ASSET PURCHASE AGREEMENT
Exhibit
10.14
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COPY
This
ASSET
PURCHASE AGREEMENT (this “Agreement”),
dated
as of February 23, 2007 is made and entered into by and between Universal
Hospital Services, Inc., a Delaware corporation (“UHS”),
and
Intellamed, Inc., a Texas corporation (“Intellamed”).
WHEREAS,
on the terms and subject to the conditions set forth in this Agreement,
Intellamed desires to sell and assign to UHS, and UHS desires to purchase
from
Intellamed, the assets of the ICMS division of Intellamed (the “Division”)
as more
particularly described herein and UHS shall assume and to pay certain
obligations, commitments and liabilities of the Division to the extent provided
herein for the aggregate consideration described herein.
NOW,
THEREFORE, in consideration of the mutual covenants, representations, warranties
and agreements and the conditions set forth in this Agreement, UHS and
Intellamed hereby agree as follows:
ARTICLE
I
TRANSFER
OF ASSETS; ASSUMPTION OF LIABILITIES
Section
1.01 Transfer of Assets. On
the
terms and subject to the conditions set forth in this Agreement, Intellamed
shall, at the Closing (as defined in Section 3.01 hereof), sell, transfer
and assign to UHS, and UHS shall purchase and acquire from Intellamed, all
of
Intellamed’s right, title and interest, as of the Closing Date (as defined in
Section 3.01 hereof), in and to all of the assets currently owned by
Intellamed or the Division, as applicable, and necessary for use in the conduct
and operation of the Division after the Closing (as defined in Section 3.01)
by
UHS, including, without limitation, the assets identified below (collectively,
the “Acquired
Assets”),
but
excluding the Excluded Assets (as defined in Section 1.02):
(a) All
of the
equipment, machinery, furniture, fixtures, including test equipment, tools,
work
benches, interests in vehicles, computers, printers, servers and other data
processing hardware, wherever located, including without limitation, those
assets identified on Schedule 1.01(a)
hereto;
(b) All
of the
inventories of supplies and parts and the interest in all orders or contracts
for the purchase of supplies and parts, including without limitation, those
assets identified on Schedule 1.01(b)
hereto,
which shall be updated at Closing (collectively, “the “Supplies
and Parts”);
(c) All
of the
interest in and benefits under all licenses, leases, contracts and agreements
(other than those identified in Section 1.01(d)) including, without
limitation, those identified in Schedule 1.01(c),
which
shall be updated at Closing;
(d) All
of the
interest in and all benefits under all customer contracts, including, without
limitation, the contracts identified in Schedule 1.01(d)
which
shall be updated at Closing
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(together
with the licenses, leases, contracts and agreements subject to
Section 1.01(c), the “Subject
Contracts”);
(e) All
documents or other tangible materials embodying technology or intellectual
property rights owned by or licensed to Intellamed or the Division, as
applicable, wherever located, including, without limitation all software
programs and related documentation for software;
(f) All
Intellectual Property Rights (as defined in Section 4.20(a)) owned by or
licensed to Intellamed or the Division, as applicable, or used in, developed
for
use in or necessary to the conduct and operation of the Division as now
conducted, including, without limitation, those identified in Schedule 1.01(f);
(g) True
and
complete copies of all books, records and other documents and information
relating to the Acquired Assets, including, without limitation, all customer,
prospect, dealer and distributor lists, sales literature, inventory records,
purchase orders and invoices, sales orders and sales order log books, customer
information, commission records, correspondence, product data, material safety
data sheets, price lists, product demonstrations, quotes and bids and all
product catalogs and brochures;
(h) All
permits, licenses and other governmental approvals held by Intellamed or
the
Division, as applicable, to the extent they are assignable (collectively,
the
“Assignable
Permits”);
(i) All
interest in those telephone numbers listed in Schedule
1.01(i),
including the general telephone number currently being used for the Houston,
Texas office of the Division; and
(j) Goodwill
of the Division (including all goodwill associated with and symbolized by
any
other trademark or service xxxx, trade name or corporate name used in the
conduct and operation of the Division as the Division is now being conducted),
all related tangibles and intangibles and all rights to continue to use the
Acquired Assets in the conduct of a going business.
The
parties hereto expressly agree that UHS is not assuming any of the liabilities,
obligations or undertakings relating to the Acquired Assets, except as provided
in Section 1.03.
Section
1.02 Excluded Assets. Intellamed
shall not sell, transfer or assign to UHS, and UHS shall not purchase or
acquire
the assets set forth in Schedule
1.02,
any
cash, commercial paper, bank accounts or marketable securities of the Division,
the receivables earned but not billed and the accounts receivable on the
books
of Intellamed on the Closing Date and any insurance policy maintained by
Intellamed or the Division, as applicable (hereinafter, all such assets shall
be
referred to collectively as the “Excluded
Assets”).
Section
1.03 Assumed Liabilities. At
the
Closing and on the terms and subject to the conditions set forth in this
Agreement, UHS agrees to assume only the following liabilities of Intellamed
(collectively, the
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“Assumed
Liabilities”)
and
shall not assume or have any responsibility with respect to any other liability
of Intellamed not included within the definition of the Assumed Liabilities:
all
obligations and liabilities arising after the Closing (or later date on which
assignments are received pursuant to Section 1.05 below) under (a) all
Subject Contracts that Intellamed or the Division, as applicable, assigns
to UHS
and that UHS assumes (including the performance of services relating to unearned
revenue under the customer contracts and of future obligations under leases
for
vehicles used in the operation of the Division), (b) all Assignable Permits
assigned to UHS, in each case other than any liability arising
out of or relating to a breach that occurred prior to the Closing (or later
date
on which assignments are received pursuant to Section 1.05 below) and (c)
earned but unused vacation of certain employees of Intellamed as set forth
in
Schedule
1.03
(which
shall be updated as of the Closing Date).
Section
1.04 Retained Liabilities. UHS
shall
not assume, and nothing contained in this Agreement shall be construed as
an
assumption by UHS of, any liabilities, obligations or undertakings of Intellamed
of any nature whatsoever, whether accrued, absolute, fixed or contingent,
known
or unknown, due or to become due, unliquidated or otherwise, including, without
limitation, any liabilities, obligations or undertakings under any of its
Employee Plans or payroll or employment practices, other than the Assumed
Liabilities.
Section
1.05 Unobtained Consents. In
the
event that any consent to assignment of any Acquired Asset has not yet been
obtained as of the Closing (each such Asset, a “Restricted
Asset”),
then:
(a) at
the
Closing, Intellamed shall assign or transfer such Restricted Asset or any
interest arising thereunder or resulting therefrom to UHS to the extent that
such assignment or transfer would neither constitute a breach thereof nor
adversely affect the material rights of UHS thereunder;
(b) Intellamed
shall continue to use its best efforts and cooperate with UHS to obtain all
such
consents as soon as practicable following Closing; and
(c) if
and
when the applicable consent(s) is subsequently obtained, this Agreement or
any
other document or instrument delivered at the Closing shall thereafter
constitute an assignment or transfer of such Restricted Asset and all interests
arising thereunder or resulting therefrom in their entirety.
ARTICLE
II
PURCHASE
PRICE
Section
2.01 Amount. The
aggregate consideration for the Acquired Assets shall be (a) a purchase price
(the “Purchase
Price”)
equal
to the sum of (i) the Base
Purchase Price,
which
shall be $16,500,000, less the following items referred to collectively in
Section 2.01(a) as the “Subtractions”):
(A) the
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accounts
receivable of the Division that have been earned but not collected as of
the
Closing Date, (B) the unearned deferred revenue collected by Intellamed
from customers of the Division as of the Closing Date, (C) $98,000
(relating to the initial valuation of Supplies and Parts), (D)
earned
but unused vacation of certain employees of Intellamed as set forth in
Schedule
1.03
(which
shall be updated as of the Closing Date) and (E) an amount equal to 1.36
times the amount (if any) by which (x) the annualized revenue from the contracts
identified in Schedule 1.01(d)
as
updated at Closing is less than (y) $10,200,000 (the “Contract
Revenue Deficiency”)
as of
the Closing Date, plus (ii) an amount equal to (A) Intellamed’s book value for
new Supplies and Parts as of the Closing Date and (B) 33% of the new replacement
cost for the harvested Supplies and Parts on hand on the Closing Date and
(iii)
the Earn-Out
Purchase Price
as more
particularly described in Section 2.02 and (b) the assumption by UHS
of the Assumed Liabilities. The respective amounts of the Subtractions shall
be
estimated and agreed to by Intellamed and UHS at Closing (collectively, the
“Estimated
Subtractions”).
Within
45 days after the Closing Date, Intellamed and UHS shall agree on the definitive
respective amounts of the Subtractions (collectively, the “Definitive
Subtractions”).
Within
45 days after the Closing Date, Intellamed shall remit payment to UHS by
company
check for the amount by which the Definitive Subtractions exceed the Estimated
Subtractions (if any) and UHS shall remit payment to Intellamed by company
check
for the amount by which the Estimated Subtractions exceed the Definitive
Subtractions (if any). In addition, at Closing, UHS shall pay to
Intellamed.
Section
2.02 Earn-Out Purchase Price.
(a) The
Earn-Out Purchase Price shall be equal to the amount by which the “Earn-Out
Revenue”
exceeds
the “Target
Earn-Out Revenue”
during
the 12 full consecutive months following the Closing Date (the “First
Earn-Out Period”)
and
during the 12 full consecutive months following the first anniversary of
the
Closing (the “Second
Earn-Out Period”).
(b) The
Earn-Out Revenue shall be defined as the gross revenues of UHS during the
First
Earn-Out Period or the Second Earn-Out Period, as applicable, from: (i) a
written list of customers (including, without limitation, names and relevant
contact and other information) of the Division that Intellamed shall provide
to
UHS at Closing (the “Customer
List”);
and
(ii) any additional customers obtained under the Joint Promotion Agreement
to be
entered into by Intellamed and UHS at Closing (as more particularly described
in
Section 7.01(f)) and which Intellamed and UHS agree to include in the Earn-Out
Revenue. Intellamed shall be permitted to approach all potential customers,
other than (A) current customers of UHS for which UHS is providing onsite
biomedical, imaging or asset management services or (B) customers with which
UHS
is conducting, and can illustrate, active discussions for the provision of
biomedical or imaging program services.
(c) The
Target
Earn-Out Revenue for (i) the First Earn-Out Period shall equal $15,646,000
and
(ii) the Second Earn-Out Period shall equal $17,211,000. The Target Earn-Out
Revenue for the First Earn-Out Period and for the Second Earn-Out Period
shall
be reduced by the amount of the Contract Revenue Deficiency for the First
Earn-Out Period and for the Second Earn-Out Period, respectively.
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(d) UHS
shall
provide to Intellamed a detailed accounting of the revenue from each customer
and the Earn-Out Revenue during the First Earn-Out Period and the Second
Earn-Out Period, respectively, accompanied by a certification from the Chief
Financial Officer of UHS as to the accuracy of the calculations in such
accounting, not later than 30 days after the end of each such period. Intellamed
shall have the right, at its sole expense, to review the books of UHS to
verify
the foregoing accounting.
(e) To
the
extent that the Earn-Out Purchase Price exceeds $5,000,000 (the “Excess”)
and in
the event that the Amended and Restated Credit Agreement dated as of
May 26, 2005 among UHS and General Electric Capital Corporation as agent
for the lenders and the other lenders party thereto remains in full force
and
effect, then UHS shall obtain the consent of General Electric Capital
Corporation before paying any of the Excess to Intellamed.
Section
2.03 Advance of Purchase Price. UHS
shall
make advances of the Purchase Price to Intellamed (each, an “Advance”
and
collectively the “Advances”)
in
accordance with the following terms and conditions:
(a) UHS
shall
make an Advance to Intellamed of $500,000 upon the execution and delivery
of
this Agreement by UHS and Intellamed.
(b) UHS
shall
make an Advance to Intellamed of $500,000 on March 1, 2007 and
April 1, 2007 provided that as of the date of such Advance (i) the
conditions to UHS’ obligation to close the transactions contemplated hereby in
Section 7.01(a) are satisfied, (ii) Intellamed shall not have breached
any of its covenants and agreements hereunder, (iii) the conditions to UHS’
obligation to close the transactions contemplated hereby in Section 7.01(d)
are
satisfied, (iv) UHS shall have received the consent of General Electric Capital
Corporation as agent for the lenders and the other lenders party thereto
with
respect to the Amended and Restated Credit Agreement dated as of May 26,
2005,
and (iv) Intellamed shall have delivered to UHS a certificate of its Chief
Executive Officer to the effect that each of the conditions to an Advance
set
forth in Section 2.03(b)(i) through (iii) are satisfied in all
respects.
(c) Intellamed
shall execute and deliver a promissory note in the form substantially as
forth
in Exhibit
A
(the
“Note”)
upon
the execution and delivery of this Agreement by UHS and Intellamed.
Section
2.04 Time and Manner of Payments. UHS
shall
make the Advances on or prior to the Closing Date and shall pay the Base
Purchase Price on the Closing Date by wire transfer to Intellamed’s account at
such bank as Intellamed has indicated to UHS no less than three (3) business
days prior to the Closing. Subject to Section 2.02(e) hereof, UHS shall pay
the Earn-Out Purchase Price by wire transfer to Intellamed’s account at such
bank as Intellamed has indicated to UHS not less than three (3) business
days
prior to the date on which such payment actually is made: (a) for the First
Earn-Out Period, within 30 days following the end of the First Earn-Out Period
and (b) for the Second Earn-Out Period, within 30 days following the end of
the Second Earn-Out Period.
Section
2.05 Dispute Resolution. In the event of any dispute between Intellamed
and UHS concerning (a) the Definitive Subtractions or (b) the Earn-Out Revenue,
Intellamed and UHS shall refer such dispute to an accounting firm that
Intellamed and UHS shall mutually agree upon (the “Accountant”), which shall be
instructed to resolve such disputes within 60 days of the referral, acting
as an
expert and not as an arbitrator. Intellamed and UHS shall make available
to
the
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Accountant
at reasonable times and upon reasonable notice at any time during the pendency
of any such dispute the documents, materials and the books and records used
in
determining the Definitive Subtractions or the Earn-Out Revenue, as applicable.
Intellamed and UHS shall have the right to meet jointly with the Accountant
during this period and to present their respective positions. The resolution
of
disputes by the Accountant and its determination of the Definitive Subtractions
or the Earn-Out Revenue, as applicable, shall (i) be set forth in writing,
(ii)
be conclusive and binding upon Intellamed and UHS and (iii) become final
and
binding upon the date of such resolution.
Section
2.06 Allocation of Purchase Price. Within
90
days after the Closing, UHS shall, subject to Intellamed’s consent (which shall
not be unreasonably withheld), prepare a written and good faith allocation
of
the Purchase Price among the Acquired Assets, taking into account any appraisals
which may be obtained by UHS (copies of which shall be provided to Intellamed),
the applicable Treasury Regulations and the fair market value of such items.
Such written allocation shall then be attached to this Agreement as Exhibit B.
Intellamed shall provide information that may be required by UHS for the
purpose
of preparing Returns (as defined in Section 4.13) with respect to this
transaction and shall execute and file such Returns as are requested by UHS.
UHS
and Intellamed agree to make consistent use of the allocation, fair market
value
and useful lives specified on Exhibit B
for all
purposes, including, without limitation, Tax (as defined in Section 4.13)
and financial accounting purposes.
ARTICLE
III
CLOSING
Section
3.01 Closing. The
closing of the transactions contemplated by this Agreement (the “Closing”)
shall
occur on either April 1, 2007 or May 1, 2007 at 10:00 a.m.,
Minneapolis, Minnesota time, and shall take place at 0000 Xxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxx, XX 00000, or on such other date and time and at such other
place as is mutually agreeable to UHS and Intellamed. The date on which the
Closing occurs is referred to herein as the “Closing
Date”
and
the
Closing shall be deemed effective as of 12:01 a.m., Minneapolis, Minnesota
time, on the Closing Date.
Section
3.02 General Procedure; Deliveries. At
the
Closing, each party shall deliver to the party entitled to receipt thereof
the
documents required to be delivered pursuant to this Agreement and such other
documents, instruments and materials (or complete and accurate copies thereof,
where appropriate) as may be reasonably required in order to effectuate the
intent and provisions of this Agreement, and all such documents, instruments
and
materials shall be satisfactory in form and substance to counsel for the
receiving party. The conveyance, transfer, assignment and delivery of the
Acquired Assets
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shall
be
effected by the execution and delivery of a xxxx of sale in substantially
the
form attached hereto as Exhibit C
(the
“Xxxx
of
Sale”),
an
assignment and assumption agreement in substantially the form attached hereto
as
Exhibit D
(the
“Assignment
and Assumption Agreement”),
and
such other instruments of conveyance, transfer, assignment and delivery
(including assignments of all customer and vendor contracts) as UHS shall
reasonably request to cause Intellamed to transfer, convey, assign and deliver
the Acquired Assets to UHS and as Intellamed shall reasonably request to
evidence UHS’s assumption of the Assumed Liabilities.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF INTELLAMED
Intellamed
and all of Intellamed’s subsidiaries as set forth in Schedule
4.06
hereby
jointly represent and warrant to UHS that, except as set forth in the Disclosure
Schedule delivered by Intellamed to UHS on the date hereof (collectively,
the
“Disclosure
Schedule”)
(which
Disclosure Schedule sets forth the exceptions to the representations and
warranties contained in this Article IV under captions referencing the specific
Sections to which such exceptions apply):
Section
4.01 Incorporation and Corporate Power. Except
as
set forth in Schedule
4.01,
Intellamed is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Texas and has the corporate power
and
authority and all authorizations, licenses, permits and certifications necessary
for the conduct and operation of the Division as the Division is now being
conducted and to own, lease and operate the Acquired Assets. The copies of
Intellamed’s Articles of Incorporation and Bylaws which have been furnished by
Intellamed to UHS prior to the date hereof reflect all amendments made thereto
and are correct and complete as of the date hereof. Intellamed is qualified
to
do business as a foreign corporation in each of Kansas and
Tennessee.
Section
4.02 No Breach. Except
as
set forth in Schedule 4.02,
the
execution, delivery and performance of this Agreement by Intellamed and the
consummation by Intellamed of the transactions contemplated hereby do not
conflict with or result in any breach of any of the provisions of, constitute
a
default under, result in a violation of, result in the creation of a right
of
termination or acceleration or any lien, security interest, charge or
encumbrance, or require any authorization, consent, approval, exemption or
other
action by or notice to any court or other governmental body, under the
provisions of the Articles of Incorporation or Bylaws of Intellamed, any
indenture, mortgage, lease, loan agreement or other agreement or instrument
by
which Intellamed or the Division, as applicable, or the Acquired Assets are
bound or affected or any law, statute, rule or regulation or order, judgment
or
decree to which Intellamed or the Assets are subject.
Section
4.03 Governmental Authorities; Consents. Except
as
set forth in Schedule 4.03,
(a) neither Intellamed nor the Division, as applicable, is required to
submit any notice, report or other filing with any governmental authority
in
connection with the execution or delivery of this Agreement or the consummation
of the transactions contemplated hereby and (b) no consent, approval or
authorization of any
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governmental
or regulatory authority or any other party or person is required to be obtained
by either Intellamed or the Division, as applicable, in connection with the
execution, delivery and performance of this Agreement or the transactions
contemplated hereby. Each of Intellamed and the Division, as applicable,
has
obtained or at Closing shall have obtained all consents, approvals or
authorizations disclosed in Schedule
4.03
pursuant
to the preceding sentence.
Section
4.04 Execution, Delivery; Valid and Binding Agreement. The
execution, delivery and performance of this Agreement by Intellamed and the
consummation of the transactions contemplated hereby and thereby have been
duly
and validly authorized by the Board of Directors of Intellamed, and no other
proceedings on the part of Intellamed are necessary to authorize the execution,
delivery and performance of this Agreement. This Agreement has been duly
executed and delivered by Intellamed and constitutes the valid and binding
obligation of Intellamed, enforceable in accordance with its terms, except
that
(a) such enforcement may be subject to any bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other laws, now or hereafter
in effect, relating to or limiting creditors’ rights generally and (b) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court
before which any proceeding therefor may be brought.
Section
4.05 Financial Statements. Intellamed
has furnished UHS with a copy of the statement of sales and direct costs
of
sales of the service division of Intellamed for the 10-month period ended
October 31, 2006 (collectively, the “Financial
Statements”).
The
Financial Statements (a) are based upon the information contained in the
books
and records of Intellamed, (b) fairly present the sales and direct costs
of
sales of the service division of Intellamed for the periods referred to therein
and (c) were prepared in conformity with accounting principles generally
accepted in the United States of America.
Section
4.06 No Subsidiaries. Except
as
set forth in Schedule
4.06,
Intellamed does not own any stock, partnership interest, joint venture interest
or any other security issued by any other corporation, organization or
entity.
Section
4.07 Absence of Undisclosed Liabilities. To
the
knowledge of Intellamed, with respect to the Acquired Assets or the conduct
and
operation of the Division, Intellamed has no liabilities, obligations or
undertakings (whether accrued, absolute, contingent, unliquidated or otherwise,
whether due or to become due, whether known or unknown, and regardless of
when
asserted) being assumed by UHS hereunder or by operation of law other than
the
Assumed Liabilities.
Section
4.08 No Material Adverse Changes. Since October 31, 2006, there has
been no event, occurrence or development with respect to the conduct and
operation of the Division or the Acquired Assets that, taken together with
other
events, occurrences and developments with respect to the conduct and operation
of the Division or the Acquired Assets, has had, or would reasonably be expected
to have, a Material Adverse Effect. As used in the Agreement, the term “Material
Adverse Effect” shall mean any effect that is (a) materially adverse to the
condition (financial or otherwise), performance, (solely with respect to
this
Section 4.08, to the knowledge of Intellamed) prospects or operations of
the
Division or the Acquired Assets or (b) would impair the ability of Intellamed
to
perform its obligations under this Agreement or otherwise threaten or impede
the
consummation of the transactions contemplated hereby.
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Section
4.09 Absence of Certain Developments. Except
as
set forth in Schedule
4.09,
since
October 31, 2006, with respect to the conduct and operation of the
Division, neither the Division nor Intellamed, as applicable, has:
(a) mortgaged,
pledged or subjected to any lien, charge or any other encumbrance, any of
the
Acquired Assets;
(b) sold,
assigned or transferred (including, without limitation, transfers to any
employees, affiliates or shareholder) any tangible assets, or canceled any
debts
or claims, in each case, except in the ordinary course of business;
(c) sold,
assigned or transferred (including, without limitation, transfers to any
employees, affiliates or shareholder) any patents, trademarks, trade names,
copyrights, trade secrets or other intangible assets;
(d) disclosed,
to any person other than UHS and authorized representatives of UHS or
Intellamed, any proprietary or confidential information, other than pursuant
to
a confidentiality agreement prohibiting the use or further disclosure of
such
information, which agreement is set forth in Schedule
4.09
and is in
full force and effect on the date hereof;
(e) waived
any
rights of material value or suffered any extraordinary losses or adverse
changes
in collection loss experience, whether or not in the ordinary course of business
or consistent with past practice;
(f) taken
any
other action or entered into or modified or terminated any other transaction
or
agreement other than in the ordinary course of business and in accordance
with
past custom and practice, or entered into any transaction with any employee,
officer, director, affiliate or shareholder, other than employment arrangements
otherwise disclosed in this Agreement and the Disclosure Schedule hereto,
or the
transactions contemplated by this Agreement;
(g) increased
the compensation and employee benefits of officers or employees thereof or
paid
any bonus thereto;
(h) suffered
any material theft, damage, destruction or loss of or to any property or
properties owned or used by it, whether or not covered by
insurance;
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(i) made
any
change in accounting principles or practices from those utilized in the
preparation of the Financial Statements;
(j) made
any
change in employment terms for any of the directors, officers and employees
outside the ordinary course of business or adopted, modified or terminated
any
Employee Plan;
(k) delayed
or
postponed the payment of accounts payable and other liabilities outside of
the
ordinary course of business; or
(l) agreed
to
do any of the foregoing.
Section
4.10 Inventory. The
Supplies and Parts are (a) of quality and quantity usable in the ordinary
course
of business; (b) not obsolete or damaged; and (c) in good working
condition.
Section
4.11 Gross Accounts Receivable. Intellamed’s
gross accounts receivable outstanding on the Closing Date shall be valid
receivables subject to no valid counterclaims, defenses or offsets except
routine customer complaints or warranty demands of an immaterial
nature.
Section
4.12 Properties; Assets.
(a) Intellamed
does not own any real property. The real property demised by the leases
(collectively, the “Leases”)
described in Schedule
4.12
constitutes all of the real property used or occupied by Intellamed (the
“Real
Property”).
The
Real Property has access, sufficient for the conduct and operation of Intellamed
as the Division is now being conducted, to public roads and to all utilities,
including electricity, sanitary and storm sewer, potable water, natural gas
and
other utilities, used in the conduct and operation of the Division at that
location.
(b) The
Leases
are in full force and effect and Intellamed or the Division, as applicable,
holds a valid and existing leasehold interest under the Leases for the
respective terms set forth therein. Intellamed has delivered to UHS true
and
complete copies of the Leases, and the Leases have not been modified in any
respect, except to the extent that such modifications are disclosed by the
copies delivered to UHS. Neither Intellamed nor the Division, as applicable,
is
in default, and no circumstances exist which, if unremedied, would, either
with
or without notice or the passage of time or both, result in such default
under
the Leases; nor, to the knowledge of Intellamed or the Division, as applicable,
is any other party to the Leases in default.
(c) Except
as
set forth in Schedule
4.12,
Intellamed or the Division, as applicable, has good and marketable title
to the
Acquired Assets which it owns, free and clear of all liens and encumbrances.
At
the Closing, Intellamed or the Division, as applicable, shall deliver the
Acquired Assets to UHS free and clear of all liens and
encumbrances.
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(d) Schedule 1.01(a)
hereto
sets forth a description of all Acquired Assets which constitute equipment,
machinery, computers, work stations, test equipment, furniture and fixtures,
owned by Intellamed or the Division, as applicable. Schedule 1.01(b),
as
amended at Closing, shall set forth a description of all Acquired Assets
which
constitute the Supplies and Parts. Except as set forth in Schedule
4.12,
the
Acquired Assets to be transferred to UHS at Closing constitute all of the
assets
necessary for the conduct and operation of the Division in the ordinary course
of business as the Division is currently being conducted. All of the Acquired
Assets to be transferred at the Closing are in good condition and repair,
ordinary wear and tear excepted, and are usable (consistent with current
use) in
the ordinary course of business as the Division is currently being conducted.
There are no material defects in the Acquired Assets or other conditions
relating thereto.
(e) Neither
Intellamed nor the Division, as applicable, is in violation in any material
respect of any applicable zoning ordinance or other law, regulation or
requirement relating to the operation of any properties used, and neither
Intellamed nor the Division, as applicable, have received any notice of any
such
violation, or the existence of any condemnation proceeding with respect to
the
Real Property.
(f) Neither
Intellamed nor the Division, as applicable, have any knowledge of improvements
made or contemplated to be made by any public or private authority, the costs
of
which are to be assessed as special taxes or charges against any of the Real
Property, which special taxes or charges could be transferred to the lessee
under any of the Leases, and there are no present assessments.
(g) Intellamed,
the Division and the Real Property are in material compliance with all
applicable environmental laws, rules and regulations. To the knowledge of
Intellamed or the Division, as applicable, no dangerous, toxic or hazardous
pollutant, contaminant, chemical or similar material or substance has been
generated, treated, manufactured, buried, stored or released on, under or
about
any part of the Real Property.
Section
4.13 Tax Matters. Intellamed
warrants that Intellamed has: (a) timely filed (or has had timely filed on
its
behalf) all returns, declarations, reports, estimates, information returns,
schedules and statements (collectively, the “Returns”)
required to be filed or sent by it in respect of any Taxes or required to
be
filed or sent by it by any taxing authority having jurisdiction; (b) timely
and
properly paid (or has had paid on its behalf) all Taxes shown to be due and
payable on such Returns; (c) established on its balance sheet as of December
31,
2006, in accordance with the accounting basis used by Intellamed for income
tax
purposes, reserves that, to the knowledge of Intellamed, are adequate for
the
payment of any Taxes not yet due and payable by Intellamed; and (d)
complied in all material respects with all applicable laws, rules and
regulations relating to the withholding of Taxes and the payment thereof.
All
Returns filed by or on behalf of Intellamed are correct and complete. Intellamed
has not requested any extension of time within which to file any Return,
which
Return has not since been filed. No deficiency for any Taxes has been proposed,
asserted or assessed against Intellamed that has not been resolved and paid
in
full. There are no liens for Taxes upon the Division or the Acquired Assets.
For
purposes of this Agreement, the term “Tax”
or
“Taxes”
means
all taxes, charges, fees, levies, or other assessments of any kind.
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Section
4.14 Contracts and Commitments.
(a) Schedule
4.14
lists the
following contracts, commitments and/or binding understandings, whether oral
or
written, to which Intellamed or the Division, as applicable, is a party and
which are currently in effect, and which relate to the conduct and operation
of
the Division or the Acquired Assets:
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(i)
|
all
employment, consulting or severance agreements, all Employee Plans
and all
union or collective bargaining
agreements;
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(ii)
|
all
distributor, dealer, manufacturer’s representative, finder’s or broker’s
agreements, sales agency or advertising agency
contracts;
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(iii)
|
all
contracts terminable by the other party thereto upon a change of
control
of Intellamed or the Division, as applicable, or upon the failure
of
Intellamed or the Division, as applicable, to satisfy financial
or
performance criteria specified in such contract as provided
therein;
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(iv)
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all
leases of real or personal property (to the extent not otherwise
disclosed
in Schedule
4.12);
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(v)
|
all
contracts between or among Intellamed or the Division, as applicable,
any
director, officer or employee thereof or any member of his or her
family
or any entity affiliated with any such person relating in any way
to the
Division in excess of $1,000 or that is otherwise
material;
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(vi)
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all
contracts relating to the performance and payment of any surety
bond or
letter of credit required to be maintained by Intellamed or the
Division,
as applicable;
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(vii)
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all
confidentiality or nondisclosure
agreements;
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(viii)
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all
agreements or indentures relating to the borrowing of money or
to
mortgaging, pledging or otherwise placing a lien on any of the
Acquired
Assets;
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(ix)
|
any
guaranty of any obligation for borrowed money or
otherwise;
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(x)
|
all
contracts or group of related contracts with the same party for
the
purchase of products or services under which the undelivered balance
of
such products or services is in excess of
$5,000;
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(xi)
|
all
contracts or group of related contracts with the same party for
the sale
of products or services under which the undelivered balance of
such
products or services has a sales price in excess of
$1,000;
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(xii)
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all
agreements for the sale of any capital
asset;
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(xiii)
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all
franchise agreements;
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(xiv)
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any
contract or commitment for capital expenditures in excess of
$5,000;
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(xv)
|
all
contracts which prohibit Intellamed or the Division, as applicable,
from
freely engaging in business anywhere in the United
States;
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(xvi)
|
all
license agreements or agreements providing for the payment or receipt
of
royalties, finder’s fees or other compensation by Intellamed or the
Division, as applicable, in connection with the Intellectual Property
Rights listed in Schedule
4.20;
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(xvii)
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all
agreements, whether oral or written, providing for the payment
or receipt
of royalties, commissions, finder’s fees or other compensation by
Intellamed or the Division, as applicable;
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(xviii)
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all
Subject Contracts; and
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(xix)
|
any
other agreement of Intellamed or the Division, as applicable, not
entered
into in the ordinary course of business or that is otherwise material
to
the Acquired Assets, the Division, or the financial condition or
results
of operation of Intellamed or the Division, as applicable, or the
sales
and direct costs of sales of the service division of
Intellamed.
|
(b) Each
of
Intellamed or the Division, as applicable, has performed all obligations
required to be performed by it in connection with the contracts or commitments
required to be disclosed in Schedule
4.14
and is
not in receipt of any claim of default under any contract or commitment required
to be disclosed under such caption. Neither Intellamed nor the Division,
as
applicable, has any knowledge of any breach or anticipated breach by any
other
party to any contract or commitment required to be disclosed under such
caption.
(c) Prior
to
the date of this Agreement, UHS has been supplied with a true and correct
copy
of each written contract or commitment, and a written description of each
oral
contract or commitment, referred to in Schedule
4.14,
together
with all amendments, waivers or other changes thereto.
(d) Except
as
set forth in Schedule 4.14,
all of
the interest of Intellamed or the Division, as applicable, in and benefits
under
all licenses, leases, contracts and agreements are assignable in accordance
with
Sections 1.01(c) and 1.01(d) hereof.
Section
4.15 Litigation. There
are
no actions, suits, proceedings, orders or investigations pending or, to the
knowledge of Intellamed or the Division, as applicable, threatened against
Intellamed or the Division, as applicable, at law or in equity or before
or by
any federal, state or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign with respect to the Acquired
Assets or the Division.
Section
4.16 No Brokers or Finders. Except
as
set forth in Schedule 4.16, there are no claims for brokerage commissions,
finders’ fees, investment advisory fees or similar compensation in connection
with the transactions contemplated by this Agreement, based on any arrangement,
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understanding,
commitment or agreement made by or on behalf of Intellamed or the Division,
as
applicable, obligating Intellamed or the Division, as applicable, or UHS
to pay
such claim.
Section
4.17 Employees.
(a) Each
of
Intellamed and the Division, as applicable, has complied in all material
respects with all laws relating to the employment of labor, including provisions
thereof relating to wages, hours, equal opportunity, collective bargaining,
nondiscrimination and the payment of social security and other Taxes. To
the
knowledge of Intellamed or the Division, as applicable, no officer or manager
of
the Division has any present intention to terminate his or her employment,
or is
a party to any confidentiality, non-competition, proprietary rights or other
such agreement between such employee and any party besides such entity that
would be material to the performance of such employee’s employment duties, or
the ability of Intellamed or the Division to conduct the business of such
entity. No labor strike, work stoppage, slowdown, or other material labor
dispute has occurred, and none is underway or, to the knowledge of Intellamed
or
the Division, as applicable, threatened. There is no xxxxxxx’x compensation
liability, experience or matter outside the ordinary course of business.
There
is no employment-related charge, complaint, grievance, investigation, inquiry
or
obligation of any kind, pending or threatened in any forum, relating to an
alleged violation or breach by Intellamed or the Division, as applicable,
or any
officer or director thereof, of any law, regulation or contract; and no employee
or agent of the Division has committed any act or omission giving rise to
material liability for any such violation or breach. No employee, officer
or
manager of the Division is excluded, suspended or otherwise ineligible to
participate in any federal or state health care program or in any state or
federal procurement/non-procurement program; has received notice that the
government proposes to exclude or debar such employee, officer or manager
from
participation in any federal or state health care program or
procurement/non-procurement program; or is the subject of or otherwise part
of
any ongoing federal or state health care investigation.
(b) Schedule 4.17(b)
lists all
employees of the Division who hold a temporary work authorization, including
but
not limited to X-0X, X-0, X-0 or J-1 visas or work authorizations (collectively,
the “Work
Permits”),
setting forth the name of each employee, the type of Work Permit and the
length
of time remaining on such Work Permit. With respect to each Work Permit,
all of
the information that Intellamed provided to the Department of Labor, the
Immigration and Naturalization Service or the Department of Homeland Security
(collectively, the “Department”)
in the
application for such Work Permit was, to Intellamed’s knowledge, true and
complete at the time of filing and is, to Intellamed’s knowledge, true and
complete as of the date hereof. Intellamed received the appropriate notice
of
approval from the Department with respect to each such Work Permit. Intellamed
has not received any notice from the Department or any other governmental
authority that any Work Permit has been revoked. There is no action pending
or
threatened in writing to revoke or adversely modify the terms of any of the
Work
Permits. Except as set forth in Schedule 4.17(b),
the
Division has no current employee who is (i) a non-immigrant employee whose
status would terminate or otherwise be affected by the business transaction
consummated under this Agreement, or (ii) an alien who is authorized
to
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work
in
the United States on a non-immigrant status. For each employee of the Division
hired after November 6, 1986, Intellamed has retained an Immigration and
Naturalization Service Form I-9, completed in accordance with the
applicable rules and regulations.
Section
4.18 Insurance. Schedule
4.18 lists
and details each insurance policy maintained by Intellamed or the Division,
as
applicable, with respect to the Acquired Assets and the conduct and operation
of
the Division and sets forth the date of expiration of each such insurance
policy. All such insurance policies are, and until the Closing Date shall
be, in
full force and effect.
Section
4.19 Compliance with Laws; Permits. Each
of
Intellamed and the Division, as applicable, has complied in all material
respects with all applicable laws and regulations of foreign, federal, state
and
local governments and all agencies thereof which affect the Division, the
Acquired Assets or any leased properties of Intellamed or the Division, as
applicable, and to which Intellamed or the Division, as applicable, may be
subject (including, without limitation, any state or federal acts, including
rules and regulations thereunder, regulating or otherwise affecting, equal
employment opportunity, employee health and safety or the environment); and
no
claims have been filed by any such governments or agencies against Intellamed
or
the Division, as applicable, alleging such a violation of any such law or
regulation which have not been resolved to the satisfaction of such governments
or agencies. Neither Intellamed nor the Division, as applicable, is relying
on
any exemption from or deferral or qualification of any such applicable law,
regulation or other requirement that would not be available to UHS after
it
acquires the Acquired Assets. Except as set forth in Schedule 4.19,
Intellamed or the Division, as applicable, holds all of the permits, licenses,
certificates and other authorizations of foreign, federal, state and local
governmental agencies required for the conduct and operation of the Division.
Neither Intellamed nor the Division, as applicable, has made or agreed to
make
gifts of money, other property or similar benefits (other than incidental
gifts
of articles of nominal value) to any actual or potential customer, supplier,
governmental employee or any other person in a position to assist or hinder
Intellamed or the Division, as applicable, in connection with any actual
or
proposed transaction.
Section
4.20 Intellectual Property Rights; Software.
(a) “Intellectual
Property Rights”
means
(i) all inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and reexaminations
thereto, (ii) all trademarks, service marks, trade dress, logos, slogans,
trade names, corporate names, Internet domain names, and rights in telephone
numbers, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and
all
applications, registrations, and renewals in connection therewith,
(iii) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (iv) all mask works
and all applications, registrations, and renewals in connection therewith,
(v) all trade secrets and
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confidential
business information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier
lists,
pricing and cost information, and business and marketing plans and proposals),
(vi) all computer software (including source code, executable code, data,
databases, and related documentation), (vii) all advertising and
promotional materials, (viii) all other proprietary rights, and
(ix) all copies and tangible embodiments thereof (in whatever form of
medium) (collectively, “Intellectual
Property Rights”).
Schedule
4.20
lists all
Intellectual Property Rights that are held by Intellamed or the Division,
as
applicable, in the conduct and operation of the Division.
(b) Neither
Intellamed nor the Division, as applicable, has received any notice of any
infringement, misappropriation or violation by Intellamed or the Division,
as
applicable, of any Intellectual Property Rights of any third parties and
neither
Intellamed nor the Division, as applicable, has infringed, misappropriated
or
otherwise violated any such Intellectual Property Rights; and with respect
to
the S2 software which constitutes an Acquired Asset, no infringement, illicit
copying, misappropriation or violation has occurred or shall occur with respect
to the conduct and operation of the Division as the Division is now being
conducted or solely as a result of the transaction contemplated by this
Agreement.
(c) Intellamed
and the Division, as applicable, own or license under valid license agreements
all of the software required for the conduct and operation of the Division
as
the Division is now being conducted or planned to be conducted and these
license
agreements are listed on Schedule
4.20.
(d) Intellamed
and the Division, as applicable, have taken all reasonable and necessary
actions
to maintain and protect all Intellectual Property Rights held by Intellamed
or
the Division, as applicable, in the conduct and operation of the Division
and
shall continue to maintain and protect all such Intellectual Property Rights
prior to Closing so as not to adversely affect the validity or enforceability
thereof. To the knowledge of Intellamed and the Division, as applicable,
the
owners of any Intellectual Property Rights licensed to Intellamed or the
Division, as applicable, have taken all necessary and desirable actions to
maintain and protect the Intellectual Property Rights covered by such license.
(e) Intellamed
and the Division, as applicable, have complied with and are presently in
compliance with all foreign, federal, state, local, governmental (including,
but
not limited to, the Federal Trade Commission and State Attorneys General),
administrative or regulatory laws, regulations, guidelines and rules applicable
to any Intellectual Property Rights and shall take all steps necessary to
ensure
such compliance until Closing, the violation of which would have a Material
Adverse Effect.
Section
4.21 Customers and Suppliers. Schedule
4.21
lists all
the customers and all the suppliers of Intellamed or the Division, as
applicable, with respect to the conduct and operation of the Division for
the
each of the first 10 months of 2006 and the year 2005 and sets forth opposite
the name of each such customer the revenues with respect to Intellamed or
the
Division, as applicable, and as specified therein, attributable to such customer
for each such year. Since December 31, 2006, no customer or supplier listed
in Schedule
4.21
has
indicated that it shall stop or decrease the rate of business
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done
with
Intellamed or the Division, as applicable. The services provided to the
customers of Intellamed or the Division, as applicable, are consistent with
their respective contracts and satisfy the performance expectations of the
customers thereunder, respectively.
Section
4.22 Employee Benefits.
(a) All
employee benefit plans (as defined in Section 3(3) of Employee Retirement
Income Security Act of 1974, as amended (collectively, “ERISA”))
and
all material benefit programs or practices providing for bonuses, incentive
compensation, vacation pay, insurance, restricted stock, stock options, employee
discounts or passes, company cars, tuition reimbursement or any other perquisite
or benefit (including, without limitation, any fringe benefit under
Section 132 of the Internal Revenue Code of 1986, as amended (collectively,
the “Code”))
to
present or former employees, officers or independent contractors of Intellamed,
that are not employee benefit plans within the meaning of Section 3(3) of
ERISA, in each case, maintained or contributed to by Intellamed and
applicable to employees of Intellamed as well as all related trusts,
insurance contracts, or funds (collectively, “Employee
Plans”)
have
been maintained, funded and administered in all material respects in compliance
with the documents and instruments governing the Employee Plans, and comply
in
form and operation in all material respects with the applicable requirements
of
the Code, ERISA, and other applicable law. All premiums, contributions or
other
payments due for all periods ending before the Closing Date have been paid
(or,
with respect to those not yet due, shall have been paid on or before the
applicable due date) with respect to each Employee Plan within the time periods
prescribed by applicable law.
(b) Each
Employee Plan (and its related trust) that is intended to meet the qualification
requirements of Code Section 401(a) (hereinafter a “Pension
Plan”)
has
received a determination letter, or an opinion letter upon which the Pension
Plan is entitled to rely, from the Internal Revenue Service that such Employee
Plan satisfies such qualification requirements and nothing has occurred since
the date of such determination or opinion letter that could adversely affect
the
qualified status of such Employee Plan.
(c) Except
as
set forth in Schedule
4.22,
Intellamed has no individuals (i) receiving continuation coverage pursuant
to
Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B or applicable
state law (collectively, “COBRA”)
under
any group health plan maintained by Intellamed; (ii) to whom COBRA continuation
coverage has been offered but not yet elected; or (iii) to whom COBRA
continuation coverage shall be offered in connection with the transactions
contemplated by this Agreement but with respect to whom the deadline for
providing notice for such coverage has not yet passed.
(d) Neither
Intellamed nor any ERISA Affiliate maintains or contributes to or has ever
maintained or contributed to a “defined benefit plan” within the meaning of
Section 3(35) of ERISA or a “multiemployer plan” within the meaning of Section
3(37) of ERISA. For purposes of this Agreement, “ERISA
Affiliate”
means,
with respect to any entity, trade or business, any other entity, trade or
business that is a member of a group described in Section 414(b), (c), (m)
or
(o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity,
trade or business, or that is a member of the same “controlled group” as the
first entity, trade or business pursuant to Section 4001(a)(14) of
ERISA.
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Section
4.23 Government Contracts. With
respect to any Government Contracts, there is no (a) civil fraud or criminal
acts or bribery, or any other violation of law by Intellamed or any of its
directors, officers, or employees, (b) pending criminal investigation by
any
Government Entity, (c) any misstatement or omission by Intellamed under any
Government Contracts, (d) request by a Government Entity for a contract price
adjustment based on a claimed disallowance by any Governmental Entity or
a claim
of defective pricing, (e) dispute between Intellamed and a Governmental Entity
which has resulted in a government contracting officer’s adverse final decision
or (f) termination by a Governmental Entity for default by Intellamed of
any
Government Contract, or (g) claim or request for equitable adjustment by
Intellamed against a Governmental Entity. There is or has been no termination
for default or convenience, cure notice, or show cause notice issued by the
United States Government or by any prime contractor or subcontractor, in
writing, with respect to performance by Intellamed as a subcontractor of
any
portion of the obligation of a Government Contract which, individually or
in the
aggregate, would reasonably be expected to have a Material Adverse Effect
on
Intellamed. Intellamed has complied with all material terms and conditions
of
its Government Contracts. Neither Intellamed nor any of Intellamed’s directors,
officers, or employees is or has been debarred or suspended from participation
in the award of contracts with any Governmental Entity or has been declared
nonresponsible in the last five (5) years. “Government Contracts” means any
prime contract, subcontract, teaming agreement or arrangement, joint venture,
basic ordering agreement, blanket purchase agreement, letter agreement, purchase
order, delivery order, task order, grant, cooperative agreement, bid, change
order or other commitment or funding vehicle between Intellamed and (i) a
Governmental Entity, (ii) any prime contractor to a Governmental Entity or
(iii)
any subcontractor with respect to any contract described in the foregoing
clause
(i) or (ii). “Governmental Entity” means any federal, state, local, foreign,
international or multinational entity or authority exercising executive,
legislative, judicial, regulatory, administrative or taxing functions of
or
pertaining to government.
Section
4.24 Computer and Technology Security. Intellamed
has taken all reasonable steps to safeguard the information technology systems
utilized in the operation of the business of Intellamed, including the Division,
including the implementation of procedures designed to ensure that such
information technology systems are free from any disabling codes or
instructions, time, copy protection device, clock, counter or other limiting
design or routing and any “back door,” “time bomb,” “Trojan horse,” “worm,”
“drop dead device,” “virus,” or other software routines or hardware components
that in each case permit unauthorized disablement or unauthorized erasure
of
data or other software by a third party, and to date there have been no
successful unauthorized intrusions or breaches of the security of the
information technology systems.
Section
4.25 Certain Business Relationships with the Division. Except
as
set forth in Schedule
4.25,
none of
the shareholders of Intellamed and all of Intellamed’s subsidiaries as set forth
in Schedule 4.06,
nor the
directors, officers, employees and shareholders of Intellamed, and the
Division’s officers and employees has been involved in any business arrangement
or relationship with the Division within the past 12 months, and none of
the
shareholders of Intellamed and all of Intellamed’s subsidiaries as set forth in
Schedule 4.06,
nor the
directors, officers, employees and shareholders of Intellamed and the Division’s
officers and
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employees
own any asset, tangible or intangible, that is used in the conduct and operation
of the Division.
Section
4.26 Data Privacy.
(a) The
collection, use, transfer, import, export, storage, disposal, and disclosure
by
Intellamed and the Division, as applicable, of personal information or other
information relating to persons protected by law has not violated and, if
performed after Closing in substantially the same manner as performed
immediately prior to Closing, shall not violate any applicable local, state,
federal or foreign law relating to data collection, use, privacy, or protection
(including, without limitation, any requirement arising under any constitution,
state, code, treaty, decree, rule, ordinance or regulation) (collectively,
the
“Data
Laws”).
Each
of Intellamed and the Division, as applicable, has complied with, and is
presently in compliance with, its privacy policies, which policies comply
with
all Data Laws. The transactions contemplated by this Agreement shall not
result
in the violation of any Data Laws, or the privacy policies of Intellamed
or the
Division, as applicable.
(b) Without
limiting the generality of the foregoing, each of Intellamed and the Division,
as applicable, is in material compliance with the Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”).
(c) There
is
no complaint, audit, proceeding, investigation, or claim against or, to the
knowledge of Intellamed and the directors and officers (and employees with
responsibility for data privacy matters) of Intellamed, threatened against,
by
any governmental authority, or by any party respecting the collection, use,
transfer, import, export, storage, disposal, and disclosure of personal
information by any party in connection with Intellamed or the Division, as
applicable, or the business thereof. There have been no security breaches
compromising the confidentiality or integrity of personal
information.
Section
4.27 Disclosure.
The
representations and warranties contained in this Article IV are true and
correct
in all material respects and, taken together with the Disclosure Schedule,
do
not omit any material fact necessary to make the statements contained therein,
in light of the circumstances under which they were made, not misleading.
There
is no material fact known to Intellamed or the Division, as applicable, which
has not been disclosed to UHS pursuant to this Agreement and the Disclosure
Schedule.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF UHS
UHS
hereby
represents and warrants to Intellamed that:
Section
5.01 Incorporation and Corporate Power. UHS
is a
corporation duly incorporated, validly existing and in good standing under
the
laws of the State of Delaware, with the requisite corporate power and
authority to enter into this Agreement and perform its obligations hereunder.
Section
5.02 Execution, Delivery; Valid and Binding Agreement. The
execution, delivery and performance of this Agreement by UHS and the
consummation of the transactions contemplated hereby have been duly and
validly
authorized by all requisite corporate action, and no other
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corporate
proceedings on its part are necessary to authorize the execution, delivery
or
performance of this Agreement. This Agreement has been duly executed and
delivered by UHS and constitutes the valid and binding obligation of UHS,
enforceable in accordance with its terms, except that (a) such enforcement
may be subject to any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws, now or hereafter in effect, relating to
or
limiting creditors’ rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
Section
5.03 No Breach.Except
for
the Amended and Restated Credit Agreement dated as of May 26, 2005 among
UHS and
General Electric Capital Corporation as agent for the lenders and the other
lenders party thereto, the execution, delivery and performance of this Agreement
by UHS and the consummation by UHS of the transactions contemplated hereby
do
not conflict with or result in any breach of any of the provisions of,
constitute a default under, result in a violation of, result in the creation
of
a right of termination or acceleration or any lien, security interest, charge
or
encumbrance upon any assets of UHS, or require any authorization, consent,
approval, exemption or other action by or notice to any court or other
governmental body, under the provisions of the Certificate of Incorporation
or
Bylaws of UHS or any indenture, mortgage, lease, loan agreement or other
agreement or instrument by which UHS is bound or affected, or any law, statute,
rule or regulation or order, judgment or decree to which UHS is
subject.
Section
5.04 Governmental Authorities; Consents. Except
as
set forth in Schedule
4.03,
UHS is
not required to submit any notice, report or other filing with any governmental
authority in connection with the execution or delivery by it of this Agreement
or the consummation of the transactions contemplated hereby. No consent,
approval or authorization of any governmental or regulatory authority or
any
other party or person is required to be obtained by UHS in connection with
its
execution, delivery and performance of this Agreement or the transactions
contemplated hereby.
Section
5.05 No Brokers or Finders. There
are
no claims for brokerage commissions, finders’ fees, investment advisory fees or
similar compensation in connection with the transactions contemplated by
this
Agreement, based on any arrangement, understanding, commitment or agreement
made
by or on behalf of UHS, obligating UHS or Intellamed or the Division, as
applicable, to pay such claim.
Section
5.06 Investment. UHS:
(a)
understands that the Note has not been, and shall not be, registered under
the
Securities Act of 1933, as amended (collectively, the “Securities Act”), or
under any state securities laws, and is being offered and sold in reliance
upon
federal and state exemptions for a transaction not involving any public
offering, (b) is acquiring the Note solely for its own account for investment
purposes, and not with a view to the distribution thereof, (c) has received
certain information concerning Intellamed and has had the opportunity obtain
additional information as desired in order to evaluate the merits and risks
inherent in holding the Note, (d) is able to bear the economic risk and lack
of
liquidity inherent in holding the Note, and (e) is an “accredited investor” as
defined in Regulation D promulgated under the Securities
Act.
Section
5.07 Funds. UHS has access to adequate funds to consummate the
transactions contemplated herein.
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Section
5.08 No Litigation. There
are
no actions, suits, proceedings, orders or investigations pending or, to the
knowledge of UHS, threatened against UHS at law or in equity or before or
by any
federal, state or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign which could reasonably be
expected to adversely affect UHS’s ability to consummate the transactions
contemplated by this Agreement or adversely affect the validity or
enforceability of this Agreement.
ARTICLE
VI
COVENANTS
AND AGREEMENTS
Section
6.01 Pre-Closing Covenants
(a) Each
of
the parties shall use its best efforts to take all actions and to do all
things
necessary, proper, or advisable in order to consummate and make effective
the
transactions contemplated by this Agreement.
(b) Intellamed
shall give (and shall cause the Division to give) any notices to third parties,
and Intellamed shall use its best efforts (and shall cause the Division to
use
its best efforts) to obtain any third party consents that UHS may request
in
connection with the matters referred to in Section 4.03. Each of the
parties shall (and Intellamed shall cause the Division to) give any notices
to,
make any filings with, and use its best efforts to obtain any authorizations,
consents, and approvals, of governments and governmental agencies in connection
with the matters referred to in Section 4.03 and Section 5.04. UHS
shall cooperate with and assist Intellamed in obtaining those consents referred
to in Section 4.03.
(c) Intellamed
shall not cause or permit the Division to engage in any practice, take any
action, or enter into any transaction outside the ordinary course of business.
Intellamed shall not engage in any practice, take any action, or enter into
any
transaction of the sort described in Section 4.09.
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(d) Intellamed
shall cause the Division to keep its business and properties substantially
intact, including its present operations, physical facilities, working
conditions, and relationships with lessors, licensors, suppliers, customers,
and
employees. Intellamed and UHS shall cooperate to jointly visit key customers
to
advise them of the transactions contemplated hereby and to introduce them
to the
officers, managers, employees and agents of UHS.
(e) Intellamed
shall permit (and shall cause the Division to permit) representatives of
UHS to
have full access during Intellamed’s regular business hours, and in a manner so
as not to interfere with the normal business operations of the Division,
to all
premises, properties, personnel, books, records (including Tax records),
contracts, and documents of or pertaining to the Division.
(f) Each
party
shall give prompt written notice to the other party of any material adverse
development causing a breach of any of its own representations and warranties
in
Articles IV and V herein. No disclosure by any party pursuant to this
Section 6.01(f), however, shall be deemed to amend or supplement the
Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(g) Intellamed
shall not (and shall not cause or permit the Division to) (i) solicit, initiate,
or encourage the submission of any proposal or offer from any third party
relating to the substantial portion of the assets of the Division or
(ii) participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any third party to do or seek any of
the
foregoing. Intellamed shall notify UHS within 48 hours if any third party
makes
any proposal, offer, inquiry, or contact with respect to any of the
foregoing.
(h) Prior
to
the Closing, Intellamed shall take such actions are necessary to deliver
the
Acquired Assets free and clear of all liens and encumbrances thereon including,
without limitation, obtaining UCC-3 termination statements for all financing
statements encumbering the Acquired Assets.
(i) If
required by UHS in its sole discretion, Intellamed and UHS shall obtain the
audited financial statements of Intellamed which satisfy the requirements
of
Item 9.01 of Regulation S-K in connection with the current report on
Form 8-K under Item 2.01 of Regulation S-K that UHS shall file with
respect to the completion of the transactions contemplated hereby. UHS shall
pay
all costs of such audit.
(j) Intellamed
shall furnish UHS with a copy of the Intellamed income statement for the
year
ended December 31, 2006, which (i) shall be based upon the information
contained in the books and records of Intellamed, (ii) shall fairly present
the pre-tax earnings of Intellamed for the year ended December 31, 2006 and
(iii) was prepared in accordance with generally accepted accounting
principles consistently applied.
(k)
Intellamed shall provide documentation reasonably satisfactory to UHS confirming
that the Government Contracts are in compliance with 13 CFR 125.6.
Section
6.02 Use of Name of the ICMS Division. For
purposes of effecting the transition of the Division from Intellamed to UHS,
UHS
shall have the right to use all of the trade names, trademarks and logos
or
other Intellectual Property Rights owned by Intellamed or the
Division,
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as
applicable, and currently used in the conduct and operation of the Division.
No
royalty or other fees shall be payable by UHS to Intellamed for the right
to use
such Intellectual Property Rights.
Section
6.03 Taxes. Intellamed
shall pay all applicable transfer and sales taxes associated with the sale
of
the Acquired Assets to UHS.
Section
6.04 Waiver of Compliance with Bulk Sales Laws. UHS
hereby
waives any requirement that Intellamed comply with the bulk sales laws in
any
jurisdiction in connection with the transactions contemplated by this Agreement,
and in exchange therefor, Intellamed agrees to pay, honor and discharge when
due
any claims (other than the Assumed Liabilities) asserted against UHS by reason
of such noncompliance.
Section
6.05 Post-Closing Covenants. The
parties agree as follows with respect to the period following the
Closing:
(a) In
case at
any time after the Closing any further actions are necessary or desirable
to
carry out the purposes of this Agreement, each of the parties shall take
such
further actions (including the execution and delivery of such further
instruments and documents) as the other party may request, all at the sole
cost
and expense of the requesting party (unless the requesting party is entitled
to
indemnification therefor as provided herein). Intellamed acknowledges and
agrees
that from and after the Closing, UHS shall be entitled to possession of all
documents, books, records (excluding Tax and accounting records, but including
all records relating to the customers and employees of Intellamed), agreements,
and financial data or any sort relating to the Division.
(b) Intellamed
shall not take any action that is designed or intended to have the effect
of
discouraging any lessor, licensor, customer, supplier, or other business
associate of the Division from maintaining the same business relationships
with
UHS and the Division after the Closing as it maintained with the Division
prior
to the Closing. Intellamed shall refer all customer inquiries relating to
the
Division to UHS from and after the Closing.
(c) Intellamed
shall treat as confidential and hold as such any information concerning the
business and affairs of the Division and of UHS (collectively, the “UHS Confidential
Information”),
refrain from using any of the Confidential Information except in connection
with
this Agreement and solely for the purpose of preparing and filing of
Intellamed’s Tax returns and compliance with financial reporting requirements,
and deliver promptly to UHS or destroy, at the request and option of UHS,
all
tangible embodiments (and all copies) of the UHS Confidential Information
that
are in its possession. In the event that Intellamed is requested or required
(by
oral question or request for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar process)
to
disclose any UHS Confidential Information, Intellamed shall notify UHS promptly
of the request or requirement so
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that
UHS
may seek an appropriate protective order or waive compliance with the provisions
hereof. If, in the absence of a protective order or the receipt of a waiver
hereunder, Intellamed is, on the advice of counsel, compelled to disclose
any
UHS Confidential Information to any tribunal or else stand liable for contempt,
Intellamed may disclose the UHS Confidential Information to the tribunal;
provided, however, that Intellamed shall use its best efforts to obtain,
at the
request of UHS, an order or other assurance that confidential treatment shall
be
accorded to such portion of the UHS Confidential Information required to
be
disclosed as UHS shall designate.
(d) UHS
acknowledges that during the course of its investigations it will have access
to
confidential information of Intellamed other than information relating to
or
concerning in any way the Division. UHS shall treat as confidential and hold
any
information relating to or concerning the business and affairs of Intellamed
that do not relate to or concern in any way the Division (the “Intellamed
Confidential Information”),
refrain from using any of the Intellamed Confidential Information except
in
connection with this Agreement, and deliver promptly to Intellamed or destroy,
at the request and option of Intellamed, all tangible embodiments (and all
copies) of the Intellamed Confidential Information that are in UHS’s possession.
In the event that UHS is requested or required (by oral question or request
for
information or documents in any legal proceeding, interrogatory, subpoena,
civil
investigative demand, or similar process) to disclose any Intellamed
Confidential Information, UHS shall notify Intellamed promptly of the request
or
requirement so that Intellamed may seek an appropriate protective order or
waive
compliance with the provisions hereof. If, in the absence of a protective
order
or the receipt of a waiver hereunder, UHS is, on the advice of counsel,
compelled to disclose any Intellamed Confidential Information to any tribunal
or
else stand liable for contempt, UHS may disclose the Intellamed Confidential
Information to the tribunal; provided, however, that UHS shall use its best
efforts to obtain, at the written request of Intellamed, an order or other
assurance that confidential treatment shall be accorded to such portion of
the
Intellamed Confidential Information required to be disclosed as Intellamed
shall
designate in writing. The obligations under this subsection shall not apply
to
Intellamed Confidential Information that, as of the date hereof, was in the
public domain or its or becomes generally available in the public domain
other
than pursuant to a breach by UHS of the obligations under this subsection.
(e) UHS
shall
permit representatives of Intellamed to have access, at reasonable times
during
regular business hours and in a manner so as not to interfere with the regular
business operations of UHS, to the books and records of the Division after
the
Closing Date for a Tax or accounting purpose.
Section
6.06 Employees; Employee Benefits. Subject
to
the limitations set forth in Section 9.13 of this Agreement (that is, no
party
other than a party hereto shall have any rights as a third party beneficiary
of
this Agreement):
(a) As
of or
prior to the Closing, but subject to the consummation of the transactions
contemplated by this Agreement and subject to normal drug testing and other
screening utilized by UHS in connection with its ordinary hiring practices,
UHS
shall make a determination as to whether to offer full-time employment to
each
of the individuals who is actively employed by Intellamed in direct connection
with the Division (and those inactive
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employees
of Intellamed in direct connection with the Division who as of the Closing
Date
were not actively employed due to vacation, sick leave and other authorized
leaves of absence), on the Closing Date and identified in Schedule
6.06
(each, an
“Offer
Employee”).
Such offers shall be made in accordance with the following provisions: (i)
the date on which the employment by UHS of each Offer Employee who accepts
such
offer of employment shall become effective (the “Effective
Date of Employment”)
shall
be the first business day after the Closing Date on which each such Offer
Employee reports to work with UHS for active duty (each such Offer Employee
who
becomes so employed by UHS hereinafter being referred to as a “Hired
Employee”
from
and
after the Effective Date of Employment), and (ii) the initial salary and
base
wage compensation payable to each Hired Employee as of the Effective Date
of
Employment shall be not less than the amount set forth in Schedule
6.06
for such
Hired Employee. Each Hired Employee shall enter into a Noncompetition
Agreement with UHS that is provided by UHS. On and after the Closing, until
at
least the first anniversary of the Closing, UHS shall provide the Hired
Employees with salary and benefit plans, programs and arrangements comparable
in
the aggregate to those currently provided by UHS to its own similarly situated
employees.
(b) On
the
Closing Date, Intellamed shall provide written notice to all of the Offer
Employees who UHS has determined to hire indicating that their employment
by
Intellamed shall terminate at the close of business on the Closing Date.
(c) UHS
shall
not adopt, contribute to, have any liability with respect to, or in any other
manner accept or continue responsibility or liability for the administration
or
funding of any Employee Plans. There shall be no spin-off of either liabilities
or assets from any Employee Plans to any plan covering employees on and after
Closing. After the Closing Date, Intellamed shall maintain a group health
plan
for at least the maximum period that post-employment continuation coverage
must
be available to any and all “M&A qualified beneficiaries” (as that term
is defined under COBRA regulations or similar applicable state law) with
respect
to the sale of assets. UHS shall not be a successor employer under such
COBRA regulations or similar applicable state law.
(d) Any
Hired
Employee who becomes a participant in any employee benefit plan of UHS or
any of
its affiliates shall be given credit under such plan for the last continuous
period of service with Intellamed prior to the Closing for purposes of
determining eligibility to participate and vesting in benefits but for no
other
purpose (including, without limiting the generality of the foregoing, the
accrual of benefits).
(e) UHS
shall
be responsible and assume all liability for all notices or payments due to
any
Hired Employees, and all notices, payments, fines or assessments due to any
governmental authority, under any applicable law with respect to the employment,
discharge or layoff of employees by UHS after the Closing, including but
not
limited to, the WARN Act and any rules or regulations as have been issued
in
connection with the foregoing.
(f) UHS
agrees
that, upon the Closing, each Hired Employee shall be eligible to participate
in
a group health plan (as defined in Section 5000(b)(1) of the Code) subject
to
the terms and conditions thereof; provided, however, such obligation of UHS
is
contingent on Intellamed furnishing sufficient information in sufficiently
usable form to enable UHS to reasonably administer its plan.
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(g) Intellamed
and UHS shall provide each other with such documents, employee data and other
information as may be reasonably required to carry out the provisions of
this
Section 6.06.
Section
6.07 Government Contracts. With
respect to the period between the date hereof and the Closing, Intellamed
agrees
that Intellamed shall:
(a) terminate
the Subcontract Agreement between Intellamed and Sustainment Technologies,
Inc.
(“STI”)dated
October 1, 2006 (the “Sustainment
Subcontract”);
and
(b) amend
those subcontracts with STI and VW International, Inc. (“VWI”)
set
forth and in the manner described in Schedule
6.07
hereto to
make clear that the contracting relationship between Intellamed as subcontractor
and STI and VWI as prime contractors in each instance so that
(i) Intellamed only is responsible for billing the prime contractor for
services provided by Intellamed and the amount of each subcontract shall
be
amended to reflect such change, (ii) Intellamed is not required to pay a
percentage sharing pursuant to the Sustainment Subcontract and (iii) Intellamed
shall receive payment from the applicable prime contractor in each instance.
Section
6.08 Noncompetition. For
a
period of five (5) years from and after the Closing Date, Intellamed shall
not
engage directly or indirectly in any business that the Division conducts
as of
the Closing Date in any geographic area in which the Division conducts that
business as of the Closing Date; provided, however, that no owner of less
than
one percent (1%) of the outstanding stock of any publicly traded corporation
shall be deemed to engage solely by reason thereof in its business. If the
final
judgment of a court of competent jurisdiction declares that any term or
provision of this Section 6.08 is invalid or unenforceable, the parties agree
that the court making the determination of invalidity or unenforceability
shall
have the power to reduce the scope, duration, or area of the term or provision,
to delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable
and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified
after
the expiration of the time within which the judgment may be
appealed.
Section
6.09 Account Collection. After
Closing, UHS will promptly remit to Intellamed any collections received by
UHS
on accounts receivable of the Division belonging to Intellamed. For six months
after Closing (or such earlier date by which all Intellamed accounts receivable
as of the Closing Date have been collected), UHS shall provide to Intellamed
a
monthly report (within 15 days after the close of each month) of collections
from customers (by customer) who were customers of Intellamed as of the Closing
Date. All payments received by UHS after Closing from customers who were
customers as of the Closing Date shall be allocated first to outstanding
accounts receivable of Intellamed, unless the customer specifically identifies
payment to a UHS post-Closing invoice.
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After
Closing, UHS agrees to use commercially reasonable efforts to assist Intellamed
in collecting its outstanding accounts receivables.
ARTICLE
VII
CONDITIONS
TO OBLIGATION TO CLOSE
Section
7.01 UHS. The
obligation of UHS to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the following
conditions:
(a) The
representations and warranties set forth in Article IV shall be true and
correct
in all material respects at and as of the Closing Date, except to the extent
that such representations and warranties are qualified by the term “material,”
or contain the term “Material Adverse Effect,” in which case such
representations and warranties (as so written, including the term “material”)
shall be true and correct in all respects at and as of the Closing
Date;
(b) Intellamed
shall have performed and complied with all of its covenants hereunder in
all
material respects through the Closing, except to the extent that such covenants
are qualified by the term “material,” or contain the term “Material Adverse
Effect” in which case Intellamed shall have performed and complied with all of
such covenants (as so written, including the term “material”) in all respects
through the Closing;
(c) Intellamed
and the Division shall have procured all of the third party consents specified
in Section 6.01(b);
(d) No
action,
suit, or proceedings shall be pending or threatened before (or that could
come
before) any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (i) prevent consummation
of any of the transactions contemplated by this Agreement, (ii) cause any
of the transactions contemplated by this Agreement to be rescinded following
consummation, or (iii) adversely affect the right of UHS to own the
Acquired Assets and to operate the Division;
(e) Intellamed
shall have delivered to UHS a certificate to the effect that each of the
conditions specified above in Section 7.01(a)-(d) is satisfied in all
respects;
(f) Intellamed
and UHS shall have entered into a Joint Promotion Agreement and a Transition
Services Agreement as set forth in Exhibit
E
and
Exhibit
F
in the
form substantially attached hereto, respectively, and the same shall be in
full
force and effect;
(g) Each
of
(i) Xxxxx Xxxxxxx and (ii) Xxxxx Xxxxxxxx and E. Xxxxxxx Xxxxxxxxx, on one
hand,
and UHS on the other hand, shall have entered into Noncompetition Agreements
in
form and substance as set forth in Exhibit
G
and
Exhibit
H
in the
form substantially attached hereto, respectively, and the same shall be in
full
force and effect;
(h) Intellamed
shall have delivered to UHS a certificate of the secretary or an assistant
secretary of Intellamed, dated the Closing Date, in form and substance
reasonably
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satisfactory
to UHS, as to: (i) the Articles of Incorporation of Intellamed since the
date hereof; (ii) the Bylaws of Intellamed; (iii) the resolutions of
the board of directors of Intellamed authorizing the execution, delivery,
and
performance of this Agreement and the transactions contemplated hereby; and
(iv) incumbency and signatures of the officers of Intellamed executing this
Agreement or any other agreement contemplated by this Agreement;
(i) Intellamed
shall have delivered to UHS the Customer List;
(j) Xxxxx
Xxxxxxxx and UHS shall have entered into an Employment Letter Agreement and
a
Noncompetition Agreement in form and substance as set forth in Exhibit
I
and
Exhibit J
in the
form substantially attached hereto, respectively; and
(k) Xxxxx
Xxxxxxxxx and UHS shall have entered into an Employment Letter Agreement
and a
Noncompetition Agreement as set forth in Exhibit
K
and
Exhibit L
in the
form substantially attached hereto, respectively.
UHS
may
waive any condition specified in this Section 7.01 if it executes a writing
so stating at or prior to the Closing.
Section
7.02 Intellamed. Intellamed’s
obligation to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following
conditions:
(a) The
representations and warranties set forth in Article V shall be true and correct
in all material respects at and as of the Closing Date, except to the extent
that such representations and warranties are qualified by the term “material,”
or contain the term “Material Adverse Effect” in which case such representations
and warranties (as so written, including the term “material”) shall be true and
correct in all respects at and as of the Closing Date;
(b) UHS
shall
have performed and complied with all of its covenants hereunder in all material
respects through the Closing, except to the extent that such covenants are
qualified by the term “material,” or contain the term “Material Adverse Effect,”
in which case UHS shall have performed and complied with all of such covenants
(as so written, including the term “material”) in all respects through the
Closing;
(c) No
action,
suit, or proceeding shall be pending or threatened before any court or
quasi-judicial or administrative agency of any federal, state, local, or
foreign
jurisdiction wherein an unfavorable injunction, judgment, order, decree,
ruling,
or charge would (i) prevent consummation of any of the transactions
contemplated by this Agreement or (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation (and
no
such injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(d) UHS
shall
have delivered to Intellamed a certificate to the effect that each of the
conditions in Section 7.02(a)-(c) is satisfied in all
respects;
(e) Intellamed
and UHS shall have entered into a Joint Promotion Agreement and a Transition
Services Agreement in form and substance as set forth in Exhibit
E
and
Exhibit
F
in the
form substantially attached hereto, respectively, and the same shall be in
full
force and effect;
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(f) Each
of
(i) Xxxxx Xxxxxxx and (ii) Xxxxx Xxxxxxxx and E. Xxxxxxx Xxxxxxxxx, on one
hand,
and UHS on the other hand, shall have entered into Noncompetition Agreements
in
form and substance as set forth in Exhibit
G
and
Exhibit
H
in the
form substantially attached hereto, respectively, and the same shall be in
full
force and effect;
(g) Xxxxx
Xxxxxxxx and UHS shall have entered into an Employment Letter Agreement and
a
Noncompetition Agreement in form and substance as set forth in Exhibit
I
and
Exhibit J
in the
form substantially attached hereto, respectively; and
(h) Xxxxx
Xxxxxxxxx and UHS shall have entered into an Employment Letter Agreement
and a
Noncompetition Agreement as set forth in Exhibit
K
and
Exhibit L
in the
form substantially attached hereto, respectively.
Intellamed
may waive any condition specified in Section 7.02 if it executes a writing
so stating at or prior to the Closing.
ARTICLE
VIII
SURVIVAL;
INDEMNIFICATION
Section
8.01 Survival of Representations and Warranties. Notwithstanding
any investigation made by or on behalf of any of the parties hereto or the
results of any such investigation and notwithstanding the participation of
such
party in the Closing, the representations and warranties contained in this
Agreement, except for the representations and warranties contained in Section
4.13 and in Section 4.23, shall survive the Closing for the greater of the
following periods: (a) two (2) years from the Closing Date, or (b) with respect
to any specific representation or warranty under which UHS shall have made
a
claim for indemnification hereunder prior to the second anniversary of the
Closing Date and as to which such claim has not been completely and finally
resolved prior to the second anniversary of the Closing Date, such
representation or warranty shall survive for the period of time beyond the
second anniversary of the Closing Date sufficient to resolve, completely
and
finally, the claim relating to such representation or warranty. The
representations and warranties contained in Section 4.13 shall survive the
Closing for a period of six (6) months after all applicable statutes of
limitations with respect to any claims governing the respective matters set
forth therein have expired. The representations and warranties in
Section 4.23 shall survive the Closing for a period of six (6) years or, if
longer, the applicable statute of limitations under the False Claims
Act.
Section
8.02 Indemnification by Intellamed.
(a) Intellamed
agrees to indemnify UHS with respect to, and hold UHS harmless from, any
loss,
liability or expense (including, but not limited to, reasonable legal fees)
(collectively, “Losses”)
and Tax
(including interest and penalties) which UHS may directly or indirectly incur
or
suffer by reason of, or which results, arises out of or is based upon (i)
any
breach of the representations or warranties of Intellamed or the Division,
as
applicable, contained in this Agreement or in any Exhibits, any portion of
the
Disclosure Schedule, certificates or other documents delivered or to be
delivered by or on behalf of Intellamed or the Division, as applicable, pursuant
to the terms of this Agreement (collectively, the “Intellamed
Related
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Documents”),
(ii)
any breach of, or failure to perform, any agreement of either Intellamed
or the
Division, as applicable, contained in this Agreement or the Intellamed Related
Documents, (iii) any liability relating to or arising out of the conduct
of the
Division prior to the Closing Date which is not specifically assumed by UHS
pursuant to this Agreement, and (iv) the amount of accounts receivable
outstanding as of the Closing Date that have been earned but not collected
by
Intellamed. Except with respect to breaches of the representations and
warranties contained in Section 4.13 and in Section 4.23, no claim
shall be made for indemnification pursuant to this Section 8.02(a) unless
written notice of such claim is given by UHS pursuant to Section 8.02(c) on
or prior to the second anniversary of the Closing Date.
(b) Indemnification
by UHS.
UHS
agrees to indemnify Intellamed with respect to, and hold Intellamed harmless
from, any Losses which Intellamed may directly or indirectly incur or suffer
by
reason of, or which results, arises out of or is based upon (i) any breach
of
the representations or warranties of UHS contained in this Agreement or in
any
Exhibits, any portion of the Disclosure Schedule, certificates or other
documents delivered or to be delivered by or on behalf of UHS pursuant to
the
terms of this Agreement (collectively, the “UHS
Related Documents”
and,
together with the Intellamed Related Documents, the “Related
Documents”),
(ii)
any breach of, or failure to perform, any agreement of UHS contained in this
Agreement or the UHS Related Documents and (iii) any Assumed Liability on
or
after the Closing Date. No claim shall be made for indemnification pursuant
to
this Section 8.02(b) unless written notice of such claim is given by
Intellamed pursuant to Section 8.02(c) on or prior to the second
anniversary of the Closing Date.
(c) Notice
of
Claim.
If a
party has a claim for indemnification under this Section 8.02 (an
“Indemnified
Party”),
it
shall deliver to the party or parties from whom indemnification is to be
sought
(the “Indemnifying
Party”)
one or
more written notices of Losses. Any written notice shall state in reasonable
detail the basis for such Losses to the extent then known by the Indemnified
Party and the nature of the Loss for which indemnification is sought, and,
if
known, the amount of the Loss claimed. With respect to any such written notice
(or any amended notice) that relates to any other Loss for which indemnification
is claimed pursuant to this Section 8.02, if such notice (or amended
notice) states the amount of the Loss claimed and Indemnifying Party (or,
in the
case of Intellamed) notifies the Indemnified Party that the Indemnifying
Party
does not dispute the claim described in such notice or fails to notify the
Indemnified Party within 20 business days after delivery of such notice whether
the Indemnifying Party disputes the claim described in such notice, the Loss
in
the amount specified in such notice shall be admitted by the Indemnifying
Party
and the Indemnifying Party shall pay the amount of such Loss to the Indemnified
Party. If the Indemnifying Party shall have disputed the liability of the
Indemnifying Party with respect to such claim, the Indemnifying Party and
the
Indemnified Party shall proceed in good faith to negotiate, for a period
of 60
days, a resolution of such dispute. If a written notice does not state the
amount of the Loss claimed, such omission shall not preclude the Indemnified
Party from recovering from the Indemnifying Party the amount of the Loss
with
respect to the claim described in such notice. In order to assert its right
to
indemnification under this Section 8.02, an Indemnified Party shall not be
required to provide any notice except as provided in this
Section 8.02(c).
(d) Legal
Proceedings.
In the
case of a claim pursuant to this Section 8.02 that relates to any claim,
action, arbitration, mediation, audit, hearing, investigation,
proceeding,
EXECUTION
COPY
litigation
or suit (whether civil, criminal, administrative, investigative or informal)
instituted by any third party arising out of, relating to or constituting
any
matter that would give rise to a claim for indemnification pursuant to
Section 8.02(a) or Section 8.02(b), the Indemnified Party shall
promptly deliver to the Indemnifying Party written notice of the commencement
of
the proceeding. Such written notice shall have attached thereto the complaint
or
other papers pursuant to which the third party commenced such proceeding.
The
failure to give prompt written notice shall not affect any Indemnified Party’s
right to indemnification unless such failure has materially and adversely
affected the Indemnifying Parties’ ability to defend such proceeding. The
Indemnifying Party may, at its option and expense, defend any such proceeding.
If the Indemnifying Party elects to defend the proceeding, it shall have
full
control over the conduct of such proceeding, although the Indemnified Party
shall have the right to retain legal counsel at is own expense and shall
have
the right to approve any settlement of any dispute giving rise to such
proceeding, provided that such approval may not be withheld unreasonably.
The
Indemnified Party shall reasonably cooperate with the Indemnifying Party
in such
proceeding.
(e) Payment.
The
Indemnifying Party shall pay the amount of any Loss to the Indemnified Party
within 30 days following the determination of the Indemnifying Party’s liability
for a Loss and the amount of such Loss (whether such determination is made
pursuant to the procedures set forth in this Section 8.02, by agreement
between the parties or by final adjudication).
(f) Sole
Remedy.
After
the Closing, the rights set forth in this Section 8.02 shall be the
parties’ sole and exclusive remedies for breach or inaccuracy of any of the
representations and warranties contained in Articles IV and V and in the
Related
Documents. Notwithstanding the foregoing, nothing herein shall prevent a
party
from bringing an action based upon allegations of fraud or intentional
misconduct by any other party with respect to this Agreement and the Related
Documents. In the event such action is brought, the prevailing party’s
attorneys’ fees and costs shall be paid by the nonprevailing party. With respect
to any breach of any agreement contained in this Agreement or any of the
Related
Agreements (other than a breach or inaccuracy in any of the representations
and
warranties referred to above), the parties shall have available to them all
remedies available under applicable law, whether in a proceeding at law or
in
equity.
ARTICLE
IX
MISCELLANEOUS
Section
9.01 Press Releases and Announcements. Neither
party hereto shall issue any press release (or make any other public
announcement) related to this Agreement or the transactions contemplated
hereby
or make any announcement to the employees, customers or suppliers of Intellamed
without the prior written approval of the other party hereto, except that
UHS
may make any public disclosure it believes in good faith is required by
applicable law, in which case UHS shall make reasonable efforts to consult
with
Intellamed prior to making such disclosure.
Section
9.02 Expenses. Except
as
otherwise expressly provided for herein, Intellamed and UHS shall pay all
of
their own expenses (including their respective attorneys’ and accountants’
fees), in connection with the negotiation of this Agreement, the performance
of
their respective obligations hereunder and the consummation of the transactions
contemplated by this Agreement (whether consummated or not).
EXECUTION
COPY
Section
9.03 Further Assurances. Each
of
Intellamed and UHS agrees that, on and after the Closing Date, it shall take
all
appropriate action and execute any documents, instruments or conveyances
of any
kind which may be reasonably necessary or advisable to carry out any of the
provisions hereof.
Section
9.04 Amendment and Waiver. This
Agreement may not be amended or waived except in a writing executed by the
party
against which such amendment or waiver is sought to be enforced. No course
of
dealing between or among any persons having any interest in this Agreement
shall
be deemed effective to modify or amend any part of this Agreement or any
rights
or obligations of any person under or by reason of this Agreement.
Section
9.05 Notices. All
notices and other communications hereunder shall be in writing and shall
be
sufficiently given if made by hand delivery, by fax, by telecopier, by overnight
delivery service or by registered or certified mail (postage prepaid and
return
receipt requested) to the parties at the following addresses (or at such
other
address for a party as shall be specified by it by like notice):
if
to
UHS:
Universal
Hospital Services, Inc.
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx,
XX
00000-0000
Attention:
CEO
With
copies to General Counsel
Fax:
(000)
000-0000
if
to
Intellamed:
Intellamed,
Inc.
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx,
XX
00000
Attention:
CEO
Fax:
(000)
000-0000
EXECUTION
COPY
with
a
copy to:
Xxxxxx X.
Xxxxxxx Xx., Esq.
Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Fax:
(000)
000-0000
All
such
notices and other communications shall be deemed to have been duly given
as
follows: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, if delivered by mail, postage prepaid;
when
receipt electronically acknowledged, if faxed or telecopied; and the next
business day after being delivered to an overnight delivery
service.
Section
9.06 Assignment. This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that neither this Agreement nor any of the rights, interests
or
obligations hereunder may be assigned by either party hereto without the
prior
written consent of the other party hereto.
Section
9.07 Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
Section
9.08 Complete Agreement. This
Agreement, the Exhibits and the Disclosure Schedule hereto and the other
documents referred to herein contain the complete agreement between the parties
and supersede any prior understandings, agreements or representations by
or
between the parties, written or oral, which may have related to the subject
matter hereof in any way.
Section
9.09 Counterparts. This
Agreement may be executed in one or more counterparts, any one of which need
not
contain the signatures of more than one party, but all such counterparts
taken
together shall constitute one and the same instrument.
Section
9.10 Governing Law. The
internal law, without regard to conflicts of laws principles, of the State
of
Minnesota shall govern all questions concerning the construction, validity
and
interpretation of this Agreement and the performance of the obligations imposed
by this Agreement.
Section
9.11 Knowledge. “Knowledge”
means that an individual has actual knowledge of or reasonably should have
known
about a particular fact or other matter. With respect to Intellamed, any
of
Intellamed’s subsidiaries as set forth in Schedule 4.06 or the Division, such
individual refers to any of Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx, E. Xxxxxxx Xxxxxxxxx,
Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxx. With respect to UHS, such
individual refers to any of Xxxx Xxxxxxxxx, Xxx Xxxxxxxxx, Xxx Xxxx and Xxxxx
Xxxxx-Xxxxx.
Section
9.12 Specific Performance. Each
party
acknowledges and agrees that the other party would be damaged irreparably
in the
event any provision of this Agreement is not performed in accordance with
its
specific terms or otherwise breached, so that a party shall be entitled
to
injunctive relief to prevent breaches of the provisions of this Agreement
and to
enforce specifically this Agreement
EXECUTION
COPY
and
the
terms and provisions hereof in addition to any other remedy to which such
party
may be entitled, at law or in equity. In particular, the parties acknowledge
that the business of Division is unique and recognize and affirm that in
the
event Intellamed breaches this Agreement, money damages would be inadequate
and
UHS would have no adequate remedy at law, so that UHS shall have the right,
in
addition to any other rights and remedies existing in its favor, to enforce
its
rights and the other parties’ obligations hereunder not only by action for
damages but also by action for specific performance, injunctive, and/or other
equitable relief.
Section
9.13 No
Third
Party Benefit. Nothing in this Agreement, express or implied, is intended
to
confer upon any party other than a party hereto any rights, remedies,
obligations or liabilities of any nature whatsoever.
[THE
REST
OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
EXECUTION
COPY
IN
WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the day and
year
first above written.
| UNIVERSAL HOSPITAL SERVICES, INC. | ||
| By | /s/ Xxx X. Xxxx | |
| Its Senior Vice President | ||
| INTELLAMED, INC. | ||
| By | /s/ Xxxxx Xxxxxxx, President | |
| Xxxxx Xxxxxxx, President | ||
EXHIBIT
A
EXECUTION
COPY
PROMISSORY
NOTE
This
Note was originally issued on February 23, 2007, and has not been registered
under the Securities Act of 1933, as amended.
| $1,500,000 |
February
23, 2007
|
FOR
VALUE
RECEIVED, Intellamed, Inc., a Texas corporation (“Maker”),
promises to pay to the order of Universal Hospital Services, Inc., a Delaware
corporation (“Payee”,
which
term includes any subsequent holder hereof), in lawful money of the United
States of America, the principal sum of ONE MILLION FIVE HUNDRED THOUSAND
AND
NO/100 DOLLARS ($1,500,000) or, if less, the aggregate unpaid principal amount
of all the Advances made by Payee pursuant to Section 2.03 of the Asset
Purchase Agreement, dated as of February 23, 2007, by and between Maker and
Payee (as the same has been or may be amended, restated or otherwise modified
from time to time, the “Agreement”).
This
Note is subject to the terms and conditions of the Agreement, which are,
by
reference, incorporated herein and made a part hereof. Capitalized terms
used in
this Note without definition shall have the respective meanings given them
in
the Agreement. Upon the occurrence of any Event of Default, this Note, at
the
option of the Payee, shall bear interest until paid in full at an annual
rate of
ten percent (10%). Interest shall be calculated on the basis of a year of
360
days, as the case may be, and charged for the actual number of days elapsed.
No
provision of this Note shall require the payment or permit the collection
of
interest in excess of the rate permitted by applicable law.
|
I.
|
PAYMENTS
|
| 1.1 |
PAYMENTS
DUE AND PAYABLE
|
The
principal balance due under this Note shall be due and payable upon the earlier
of (a) the Closing Date; or (b) as provided in Section 5.2 below. Interest
on the unpaid principal balance of this Note, if any is due, shall be due
and
payable immediately after the Closing Date.
|
II.
|
MANNER
OF PAYMENT
|
All
payments of principal and interest on this Note shall be made by wire transfer
of immediately available funds to an account designated by Payee in writing.
If
any payment of principal or interest on this Note is due on a day that is
not a
Business Day, such payment shall be due on the following Business Day, and
such
extension of time shall be taken into account in calculating the amount of
interest payable under this Note. “Business
Day”
means
any day other than a Saturday, Sunday or legal holiday in the State of
Minnesota. Both principal and interest are payable in lawful money of the
United
States of America in immediately available funds.
|
III.
|
PREPAYMENT
|
With
respect to all or any portion of the outstanding principal balance due under
this Note, Maker, without premium or penalty, may at any time and from time
to
time, prepay such balance. Any partial prepayments shall be applied first
against accrued and unpaid interest and the balance to
principal.
|
IV.
|
CANCELLATION
|
This
Note
and any and all outstanding principal payments due hereunder shall be cancelled
in full and Payee shall not be entitled to any further payment of principal
under this Note if the Closing does not occur on or prior to the Closing
Date
due to the failure of UHS to satisfy the conditions set forth in Section
7.02 of
the Agreement. In such event, Maker shall be excused from any obligation
to
repay any and all Advances made by Payee to Maker under Section 2.03 of the
Agreement.
|
V.
|
DEFAULT
|
| 5.1 |
EVENT
OF DEFAULT
|
The
occurrence of any of the following events with respect to Maker shall constitute
an event of default hereunder (each, an “Event
of
Default”):
(a)
If
Maker
fails to pay when due any payment of principal or interest on this
Note.
(b)
If,
pursuant to or within the meaning of the Untied States Bankruptcy Code or
any
other federal or state law relating to insolvency or relief of debtors (a
“Bankruptcy
Law”),
Maker
shall (i) commence a voluntary case or proceeding; (ii) consent to the
entry of an order for relief against it in an involuntary case;
(iii) consent to the appointment of a trustee, receiver, assignee,
liquidator or similar official; (iv) make an assignment for the benefit of
its creditors; or (v) admit in writing its inability to pay its debts as
they become due.
(c)
If
a court
of competent jurisdiction enters an order or decree under any Bankruptcy
Law
that (i) is for relief against Maker in an involuntary case, (ii) appoints
a trustee, receiver, assignee, liquidator or similar official for Maker or
substantially all of Maker’s properties, or (iii) orders the liquidation of
Maker, and in each case the order or decree is not dismissed within 120
days.
(d)
Delivery
by the Payee to Maker of written notice alleging that any of the conditions
to
an Advance set forth in Section 2.03(b) of the Agreement has not been
satisfied by the applicable deadline set forth in Section 2.03(b) of the
Agreement.
(e)
Any
representation or warranty made by the Maker under or in connection with
this
Note or the Agreement shall prove to have been incorrect in any material
respect
when made.
| 5.2 |
REMEDIES
|
Upon
the
occurrence of the Event of Default hereunder (unless the Event of Default
has
been cured or waived by Payee), Payee may, at its option, (a) by written
notice
to Maker, declare the entire unpaid principal balance of this Note, together
with all accrued interest thereon, immediately due and payable regardless
of any
prior forbearance and (b) exercise any and all rights and remedies available
to
it under applicable law, including, without limitation, the right to collect
from Maker all sums due under this Note. Maker shall pay the reasonable
attorney’s fees actually incurred by Payee in connection with Payee’s exercise
of any of its rights or remedies under this Note; provided, however, that
in the
case of any of the occurrence of any of events described in paragraphs (b)
or
(c) above, this Note shall become automatically due and payable, including
unpaid interest accrued hereon, without notice or demand. If this Note or
any
payment required to be made thereunder is not paid on the due date (whether
at
original maturity or following acceleration), the holder hereof shall have,
in
addition to any other rights it, he or she may have under applicable laws,
the
right to set off the indebtedness evidenced by this Note against any
indebtedness of such holder to the Maker.
|
VI.
|
MISCELLANEOUS
|
| 6.1 |
REPRESENTATIONS
AND WARRANTIES
|
The
Maker
warrants and represents to the Payee that (a) the execution and delivery
of this
Note, and the performance by the Maker of its obligations hereunder are within
the Maker’s powers, and (b) this Note is the Maker’s legal, valid and binding
obligation, enforceable in accordance with its terms, the making and performance
of which does not and will not constitute a default under any law, any presently
existing requirement or restriction imposed by judicial, arbitral or other
governmental instrumentality or any agreement, instrument or indenture by
which
the Maker is bound.
| 6.2 |
WAIVER
|
The
rights
and remedies of Payee under this Note shall be cumulative and not alternative.
No waiver by Payee of any right or remedy under this Note shall be effective
unless in a writing signed by Payee. Neither the failure nor any delay in
exercising any right, power or privilege under this Note operate as a waiver
of
such right, power or privilege, and no single or partial exercise of any
such
right, power or privilege by Payee shall preclude any other or further exercise
of such right, power or privilege or the exercise of any other right, power
or
privilege. To the maximum extent permitted by applicable law, (a) no claim
or
right of Payee arising out of this Note can be discharged by Payee, in whole
or
in part, by a waiver or renunciation of the claim or right unless in a writing
signed by Payee; (b) no waiver that may be given by Payee shall be applicable
except in the specific instance for which it is given; and (c) no notice
to or
demand on Maker shall be deemed to be a waiver of any obligation of Maker
or of
the right of Payee to take further action without notice or demand as provided
in this Note. Maker hereby waives presentment, demand, protest and notice
of
dishonor and protest.
| 6.3 |
NOTICES
|
Any
notice
required or permitted to be given hereunder shall be given in accordance
with
Section 9.05 of the Agreement.
| 6.4 |
SEVERABILITY
|
If
any
provision in this Note is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Note shall remain in
full
force and effect. Any provision of this Note held invalid or unenforceable
only
in part or degree shall remain in full force and effect to the extent not
held
invalid or unenforceable.
| 6.5 |
GOVERNING
LAW
|
This
Note
shall be governed by and construed under the laws of the State of Minnesota
without regard to conflicts-of-laws principles that would require the
application of any other law. The Maker hereby submits itself to the
jurisdiction of the courts of the State of Minnesota and the Federal courts
of
the United States located in such state in respect of all actions arising
out of
or in connection with the interpretation or enforcement of this Note, waives
any
argument that venue in such forums is not convenient and agrees that any
actions
initiated by the Maker shall be venued in such forums.
| 6.6 |
PARTIES
IN INTEREST
|
This
Note
shall be binding in all respects upon Maker and inure to the benefit of Payee
and its successors and any permitted assigns.
| 6.7 |
EXPENSES
OF COLLECTION
|
The
Maker
agrees to reimburse the holder of this Note upon demand for all reasonable
out-of-pocket expenses, including reasonable attorneys’ fees, in connection with
such holder’s enforcement of the obligations of the Maker
hereunder.
IN
WITNESS
WHEREOF, Maker has duly executed and delivered this Note on the date first
stated above.
INTELLAMED,
INC.
By:
/s/
Xxxxx Xxxxxxx
Its
President
EXHIBIT
B
- ALLOCATION OF PURCHASE PRICE
EXHIBIT
C
FOR
GOOD
AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, Intellamed, Inc., a Texas corporation (“Seller”),
hereby
sells, assigns and transfers to Universal Hospital Services, Inc., a Delaware
corporation (“Buyer”),
pursuant to the terms and conditions of that certain Asset Purchase Agreement
by
and between Seller and Buyer dated as of February ___, 2007 (the
“Agreement”),
all of
its right, title and interest in and to each and all of the assets set forth
in
Section 1.01 of the Agreement, free and clear of all mortgages, liens, claims,
charges, encumbrances, security interests, pledges or title retention agreements
or leases of any kind or nature.
Notwithstanding
anything to the contrary set forth or implied in the foregoing paragraph
hereof,
the assets set forth in Section 1.02 and Schedule
1.02
of the
Agreement are specifically excluded from this Xxxx of Sale and are not being
sold to Buyer.
The
assets
set forth in Section 1.01 of the Agreement are being transferred to Buyer
without reservation or qualification, other than as may be specifically set
forth in the Agreement, and Seller agrees to defend the sale of the assets
and
properties made hereby to Buyer against all persons lawfully claiming the
whole
or any part thereof.
Seller
hereby agrees to take or cause to be taken all such other actions as may
be
necessary or appropriate, in Buyer’s reasonable discretion, to give effect to
the sale, transfer, conveyance and assignment of the assets set forth in
Section
1.01 of the Agreement to Buyer as contemplated by this Xxxx of
Sale.
The
provisions of this Xxxx of Sale shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and any permitted assigns;
provided, however, that no party may assign, delegate or otherwise transfer
any
of its rights or obligations under this Xxxx of Sale without the written
consent
of the other party hereto.
This
Xxxx
of Sale is executed in accordance with the terms and conditions of the
Agreement, and the terms of this Xxxx of Sale are subject to the terms and
provisions of that Agreement.
Dated:
_________, 2007
|
INTELLAMED,
INC.
By:
______________________________________________
Name:
____________________________________________
Title:
_____________________________________________
|
2
EXHIBIT
D
ASSIGNMENT
AND ASSUMPTION AGREEMENT
THIS
AGREEMENT, dated as of ______, 2007, between Intellamed, Inc., a Texas
corporation (“Assignor”),
and
Universal Hospital Services, Inc., a Delaware corporation (“Assignee”).
WHEREAS,
Assignor is the owner of the entire right, title and interest in, to and
under
that certain contracts, leases, commitment, agreements and other instruments
(collectively, the “Assigned
Agreements”)
that
are identified on Exhibit
A
attached
hereto;
WHEREAS,
Assignor desires to assign to Assignee, and Assignee desires to receive from
Assignor, all of Assignor’s right, title and interest in, to and under the
Assigned Agreements.
NOW,
THEREFORE, in consideration of the premises, the mutual agreements herein
set
forth below and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Assignor
hereby transfers, assigns and conveys to Assignee, to the extent assignable
by
Assignor, Assignor’s entire right title and interest in, to and under the
Assigned Agreements.
2. Assignee
hereby accepts the foregoing assignment and hereby assumes and agrees to
pay,
discharge and perform to the extent such Assigned Agreements are assignable
by
Assignor to Assignee all of the obligations and liabilities of Assignor under
the Assigned Agreements arising after 12:01 a.m., Minneapolis, Minnesota
time,
on _______, 2007.
IN
WITNESS
WHEREOF, the parties herein have executed this agreement as of the date set
forth in the first paragraph.
|
INTELLAMED,
INC.
By:
______________________________________________
Name:
____________________________________________
Title:
_____________________________________________
UNIVERSAL
HOSPITAL SERVICES, INC.
By:
______________________________________________
Name:
____________________________________________
Title:
_____________________________________________
|
EXHIBIT
A
EXHIBIT
E
JOINT
PROMOTION AGREEMENT
This
JOINT
PROMOTION AGREEMENT (this “Agreement”)
dated
as of _______, 2007, by and between Universal Hospital Services, Inc., a
Delaware corporation (“UHS”),
and
Intellamed, Inc., a Texas corporation (“Intellamed”).
WHEREAS,
UHS and Intellamed have entered into that Asset Purchase Agreement dated
as of
February __, 2007 (the “Asset
Purchase Agreement”)
that
provides for the purchase by UHS of the assets of the ICMS division of
Intellamed; and
WHEREAS,
UHS currently offers, and is acquiring from Intellamed under the Asset Purchase
Agreement, biomedical and imaging services programs, which are provided to
customers under three to five year service contracts (“Programs”);
and
WHEREAS,
in connection with the transactions contemplated by the Asset Purchase
Agreement, Intellamed and UHS have agreed to enter into this
Agreement.
NOW,
THEREFORE, in consideration of the premises, the mutual agreements set forth
herein and other good and valuable consideration, the adequacy and receipt
of
which are hereby acknowledged, the parties agree as follows:
| 1. |
Responsibilities
|
1.1
UHS’
medical equipment maintenance and repair services specialist sales organization
(“UHS Specialists”) and members of Intellamed’s sales organization (“Intellamed
Sales People” or “Person”) will cooperate on a mutually agreed basis to
identify, promote and close the sale of Programs. Intellamed Sales People
may
approach all potential customers for the sale of Programs other than (a)
current
customers of UHS for whom UHS is providing Programs or on- site asset management
services, and (b) potential customers with whom UHS Specialists are conducting,
and can illustrate, active discussions for the sale of Programs. The manager
of
Intellamed Sales People will provide the opportunities for the sale of Programs
identified by Intellamed Sales People to the manager of UHS Specialists.
UHS
Specialists and the Intellamed Sales Person will then cooperatively design
and
offer on a mutually agreed basis an appropriate Program through UHS for the
identified customer under the supervision of their respective managers. For
each
Program sold, UHS will pay to Intellamed, and Intellamed will in turn pay
to the
involved Intellamed Sales Person, the amount that UHS would pay to its field
salesperson had the Program been sold through the UHS field sales organization.
Gross revenue from Programs sold by UHS under this Agreement shall be included
in Earn-Out Revenue as defined in Section 2.02(a) of the Asset Purchase
Agreement.
1.2
UHS
shall
use Intellamed’s AuctionMart website on an exclusive basis for disposing of
medical equipment over the world wide web on a high bid basis under terms
and
conditions (including commissions paid to Intellamed on the sale of UHS owned
equipment) to be agreed upon between the parties. In addition, UHS and
Intellamed shall cooperate to identify and promote additional customers for
Intellamed’s AuctionMart website in connection with the performance of their
other responsibilities under this Agreement.
1.3
UHS
agrees
to use Intellamed’s Med-RFP website on a nonexclusive basis as a source to
locate remanufactured or refurbished medical equipment for potential acquisition
by UHS under terms and conditions (including commissions paid to Intellamed
on
the purchase of equipment by UHS) to be agreed upon between the parties.
| 2. |
Representations
and Warranties
|
2.1
UHS
hereby
represents and warrants to Intellamed that:
(a)
UHS
has
full corporate power and authority to execute and deliver this Agreement
and to
take any and all other action necessary to consummate the transactions provided
for in this Agreement.
(b)
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby terms do not violate or constitute a default
under the corporate charter or bylaws of UHS, any law, order, writ, injunction
or decree of any court, governmental agency or arbitration tribunal, or the
terms of any other contract or commitment to which UHS is a party or by which
it
is bound.
(c)
During
the
term of this Agreement (as defined in Section 13), UHS shall not enter into
any
agreement with a third party that is inconsistent with the provisions of
this
Agreement.
(d)
UHS
shall
comply with all applicable laws and regulations applicable to UHS’s activities
in furtherance of this Agreement.
2.2
Intellamed
hereby represents and warrants to UHS that:
(a)
Intellamed
has full corporate power and authority to execute and deliver this Agreement
and
to take any and all other action necessary to consummate the transactions
provided for in this Agreement.
(b)
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not violate or constitute a default under
the corporate charter or bylaws of Intellamed, any law, order, writ, injunction
or decree of any court, governmental agency or arbitration tribunal, or the
terms of any other contract or commitment to which Intellamed is a party
or by
which it is bound.
(c)
During
the
term of this Agreement (as defined in Section 13), Intellamed shall not enter
into any agreement with a third party that is inconsistent with the provisions
of this Agreement.
(d)
Intellamed
shall comply with all applicable laws and regulations applicable to Intellamed’s
activities in furtherance of this Agreement.
2
| 3. |
Confidentiality
and Publicity
|
| 3.1 |
Confidentiality.
|
(a)
In
connection with their obligations under and pursuant to this Agreement, each
of
the parties may disclose to the other certain confidential and proprietary
information and material (collectively, the "Information").
(b)
Each
recipient agrees that the Information provided to it, whether in written,
oral,
encoded, graphic, magnetic, electronic or in any other tangible or intangible
form, and whether or not labeled as confidential by the discloser, shall
be
received and maintained in confidence by recipient; and recipient shall not
use,
disclose, reproduce or dispose of such Information in any manner except as
provided herein. Each recipient agrees to use the Information solely for
the
purposes of fulfilling its obligations hereunder and agrees to restrict
disclosure of the Information solely to its employees and agents who have
a need
to know such Information and to advise such persons of their obligations
of
confidentiality and non-disclosure hereunder. Further, each recipient shall
not
disclose the Information to third parties, including independent contractors
or
consultants, without the prior express written consent of the discloser and
to
advise such third parties of their obligations of confidentiality and
non-disclosure hereunder. Each recipient agrees to use reasonable means,
not
less than those used to protect its own similar proprietary information,
to
safeguard the Information.
(c)
The
obligation of confidentiality set forth in this Section 3.1(c) shall not
apply
with respect to any particular portion of the Information if (i) it is in
the
public domain at the time of the discloser's communication thereof to recipient;
(ii) it entered the public domain through no fault of recipient or its
directors, officers, employees, agents or advisors subsequent to the time
of the
discloser's communication thereof to recipient; (iii) it was in recipient's
possession, free of any obligation of confidentiality, at the time of the
discloser's communication thereof to recipient; (iv) it was communicated
to
recipient free of any obligation of confidence by a third party, which third
party was free to make such disclosure without breach of any legal obligation,
subsequent to the time of the discloser's communication thereof to recipient;
or
(v) disclosure is legally compelled by deposition, subpoena, or other court
or
governmental action, as evidenced by written opinion of legal counsel; provided,
however, that recipient shall provide the discloser with prompt written notice
of such disclosure requirement, and recipient shall cooperate with the discloser
if the discloser seeks to obtain a protective order concerning such Information.
| 3.2 |
Publicity.
|
Except
as
otherwise provided herein, neither party may make any public statements
concerning the existence or terms of this Agreement without the approval
of the
other party, which approval shall not be unreasonably withheld or delayed,
or as
required by law (including, without limitation, public disclosure by UHS
that it
believes in good faith is required by applicable law and, in which case UHS
shall make reasonable efforts to consult with Intellamed prior to such public
disclosure).
3
| 4. |
Relationship
of Parties
|
Each
party
is an independent contractor. Nothing contained in this Agreement shall be
construed as creating a joint venture or partnership between the parties.
Except
as otherwise expressly provided herein, neither party shall have any right
or
power to create any obligation expressed or implied on behalf of the other
party.
| 5. |
Indemnification
|
5.1
Intellamed
agrees to indemnify, defend and hold harmless UHS and its affiliates and
their
respective officers, directors, successors, assigns, agents and employees
from
and against any expense, judgment, cost, loss, damage or liability arising
out
of or in connection with any actual or threatened claim, suit, action or
proceeding of any kind by any third party from (a) any breach of the
representations, warranties, covenants, agreements or obligations by Intellamed
hereunder or (b) any gross negligence or intentional misconduct of any of
the
Intellamed officers, directors, employees, agents or affiliates in connection
with the performance hereof.
5.2
UHS
agrees
to indemnify, defend and hold harmless Intellamed and its affiliates and
their
respective officers, directors, successors, assigns, agents and employees
from
and against any expense, judgment, cost, loss, damage or liability arising
out
or in connection with any actual or threatened claim, suit, action or proceeding
of any kind by any third party from (a) any breach of the representations,
warranties, covenants, agreements or obligations by UHS hereunder; or (b)
any
gross negligence or intentional misconduct of any of the UHS officers,
directors, employees, agents or affiliates in connection with the performance
hereof.
5.3
Any
party
seeking indemnification hereunder (an "Indemnified
Party")
shall
give the party from whom indemnification is sought (the "Indemnifying
Party"):
(a)
reasonably prompt notice of the relevant claim; provided, however, that failure
to provide such notice shall not relieve the Indemnifying Party from its
liability or obligation hereunder except to the extent of any material prejudice
directly resulting from such failure; (b) reasonable cooperation in the defense
of such claim; and (c) the right to control the defense and settlement of
any
such claim; provided, however, that the Indemnifying Party shall not, without
the prior written approval of the Indemnified Party, settle or dispose of
any
claims in a manner that adversely affects the Indemnified Party's rights
or
interest. The Indemnified Party shall have the right to participate in the
defense at its expense.
5.4
EXCEPT
WITH RESPECT TO A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT
SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM OR IN CONNECTION
WITH
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE
AND
LOST DATA, EVEN IF SUCH PARTY OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
4
| 6. |
Force
Majeure
|
Neither
party shall be liable in any manner for failure or delay of performance of
all
or part of this Agreement, directly or indirectly, owing to any disaster,
act of
God, act of war, act of hostility against the Untied States or any other
cause
of circumstance beyond the reasonable control of such party. The affected
party,
however, in the case of such delay or failure, shall give prompt notice to
the
other party and shall exert commercially reasonable efforts to remove the
causes
or circumstances of nonperformance with reasonable dispatch.
| 7. |
Notices
|
All
notices and other communications hereunder shall be in writing and delivered
by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
|
A.
|
If
to UHS:
|
|
Universal
Hospital Services, Inc.
|
|
|
0000
Xxxxxx Xxxxxx Xxxxx
|
|
|
Xxxxx,
XX 00000-0000
|
|
|
Attention:
CEO
|
|
|
With
copies to General Counsel
|
|
|
Fax:
(000) 000-0000
|
|
|
B.
|
If
to Intellamed:
|
|
Intellamed,
Inc.
|
|
|
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
|
|
|
Xxxxx,
XX 00000
|
|
|
Attention:
CEO
|
|
|
Fax
(000) 000-0000
|
|
|
With
a copy to:
|
|
|
Xxxxxx
X. Xxxxxxx Xx., Esq.
|
|
|
Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C.
|
|
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Fax:
(000) 000-0000
|
Either
party may change the address set forth above by notice to the other party
given
as provided herein.
| 8. |
Third
Party Benefit
|
Nothing
in
this Agreement, express or implied, is intended to confer upon any other
person
any rights, remedies, obligations or liabilities of any nature
whatsoever.
| 9. |
Remedies
|
The
parties agree that money damages may not be an adequate remedy for any breach
of
the provisions of this Agreement and that either party may, in its discretion,
apply to any court of law or equity of competent jurisdiction for specific
performance and injunctive relief in order to enforce or prevent any violations
this Agreement, and the party against whom such proceeding is brought hereby
waives the claim or defense that such party has an adequate remedy at law
and
agrees not to raise the defense that the other party has an adequate remedy
at
law.
5
| 10. |
Review
of Books and Records
|
Intellamed
acknowledges that the books and records (including without limitation, memoranda
and documentation) of Intellamed relating hereto shall be available to UHS
for
regular inspection and review. Intellamed grants to UHS the right to examine
any
and all invoices and accounting records relating hereto during the term of
this
Agreement (as defined in Section 13) kept by, used by or generated by
Intellamed for a period of one year after the termination of this Agreement.
In
the event it becomes necessary for UHS to enforce this Section 10 by
seeking specific performance, UHS shall be entitled to reimbursement from
Intellamed for reasonable attorneys’ fees in the pursuit thereof.
| 11. |
No
Waiver
|
The
waiver
by either party of any breach of any provision of this Agreement by the other
party shall not be construed to be either a waiver of that party's rights
regarding any succeeding breach of any such provision or a waiver of the
provision itself, nor shall any delay or omission on the part of a party
to
exercise or avail itself of any right, power or privilege that it has, or
may
have hereunder, operate as a waiver of any right, power or privilege by such
party.
| 12. |
Entire
Agreement
|
This
Agreement contains the entire understanding of the parties with respect to
the
transactions and matters set forth herein, supersedes all previous agreements
between them concerning the subject matter hereof, and cannot be amended
except
by a writing signed by the parties.
| 13. |
Term;
Termination
|
This
Agreement shall remain in force for a term of two years from the date first
above written. This Agreement may be earlier terminated (a) by either party
upon
the occurrence of a material breach by the other party if such breach is
not
cured within thirty (30) days after written notice is received by the
non-breaching party that identifies the matter constituting the material
breach
or (b) by the mutual agreement of the parties. Sections 3 through 14, 16
and 18 through 20 of this Agreement shall survive the expiration or earlier
termination hereof.
| 14. |
Assignment
|
This
Agreement may not be assigned by either party without the prior written consent
of the other party, except that UHS may assign this Agreement upon a change
of
control of UHS, meaning (a) any event as a result of which a third party
that is not an affiliate of UHS becomes the owner of and controls all of
the
economic and voting rights associated with ownership of at least 50.1% of
the
outstanding capital stock of UHS or (b) any sale or transfer of all or
substantially all of the assets of UHS. This Agreement shall be binding upon
and
inure to the benefit of the parties and their responsible successors and
any
permitted assigns.
6
| 15. |
Counterparts
|
This
Agreement may be executed in separate counterparts, each of which shall be
an
original and all of which taken together shall constitute one and the same
Agreement, and any party hereto may execute this Agreement by signing any
such
counterpart.
| 16. |
Severability
|
Whenever
possible, each provision of this Agreement shall be interpreted in such a
manner
as to be effective and valid under applicable law but if any provision of
this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule, the validity, legality and enforceability of the other provisions
of this Agreement shall not be affected or impaired thereby.
| 17. |
Headings
|
The
headings contained in this Agreement are for reference purposes only and
shall
not in any way affect the meaning or interpretation of this
Agreement.
| 18. |
Governing
Law
|
ALL
MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS
THEREOF.
| 19. |
Good
Faith
|
The
parties agree to act in good faith with respect to each provision of this
Agreement and any dispute that may arise related hereto.
| 20. |
Additional
Documents/Information
|
The
parties agree to sign and provide such additional documents and information
as
may reasonably be required to carry out the intent of this Agreement and
to
effectuate its purposes.
7
IN
WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed
by
their respective authorized officers as of the day and year first above
written.
|
UNIVERSAL
HOSPITAL SERVICES, INC.
By:
___________________________________
Name:_________________________________
Title:__________________________________
|
INTELLAMED,
INC.
By:_________________________________
Name:_______________________________
Title:________________________________
|
8
EXHIBIT
F
TRANSITION
SERVICES AGREEMENT
This
TRANSITION SERVICES AGREEMENT (this “Agreement”)
dated
as of _______, 2007 between Universal Hospital Services, Inc., a Delaware
corporation (“Buyer”),
and
Intellamed, Inc., a Texas corporation (“Seller”).
WHEREAS,
Seller and Buyer have entered into that certain Asset Purchase Agreement,
dated
as of February, 2007 (the “Purchase
Agreement”),
pursuant to which Seller has agreed to sell, and Buyer has agreed to purchase,
the assets of the ICMS division of Seller (the “Division”);
and
WHEREAS,
in connection with the transactions contemplated by the Purchase Agreement,
Seller and Buyer have agreed to enter into this Agreement regarding the
provision of certain transition services to Buyer on the terms and conditions
set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual representations, warranties and
agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
1.
Definitions.
Any term
used herein that is not defined in this Agreement but is defined in the Purchase
Agreement has the meaning ascribed to it in the Purchase Agreement.
2.
Transition
Services.
Seller
shall provide the services described below (collectively, the “Transition
Services”)
to
Buyer during the term of this Agreement:
(a)
Seller
Services.
On the
terms and subject to the conditions of this Agreement, Seller shall provide
the
services to Buyer listed on Schedule
A,
in
substantially the same scope, nature and manner as was provided to the Division
immediately prior to the Closing Date.
(b)
Third
Party Services.
On the
terms and subject to the conditions of this Agreement, Seller shall use
commercially reasonable efforts to cause the services listed on Schedule
B
to be
provided to Buyer, in substantially the same scope, nature and manner as
was
provided to the Division immediately prior to the Closing Date by the providers
that provided such services to the Division immediately prior to the Closing
Date (collectively, “Third
Party Services”).
Buyer
acknowledges that the provision of Third Party Services may require the consent
of the relevant providers. If Seller is unable to obtain such consent with
respect to any particular Third Party Service, then Seller and Buyer shall
use
commercially reasonable efforts to arrange for an alternative person or an
alternative methodology to provide the Third Party Service.
(c)
IT
Services.
Seller
shall maintain the existing IT server and bandwidth for the S2 system and
the S2
system in its current form at its current location consistent with past
practice. If Buyer wants any upgrades, consulting services, training or any
other additional services (collectively, “Additional
Services”)
beyond
those that Seller has traditionally provided to the Division with respect
to the
S2 system, Seller shall charge, and Buyer shall pay, $100 per hour per person
providing such Additional Services, plus expenses, subject to Seller personnel
availability.
(d)
Other
Services.
During
the term of this Agreement, Seller shall provide to Buyer any other transition
services not referenced in subsection (a), (b) or (c) above consistent with
the
types of services discussed herein and at levels consistent with the past
operation of the Division and requested by Buyer in writing with reasonably
sufficient detail as to the services requested. Any fee to be charged by
Seller
for any services provided pursuant to this Section 2(d) shall be equal to
Seller’s actual cost to provide such Transition Services, including allocable
overhead and Seller’s reasonable out-of-pocket expenses consistent with past
practice (collectively, “Seller’s
Costs”).
At
Buyer’s request, Seller shall furnish Buyer with reasonable supporting
documentation evidencing Seller’s Costs hereunder.
(e)
Pricing.
Buyer
shall pay the respective amounts listed on Schedule
A
and
Schedule
B
and
Seller’s Costs for the Transition Services. Seller shall invoice Buyer monthly
for services rendered through the end of each month. Buyer shall pay all
invoices in full within 30 days of receipt.
3.
Standard
of Performance.
For
Transition Services provided directly by Seller, Seller shall perform such
Transition Services in a timely, competent and workmanlike manner and in
a
nature and at levels consistent with Buyer’s past conduct of the Division. For
Transition Services provided by third parties, Seller shall use commercial
reasonably efforts to procure or secure such services hereunder and shall
use
commercial reasonably efforts to ensure that such services are provided by
such
third parties in a timely, competent and workmanlike manner and in a nature
and
at levels consistent with Buyer’s past conduct of its business.
4.
Terms
and
Termination.
(a)
The
term
of this Agreement shall commence on the date hereof and continue until the
earlier to occur of (i) the first anniversary of the Closing Date or
(ii) 30 days after written notice that Buyer not longer needs the
Transition Services.
(b)
Buyer
may
terminate this Agreement in whole or with respect to any one or more Transition
Services at any time without cause upon 10 days’ prior written notice. Such
termination shall not extinguish Buyer’s obligation for payment for Transition
Services actually rendered under this Agreement prior to such
termination.
(c)
If
either
party hereto becomes bankrupt or insolvent, or makes an assignment for the
benefit of creditors, or if a receiver is appointed to take charge of its
property and such proceeding is not vacated or terminated within thirty days
after its commencement or institution, the other party may immediately terminate
this Agreement by written notice. Any such termination shall be without
prejudice to accrued rights of the terminating party, and to other rights
and
remedies for default.
2
5.
Representation
and Warranty.
Seller
hereby represents and warrants to Buyer that Seller (a) is not excluded,
suspended or otherwise ineligible to participate in any federal or state
health
care program or in any state or federal procurement/non-procurement program;
(b)
has received no notice that the government proposes to exclude or debar it
from
participation in any federal or state health care program or
procurement/non-procurement program and (c) is not the subject of or otherwise
part of any ongoing federal or state health care investigation. In the event
that any term or provision of this Section 5 ceases to be accurate during
the
term of this Agreement (as defined in Section 4), Seller shall immediately
give written notice thereof to Buyer.
6.
Miscellaneous.
(a)
Force
Majeure.
Neither
party shall be liable in any manner for failure or delay of performance of
all
or part of this Agreement (other than the payment of money), directly or
indirectly, owing to any disaster, act of God, act of war, act of hostility
against the Untied States or any other cause of circumstance beyond the
reasonable control of either party. The affected party, however, in the case
of
such delay or failure, shall give prompt notice to the other party and shall
exert commercially reasonable efforts to remove the causes or circumstances
of
nonperformance with reasonable dispatch.
(b)
Independent
Contractor.
Seller
shall perform the Transition Services under this Agreement as an independent
contractor and as such shall have and maintain exclusive control over all
its
own employees, agents, subcontractors and operations. Seller shall not be,
act
as, purport to act as or be deemed to be Buyer’s agent, representative, employee
or servant.
(c) Sales
Taxes.
Any
sales, use, transaction, excise or similar tax imposed on or measured by
the
rendering of the Transition Services shall be the responsibility of Buyer.
All
other taxes arising from Transition Services shall be paid by
Seller.
(d)
Entire
Agreement.
This
Agreement (including the Schedules referred to herein) contains the entire
understanding between the parties with respect to Transition Services and
supersedes any prior understandings, agreements or representations, written
or
oral, relating to the subject matter hereof.
(e)
Counterparts.
This
Agreement may be executed in separate counterparts, each of which shall be
an
original and all of which taken together shall constitute one and the same
Agreement, and any party hereto may execute this Agreement by signing any
such
counterpart.
(f)
Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such a
manner
as to be effective and valid under applicable law but if any provision of
this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule, the validity, legality and enforceability of the other provision
of
this Agreement shall not be affected or impaired thereby.
(g)
Assignment.
This
Agreement and the rights and obligations of the parties hereunder shall not
be
assignable, in whole or in part, by either party without the prior written
consent of the other party, except that Buyer may assign this Agreement and
all
rights and obligations of the parties upon a change of control of Buyer,
meaning
(i) any event as a result of which a third party that is not an affiliate
of Buyer becomes the owner of and controls all of the economic and voting
rights
associated with ownership of at least 50.1% of the outstanding capital stock
of
Buyer or (ii) any sale or transfer of all or substantially all of the
assets of Buyer.
3
(h)
Modification,
Amendment, Waiver or Termination.
No
provision of this Agreement may be modified, amended, waived or terminated
except by an instrument in writing signed by the parties to this Agreement.
No
course of dealing between the parties shall modify, amend, waive or terminate
any provision of this Agreement or any rights or obligations of any party
under
or by reason of this Agreement.
(i)
Notices.
All
notices, consents, requests, instructions, approvals or other communications
provided for herein shall be in writing and delivered by personal delivery,
overnight courier, mail, electronic facsimile or e-mail addressed to the
receiving party at the address set forth herein. All such communications
shall
be effective when received.
|
If
to Seller:
|
|
|
Intellamed,
Inc.
|
|
|
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
|
|
|
Xxxxx,
XX 00000
|
|
|
Attention:
CEO
|
|
|
Fax:
(000) 000-0000
|
|
|
With
a copy to:
|
|
|
Xxxxxx
X. Xxxxxxx Xx., Esq.
|
|
|
Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C.
|
|
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
If
to Buyer:
|
|
|
Universal
Hospital Services, Inc.
|
|
|
0000
Xxxxxx Xxxxxx Xxxxx
|
|
|
Xxxxx,
XX 00000-0000
|
|
|
Attention:
CEO
|
|
|
With
copies to General Counsel
|
|
|
Fax:
(000) 000-0000
|
Any
party
may change the address set forth above by notice to each other party given
as
provided herein.
(j)
Headings.
The
headings contained in this Agreement are for reference purposes only and
shall
not in any way affect the meaning or interpretation of this
Agreement.
(k)
Governing
Law.
ALL
MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS
THEREOF.
4
(l)
Third-Party
Benefit.
Nothing
in this Agreement, express or implied, is intended to confer upon any other
person any rights, remedies, obligations or liabilities of any nature
whatsoever.
(m) Jurisdiction
and Venue.
THIS
AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR STATE COURT SITTING IN
MINNESOTA, AND EACH PARTY CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH
COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUM IS NOT CONVENIENT.
IF ANY
PARTY COMMENCES ANY ACTION UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY
OR
INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT IN ANOTHER
JURISDICTION OR VENUE, ANY OTHER PARTY TO THIS AGREEMENT SHALL HAVE THE OPTION
OF TRANSFERRING THE CASE TO THE ABOVE-DESCRIBED VENUE OR JURISDICTION OR,
IF
SUCH TRANSFER CANNOT BE ACCOMPLISHED, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
(n)
Waiver
of
Jury Trial.
EACH
PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(o)
Remedies.
The
parties agree that money damages may not be an adequate remedy for any breach
of
the provisions of this Agreement and that any party may, in its discretion,
apply to any court of law or equity of competent jurisdiction for specific
performance and injunctive relief in order to enforce or prevent any violations
this Agreement, and any party against whom such proceeding is brought hereby
waives the claim or defense that such party has an adequate remedy at law
and
agrees not to raise the defense that the other party has an adequate remedy
at
law.
(p)
Expenses.
Except
as otherwise expressly provided for herein, each party shall pay its own
expenses (including brokers’, finders’, attorneys’ and accountants’ fees) in
connection with the negotiation of this Agreement, the performance of its
respective obligations hereunder and the consummation of the transactions
contemplated by this Agreement (whether consummated or not).
(q)
Advice
of
Counsel.
Each
party acknowledges that it has been advised by counsel in the negotiation,
execution and delivery of this agreement.
(r)
No
Waiver.
No delay
on the part of either party in exercising any right hereunder shall operate
as a
waiver of such right. No waiver, express or implied, by either party of any
right or any breach of the other party shall constitute a waiver of any other
right or breach thereby.
5
|
UNIVERSAL
HOSPITAL SERVICES, INC.
By:
______________________________________________
Name:
____________________________________________
Title:
_____________________________________________
INTELLAMED,
INC.
By:
______________________________________________
Name:
____________________________________________
Title:
_____________________________________________
|
6
