, are subject.
4.17 TAXES
(a) General Partner and Partnership have filed all Tax
Returns that they were required to file. All such Tax Returns
were correct and complete in all respects. All Taxes owed by
General Partner and Partnership, respectively (whether or not
shown on any Tax Return), have been paid. Except as provided on
SCHEDULE 4.17(A), neither General Partner nor Partnership
currently is the beneficiary of any extension of time within
which to file any Tax Return. To the knowledge of General
Partner, Limited Partners, or Shareholders, no claim has ever
been made by an authority in a jurisdiction where either General
Partner or Partnership does not file Tax Returns that either
General Partner or Partnership is or may be subject to taxation
by that jurisdiction. There are no mortgages, pledges, liens,
encumbrances, charges, or other security interests, other than
liens for Taxes not yet due and payable, on any of the assets of
General Partner or Partnership that arose in connection with any
failure (or alleged failure) to pay any Tax.
(b) General Partner and Partnership have withheld and
paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other third
party.
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(c) There is no dispute or claim concerning any Tax
Liability for Taxes of General Partner or Partnership either (i)
claimed or raised by any authority in writing or (ii) as to which
any director and officer (and employees responsible for Tax
matters) of General Partner or Partnership has knowledge based
upon personal contact with any agent of such authority. SCHEDULE
4.17(C) lists all federal, state, local and foreign income Tax
Returns filed with respect to General Partner and Partnership for
taxable periods ended on or before the Closing Date that have
been audited or currently are the subject of audit. General
Partner and Partnership have delivered to Parent and Purchaser
correct and complete copies of all examination reports and
statements of deficiencies assessed against or agreed to by
either General Partner or Partnership since January 1 1990.
(d) General Partner and Partnership have not waived
any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency,
which waiver or extension is in effect as of the date of this
Agreement.
(e) General Partner has not filed a consent under Code
section 341(f) concerning collapsible corporations. General
Partner and Partnership, respectively, have not made any
payments, are obligated to make any payments, or are a party to
any agreement that under certain circumstances could obligate it
to make any payments that will not be deductible under Code
section 280G. General Partner and Partnership, respectively,
have not been a United States real property holding corporation
within the meaning of Code section 897(c)(2) during the
applicable period specified in Code section 897(c)(1)(A)(ii).
General Partner and Partnership have disclosed on their federal
income tax returns all positions taken therein that could give
rise to a substantial understatement of federal income Tax within
the meaning of Code section 6662.
(g) The unpaid Taxes of General Partner and
Partnership, respectively, (i) did not, as of the most recent
Fiscal Year-End, exceed the reserve for Tax Liability (rather
than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth on the face of
the most recent Balance Sheet (rather than in any notes thereto)
and (ii) do not exceed that reserve as adjusted for the passage
of time through the Closing Date in accordance with the past
custom and practice of General Partner and Partnership.
4.18 MEDICARE PARTICIPATION/ACCREDITATION.
General Partner and Partnership, respectively, have
never filed, and have never been required to file, Medicare cost
reports.
4.19 EMPLOYMENT AND LABOR MATTERS.
(a) SCHEDULE 4.19 lists all employees, consultants, or
other agents who on the date hereof perform services on a regular
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basis in the business operations of or for General Partner or
Partnership and whose annualized rate of compensation exceeds
$30,000 per year. Except as provided in SCHEDULE 4.19, no such
employee, consultant, or other agent has terminated his
employment or engagement, nor, to the knowledge of General
Partner, Partnership, Limited Partners or Shareholders, plans not
to continue employment with General Partner or Partnership after
the Closing Date if so offered by General Partner or Partnership.
SCHEDULE 4.19 also lists any employee, consultant, or other agent
of General Partner or Partnership who has a contract for
employment with or engagement by General Partner or Partnership
(whether written or oral) that is not terminable by General
Partner or Partnership in its discretion on not more than thirty
(30) days' notice without penalty or requirement of any severance
or similar payment by General Partner or Partnership.
(b) Except as disclosed in SCHEDULE 4.19, General
Partner and Partnership are not parties to any collective
bargaining agreement or agreement of any kind with any union or
labor organization, and no union or other collective bargaining
unit has been certified or recognized by General Partner or
Partnership as representing any employee, nor, to the knowledge
of Limited Partners and Shareholders, is a union or other
collective bargaining unit seeking recognition for such purpose.
There are no controversies pending, or to the knowledge of
Limited Partners and Shareholders threatened, between General
Partner or Partnership and any labor union or collective
bargaining unit representing, or seeking to represent, any of
their employees. Except as disclosed in SCHEDULE 4.19, to the
knowledge of General Partner, Limited Partners and Shareholders,
there has been no attempt by any union or other labor
organization to organize any of General Partner's or
Partnership's employees at any time in the past five years. To
the knowledge of Limited Partners and Shareholders, General
Partner and Partnership have complied with all applicable Laws
relating to wages, hours, health and safety, payment of social
security, withholding and other taxes, maintenance of worker's
compensation insurance, labor and employment relations, and
employment discrimination, including without limitation, the
Americans with Disabilities Act, Fair Labor Standards Act, Title
VII of the Civil Rights Act, and Age Discrimination in Employment
Act.
4.20 EMPLOYEE BENEFIT MATTERS.
(a) SCHEDULE 4.20 lists all plans, programs, and
similar agreements, commitments or arrangements maintained by
General Partner and Partnership that provide benefits or
compensation to, or for the benefit of, current or former
employees of General Partner or Partnership ("PLAN" or "PLANS")
and identifies each such Plan that is an "employee benefit plan"
as defined in Section 3(3) of ERISA ("ERISA PLAN"), including any
frozen or terminated "employee benefit plan" which covers or
covered any employee. Copies of all Plans and, to the extent
applicable, all related trust agreements and/or insurance
contracts, actuarial reports, and valuations for the most recent
three years, all summary plan descriptions, prospectuses, Annual
Report Form 5500s or similar forms (and attachments thereto)
filed by either General Partner or Partnership for the most
recent three years, all Internal Revenue Service determination
letters and filings, and any related documents requested by
Parent or Purchaser, including all amendments, modifications and
supplements thereto, have been delivered to Parent and Purchaser.
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(b) With respect to each Plan, except as set forth on
Schedule 4.20: (i) no litigation or administrative or other
proceeding is pending or threatened involving such Plan; (ii)
such Plan has been substantially administered and operated in
substantial compliance with, and has been amended to comply with,
all applicable laws, rules, and regulations, including, without
limitation, ERISA, the Internal Revenue Code, and the regulations
issued under ERISA and the Internal Revenue Code; (iii) General
Partner and Partnership and their predecessors, if any, have
made, and as of the Closing Date will have made or accrued, all
payments and contributions required, or reasonably expected to be
required, to be made under the provisions of such Plan or
required to be made under applicable laws, rules and regulations,
with respect to any period prior to the Closing Date, such
amounts to be determined using the ongoing actuarial and funding
assumptions of the Plan; (iv) such Plan is fully funded, and as
of the Closing Date will be fully funded, in an amount sufficient
to pay all liabilities accrued (including liabilities and
obligations for health care, life insurance and other benefits
after termination of employment) and claims incurred to the date
hereof, or the Unaudited Financial Statements contain adequate
reserves, or paid-up insurance has been provided, therefor; and
(v) such Plan has been substantially administered and operated
only in the ordinary and usual course and in accordance with its
terms, and there has not been in the four years prior hereto any
material increase in the liabilities of such Plan.
(c) No ERISA Plan is a "Multiemployer Plan" as defined
in Section 3(37) of ERISA. General Partner and Partnership are
not required to contribute to any Multiemployer Plan and do not
have any liability to any Multiemployer Benefit Plan.
(d) With respect to each ERISA Plan, except as set
forth on SCHEDULE 4.20, at no time has the General Partner,
Partnership, or any employee, agent or officer thereof, or, to
the knowledge of Limited Partners or Shareholders, any trustee,
administrator, fiduciary, agent or employee of any Plan, been
involved in a transaction which would constitute a "prohibited
transaction" within the meaning of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code, unless such
transaction is specifically permitted under Section 407 or 408 of
ERISA, Section 4975 of the Internal Revenue Code or a class or
administrative exception issued by the Department of Labor, nor
has any such person been involved in or caused such Plan to be
involved in a breach of fiduciary duty under Section 404 of
ERISA.
(e) Of the ERISA Plans, the "employee pension benefit
plans" within the meaning of Section 3(2) of ERISA (collectively,
the "EMPLOYEE PENSION BENEFIT PLANS") are separately identified
on Schedule 4.20. With respect to each Employee Pension Benefit
Plan, except as set forth on SCHEDULE 4.20: (i) such Employee
Pension Benefit Plans constitutes a qualified plan within the
meaning of Section 401(a) of the Internal Revenue Code and the
trust (if any) thereunder is exempt from federal income tax under
Section 501(a) of the Internal Revenue Code; (ii) all minimum
funding standards required by law with respect to the funding of
benefits payable or to be payable under such Employee Pension
Benefit Plan have been met; (iii) there is no "accumulated
funding deficiency" within the meaning of Internal Revenue Code
Section 412 under such Employee Pension Benefit Plan; and (iv) no
termination, partial termination or discontinuance of
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contributions has occurred without a determination by the IRS
that such action does not affect the tax-qualified status of such
plan.
(f) Neither General Partner nor Partnership maintains,
or within the past six years has maintained, an "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA that is
or was subject to Title IV of ERISA.
(g) Except as set forth in SCHEDULE 4.20, General
Partner, Partnership and their Plans do not have any obligation
to provide, or liability for, health care, life insurance or
other benefits after termination of employment, except for
retirement benefits under the Employee Pension Benefit Plans or
except as required by Section 601 of ERISA and Section 4980B of
the Internal Revenue Code.
(h) General Partner and Partnership have substantially
complied with the COBRA continuation coverage requirements of
Sections 601 through 608 of ERISA and Section 4980B of the
Internal Revenue Code. As of the Closing Date, notice of the
availability of continuation coverage will have been provided to
all persons entitled thereto, and all persons electing such
coverage have been or will be provided such coverage.
(i) Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will (i) result in any payment (including without
limitation, severance, unemployment compensation, golden
parachute or otherwise) becoming due to any director or current
or former employee of General Partner or Partnership under any
Plan or otherwise, (ii) increase any benefits otherwise payable
under any Plan, or (iii) result in any acceleration of the time
of payment or vesting of any such benefit, except as contemplated
by the covenants under PARAGRAPH 6.13.
(j) Neither General Partner nor Partnership is a
member of a "controlled group of corporations" or a "group of
business under common control," as defined in Code Sections
414(b) and 414(c) respectively, that includes any of the
following entities: Home Technology Healthcare, Inc., HTHF or
Healthfirst, Inc.
4.21 ENVIRONMENTAL MATTERS.
Except as set forth on SCHEDULE 4.21, to the knowledge
of General Partner, Limited Partners and Shareholders, General
Partner and Partnership have all permits, licenses, approvals and
operating authorizations, including without limitation, permits
for disposal of hazardous waste, that are required pursuant to
all Environmental Laws for (i) the conduct of their businesses as
they are now being conducted, and (ii) the ownership of their
properties and assets. SCHEDULE 4.21 contains a true, correct
and complete list of all permits, licenses, approvals and
operating authorizations pursuant to all Environmental Laws with
respect to the General Partner's and Partnership's businesses,
and true, correct and complete copies of such permits, licenses,
approvals and operating authorizations have been delivered to
Parent and Purchaser. Neither General Partner nor Partnership is
in violation of any such permits, licenses, approvals, or
operating authorizations.
4.22 ABSENCE OF CERTAIN BUSINESS PRACTICES.
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Neither General Partner or Partnership, nor any
officer, employee or agent of General Partner or Partnership, nor
any other person acting on their behalf, has, directly or
indirectly, within the past five years given or agreed to give
any gift or similar benefit to any customer, supplier,
Governmental employee or other Person who is or may be in a
position to help or hinder General Partner's or Partnership's
businesses (or assist General Partner or Partnership in
connection with any actual or proposed transaction) which (a)
might subject General Partner or Partnership to any damage or
penalty in any civil, criminal or other governmental Action or
which would have a material adverse effect on General Partner's
or Partnership's businesses or their assets, (b) if not given in
the past, might have had a material adverse effect on General
Partner's or Partnership's businesses, or (c) if not continued in
the future, might materially and adversely affect their assets,
General Partner's or Partnership's businesses or the operations,
cash flows or prospects of their businesses after the Closing, or
which might subject General Partner or Partnership to suit or
penalty in any private or governmental Action, other than, in
each instance, reasonable entertainment and similar expenses for
which General Partner and Partnership were properly entitled to
claim deductions under Code section 162.
4.23 GOVERNMENT REPORTS.
SCHEDULE 4.23 contains a true, correct and complete
list, and General Partner and Partnership have furnished or,
prior to the Closing Date, will furnish Parent and Purchaser with
true, correct and complete copies of, all material reports, if
any, filed during the past five years by General Partner or
Partnership with any Government, other than for income tax and
information returns.
4.24 AGREEMENTS AND TRANSACTIONS WITH RELATED PARTIES.
Except as set forth in SCHEDULE 4.24, Partnership,
Companies and General Partner are not parties to any contract,
agreement or lease with, or any other commitment to, (a) any
party owning, or formerly owning, beneficially or of record,
directly or indirectly, any of the Partnership Interests or
Shares, (b) any person related by blood, adoption or marriage to
any such party, (c) any director or officer of General Partner or
Partnership, (d) any Person in which any of the foregoing has,
directly or indirectly, at least a five percent (5%) beneficial
interest in the capital stock or other type of equity interest in
such Person, or (e) any partnership in which any such party is a
general partner (any or all of the foregoing being herein
referred to as "RELATED PARTIES"). Without limiting the
generality of the foregoing, except as disclosed in SCHEDULE
4.24, or as would be permitted pursuant to PARAGRAPH 6.4, (x) no
Related Party, directly or indirectly, owns or controls any
assets or properties which are or have been used in General
Partner's or Partnership's businesses, and (y) no Related Party,
directly or indirectly, engages in or has any significant
interest in or connection with any business (i) which is or which
within the last three years has been a competitor, customer or
supplier of General Partner or Partnership or has done business
with General Partner or Partnership, or (ii) which as of the date
hereof sells or distributes products or services which are
similar or related to General Partner's or Partnership's products
or services.
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4.25 ABSENCE OF CHANGES.
Except as expressly provided for in this Agreement or
as may be set forth in SCHEDULE 4.25, since the Reference Date:
(a) there has been no change in the businesses,
assets, liabilities, results of operations, financial condition
or prospects of General Partner or Partnership or in their
respective relationships with suppliers, customers, employees,
lessors or others, other than changes in the ordinary course of
business, none of which have been or will be, in the aggregate,
materially adverse to General Partner's or Partnership's business
as presently conducted or the condition (financial or otherwise)
of General Partner or Partnership, individually and not in the
aggregate;
(b) there has been no damage, destruction or loss to
the properties or businesses of General Partner or Partnership,
whether or not covered by insurance which will materially and
adversely impact General Partner's or Partnership's current
business;
(c) there has been no declaration, setting aside or
payment of any dividend or other distribution on or in respect of
the Shares or Partnership Interests, nor has there been any
direct or indirect redemption, retirement, purchase or other
acquisition of any of the Shares or Partnership Interests;
(d) there has been no (i) increase in the compensation
or in the rate of compensation or commissions payable or to
become payable by General Partner or Partnership to any director,
officer, manager, employee, consultant or other agent of General
Partner or Partnership earning $30,000 or more per annum, (ii)
general increase in the compensation or in the rate of
compensation payable or to become payable to hourly or salaried
personnel earning less than $30,000 per annum ("GENERAL INCREASE"
for the purpose hereof shall mean any increase generally
applicable to a class or group of personnel and shall not include
increases granted to individual personnel for merit, length of
service, change in position or responsibility or other reasons
applicable to specific employees and not generally applicable to
a class or group thereof), (iii) employee hired at a salary in
excess of $30,000 per annum, or (iv) payment of or commitment to
pay any bonus, profit share or other extraordinary compensation
to any employee, consultant or other agent;
(e) no indebtedness, liability or obligation (whether
absolute, accrued, contingent or otherwise) has been discharged
or satisfied, other than current liabilities reflected in the
Unaudited Financial Statements, and current liabilities incurred
since the date thereof in the ordinary course of business;
(f) there have been no amendments or other corporate
actions having the effect of an amendment increasing past or
future liabilities or contributions of any kind to any Plan;
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(g) General Partner and Partnership have not (i) paid
any judgment of more than $10,000 resulting from any Action or
(ii) made any payment to any party of more than $10,000 in
settlement of any Action;
(h) General Partner and Partnership have not
discontinued or determined to discontinue the provision or sale
of any products or services previously provided or sold by
General Partner and Partnership representing more than one
percent (1%) of either General Partner's or Partnership's annual
revenues, respectively, during the period covered by the
Unaudited Financial Statements;
(i) There has been no sale, transfer, lease or other
disposition of any asset or assets of General Partner or
Partnership, other than in the ordinary course of business; and
(j) Neither General Partner nor Partnership has not
acquired any capital stock or other equity securities of any
Person or otherwise made any loan or advance to or investment in
any Person.
4.26 NO DEFAULTS.
Each of the Contracts is valid, binding and
enforceable, subject to the provisions of any bankruptcy or
similar law and other laws affecting the rights of creditors
generally, in accordance with its terms and is in full force and
effect; to the knowledge of General Partner, Limited Partners and
Shareholders there are no existing defaults by General Partner or
Partnership thereunder; to the knowledge of General Partner,
Limited Partners an Shareholders, no default by General Partner
or Partnership has occurred (whether with or without notice,
lapse of time or the happening or occurrence of any event) which
would constitute an event of default thereunder.
4.27 FRAUD AND ABUSE.
To the knowledge of General Partner, Limited Partners
and Shareholders, persons who provide professional services under
agreements with any of General Partner or Partnership or their
Affiliates have not engaged in any activities which are
prohibited under federal Medicare and Medicaid statutes, 42
U.S.C. Sections 1320a-7, 1320a-7(a) and 1320a-7b, or the regulations
promulgated pursuant to such statutes or related state or local
statutes or regulations, or which are prohibited by rules of
professional conduct, including but not limited to the following:
(a) knowingly and willfully making or causing to be
made a false statement or representation of a material fact in
any application for any benefit or payment or for use in
determining rights to any benefit or payment;
(b) presenting or causing to be presented a claim for
reimbursement for services under Medicare, Medicaid, or any other
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state health care program that is for an item or service that is
known or should be known to be (i) not provided as claimed or
(ii) otherwise false or fraudulent;
(c) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right
to any benefit or payment on its own behalf or on behalf of
another, with intent to fraudulently secure such benefit or
payment;
(d) knowingly and willfully offering, paying,
soliciting or receiving any remuneration (including any kickback,
bribe, or rebate), directly or indirectly, overtly or covertly,
in cash or in kind (i) in return for referring an individual to a
person for the furnishing (or arranging for the furnishing) of
any item or service for which payment may be made in whole or in
part by Medicare, Medicaid, or any other state health care
program or (ii) in return for purchasing, leasing, or ordering
any good, facility, service, or item for which payment may be
made in whole or in part by Medicare or Medicaid or other state
health care program;
(e) knowingly making a payment, directly or
indirectly, to a physician as an inducement to reduce or limit
services to individuals who are under the direct care of the
physician and who are entitled to benefits under Medicare,
Medicaid, or any other state health care programs;
(f) providing to any person information that is known
or should be known to be false or misleading that could
reasonably be expected to influence the decision when to
discharge a hospital in-patient from the hospital;
(g) knowingly and willfully making or causing to be
made or inducing or seeking to induce the making of any false
statement or representation (or omit to state a fact required to
be stated therein or necessary to make the statements contained
therein not misleading) of a material fact with respect to (i)
the conditions or operations of a facility in order that the
facility may qualify for Medicare, Medicaid or any other state
health care program certification, or (ii) information required
to be provided under Section 1124A of the Social Security Act (42 U.S.C.
Section 1320a-3); or
(h) knowingly and willingly (i) charging for any
Medicaid service money or other consideration at a rate in excess
of the rate established by the state, or (ii) charging,
soliciting, accepting or receiving, in addition to amounts paid
by Medicaid, any gift money, donation or other consideration
(other than a charitable, religious or other philanthropic
contribution from an organization or from a person unrelated to
the patient) as a precondition of the General Partner or
Partnership precertifying, providing or continuing care for any
patient.
4.28 FULL DISCLOSURE.
No representation, warranty, covenant, agreement or
indemnity of General Partner, Partnership, Limited Partners or
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Shareholders contained in this Agreement or in any other
document, instrument, agreement, paper or other written statement
or certificate delivered by General Partner or Partnership
pursuant to this Agreement, or in connection with the
transactions contemplated herein, contains any untrue statement
of a material fact, as such facts existed as of the date such
document, instrument, agreement, paper or other written statement
or certificate or omits to state a material fact necessary to
make the statements contained herein or therein not misleading.
To the knowledge of General Partner, Partnership, Limited
Partners or Shareholders, there is no event, occurrence or action
which materially and adversely affects, or, with the passage of
time, the giving of notice or both, in the future may materially
and adversely affect, the business, operations, cash flows,
affairs, prospects, properties or assets or the condition
(financial or otherwise) of General Partner or Partnership, all
as presently exist, which has not been disclosed in this
Agreement, the schedules attached to this Agreement, or in the
documents, instruments, agreements, papers or other written
statements or certificates furnished to Parent or Purchaser for
use in connection with this Agreement and the transactions
contemplated hereby. Unless expressly stated otherwise as to a
particular Schedule, the information contained in any of the
Schedules to this Agreement shall be deemed to be part of and
qualify all representations and warranties contained in
ARTICLE 4, whether or not specifically referenced in such Schedules.
4.29 DISCLAIMER.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT TO
THE CONTRARY, THERE ARE NO REPRESENTATIONS OR WARRANTIES MADE BY
GENERAL PARTNER, LIMITED PARTNERS OR SHAREHOLDERS, EXPRESSED OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
As an inducement to Limited Partners and Shareholders
to enter into and perform this Agreement, Parent and Purchaser
hereby represent, warrant and covenant as follows:
5.1 ORGANIZATION.
Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware. Parent and Purchaser each have all
requisite corporate power and authority to carry on its
businesses as they are now being conducted. Parent and Purchaser
are duly authorized, licensed and qualified in all jurisdictions
where such authorization, licensure or qualification is necessary
in order to avoid a material adverse effect upon Parent,
Purchaser, or their businesses or their property or other assets.
5.2 AUTHORIZATION; NO INCONSISTENT AGREEMENTS.
Each of Parent and Purchaser has the full right,
corporate power and authority to make, execute and perform and
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comply with this Agreement and the transactions contemplated
hereby. This Agreement and all transactions required hereunder
to be performed by Parent or Purchaser have been or will be prior
to the Closing duly and validly authorized and approved by all
necessary corporate action on the part of Parent and Purchaser,
as appropriate. This Agreement has been duly and validly
executed and delivered on behalf of Parent and Purchaser by their
duly authorized officers, and this Agreement constitutes the
valid and legally binding obligation of Parent and Purchaser,
enforceable, subject to general equity principles, in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally. Neither the execution and
delivery of this Agreement nor the consummation of the
transactions contemplated hereby will constitute a violation or
breach of the certificate or articles of incorporation or the
bylaws of Parent or Purchaser, as appropriate, or any provision
of any contract or other instrument to which Parent or Purchaser
is a party or by which any of the assets of Parent or Purchaser
may be affected or secured, or any Law or Order to which Parent
or Purchaser is subject, or will result in the creation of any
Lien on any of the assets of Parent or Purchaser or acceleration
of any debt.
5.3 FULL DISCLOSURE.
No representation, warranty or covenant of Parent and
Purchaser contained in this Agreement, or in any other written
statement or certificate delivered by Parent and Purchaser
pursuant to this Agreement or in connection with the transactions
contemplated herein, contains or will contain any untrue
statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein
or therein not misleading.
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5.4 CONSENTS.
The execution and delivery of this Agreement by Parent
and Purchaser and the consummation of the transactions
contemplated by this Agreement (a) do not require the consent,
approval or action of, or any filing with or notice to, any
Person or Government, except as specified in Schedule 5.4 and (b)
do not require the consent or approval of any shareholders,
except such as have been obtained or will be obtained prior to
Closing.
5.5 NO VIOLATION; COMPLIANCE WITH LAWS.
Parent and Purchaser are not in default under or in
violation of their Certificates of Incorporation or By-laws. Parent
and Purchaser have complied in all material respects with all Laws
applicable to their businesses. To its knowledge, Parent and
Purchaser have not received any notification of any asserted
present or past failure to comply with any Laws.
6. ADDITIONAL AGREEMENTS
6.1 PARENT'S AND PURCHASER'S ACCESS AND INSPECTION.
Limited Partners and Shareholders shall cause General
Partner and Partnership to provide Parent, Purchaser and their
respective Representatives with full access during normal
business hours from and after the date hereof until the Closing
to all of the assets, properties and businesses of General
Partner and Partnership and the books and records of General
Partner and Partnership, and to furnish such information
concerning the business and affairs of General Partner and
Partnership, as may exist from time to time, as may be reasonably
requested, in each case for the purpose of making such continuing
investigation of General Partner and Partnership and their
businesses as Parent and Purchaser may reasonably desire. Limited
Partners and Shareholders shall cause General Partner and
Partnership to cause their Representatives to assist Parent and
Purchaser and their respective Representatives in such continuing
investigation and shall cause the Representatives of General
Partner and Partnership to be reasonably available to Parent,
Purchaser and their respective Representatives in connection with
their continuing investigation. Neither General Partner nor
Partnership shall provide any other Person with similar access or
information between the date hereof and any termination or
expiration of this Agreement. No investigation made heretofore
or hereafter by or on behalf of Parent or Purchaser shall limit
or affect in any way the representations, warranties, covenants,
agreements and indemnities of Limited Partners or Shareholders
hereunder, each of which shall survive any such investigation.
6.2 CONFIDENTIALITY.
(a) General Partner and Partnership, directly or
through their representatives have disclosed and shall disclose
certain information which is either non-public, confidential or
proprietary in nature (the "Information") relating to its
business operations. Parent and Purchaser shall accept and hold
such Information in strict confidence in accordance with the
provisions of this PARAGRAPH 6.2.
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(b) The information will be kept strictly confidential
and, without the prior consent of General Partner and
Partnership, neither Parent, Purchaser, its Affiliates or any of
their respective directors, officers, employees or agents shall:
(i) copy, reproduce, distribute or disclose the Information to
any third party (except as provided in this Paragraph 6.2), or
(ii) use the Information for any purpose other than the
consummation of the transactions contemplated by this Agreement.
Parent and Purchaser agree to transmit the Information only to
those individuals who are actively and directly participating in
the evaluation of any transaction involving General Partner and
Partnership and who are informed of this Agreement and are
instructed not to make use of the Information in a manner
inconsistent herewith.
(c) The Information shall not include information
which falls within any of the following categories: (i)
Information which has come or comes within the public domain, or
is generally known within the industry, through no fault or
action of Parent or Purchaser; (ii) Information which was known
by or rightfully available to Parent or Purchaser prior to its
disclosure hereunder; (iii) Information which becomes rightfully
available to Parent or Purchaser on a confidential basis from any
third party, the disclosure of which to Parent or Purchaser does
not violate any contractual or legal obligations said third party
has with respect to such Information; (iv) Information which is
provided to Parent or Purchaser after Parent or Purchaser has
notified General Partner or Partnership in writing that it no
longer desires to receive Information; or (v) Information which
is required to be disclosed by Law or Order of any Forum,
provided the Parent or Purchaser will provide General Partner and
Partnership at least five (5) days' prior written notice of such
disclosure, unless only a shorter period of notice is permitted
by such Law or Order.
(d) Except as may otherwise be expressly set forth in
this Agreement, General Partner and Partnership shall not be
deemed to have made any representations or warranties as to the
accuracy or completeness of the Information or any item thereof.
Except as specifically provided to the contrary in this
Agreement, neither General Partner, Partnership, Parent,
Purchaser nor any of their respective Affiliates shall have any
liability to Parent or Purchaser relating to or arising in any
manner from the use of the Information.
(e) If the transactions contemplated by this Agreement
do not close for any reason, Parent and Purchaser shall
immediately return or, if requested by General Partner or
Partnership, destroy the Information, including all notes,
copies, reproductions, summaries, analyses, or extracts thereof,
then in the possession of Parent, Purchaser or any of its
representatives, either furnished by General Partner or
Partnership hereunder or prepared by Parent or Purchaser or its
representatives, based on Information supplied by General Partner
or Partnership.
(f) Without prejudice to the rights and remedies
otherwise available, General Partner and Partnership shall be
entitled to equitable relief by way of injunction if Parent or
Purchaser (or any of its representatives) breaches or threatens
to breach any of the provisions of this PARAGRAPH 6.2.
6.3 Cooperation.
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The parties shall cooperate fully with each other and
with their respective Representatives in connection with any
steps required to be taken as part of their respective
obligations under this Agreement, and all parties shall use their
best commercial efforts to consummate the transactions
contemplated herein and to fulfill their obligations hereunder,
including, without limitation, causing to be fulfilled at the
earliest practical date the conditions precedent to the
obligations of the parties to consummate the transactions
contemplated hereby. Without the prior written consent of the
other parties, no party hereto may take any intentional action
that would cause the conditions precedent to the obligations of
the parties hereto to effect the transactions contemplated hereby
not to be fulfilled, including, without limitation, taking or
causing to be taken any action which would cause the
representations and warranties made by such party herein not to
be true, correct and complete as of the Closing.
6.4 COVENANT AGAINST COMPETITION AND CONFIDENTIALITY
OBLIGATION.
(a) Limited Partners and Shareholders (other than for
Xxxxxx X. Xxxxxxx III, an individual resident of the State of
Tennessee ("Xxxxxxx")), agree that, for a period of four years
beginning on the Closing Date, he or it shall not, without the
prior written consent of Parent, for their own account or jointly
or in combination with another, directly or indirectly, for or on
behalf of any Person, as principal, agent or otherwise: (i)
engage in the Restricted Business of the General Partner or
Partnership within the Service Areas, except as an employee or
otherwise for and on behalf of Parent, Purchaser, General Partner
or Partnership; (ii) solicit, call upon, or attempt to solicit
the patronage of any Person within the Service Areas and to whom
any of Parent, Purchaser or any of their respective Affiliates,
or General Partner, Partnership, Healthfirst, Inc.
("Healthfirst"), Computer Masters of Kentucky, Inc. ("CMK") and
Health Care Resources, Inc. ("HCR"; and together with Parent and
its Affiliates, General Partner, Partnership, Healthfirst, CMK
and HCR, the "Group"; and each Person included within the Group
being a "Member" of the Group) or those identified Persons which
the parties agree are active potential customers of a Member of
the Group provided services as of, or during the 12-month period
immediately preceding the Closing Date, for the purpose of
obtaining the patronage of any such Person for the purchase of
any products or services included in the Restricted Business,
except as an employee and on behalf of any Member of the Group;
or (iii) solicit or induce, or in any manner attempt to solicit
or induce, any individual who is employed by any Member of the
Group to leave such employment, whether or not such employment is
pursuant to a written contract with any member of the Group. For
purposes hereof, "RESTRICTED BUSINESS" means the Business of
providing home health care management, billing and data
processing, information systems, and consulting services relating
to any of the foregoing. "Home health care" means home nursing
and related services, hospice services, infusion therapy
services, respiratory therapy services and home medical
equipment. "SERVICE AREA" means the area within a 50-mile radius
of the parent office location of any customer of the Restricted
Business, or, with respect to the corporate clients or customers
listed on SCHEDULE 6.4, such area with respect to any other
parent office location of any other operating unit of such client
or customer that is engaged in providing home health care.
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(b) Notwithstanding anything herein to the contrary,
(i) it shall not be a breach of the covenants contained in this
Paragraph 6.4 for Limited Partners and Shareholders, in the
aggregate, to own, of record or beneficially, not more than two
percent (2.0%) of the capital stock or other equity interest of
any Person whose shares or equity interests are publicly traded,
and (ii) the covenants described in this Paragraph 6.4 shall
apply only if the transactions contemplated by this Agreement are
consummated.
(c) Anything in this Agreement to the contrary
notwithstanding, it shall not be a breach of the covenants under
this PARAGRAPH 6.4 for Continental Illinois Venture Corporation,
a Delaware corporation, Home Technology Health Care, Inc., a
Delaware corporation ("HTHC") or any successor to HTHC, to own
and operate home health agencies and related businesses directly
or through Affiliates, provided such businesses do not offer to
establish or manage any home health agency for any customer or
client of General Partner or Partnership, as of the date hereof
or the Closing Date, during the four-year period referred to in
PARAGRAPH 6.4(A).
(d) Xxxxxxx agrees that he shall not, without the
prior written consent of Parent, for his own account or jointly
or in combination with another, directly or indirectly, for or on
behalf of any Person, as principal, agent or otherwise: (i) for a
period of four years beginning on the Closing Date, solicit or
attempt to solicit any Person identified on Annex 1 attached
hereto, which constitute current customers of a member of the
Group or those identified Persons which the parties agree are
active potential customers of a Member of the Group for the
purpose of obtaining the patronage of any such Person for the
purchase of any products or services included in the Restricted
Business; (ii) for a period of two years beginning on the Closing
Date, solicit or attempt to solicit Hospice Preferred Choice or
any of its Affiliates for the purpose of obtaining the patronage
of any such Person for the purchase of any products or services
included in the Restricted Business; (iii) for a period of one
year beginning on the Closing Date, solicit or attempt to solicit
Columbia\HCA Healthcare Corporation, Option Care, Inc., Health
Management Associates, Community Health Systems or Xxxxxxxxxx
Healthcare Corporation, or any of their respective Affiliates
Group for the purpose of obtaining the patronage of any such
Person for the purchase of any products or services included in
the Restricted Business; or (iv) for a period of four years
beginning on the Closing Date, solicit or induce, or in any
manner attempt to solicit or induce, any individual who is
employed by any Member of the Group to leave such employment,
whether or not such employment is pursuant to a written contract
with any member of the Group.
(e) As a consequence of their respective ownership,
directly or indirectly, of equity interests in General Partner,
Partnership, Healthfirst, CMK and HCR (collectively, the "HFI
Companies"), as a consequence of their employment (in the case of
those individuals signatory to this Agreement who are or have
been employed by one or more of the HFI Companies), and as a
consequence of their current or past service on the Board of
Directors of one or more of the HFI Companies (in the case of
those individuals signatory to this Agreement who are or have so
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served), the Limited Partners and the Shareholders have learned
and had access to important proprietary information related to
the provision of home health care management, billing and data
processing, information systems, and related consulting services
by the HFI Companies. This important proprietary information
includes, but is not limited to, customer contacts, pricing
structures and methodologies, contract renewal dates and terms,
operating procedures and protocols, computer software system
architecture, communications and transmission methodologies,
management services, employee evaluations and reviews, salaries,
benefits, and all other manner of proprietary customer,
operations, financial, and business information that was
developed by some or all of the HFI Companies. This important
proprietary information together with relationships developed
with customers and employees, could be used to compete unfairly
with the HFI Companies, and the ability of the HFI Companies to
sell their products and services on a competitive basis depends,
in part, on its proprietary information and customer
relationships. Parent and Purchaser would not have entered into
the transactions contemplated by this Agreement and the
Acquisition Agreement if they believed that the important
proprietary information and customer relationships of the HFI
Companies would be used in competition with any Member of the
Group. In consideration of the Share Purchase Price and the LP
Purchase Price payable to the Shareholders and the Limited
Partners hereunder and the purchase price payable under and
pursuant to the Acquisition Agreement, and other valuable
consideration, the receipt and sufficiency of which are
acknowledged, each of the Shareholders and Limited Partners
agrees that he or it shall use his or its best efforts to protect
Proprietary Information and that he or it will not use, except in
connection with work for any Member of the Group, and will not
disclose after the Closing Date, the Proprietary Information of
the HFI Companies. For purposes of this Paragraph 6.4(e),
"Proprietary Information" means information relating to the
customers, operations, finances and business of the HFI Companies
that derives value from not being generally known to other
Persons, including, but not limited to, customer contacts,
pricing structures and methodologies, contract renewal dates and
terms, operating procedures and protocols, computer software
system architecture, communications and transmission
methodologies, management services, employee evaluations and
reviews, salaries, benefits, and all other manner of proprietary
customer, operations, financial, and business information,
technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes,
financial data, or lists of actual or potential customers or
suppliers, whether or not reduced to writing. Proprietary
Information includes information disclosed to any of the HFI
Companies by third parties that any such HFI Company is obligated
to maintain as confidential. Proprietary Information subject to
this Agreement may include information that is not a trade secret
under applicable law, but information not constituting a trade
secret only shall be treated as Proprietary Information under
this Agreement for a two year period after the Closing Date.
Expenses.
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6.5 Expenses
All expenses incurred by Parent and Purchaser in
connection with the authorization, preparation, execution and
performance of this Agreement and the transactions contemplated
hereby or any transactions undertaken by any of them
participating in the transaction contemplated hereby, including,
without limitation, all fees and expenses of their
Representatives, shall be paid by Parent. All expenses incurred
by any or all of General Partner, Partnership, Limited Partners
or Shareholders in connection with the authorization,
preparation, execution and performance of this Agreement and the
transactions contemplated hereby or any transaction undertaken by
any of them prefatory to the transactions contemplated hereby,
including, without limitation, all fees and expenses of their
respective Representatives and any Representatives acting for
Limited Partners or Shareholders, shall be paid by Limited
Partners and Shareholders, but shall not be paid from or out of
any of the assets of General Partner or Partnership.
6.6 BROKERS.
Limited Partners and Shareholders, jointly and
severally, hereby represent and warrant to Parent and Purchaser
that no broker or finder, other than X.X. Xxxxxxxx (the fees and
expenses of which shall be borne by the Limited Partners and
Shareholders), has acted on behalf of General Partner,
Partnership, Limited Partners or Shareholders in connection with
this Agreement or the transactions contemplated herein, and each
of them agrees, jointly and severally, to indemnify Parent,
Purchaser and their respective Affiliates from and against any
and all claims or demands for commissions or other compensation
by any broker, finder, or similar agent claiming to have been
employed by or on behalf of General Partner or Partnership.
Parent and Purchaser hereby represent and warrant onto General
Partner and Partnership that no broker or finder has acted on its
behalf in connection with this Agreement or the transactions
contemplated herein. Each of Parent and Purchaser represents and
warrants to Limited Partners and Shareholders that no broker or
finder has acted on behalf of Parent or Purchaser, and each of
them agrees to indemnify Limited Partners and Shareholders and
hold them harmless from and against any and all claims or demands
for commissions or other compensation by any broker, finder or
similar agent claiming to have been employed by or on behalf of
Parent or Purchaser.
6.7 OTHER COOPERATION.
Limited Partners and Shareholders, jointly and
severally, covenant and agree that they shall cooperate fully and
in good faith, and shall use their reasonable best efforts to
cause any and all accountants, legal counsel, actuaries and other
professional advisors employed or engaged at any time prior to
the Closing Date to cooperate fully and in good faith, with
Parent, at Parent's expense, in connection with the preparation
and filing of any and all documents, agreements, instruments,
certificates, consents, registration statements and any other
reports or papers required or permitted to be filed, registered
or submitted in accordance with any Law, including, without
limitation, the federal securities Laws. Parent agrees to
indemnify General Partner, Partnership, Limited Partners and
Shareholders and all such accountants, legal counsel, actuaries
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and other professionals, if and to the extent customary in
connection with such matters, with respect to any claims, demands
or liabilities arising out of or related to any such filings,
registrations or submissions by Parent.
6.8 PUBLICITY.
All press releases and other public announcements prior
to the Closing Date (and the initial press release or
announcement by any party immediately following the Closing),
respecting the subject matter hereof shall be made only with the
mutual agreement of Parent and Limited Partners, none of which
shall unreasonably withhold its agreement.
6.9 INTERIM FINANCIAL STATEMENTS.
Limited Partners and Shareholders shall deliver to
Parent within seven Business Days of the conclusion of any
calendar month from the date hereof through and including the
Closing Date, copies of the unaudited balance sheets of General
Partner and Partnership for the calendar month then ended (which
shall include year-to-date figures), and the related unaudited
statements of operations, retained earnings and cash flows for
such calendar month (which shall include year-to-date figures)
(the "INTERIM STATEMENTS"). The Interim Statements will be true,
correct and complete in all material respects, will be prepared
in accordance with GAAP on a basis consistent with the Unaudited
Financial Statements of General Partner and Partnership and will
fairly present the financial condition of General Partner and
Partnership as at the date thereof and the results of their
operations and cash flows for the period then ended.
6.10 UPDATE OF INFORMATION.
All documents, agreements, instruments, statements and
other writings furnished to Parent, Purchaser or any of their
Representatives pursuant to this Agreement are and shall be true,
correct and complete as of the date furnished, and any and all
amendments and supplements of the same have been or will be
delivered to Parent or Purchaser (or to their Representatives if
and as requested) in a timely and expeditious manner prior to the
Closing. At all times prior to and including the Closing Date,
Limited Partners and Shareholders shall cause General Partner and
Partnership to promptly provide Parent and Purchaser (and to
their Representatives if and as requested) with written
notification of any event, occurrence or other information of any
kind whatsoever which materially affects, or may materially
affect, the continued truth, correctness or completeness of any
representation, warranty, covenant or agreement made in this
Agreement or any document, agreement, instrument, certificate or
writing furnished to Parent or Purchaser pursuant to or in
connection with this Agreement, and each such written
notification shall specifically identify any and all of the
representations, warranties, covenants and agreements affected by
the fact, event, occurrence or information that necessitated the
giving of such notice. No such notification or other disclosure
shall be deemed to amend or supplement this Agreement, the
Schedules hereto, or any representation, warranty, covenant,
agreement or indemnity or any other document, agreement,
instrument, certificate or writing furnished to Parent and
Purchaser pursuant to or in connection with this Agreement.
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6.11 CERTAIN GOVERNMENTAL FILINGS.
The parties will make, or cause to be made, all filings
and submissions required to be made to any Government in
connection with the transactions contemplated by this Agreement,
including as may be required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended. Each of the parties will
furnish to the other parties such necessary information and
reasonable assistance as such other party may reasonably request
in connection with their preparation of necessary filings or
submissions to any governmental or other regulatory agency.
6.12 TAX MATTERS.
(a) Parent shall prepare or cause to be prepared and
file or cause to be filed all Tax Returns for General Partner and
Partnership for all periods ending on or prior to the Closing
Date which are filed after the Closing Date, other than Tax
Returns of the Partnership the taxable income or loss or which is
passed through to the Partners. Parent shall permit Shareholders
and Limited Partners to review and comment on each such Tax
Return described in the preceding sentence prior to filing.
Shareholders and Limited Partners shall reimburse Parent for
Taxes of General Partner and Partnership with respect to such
periods within fifteen (15) days after payment by Parent or
General Partner or Partnership of such Taxes to the extent such
Taxes are not reflected in General Partner's or Partnership's
reserve for Tax Liability (rather than any reserve for deferred
Taxes established to reflect timing differences between book and
Tax income) as of the Closing Date.
(b) Parent shall prepare or cause to be prepared and
file or cause to be filed any Tax Returns of General Partner and
Partnership for Tax periods which begin before the Closing Date
and end after the Closing Date. Shareholders and Limited
Partners shall pay to Parent within fifteen (15) days after the
date on which Taxes are paid with respect to such periods an
amount equal to the portion of such Taxes which relates to the
portion of such taxable period ending on the Closing Date to the
extend such Taxes are not reflected in General Partner's or
Partnership's reserve for Liability for Taxes (rather than any
reserve for deferred Taxes established to reflect timing
differences between book and Tax income) as of the Closing Date.
For purposes of this Paragraph 6.12(b), in the case of any Taxes
that are imposed on a periodic basis and are payable for a
taxable period that includes (but does not end on) the Closing
Date, the portion of such Tax which relates to the portion of
such taxable period ending on the Closing Date shall (i) in the
case of any Taxes other than Taxes based upon or related to
income or receipts, be deemed to be in the amount of such Tax for
the entire taxable period multiplied by a fraction the numerator
of which is the number of days in the taxable period ending on
the Closing Date and the denominator of which is the number of
days in the entire taxable period, and (ii) in the case of any
Tax based upon or related to income or receipt be deemed equal to
the amount which would be payable if the relevant taxable period
ended on the Closing Date. Any credits relating to a taxable
period that begins before and ends after the Closing Date shall
be taken into account as though the relevant taxable period ended
on the Closing Date. All determinations necessary to give effect
to the foregoing allocation shall be made in a manner consistent
with prior practice of General Partner and Partnership.
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(c) Parent, General Partner, Partnership, Shareholders
and Limited Partners shall cooperate on all matters relating to
Taxes as follows:
(i) Parent, General Partner, Partnership, Shareholders
and Limited Partners shall cooperate fully, as and to the extent
reasonably requested by another party, in connection with the
filing of Tax Returns pursuant to this PARAGRAPH 6.12 and any
audit, litigation, or other proceeding with respect to Taxes.
Such cooperation shall include the retention and (upon any other
party's request) the provision of records and information which
are reasonably relevant to any such audit, litigation, or other
proceeding and making employees available on a mutually
convenient basis to provide additional information and
explanation of any material provided hereunder. Parent, General
Partner, and Partnership agree (A) to retain all books and
records with respect to Tax matters pertinent to General Partner
and Parent relating to any taxable period beginning before the
Closing Date until the expiration of the statute of limitation
(and any extension thereof) of the respective taxable periods,
and to abide by all record retention agreements entered into with
any taxing authority, and (B) to give all other parties
reasonable written notice prior to transferring, destroying, or
discarding any such books and records and, if another party so
requests, General Partner and Partnership shall allow such other
party to take possession of such books and records.
(ii) Parent, General Partner, Partnership, Shareholders
and Limited Partners further agree, upon request, to use their
best efforts to obtain any certificate or other document from any
governmental authority or any other person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed
(including, but not limited to, with respect to the transactions
contemplated hereby).
(iii) Parent, General Partner, and Partnership
further agree, upon request, to provide any other party with all
information that such other party may be required to report
pursuant to Code section 6043 and the Regulations promulgated
thereunder.
(e) All transfer, documentary, sales, use, stamp,
registration, and other such Taxes and fees (including any
penalties and interest) incurred in connection with this
Agreement, shall be paid by Shareholders and Limited Partners
when due, and General Partner and Partnership will, at its own
expense, file all necessary Tax Returns and other documentation
with respect to all such transfer, documentary, sales, use,
stamp, registration, and other taxes and fees, and, if required
by applicable law, Parent will, and will cause its affiliates to,
join in the execution of any such Tax Returns and other
documentation.
(f) Shareholders and Limited Partners will include the
income of Partnership (including any deferred income triggered
into income by Regulations section 1.1502-13 and Regulations
section 1.1502-14 and any excess loss accounts taken into income
under Regulations section 1.1502-19) on each Limited
Shareholder's and each Limited Partner's Tax Returns for all
periods through the Closing Date and pay any income attributable
to such income.
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(g) Shareholders and Limited Partners will not elect
to retain any net operating loss carryovers or capital loss
carryovers of General Partner and Partnership under Regulation
section 1.1502-20(g).
6.13 CERTAIN EMPLOYEE BENEFIT PLAN COVENANTS.
(a) THE PROFIT SHARING AND PAYROLL SAVINGS PLAN AND
TRUST OF HFI MANAGEMENT, INC. General Partner maintains the
Profit Sharing and Payroll Savings Plan and Trust of HFI
Management, Inc. (the "HFI PLAN") in which employees of General
Partner and Partnership participate. Prior to the Closing Date,
General Partner will take such action as is required to terminate
the HFI Plan. With respect to each employee of General Partner
and Partnership as of the Closing Date, Purchaser will give
credit for purposes of eligibility and vesting under the
Housecall Medical Resources, Inc. Retirement Savings Plan for all
service with General Partner, Partnership or any Affiliate
thereof.
(b) MEDICAL PLAN AND SECTION 125 CAFETERIA PLAN.
Healthfirst, Inc., a Delaware corporation, maintains a medical
insurance plan (the "HEALTHFIRST HEALTH PLAN") and a Section 125
cafeteria plan (the "HEALTHFIRST 125 PLAN") in which the
employees of General Partner and Partnership participate.
(i) Shareholders, Limited Partners and Purchaser agree
that effective as of the Closing Date, Purchaser shall
assume the obligations and shall continue the Healthfirst
Health Plan for the benefit of those employees of General
Partner and Partnership who become employed by an Affiliate
of Purchaser as of the Closing Date (the "TRANSFERRED
EMPLOYEES"). Nothing contained in this Agreement limits or
restricts Purchaser's right from and after the Closing Date
to amend, modify or terminate the Housecall Medical Plan in
such manner as Purchaser deems appropriate.
(ii) Shareholders, Limited Partners and Purchaser agree
that effective as of the Closing Date, Purchaser shall
assume the obligations under and shall continue the
Healthfirst 125 Plan for the benefit of the Transferred
Employees. Nothing contained in this Agreement limits or
restricts Purchaser's right from and after the Closing Date
to amend, modify or terminate the Healthfirst 125 Plan in
such manner as Purchaser deems appropriate.
(iii) Shareholders and Limited Partners agree to
cooperate and assist Purchaser in the transition of the
Healthfirst Health Plan and the Healthfirst 125 Plan and to
provide Purchaser requested information needed by Purchaser
to continue such plans.
(iv) Purchaser and Shareholders and Limited Partners
agree that following the Closing Date, Purchaser shall
retain the obligation to provide COBRA continuation coverage
with respect to those individuals who, as of the Closing
Date, have elected or are eligible to elect COBRA
continuation coverage (pursuant to Section 601 of ERISA and
Section 4980B of the Code) under the Healthfirst Health
Plan.
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(v) Purchaser and Shareholders and Limited Partners
agree that following the Closing Date, Purchaser shall
retain the obligation to comply with the certification
requirements under the Health Insurance Portability and
Accountability Act of 1996 with respect to all individuals
covered under the Healthfirst Health Plan who lost coverage
at any time prior to the Closing Date.
6.14 CERTAIN LIABILITIES.
Shareholders and Limited Partners shall indemnify and
hold harmless Purchaser Indemnitees from and against and in
respect of any and all loss, damage, liability, claim, cost and
expense, including reasonable attorneys' fees and amounts paid in
settlement relating to or arising out of (a) all legal,
accounting and other professional advisor fees, disbursements and
expenses incurred by General Partner, Partnership, Shareholders
or Limited Partners arising from or relating to the transactions
contemplated by this Agreement or the Acquisition Agreement (for
which Purchaser shall be promptly reimbursed upon written request
to Shareholders and Limited Partners), (b) (x) prior to the date
of the settlement agreement entered into by and between
Greenville Hospital System and Healthfirst, Inc., dated March 27,
1997, any use by General Partner or Partnership of the tradename
and service xxxx "Healthfirst", if asserted by Greenville
Hospital System or any of its subsidiaries or affiliates, and (y)
after the date of such settlement agreement, any use by General
Partner or Partnership not inconsistent with the terms of such
settlement agreement, if asserted by Greenville Hospital System
or any of its subsidiaries or affiliates, (c) all costs, expenses
and penalties, other than for filing fees not in excess of the
amount thereof assuming timely filing and CT Corporation Service
Fees and expenses (except to the extent that CT Corporation
Service has advanced such penalties), associated with qualifying
any of Companies in any jurisdiction in which they should have
been qualified but were not so qualified.
6.15 CERTAIN AGREEMENTS BY HOUSECALL.
Housecall shall use its reasonable best efforts, which
shall not include any obligation to accelerate the indebtedness
or lease obligations described below or post any form of
collateral or security, to cause Parent to be released from any
further obligations under and pursuant to (i) that certain Master
Lease Agreement, dated February 15, 1996, among SunShore Leasing
Corp., Parent and HFI and (ii) that certain Lease Agreement,
dated June 6, 1996, among Colonial Pacific Leasing, Parent and
HFI. Housecall shall indemnify and hold harmless Parent from and
against any claim, loss, damage, liability or expense related to
the foregoing lease agreements arising from the use, possession
or operation of any of the equipment and other items of tangible
personal property the subject of such leases.
7. CONDUCT OF BUSINESSES PENDING CLOSING
Limited Partners and Shareholders covenant and agree
that, except as may otherwise be provided herein, without the
prior written consent of Parent, between the date hereof and the
Closing Date:
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7.1 BUSINESS IN THE ORDINARY COURSE.
Limited Partners and Shareholders shall cause General
Partner's and Partnership's businesses to be conducted only in
the ordinary and usual course and consistent with prior
practices, without the creation of any additional indebtedness
for borrowed money. Without limiting the generality of the
foregoing:
(a) Except as provided in PARAGRAPH 7.1(B), General
Partner and Partnership shall not enter into any contracts,
agreements or other arrangements in connection with General
Partner's and Partnership's businesses, and except as otherwise
expressly provided herein, General Partner and Partnership will
not enter into any contract nor effect any transaction with any
Related Party.
(b) General Partner and Partnership shall not enter
into any contracts, agreements or other arrangements to provide,
sell, distribute or supply goods or services to any customer or
any third party except in the ordinary course of General
Partner's and Partnership's businesses at prices and on terms
consistent with the prior operating practices of General Partner
and Partnership.
(c) All contracts or commitments of General Partner
and Partnership for the purchase of services and supplies shall
be entered into only in the ordinary and regular course of
business to enable General Partner and Partnership to conduct
their normal business operations.
(d) General Partner and Partnership shall maintain,
preserve and protect all of their assets in good condition,
except for ordinary wear and tear and damage by fire or other
casualty; and General Partner and Partnership shall maintain in
full force and effect all insurance policies referred to in
PARAGRAPH 4.14 or other insurance equivalent thereto.
(e) The books, records and accounts of General Partner
and Partnership shall be maintained in the usual, regular and
ordinary course of business on a basis consistent with prior
practices and in accordance with GAAP.
(f) General Partner and Partnership shall use their
reasonable best efforts to preserve their businesses, to keep
available the services of their present employees, to preserve
the goodwill of their suppliers, customers and others having
business relations with General Partner and Partnership, and if
so requested by Parent, to assist Parent in retaining the
services of key employees and agents of General Partner and
Partnership after the Closing Date on terms satisfactory to
Parent.
7.2 NO MATERIAL CHANGES.
No action shall be taken by Limited Partners or
Shareholders which shall materially alter the organization,
capitalization, or financial structure, practices or operations
of General Partner's or Partnership's business. Without limiting
the generality of the foregoing:
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(a) No change shall be made in the Partnership
Agreement, Certificate of Limited Partnership, Certificate of
Incorporation or By-Laws of Partnership or General Partner, as
appropriate.
(b) No change shall be made in the authorized or
issued capital stock of General Partner, or in the interests
(limited or general) of Partnership.
(c) Neither Limited Partners nor Shareholders shall
issue or grant any right or option to purchase or otherwise
acquire any Partnership Interest, capital stock or other
securities of Partnership or General Partner.
(d) No dividend or other distribution or payment shall
be declared or made with respect to any capital stock of General
Partner, and General Partner shall not, directly or indirectly,
redeem, purchase or otherwise acquire any capital stock.
(e) Neither General Partner nor Partnership shall
liquidate or voluntarily declare bankruptcy or seek the
appointment of a receiver, trustee or custodian.
7.3 COMPENSATION.
No increase shall be made in the compensation payable
or to become payable to any director, officer, employee or agent
of General Partner or Partnership and no bonus or profit-share
payment or other arrangement (whether current or deferred) shall
be made to or with any such director, officer, employee or agent.
No officer, director or employee shall be hired, and no
consultant or agent shall be retained, by General Partner or
Partnership at a salary or fee in excess of $30,000 per annum.
7.4 EMPLOYEE BENEFIT PLANS. Limited Partners and Shareholders
shall ensure that:
(a) General Partner and Partnership shall not cause or
permit any ERISA Plan to be involved in any transaction which
constitutes a "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Internal Revenue
Code, unless such transaction is specifically permitted under
Sections 407 or 408 of ERISA, Section 4975 of the Internal
Revenue Code or a class or administrative exemption issued by the
Department of Labor; Company shall not cause or permit any ERISA
Plan or fiduciary of such ERISA Plan to be involved in a breach
of fiduciary duty under Section 404 of ERISA; and General Partner
and Partnership shall timely make all filings, returns and
reports, and timely give all notices, which are required under
ERISA or the Internal Revenue Code.
(b) With respect to the Employee Benefit Pension
Plans, General Partner and Partnership shall take such actions,
and refrain from such actions, as are necessary to maintain the
qualification of each such Employee Pension Benefit Plan under
Section 401(a) of ERISA, and the exemption of the trust (if any)
maintained for each such Employee Pension Benefit Plan under
Internal Revenue Code Section 501(a).
(c) General Partner and Partnership shall timely make
all contributions and other payments to its Plans which it is
obligated to make as of the date hereof. Other than
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contributions or payments declared or obligated to be paid to the
Plans as of the date hereof, no contribution shall be declared
for or paid to any Plan including, without limitation, the
Employee Pension Benefit Plans.
(d) No amendment or change to the provisions of any
Employee Pension Benefit Plan shall be made or adopted prior to
the Closing Date.
8. CONDITIONS TO OBLIGATIONS OF PARENT AND PURCHASER
The obligations of Parent and Purchaser to consummate
the transactions contemplated hereby are subject to the
fulfillment and satisfaction of each and every of the following
conditions on or prior to the Closing, any or all of which may be
waived in writing in whole or in part by Parent:
8.1 PROCEEDINGS AND DOCUMENTS SATISFACTORY.
All proceedings taken in connection with the
consummation of the transactions contemplated herein and all
documents and papers reasonably required in connection therewith
shall be reasonably satisfactory to Parent and its counsel, and
Parent and its counsel shall have timely received copies of such
documents and papers, all in form and substance reasonably
satisfactory to Parent and its counsel, as reasonably requested
by Parent or its counsel in connection therewith.
8.2 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of General Partner
and Partnership contained in this Agreement shall be true and
correct as of the date when made and shall be true and correct at
and as of the Closing Date, to the same extent and with the same
force and effect as if made as of such date, except as affected
by the transactions contemplated by this Agreement or the Share
Purchase Agreement.
8.3 COMPLIANCE WITH AGREEMENTS AND CONDITIONS.
Limited Partners and Shareholders shall have performed
and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by
General Partner and Partnership prior to or on the Closing Date.
8.4 CERTIFICATES.
General partner, Limited Partners and Shareholders
shall have delivered to Parent and Purchaser a certificate
executed by General Partner, Limited Partners and Shareholders,
dated the Closing Date, certifying in such detail as Parent may
reasonably request as to (a) the fulfillment and satisfaction of
the conditions specified in PARAGRAPHS 8.2 AND 8.3, and (b) the
absence of any material adverse change in Partnership's or
General Partner's businesses prior to the Closing.
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8.5 RESOLUTIONS.
Parent shall have received duly adopted resolutions of
the partners of the Partnership, the Board of Directors of
General Partner, and Shareholders, certified by an Secretary or
Assistant Secretary, as appropriate, dated the Closing Date,
authorizing and approving the execution and delivery of this
Agreement, or approving the transactions contemplated hereby, and
all other action necessary to enable General Partner,
Partnership, Limited Partners and Shareholders to comply with the
terms hereof.
8.6 OPINION OF COUNSEL.
Purchaser shall have received from Xxxxxx & XxXxxxxx or
Boult, Cummings, Xxxxxxx & Xxxxx, PLC, legal counsel for General
Partner, Partnership, Limited Partners and Shareholders,
respectively, opinions, dated as of the date of Closing, in
substantially the form set forth as EXHIBIT A.
8.7 CONSENTS.
Any and all such consents, authorizations and approvals
of all Persons and Governments as are necessary for the
consummation of the transactions contemplated by this Agreement
and all notices required to be given to any Government shall have
been given and all applicable waiting periods shall have expired.
8.8 Intentionally Left Blank.
8.9 INTERIM FINANCIAL STATEMENTS.
Limited Partners and Shareholders shall deliver to
Parent and Purchaser any Interim Statements within the prescribed
time and the same shall be acceptable to Parent and Purchaser.
8.10 BANK APPROVALS.
Parent shall have received from its lenders any
required approval of the transactions contemplated by and
provided for in this Agreement.
8.11 NO INCONSISTENT REQUIREMENTS.
No Action shall have been commenced by any Government
or Person (excluding Parent or any Affiliate of Parent or any
Person acting at the direction or request of Parent) seeking to
enjoin or prohibit the transactions contemplated hereby.
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8.12 SECURITIES ACQUISITION AGREEMENT.
As a condition to issuing any shares of Parent Stock to
Xxxxxxxx as LP Purchase Price, Parent shall have received from
Xxxxxxxx a duly executed Securities Acquisition Agreement in
substantially the form set forth as Exhibit B attached hereto.
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8.13 CONSUMMATION OF OTHER TRANSACTIONS.
The transactions contemplated by that certain Share
Purchase Agreement, of even date herewith, shall have been
consummated.
8.14 CERTAIN MANAGEMENT CONTRACTS.
General Partner and Partnership shall have delivered to
Purchaser true, correct and complete copies of addenda to or
correspondence regarding (i) that certain Management and Computer
Services Agreement, dated March 1, 1997, as amended through and
including the date hereof, between HFI Home Care Management, L.P.
and Hospice Preferred Choice, Inc., relating to San Xxxx, Santa
Xxxx, Xxxxxx and Atlanta, and (ii) that certain Consulting and
Computer Services Agreement, dated January 1, 1997, as amended
through and including the date hereof, between HFI Home Care
Management, L.P. and Option Care, Inc., relating to Cincinnati,
Bellingham, Washington, hospice care and private duty nursing in
Columbia, Missouri.
8.15 MISCELLANEOUS.
Purchaser and its counsel shall have received such
other certifications and documents from Companies, Seller and
Parent as Purchaser and its counsel may reasonably request.
9. CONDITIONS TO OBLIGATIONS OF GENERAL PARTNER, PARTNERSHIP
LIMITED PARTNERS AND SHAREHOLDERS
The obligations of General Partner, Partnership,
Limited Partners and Shareholders under this Agreement are
subject to the fulfillment and satisfaction of each and every of
the following conditions on or prior to the Closing, any or all
of which may be waived in writing in whole or in part by General
Partner, Partnership, Limited Partners and Shareholders:
9.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties contained in ARTICLE
5 shall be true and correct as of the date when made and shall be
true and correct at and as of the Closing Date, to the same
extent and with the same force and effect as if made as of such
date, except as affected by the transactions contemplated by this
Agreement or the Share Purchase Agreement.
9.2 COMPLIANCE WITH AGREEMENTS AND CONDITIONS.
Parent and Purchaser shall have performed and complied
with all agreements and conditions required by this Agreement to
be performed or complied with by Purchaser prior to or on the
Closing Date.
9.3 CERTIFICATE OF PARENT AND PURCHASER.
Parent and Purchaser shall have delivered to Limited
Partners and Shareholders a certificate, dated the Closing Date,
certifying in such detail as Limited Partners and Shareholders
may reasonably request to the fulfillment and satisfaction of the
conditions specified in Paragraphs 9.1 and 9.2.
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9.4 RESOLUTIONS.
Parent and Purchaser shall have delivered to Limited
Partners and Shareholders duly adopted resolutions of the
respective Board of Directors (or Executive Committees thereof)
of Parent and Purchaser, certified by the Secretary or an
Assistant Secretary of Parent and Purchaser, as the case may be,
dated the Closing Date, authorizing and approving the execution
of this Agreement by Parent and Purchaser and all other action
necessary to enable Parent and Purchaser to comply with the terms
of this Agreement.
9.5 OPINION OF COUNSEL.
Limited Partners and Shareholders should have received
from Xxxxxxxxxx Xxxxxxxx LLP, legal counsel for Parent and
Purchaser, an opinion, dated the Closing Date, in substantially
the form set forth as Exhibit C attached hereto.
9.6 CONSENTS.
Limited Partners and Shareholders shall have received
from any and all Persons and Governments such consents,
authorizations and approvals as are necessary for the
consummation of the transactions contemplated by this Agreement,
and all notices required to be given to any Government shall have
been given and all applicable waiting periods shall have expired.
9.7 CONSUMMATION OF OTHER TRANSACTIONS.
The transactions contemplated by that certain Share
Purchase Agreement, of even date herewith, shall have been
consummated.
9.8 NO INCONSISTENT REQUIREMENTS.
No Action shall have been commenced by any Government
or Person (excluding General Partner, Partnership, and any
Affiliate of General Partner or Partnership, or any Person acting
on behalf of or at the direction of General Partner or
Partnership) seeking to enjoin or prohibit the transactions
contemplated hereby.
10. INDEMNITIES
10.1 INDEMNIFICATION OF PARENT, PURCHASER, GENERAL PARTNER AND
PARTNERSHIP.
In accordance with and subject to the provisions of this
ARTICLE 10, each of the Limited Partners and Shareholders
(collectively, "PARENT INDEMNITORS") shall, jointly and
severally, indemnify and hold harmless Parent, Purchaser, General
Partner, Partnership, and their Affiliates, and their respective
officers, directors, agents and employees (other than for any
officer, director, agent or employee who is a Parent Indemnitor
hereunder, collectively, "PARENT INDEMNITEES"), from and against
and in respect of any and all loss, damage, liability, claim,
cost and expense, including reasonable attorneys' fees and
amounts paid in settlement pursuant to Paragraph 10.5(b)
(collectively, the "PARENT INDEMNIFIED LOSSES"), suffered or
incurred by any one or more of the Parent Indemnitees by reason
of, or arising out of any breach of any representation or
warranty, or any breach or nonfulfillment of any covenant or
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agreement of General Partner, Partnership, any of the Limited
Partners or Shareholders contained in this Agreement; provided,
however, that (a) Parent Indemnitors shall have no obligation to
indemnify or hold harmless any Parent Indemnitee for any breach
by any other Parent Indemnitor of the covenants pursuant to
Paragraph 6.4 and (b) Parent Indemnitors shall have no obligation
to indemnify or hold harmless any Parent Indemnitee for any
Parent Indemnified Loss that arises in connection with or as a
result of any Management Contract of General Partner or
Partnership and relating to events, occurrences or actions prior
to the Closing, if (i) the event, occurrence or action which is
the principal basis for such Parent Indemnified Loss has been
specifically disclosed in Schedule 10.1 hereto or (ii) the
principal basis upon which such Parent Indemnified Loss is
established or asserted is an event, occurrence or action that
was not known by General Partner or Partnership as of the Closing
Date.
10.2 INDEMNIFICATION OF SHAREHOLDERS AND LIMITED PARTNERS.
In accordance with and subject to the provision of this
Article 10, Parent (for purposes of this Article 10, "Seller
Indemnitor") shall indemnify and hold harmless Shareholders,
Limited Partners and their respective Affiliates, and their
respective officers, directors, agents and employees
(collectively, "Seller Indemnitees"),from and against and in
respect of any and all loss, damage, liability, claim, cost and
expense, including reasonable attorney's fees and amounts paid in
settlement pursuant to Paragraph 10.5(b) (collectively, the
"Seller Indemnified Losses"), suffered or incurred by any one or
more of the Seller Indemnitees by reason of, or arising out of,
any breach of any representation or warranty, or breach or
nonfulfillment of any covenant or agreement, of Parent or
Purchaser contained in this Agreement.
10.3 INTERCHANGEABLE TERMINOLOGY.
For purposes of the remaining paragraphs of this
Article 10, which are mutually applicable to Parent (on the one
hand) and to Shareholders and Limited Partners (on the other
hand) depending on the party with the obligation to indemnify or
the right to be indemnified as provided in Paragraph 10.1 and
10.2, the Parent Indemnitors and the Seller Indemnitors, and the
Parent Indemnitees and Seller Indemnitees, are sometimes referred
to interchangeably as "Indemnitors" and "Indemnitees,"
respectively, with the understanding and agreement that such
references are to the particular party or parties under Paragraph
10.1 or 10.2. Similarly, Parent Indemnified Losses and Seller
Indemnified Losses are sometimes referred to interchangeably as
"Indemnified Losses," with the comparable understanding and
agreement.
10.4 PAYMENT.
Indemnitors shall, subject to the provisions of
Paragraph 10.5, reimburse Indemnitees, within 10 days of written
demand on Parent or Agent, as the case may be, for any
Indemnified Loss.
10.5 DEFENSE OF CLAIMS.
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(a) If any claim or Action by a third party arises
after the Closing Date for which an Indemnitor may be liable to
an Indemnitee under the terms of this Agreement, then Indemnitee
shall notify such Indemnitor within a reasonable time after such
claim or Action arises and is known to such Indemnitees, and
shall give the Indemnitor a reasonable opportunity: (i) to
conduct any proceedings or negotiations in connection therewith
and necessary or appropriate to defend such Indemnitee; (ii) to
take all other required steps or proceedings to settle or defend
any such claim or Action; and (iii) to employ counsel to contest
any such claim or Action in the name of Indemnitee or otherwise.
The expenses of all proceedings, contests or lawsuits with
respect to such Actions shall be borne by the Indemnitor. If the
Indemnitor desires to assume the defense of such claim or Action,
then such Indemnitor shall give written notice to the Indemnitee
within 30 days after notice from the Indemnitee of such claim or
Action (unless the claim or action reasonably requires a response
in less than 30 days after the notice is given to such
Indemnitor, in which event such Indemnitor shall notify
Indemnitee at least 10 days prior to such reasonably required
response date), and the Indemnitor shall thereafter assume the
defense of any such claim or Action through counsel reasonably
satisfactory to the Indemnitee; provided that Indemnitees may
participate in such defense at their own expense; further
provided that, Purchaser shall have the sole right, exercisable
in good faith, to direct and control the defense (whether or not
assumed by the Parent Indemnitors) of any and all claims or
Actions that involve a Government or other Person acting as a
third party payor for health care services; and further provided
that, any Indemnitee may refuse to permit its Indemnitor to
assume the defense of any claim or Action with respect to which
defense there exists a material conflict of interests between
such Indemnitee and an Indemnitor as to the subject matter of the
claim or Action. A difference of opinion concerning how much to
pay a third party claimant, without more, shall not constitute a
material conflict of interests between an Indemnitee and an
Indemnitor for purposes of the preceding sentence.
(b) If the Indemnitors do not assume the defense of,
or if after so assuming the Indemnitors fail to defend, any such
Action (or if the Indemnitors are not permitted to assume such
defense as a result of the assertion of a material conflict of
interests by an Indemnitee), then Indemnitees may defend against
such claim or Action in such manner as they may deem appropriate
(provided that the Indemnitors may participate in such defense at
their own expense); Indemnitees may settle such claim or Action
on such terms as they may deem appropriate; and the Indemnitors
shall promptly reimburse Indemnitees for the amount of all
expenses, legal and otherwise, reasonably and necessarily
incurred by Indemnitees in connection with the defense against
and settlement of such claim or Action. If no settlement of such
claim or Action is made, the Indemnitors shall satisfy any
judgment rendered with respect to such claim or in such Action,
before Indemnitees are required to do so, and shall pay all
expenses, legal or otherwise, reasonably and necessarily incurred
by Indemnitees in the defense of such claim or Action.
(c) If a judgment is rendered against any of the
Indemnitees in any Action covered by the indemnification
hereunder, or any Lien in respect of such judgment attaches to
any of the assets of any of the Indemnitees, the Indemnitors
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shall immediately upon receipt from Indemnitees of copies of such
attachment or entry, pay such judgment in full or discharge such
Lien unless, at the expense and direction of the Indemnitors, an
appeal is taken under which the execution of the judgment or
satisfaction of the Lien is stayed. If and when a final judgment
is rendered in any such Action, the Indemnitors shall forthwith
pay such judgment or discharge such Lien before any of
Indemnitees is compelled to do so.
10.6 NO CONTRIBUTION.
Limited Partners and Shareholders shall not have any
right of contribution against General Partner or Partnership or
any of the respective Affiliates for any Indemnified Losses.
10.7 LIMITATIONS ON LIABILITY.
(a) Notwithstanding anything in this Agreement to the
contrary, no Indemnitor(s) shall have any liability under this
Agreement until such time as the aggregate amount of Indemnified
Losses for which such Indemnitor(s) has or have responsibility
under and pursuant to this Agreement and the Share Purchase
Agreement, on a combined basis, exceed $500,000; provided, that,
once the aggregate amount of Indemnified Losses exceeds $500,000,
Indemnitees shall be entitled to recover from the Indemnitors the
aggregate amount of all Indemnified Losses.
(b) Notwithstanding anything in this Agreement to the
contrary, in no event shall the maximum amount of liability of a
Parent Indemnitor exceed the aggregate amount of the Share
Purchase Price and the LP Purchase Price paid to such Purchaser
Indemnitor pursuant to this Agreement.
(c) The limitations set forth in this Paragraph 10.7
shall be inapplicable to any breach of the covenants and
agreements contained in any of Paragraphs 6.4, 6.5, 6.6, 6.12,
6.13 and 6.14, except that in the case of clause (b) of Paragraph
6.14, the limitation in Paragraph 10.7(b) shall be applicable.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of the parties
contained in this Agreement or in any writing delivered pursuant
to the provisions of this Agreement shall survive any
investigation heretofore or hereafter made by any other party or
its Representatives and the consummation of the transactions
contemplated herein and shall continue in full force and effect
for the periods specified below (the "SURVIVAL PERIOD"):
(a) representations and warranties relating to the
reporting, payment or liability for Taxes or any obligations or
liabilities related to Indemnified Losses arising from
environmental liabilities or product liabilities shall survive
until expiration of any applicable statute or period of
limitations, and any extensions thereof; and
(b) all other representations and warranties hereunder
shall be of no further force and effect after the expiration of
two years from and after the Closing Date.
Anything to the contrary notwithstanding, the Survival
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Period shall be extended automatically to include any time period
necessary to resolve a claim for indemnification which was made
before expiration of the Survival Period but not resolved prior
to its expiration. Such extension shall apply only to the claim
for which such extension was necessary.
12. TERMINATION
12.1 TERMINATION FOR CERTAIN CAUSES.
This Agreement may be terminated at any time prior to
or on the Closing Date by Limited Partners or Shareholders, on
the one hand, or by Parent and Purchaser, on the other hand, upon
written notice to the other as follows:
(a) By PARENT, if the terms, covenants or conditions
of this Agreement to be complied with or performed by any or all
of General Partner, Partnership, Limited Partners or Shareholders
at or before the Closing Date shall not have been complied with
or performed and such noncompliance or nonperformance shall not
have been waived by Purchaser.
(b) By PARENT, if there is any fact or condition with
respect to General Partner's or Partnership's businesses, assets,
properties, financial condition or actual or anticipated results
of operations of General Partner or Partnership or their
businesses which materially and adversely affects such
businesses, properties, financial condition, results of
operations, assets, or the value or continuance of General
Partner's or Partnership's businesses.
(c) By LIMITED PARTNERS OR SHAREHOLDERS, if the terms,
covenants or conditions of this Agreement to be complied with or
performed by Parent or Purchaser at or before the Closing Date
shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been waived by
Limited Partners or Shareholders.
(d) By PARENT, PURCHASER, SHAREHOLDERS OR LIMITED
PARTNERS, if any Action shall have been instituted or threatened
against any party to this Agreement to restrain or prohibit, or
to obtain substantial damages in respect of, this Agreement or
the consummation of the transactions contemplated herein, which,
in the reasonable and good faith opinion of any party, makes
consummation of the transactions herein contemplated inadvisable.
12.2 PROCEDURE ON AND EFFECT OF TERMINATION.
Pursuant to PARAGRAPH 12.1 hereof, written notice
thereof shall be given to all other parties by the party electing
to terminate, and this Agreement shall terminate upon the giving
of such notice, without further action by any of the parties
hereto, with the consequence and effect set forth in this
PARAGRAPH 12.2. If for any reason on the Closing Date there has
been nonfulfillment of an undertaking by or condition precedent
for Parent or Purchaser, on the one hand, or General Partner,
Partnership, Limited Partners or Shareholders, on the other hand,
not waived in writing by or on behalf of the party in whose favor
such undertaking or condition or undertaking runs, the party in
whose favor such undertaking or condition runs, in addition to
any other right or remedy available to it, may refuse to
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consummate the transactions contemplated by this Agreement
without liability or obligation on its part whatsoever.
Notwithstanding the foregoing, the obligations of the parties
pursuant to PARAGRAPHS 6.2 (CONFIDENTIALITY), 6.5 (EXPENSES), 6.6
(BROKERS) and 6.8 (PUBLICITY) shall survive any such termination.
13. MISCELLANEOUS
13.1 NOTICES.
(a) All notices, demands or other communications
required or permitted to be given or made hereunder shall be in
writing and (1) delivered personally, or (2) sent by pre-paid,
first class, certified or registered air mail, return receipt
requested, or (3) by an express courier service, or (4) by
facsimile transmission to the intended recipient thereof, at its
address or facsimile number set out below. Any such notice,
demand or communication shall be deemed to have been duly given
immediately (if given or made by confirmed facsimile), or three
days after mailing or the second day after delivery to an express
courier service, and in proving same it shall be sufficient to
show that the envelope containing the same was duly addressed,
stamped and posted (or that the envelope was delivered to the
express courier service), or that receipt of a facsimile was
confirmed by the recipient. The addresses and facsimile numbers
of the parties for purposes of this Agreement are:
(i) If to Parent or
Purchaser Housecall
Medical Resources, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Chief Financial Officer
With a copy to: Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 404-815-6555
Attention: W. Xxxxx Xxxxx
(ii) If to Limited
Partners Xxxxxx X. Xxxxxx
or Shareholders: c/o Home Technology
Healthcare, Inc.
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: 000-000-0000
and to: R. Xxxxxx Xxxxxxxx
c/o HF Holdings, Inc.
000 Xxxxxxxxxx Xxxx, XX
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: 000-000-0000
With a copy to: Boult, Cummings, Xxxxxxx
& Xxxxx, PLC
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000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
and to: Xxxxxx & XxXxxxxx Co. LPA
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxx 00000
Facsimile No.: 216-253-8601
Attention: Xxxxx X. Xxxxx, Esq.
Any party may change the address to which notices, requests,
demands or other communications to such parties shall be
delivered or mailed by giving notice thereof to the other parties
hereto in the manner provided herein.
13.2 COUNTERPARTS.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all
of which shall constitute one and the same instrument.
13.3 ENTIRE AGREEMENT.
This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter
hereof, and this Agreement, including its Exhibits and Schedules,
and with acknowledgment of the relationship and contemplation of
the transactions contemplated by the Share Purchase Agreement,
contains the sole and entire agreement among the parties with
respect to the matters covered hereby. This Agreement shall not
be altered or amended except by an instrument in writing signed
by or on behalf of the party entitled to the benefit of the
provision against whom enforcement is sought.
13.4 GOVERNING LAW.
The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the
laws of the State of Georgia, without regard to conflicts of laws
principles.
13.5 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs,
executors, legal representatives, successors and assigns. No
party may assign its rights or obligations under this Agreement,
by operation of law or otherwise, without the prior written
consent of all other parties.
13.6 PARTIAL INVALIDITY AND SEVERABILITY.
All rights and restrictions contained herein may be
exercised and shall be applicable and binding only to the extent
that they do not violate any applicable Laws and are intended to
be limited to the extent necessary to render this Agreement
legal, valid and enforceable. If any term of this Agreement, or
part thereof, not essential to the commercial purpose of this
Agreement shall be held to be illegal, invalid or unenforceable
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by a court of competent jurisdiction, it is the intention of the
parties that the remaining terms hereof, or part thereof, shall
constitute their agreement with respect to the subject matter
hereof, and all such remaining terms, or parts thereof, shall
remain in full force and effect. To the extent legally
permissible, any illegal, invalid or unenforceable provision of
this Agreement shall be replaced by a valid provision which will
implement the commercial purpose of the illegal, invalid or
unenforceable provision.
13.7 WAIVER.
Any term or condition of this Agreement may be waived
at any time by the party which is entitled to the benefit
thereof, but only if such waiver is evidenced by a writing signed
by such party. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right, power or remedy
created hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or remedy by
any such party preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. No waiver by
any party hereto of any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or
assent to any succeeding breach of or default in the same or any
other term or condition hereof.
13.8 HEADINGS.
The headings of particular provisions of this Agreement
are inserted for convenience only and shall not be construed as a
part of this Agreement or serve as a limitation or expansion on
the scope of any term or provision of this Agreement.
13.9 NUMBER AND GENDER.
Where the context requires, the use of the singular
form herein shall include the plural, the use of the plural shall
include the singular, and the use of any gender shall include any
and all genders.
13.10 CONSENTED ASSIGNMENT.
Anything contained herein to the contrary
notwithstanding, this Agreement shall not constitute an agreement
to assign any claim, right, contract, license, lease, commitment,
sales order or purchase order if an attempted assignment thereof
without the consent of another party thereto would constitute a
breach thereof or in any material way affect the rights of
Limited Partners or Shareholders thereunder, unless such consent
is obtained. If such consent is not obtained, or if an attempted
assignment would be ineffective or would materially affect
Limited Partners' or Shareholders' rights thereunder so that
Purchaser would not in fact receive all such rights, Limited
Partners and Shareholders shall upon the request of Purchaser
cooperate in any reasonable arrangement designed to provide for
Purchaser the benefits under any such claim, right, contract,
license, lease, commitment, sales order or purchase order,
including, without limitation, enforcement of any and all rights
of Limited Partners or Shareholders against the other party or
parties thereto arising out of the breach or cancellation by such
other party or otherwise.
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13.11 ACKNOWLEDGMENT AND CONSENT
Each of Shareholders and Limited Partners acknowledge
that the cash portion of the Share Purchase Price and the LP
Purchase Price to be paid hereunder is being financed by a
syndicate of banks and other financial institutions lead by
Toronto Dominion (Texas), Inc. as agent, and each of them further
acknowledges that under the terms of the financing being so
provided to Parent and Purchaser that Parent and Purchaser have
been requested, and have agreed, to collaterally assign all of
its right, title and interest in and to its rights and remedies
hereunder to Toronto Dominion (Texas), Inc., as agent. Each of
Shareholders and Limited Partners expressly acknowledge and
consent to such collateral assignment.
13.12 GUARANTY.
Parent hereby unconditionally and absolutely guarantees
the performance of any and all obligations of Purchaser under
this Agreement.
13.13 SATISFACTION OF CONDITIONS.
By their execution and delivery of this Agreement, the
parties acknowledge and agree that the transactions contemplated
hereby have been consummated simultaneously with the execution
and delivery hereof, and they further acknowledge and agree that
each of the conditions precedent to be complied with and
satisfied by them prior to the Closing have been satisfied.
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14. CERTAIN DEFINITIONS; INDEX OF DEFINITIONS
14.1 CERTAIN DEFINITIONS.
For purposes of this Agreement, the following
capitalized terms shall have the meanings specified with respect
thereto below (all terms used in this Agreement which are not
defined in this Article 14, but are defined elsewhere in this
Agreement, shall have for purposes of this Agreement the meanings
set forth elsewhere in this Agreement):
"ACTION" shall mean any action, suit, complaint, claim,
counter-claim, petition, set-off, inquiry, investigation,
administrative proceeding, arbitration, or private dispute
resolution proceeding, whether at law, in equity, by contract or
agreement, or otherwise, and whether conducted by or before any
Government, any Forum, or other Person.
"AFFILIATE" of any Person shall mean any other Person
directly or indirectly controlling, controlled by, or under
direct or indirect common control with the former Person. A
Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract
or otherwise.
"CODE" shall mean the Internal Revenue Code of 1986,
as amended.
"BUSINESS DAY" shall mean any day other than a
Saturday, a Sunday or a day on which commercial banks in Atlanta,
Georgia, are required or authorized to be closed.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ENVIRONMENTAL LAWS" shall mean all federal, state,
local and foreign laws, including but not limited to all
statutes, ordinances, rules, regulations, and common law,
relating to pollution or protection of the environment, including
laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment
(including without limitation ambient air, surface water, ground
water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes, and any and
all regulations, codes, plans, orders, decrees, judgments,
injunctions, consent agreements, stipulations, provisions and
conditions of permits, licenses and other operating
authorizations, notices or demand letters issued, entered,
promulgated or approved thereunder.
"FORUM" shall mean any federal, state, local, municipal
or foreign court, governmental agency, administrative body or
agency, tribunal, private alternative dispute resolution system,
or arbitration panel.
"GAAP" shall mean generally accepted accounting
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principles as applicable in the United States, consistently
applied.
"GOVERNMENT" shall mean any federal, state, local,
municipal, or foreign government or any department, commission,
board, bureau, agency, instrumentality, unit, or taxing authority
thereof.
"HEREOF," "HEREIN," "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement,
and "ARTICLE", "PARAGRAPH", "SCHEDULE", "EXHIBIT" and like
references are to this Agreement unless otherwise specified.
"KNOWN," "TO THE KNOWLEDGE OF," "TO THE BEST KNOWLEDGE
OF," "AWARE" or words of similar import employed in this
Agreement with reference to any individual or entity shall be
conclusively presumed to mean the actual knowledge of such person
or entity or such knowledge as such person or entity would have
through reasonable inquiries of such person's or entity's
directors, officers or employees.
"LAW" shall mean all federal, state, local, municipal
or foreign constitutions, statutes, rules, regulations,
ordinances, acts, codes, legislation, treaties, conventions and
similar laws and legal requirements, as in effect from time to
time.
"LIABILITY" shall mean shall mean any liability or
obligation whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or
unliquidated and whether due or to become due, including any
liability for Taxes.
"LIEN" shall mean any mortgage, pledge, hypothecation,
security interest, encumbrance, lien or charge of any kind, or
any rights of others, however evidenced or created (including any
agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any lease in the nature thereof,
and the filing of or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction).
"MANAGEMENT CONTRACT" means any contract or agreement
for the provision of home health care management billing and data
processing, information systems or consulting services related to
the foregoing.
"MOST RECENT BALANCE SHEET" shall mean the latest of
all Balance Sheets as described in Paragraph 4.6.
"MOST RECENT FISCAL MONTH END" shall mean the date of
the latest of all Balance Sheets as described in Paragraph 4.6.
"ORDERS" shall mean all applicable orders, writs,
judgments, decrees, rulings and awards of any Forum.
"PERSON" shall mean and include an individual, a
partnership, a joint venture, a corporation, a limited liability
company, a trust, an unincorporated association or organization,
and a Government.
"REGULATIONS" shall mean Treasury Regulations
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promulgated under the Code, as such Regulations may be amended
from time to time (including corresponding provisions of
succeeding Regulations).
"REPRESENTATIVE" of a party shall mean such party's
directors, officers, Limited Partners, employees, agents,
accountants, lenders, lawyers, investment bankers, and other
financial or professional advisors or consultants.
"SHAREHOLDERS" shall mean, collectively, those Persons
who are the record holders of the Shares immediately prior to the
Effective Time, and "Shareholder" shall mean any one of them.
"TAXES" shall mean all federal, state, local, or
foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Code section 59A), customs
duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property,
personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not.
"TAX RETURN" shall mean any return, declaration,
report, claim for refund, or information return or statement
relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof.
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14.2 INDEX TO DEFINITIONS.
The definitions for the following defined terms used in
this Agreement can be found as follows:
Defined Term Paragraph or Article
------------- --------------------
Balance Sheet [used but not defined]
Business Recital A
Closing 3.1
Closing Date 3.1
Contracts 4.13
Disclosed Liabilities 4.7
Employee Pension Benefit Plans 4.20(e)
ERISA Plan 4.20(a)
Interim Statements 6.9
LP Purchase Price 2.1
Parent Indemnified Losses 10.1
Parent Indemnitees 10.1
Parent Indemnitors 10.1
Parent Stock [used but not defined]
Partnership Interests 4.2(b)
Plan or Plans 4.20 (a)
Reference Date 4.7
Related Parties 4.24
Restricted Business 6.4(a)
Service Area 6.4
Share Purchase Price 1.1
Shares 4.2(a)
Significant Customers 4.15
Survival Period 11.1
Unaudited Financial Statements 4.6
Unaudited Interim Financial Statements 4.6
Unaudited Year-end Financial Statements 4.6
Xxxxxxxx 3.3(a)
[Signatures appear on following page]
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P., the
shareholders of HFI Management, Inc.
HOUSECALL MEDICAL RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxx
Print Name: Xxxxxx X. Xxxx
Title: President
(CORPORATE SEAL)
/s/ Xxxxxxx X. X'Xxxx-Xxxxxxx
Witness
HFI ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
Print Name: Xxxx X. Xxxxxxx
Title: Vice President
(CORPORATE SEAL)
/s/ Xxxxxxx X. X'Xxxx-Xxxxxxx
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxxxx X. Xxxxxxx III
Xxxxxx X. Xxxxxxx, III
/s/ Xxxxxx X. Xxxxxxxxxx
Witness
XXXX COUNTY
STATE OF TENNESSEE
Sworn to and subscribed before
me this 12 th day of May, 1997.
/s/ Xxxxxx Xxx Xxxxxx
Notary Public
My commission expires August 27, 1997
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
_______________________
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
CONTINENTAL ILLINOIS VENTURE
CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxx
Print Name: Xxxxxxxxxxx X. Xxxxx
Title: President
(CORPORATE SEAL)
/s/ Xxxxx X. Xxxxx
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Wednes
/s/ Xxxxx X. Xxxxx
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
______________________
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
/s/ [unreadable]
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ R. Xxxxxx Xxxxxxxx
R. Xxxxxx Xxxxxxxx
/s/ [unreadable]
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
/s/ [unreadable]
Witness
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart original Signature Page to that certain Acquisition Agreement,
dated May 13, 1997, by and among, Housecall Medical Resources, Inc., HFI
Acquisition Corp., HFI Management, Inc., HFI Home Care Management, L.P.,
the shareholders of HFI Management, Inc., and the limited partners of HFI
Home Care Management, L.P. By its execution and delivery of this counterpart
original Signature Page, the undersigned hereby certifies that it is a
"Shareholder" and a "Limited Partner", as each of those terms is defined in
the Acquisition Agreement, for all purposes of this Acquisition Agreement.
/s/ Avy X. Xxxxx
Avy X. Xxxxx
___________________________
Witness
