EXHIBIT 10.2
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of January ____, 1996, by and among ASTHMA & ALLERGY CAREAMERICA, INC.,
a Delaware corporation ("AACA"); its parent company, VIVRA INCORPORATED, a
Delaware corporation ("VIVRA") (VIVRA is entering into this Agreement solely for
the purposes set out in Section 6 hereof); PEDIATRIC ALLERGY GROUP, A
PROFESSIONAL ASSOCIATION, a Tennessee professional corporation ("PAG"); and
PAG's shareholders, Xxxx X. Xxxxxx, Xx., M.D., an individual resident of
Tennessee ("Xxxxxx"), Xxxxxxx X. Xxxxx, M.D., an individual resident of
Tennessee ("Xxxxx"), and Xxxxxx X. Xxxxxx, M.D., an individual resident of
Tennessee ("Xxxxxx") (with Xxxxxx, Xxxxx and Xxxxxx being collectively referred
to herein as the "PAG Physicians").
W I T N E S S E T H:
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WHEREAS, PAG owns and operates a pediatric allergy practice with its
principal office location located at Suite 7, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx 00000-0000, together with its satellite locations in the Memphis,
Tennessee area (collectively the "Business");
WHEREAS, the PAG Physicians own all of the outstanding stock of PAG;
WHEREAS, the parties desire to merge PAG with and into AACA, with AACA
being the surviving corporation in the merger, in exchange for VIVRA Common
Stock;
WHEREAS, for federal income tax purposes, it is intended that the merger
shall qualify as a "reorganization" within the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended;
WHEREAS, for accounting purposes, it is intended that the merger shall be
accounted for as a pooling of interests;
WHEREAS, PAG and the PAG Physicians have entered into that certain Master
Merger Agreement of even date with AACA, Xxxxxxx X. Xxxxxxxxx, M.D., P.C.
("PLL"), Xxxxxxx X. Xxxxxxxxx, M.D. ("Xxxxxxxxx"), Xxxxxx X. Xxxxxxxxx, III,
M.D., P.C. ("GHT") and Xxxxxx X. Xxxxxxxxx, III, M.D. ("Xxxxxxxxx") which
contemplates that PLL and GHT will merge into AACA at the same time that PAG
merges into AACA;
WHEREAS, the merger of PAG into AACA is subject to the simultaneous
consummation of the mergers of PLL and GHT into AACA;
WHEREAS, the PAG Physicians, Xxxxxxxxx and Xxxxxxxxx wish for there to be
formed a new Tennessee professional corporation "Newco") through which to
practice medicine; and
WHEREAS, the parties wish for the PAG Physicians, Lieberman, Treadwell,
Newco and AACA to enter into certain agreements as conditions precedent to the
consummation of the merger of PAG into AACA as set forth in the Master Merger
Agreement,
NOW, THEREFORE, in consideration of these premises and the agreements
contained herein, the sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, do hereby agree as follows:
SECTION 1. THE MERGER.
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1.1 AGREEMENT TO MERGE. On the terms, subject to the conditions, and
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for the consideration hereinafter stated, the parties hereto agree that PAG
shall be merged with and into AACA, with AACA being the surviving corporation
(the "Surviving Corporation"). The merger of PAG with and into AACA (the
"Merger") shall become effective as of the "Effective Time" (as hereinafter
defined).
1.2 EFFECTIVE TIME OF MERGER. At or prior to the "Closing" (as
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hereinafter defined), AACA, on the one hand, and PAG on the other hand, shall
execute a certificate of merger in the form attached hereto on Exhibit 1.2(i)
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(the "Certificate of Merger") and Articles of Merger in the form attached hereto
as Exhibit 1.2(ii) (the "Articles of Merger") to effect the Merger in accordance
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with all appropriate legal requirements and shall deliver and file such
Certificate of Merger as required by the Delaware General Corporation Law and
such Articles of Merger as are required by the Tennessee Professional
Corporation Act. The Merger shall become effective upon the latter of the time
and date of filing with the Delaware Secretary of State or the time and date of
filing with the Tennessee Secretary of State, or at such later date and time as
may be specified by mutual agreement of the parties in the Certificate of Merger
and the Articles of Merger (the time and date of such filing or such later time
and date being referred to herein as the "Effective Time").
1.3 PLAN OF MERGER. In accordance with the requirements of the
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Tennessee Business Corporation Act, AACA and PAG hereby adopt the Plan of Merger
set forth as Exhibit A to the Articles of Merger (the "Plan of Merger"). If
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there are any inconsistencies between
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the provisions of the Plan of Merger and the provisions of this Agreement, the
provisions of this Agreement shall prevail.
SECTION 2. TERMS OF THE MERGER.
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2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
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AACA immediately prior to the consummation of the Merger shall be the
Certificate of Incorporation of the Surviving Corporation until otherwise
amended or repealed in accordance with law.
2.2 BYLAWS. The Bylaws of AACA immediately prior to the consummation of
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the merger shall be the Bylaws of the Surviving Corporation until otherwise
amended or repealed in accordance with law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of AACA in
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office immediately prior to the consummation of the Merger shall be the
directors and officers of the Surviving Corporation. All such directors and
officers shall hold office in accordance with the Surviving Corporation's
Certificate of Incorporation, Bylaws and applicable law.
2.4 MANNER AND BASIS OF CONVERTING SHARES.
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(a) At the Effective Time of the Merger, all of the issued and
outstanding shares of common stock, without par value, of PAG (the "PAG Common
Stock") prior to the Effective Time of the Merger (other than such shares held
by PAG in its treasury) shall, by virtue of the Merger and without any action by
the holder thereof, automatically be converted into the "Determined Amount" of
the Common Stock, $ .01 par value per share, of VIVRA ("VIVRA Common Stock").
For purposes hereof, the term "Determined Amount" shall mean the number of
shares of VIVRA Common Stock calculated by dividing $1,813,116 (the "Merger
Consideration"), adjusted up or down by the amount of the "Closing Date
Adjustment" (as hereinafter defined in Section 2.5(c)), by the average closing
price (as quoted by the New York Stock Exchange) of VIVRA Common Stock for the
ten-day trading period immediately preceding and including January 3, 1995 (said
average price being referred to herein as the "Closing Price"). Each share of
PAG Common Stock held in the treasury of PAG upon the Effective Time of the
Merger shall be cancelled, and no consideration shall be issued therefor. The
Determined Amount of VIVRA Common Stock less the number of shares and the cash
equivalent of fractional shares to be held in escrow as provided in the Escrow
Agreement shall be distributed to the PAG Physicians as set forth in Exhibit 2.4
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hereof. Fractional shares may be paid in cash.
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(b) Except as may be otherwise provided herein, in the event that
subsequent to the date of execution of this Agreement but prior to the Effective
Time of the Merger, the outstanding shares of VIVRA Common Stock or PAG Common
Stock shall have been increased, decreased, changed into or exchanged for a
different number or kind of shares through a recapitalization, reclassifi-
cation, stock dividend, stock split or reverse stock split, then an appropriate
and proportionate adjustment shall be made in the VIVRA Common Stock to be
delivered hereunder.
(c) At the Closing, the PAG Physicians, jointly and severally,
shall surrender their certificates representing all of the PAG Common Stock,
duly endorsed for cancellation or marked canceled as may be required by AACA.
2.5 MERGER CONSIDERATION ADJUSTMENT.
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(a) The Merger Consideration deliverable as a number of shares of
VIVRA Common Stock hereunder is based on the assumption that PAG's "Net Assets"
(as hereinafter defined) as of the Effective Time shall be at least $197,195
(the "Agreed Amount"). To the extent that PAG's Net Assets as of the Effective
Time shall exceed the Agreed Amount, then the PAG Physicians, in the same
percentages as set forth in Exhibit 2.4, shall be entitled to receive additional
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shares of VIVRA Common Stock in an amount equal to that number of shares
determined by dividing such excess by the Closing Price, and to the extent that
PAG's Net Assets as of the Effective Time shall be less than the Agreed Amount,
then AACA shall be entitled to receive from the PAG Physicians a return of
shares of VIVRA Common Stock in an amount equal to that number of shares
determined by dividing such deficit by the Closing Price with such return to be
effected by each PAG Physician by a transfer to AACA as provided under the
Escrow Agreement.
(b) For purposes hereof, the term "Net Assets" shall mean the sum of
(i) the value of PAG's "Accounts Receivable" (as hereinafter defined) as of the
Effective Time, plus (ii) the value of PAG's fixed assets which, for purposes of
this calculation, shall be deemed to be $133,691.00, plus (iii) cash and cash
equivalents (including Federal income and Tennessee excise tax refunds applied
for prior to the Closing Date but unpaid as of the Effective Time, but solely to
the extent collected) minus the amount of all "Liabilities" (as hereinafter
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defined) of PAG which have not been paid as of the Effective Time. For purposes
hereof, the term "Accounts Receivable" shall mean (x) the sum of all receivables
PAG posted in accordance with historical practices with respect to the
operations of the Business prior to the Effective Time arising from the
rendering of services to patients up to the Effective Time, including, without
limitation, those from private
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pay patients, private insurance payers, third party payers or from governmental
programs, but not including accounts previously written off by PAG, and not
including any accounts receivable for which there is an unposted cash receipt as
of the Effective Time, (y) multiplied times seventy-five percent (75%), which
represents an agreed-upon allowance for bad debts and contractual allowances and
payer discounts, (z) multiplied times sixty percent (60%), which represents an
agreed-upon after-tax realization rate. For purposes hereof, the term
"Liabilities" shall mean all liabilities with respect to the operation of the
Business and including, without limitation, all liabilities of PAG as of the
Effective Time for accrued sick leave and vacation pay of employees of PAG as of
the Effective Time and including all liabilities for supplies, inventory and
other goods ordered by PAG prior to the Effective Time but not paid for as of
the Effective Time, but not including liabilities accruing in the ordinary
course of business after the Effective Time under the contracts and leases
listed on Exhibit 2.5.
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(c) For purposes of establishing the Determined Amount on the
Closing Date, the Merger Consideration shall be adjusted initially on or prior
to the Closing Date using PAG's December 31 balance sheet (the "Interim Balance
Sheet"). Such initial calculation shall be set forth on a schedule delivered by
the PAG Physicians to AACA together with a copy of the Interim Balance Sheet not
less than 2 days prior to the Closing. Such initial adjustment shall be deemed
to be the "Closing Date Adjustment."
(d) Within ninety (90) days after the Effective Time (or as soon
thereafter as possible), the parties shall make final adjustments to the Merger
Consideration (the "Post-Closing Adjustments"). AACA shall furnish to the PAG
Physicians, within sixty (60) days after the Effective Time, a balance sheet of
PAG with respect to the Business as of the close of business at the Effective
Time (the "Closing Balance Sheet") and a statement of AACA's proposed
Post-Closing Adjustments. The Closing Balance Sheet will be used to determine
any final adjustments to the Merger Consideration. Should the PAG Physicians
dispute any of the Post-Closing Adjustments proposed by AACA or the accuracy of
the Closing Balance Sheet, the PAG Physicians shall promptly (and in no event
later than ten days after receipt of the Closing Balance Sheet and AACA's
proposed Post-Closing Adjustments) advise AACA in writing. If after thirty (30)
days after delivery of the Closing Balance Sheet, AACA and the PAG Physicians
are unable to agree on the amount of the Post-Closing Adjustments, the
Physicians and AACA shall engage Ernst & Young, Certified Public Accountants
(the "Accountants") to review the Closing Balance Sheet and the proposed Post-
Closing Adjustments and to determine the amount of Post-Closing Adjustments,
such determination to be made as soon as
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practicable. In making such review and determination, the Accountants shall
utilize the terms and provisions of this Agreement. The decision of the
Accountants shall be binding on both the PAG Physicians and AACA. Each of AACA
and the PAG Physicians jointly shall pay one-half (1/2) of the reasonable fees
and expenses of the engagement of the Accountants.
(e) If any further adjustments are required in the Determined
Amount consideration by virtue of the foregoing provisions, the adjusted number
of shares shall be delivered to the party entitled to them or added to the
amount to be transferred to AACA under the Escrow Agreement, as the case may be,
within 10 days after the adjustments are determined pursuant to the foregoing
provisions.
2.6 HOLDING PERIOD WITH RESPECT TO POOLING. The PAG Physicians will
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hold their shares of VIVRA Common Stock for the required period from the date of
issuance until April 1, 1996, or until the date on which the combined financial
statements of AACA and PAG are reported, if it should occur earlier, in keeping
with the intent of the parties for AACA to account for the Merger as a pooling
of interest.
SECTION 3. CLOSING.
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3.1 CLOSING AND CLOSING DATE. The closing (the "Closing") of the Merger
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and the execution and delivery of the Certificate of Merger, the Articles of
Merger and the agreements and documents contemplated herein shall take place on
or before January 6, 1996, at 11:00 a.m. EST, at the offices of The Bogatin Law
Firm, 000 Xxxxx xxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, or at such
other place and time as may be deemed appropriate by the parties hereto. At or
before the Closing, AACA, on the one hand, and PAG, on the other hand, will
execute and deliver the Certificate of Merger and the Articles of Merger, and
thereafter cause them to be filed as provided in Section 1.2 hereof.
3.2 ACTION BY AACA. Upon the terms and subject to the conditions herein
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contained, at the Closing on the Closing Date, AACA will deliver to the PAG
Physicians the following:
(i) The certificates referred to in Section 9.1 hereof;
(ii) The opinion of counsel for AACA in form and substance satisfactory
to PAG and the PAG Physicians;
(iii) Resolutions of the Board of Directors of AACA, certified by an
appropriate officer, authorizing the execution, delivery and
performance of this Agreement,
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the Certificate of Merger and the other agreements to be delivered by AACA in
connection with the Closing hereunder (action of the Shareholder of AACA is not
required as provided by Section 252 of the Delaware General Corporation Law);
and
(iv) For each of the PAG Physicians, the Determined Amount of the VIVRA
Common Stock which shall be represented by two (2) share
certificates (i) one, which shall be deposited (together with an
executed stock power) with the Escrow Agent as provided in the
Escrow Agreement, representing such PAG Physician's pro rata portion
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of the escrowed shares, and (2) one, which shall be delivered
directly to each PAG Physician, representing his pro rata portion of
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the Determined Amount less his pro rata portion of the escrowed
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shares.
3.3 ACTION BY PAG AND THE PAG PHYSICIANS. Upon the terms and subject to
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the conditions herein contained, at the Closing on the Closing Date, the PAG
Physicians and PAG will deliver to AACA the following:
(i) The certificate referred to in Section 10.1 hereof;
(ii) The opinion of counsel for the PAG Physicians and PAG in form and
substance satisfactory to AACA;
(iii) Resolutions of the shareholders and the Board of Directors of PAG
certified by an appropriate officer, authorizing the execution,
delivery and performance of this Agreement, the Certificate of
Merger and the other agreements to be delivered by PAG in connection
with the Closing hereunder; and
(iv) The schedule showing the Closing Date Adjustment referred to in
Section 2.5(c) hereof.
3.4 ACTION BY ALL PARTIES. Upon the terms and subject to the conditions
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herein contained, at the Closing on the Closing Date, the parties will, as
appropriate, execute and deliver to each other the following:
(i) the "Noncompetition Agreement" among Roane, Duncan, Xxxxxx and AACA
in substantially the form attached hereto as Exhibit 3.4(i); and
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(ii) the "Escrow Agreement" between the PAG Physicians and AACA in
substantially the form attached hereto as Exhibit 3.4(ii).
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3.5 AUDIT. AACA shall have the right, either before or after the Closing,
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to cause its accounting firm to audit the financial statements of PAG for the
current year and for the three years prior to the current year. The PAG
Physicians shall cooperate reasonably in connection with any such audit or
audits and will execute management letters and other documents reasonably
requested in connection with any such audit or audits and any equity offering by
AACA. AACA will pay the cost of the audits required by AACA under this
Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PAG AND THE PAG PHYSICIANS.
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PAG and the PAG Physicians, jointly and severally, hereby represent,
warrant, covenant and agree to and with AACA, as follows.
4.1 PAG'S EXISTENCE AND POWER. PAG is a professional association duly
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organized, validly existing and in good standing under the laws of the State of
Tennessee. Neither the nature of its business as now conducted nor the
character or location of its properties require qualification by PAG to do
business in any other jurisdiction except for the states listed on Exhibit 4.1
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in which PAG is duly qualified to do business. PAG has the corporate power to
own its property and to carry on its business as now being conducted. PAG is
not subject to any noncompetition agreement.
4.2 ARTICLES OF INCORPORATION AND BYLAWS. True, correct and complete
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copies of the Articles of Incorporation and Bylaws of PAG are attached hereto
on Exhibit 4.2.
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4.3 PAG STOCK. PAG's authorized capital stock consists solely of 2,000
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shares of common stock authorized, of which 100 shares are issued (and
outstanding) to Xxxxxx, 100 shares are issued (and outstanding) to Xxxxx, and
100 shares are issued (and outstanding) to Xxxxxx, as reflected on Exhibit 4.3
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attached hereto. All such outstanding shares of capital stock of PAG have been
duly and validly authorized and issued and are fully paid and nonassessable.
There are no treasury shares of capital stock. There are no outstanding
options, contracts, preemptive rights, proxies, calls, commitments, demands or
rights of any character obligating PAG to issue any shares of stock or other
securities of PAG, or options or rights with respect thereto, and there are no
existing or outstanding securities convertible or exchangeable into shares of
stock or other securities of PAG. No shares of PAG's
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capital stock have been issued in violation of any federal or state securities
law. There have been no transactions involving the equity interests of PAG
since October 31, 1995.
4.4 OWNERSHIP OF PAG. The PAG Physicians are, and will be at the Closing
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and the Effective Time, owners of all of the issued and outstanding stock of
PAG, free and clear of all claims, security interests, pledges, options, rights
of first refusal, liens, financing statements, deeds of trust, mortgages,
charges, assessments, restrictions, leases and other encumbrances (all such
claims, security interests, pledges, options, rights of first refusal, liens,
financing statements, deeds of trust, mortgages, charges, assessments,
restrictions, leases and other encumbrances being referred to individually as an
"Encumbrance" and collectively as "Encumbrances") whatsoever. The PAG
Physicians have the full legal right, power and authority to enter into this
Agreement and, except as identified on Exhibit 4.4, the execution, delivery and
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performance of this Agreement by the PAG Physicians will not violate any
agreement to which either they or PAG is a party or any agreement affecting the
PAG Common Stock.
4.5 INSIDER TRANSACTIONS. Except as disclosed in Exhibit 4.5 hereto,
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PAG is not, directly or indirectly, a party to any contract, lease or commitment
with any officer or director of PAG or any affiliate of any such director or
officer. As used in this Section 4.5, the term "affiliate" shall mean any
member of the immediate family of such officer or director or any corporation,
partnership, trust or other entity in which such officer or director has a
substantial interest or is a director, officer, partner or trustee.
4.6 AUTONOMY; SUBSIDIARIES. PAG is autonomous and has not ever been a
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subsidiary of any other corporation. PAG has no subsidiaries nor does it own
any shares of stock or other securities of, or interest in, any other
corporation, joint venture, partnership or business.
4.7 ACCURACY OF FINANCIAL STATEMENTS. The PAG Physicians have delivered
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to AACA as Exhibit 4.7 a copy of the financial statements of PAG for the years
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ended December 31, 1992, 1993 and 1994 and for the ten-month period ended
October 31, 1995 (the "PAG Financial Statements"). The PAG Financial Statements
have been prepared based upon cash basis accounting, are complete and accurate
and fairly present the financial condition of and the income and expenses of
PAG as of the respective dates thereof, except as disclosed on Exhibit 4.7. PAG
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has no liabilities or obligations known or unknown, accrued, absolute or
contingent, whether or not now due and payable (including, without limitation,
any liability for federal, state or local taxes of PAG), for any
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period ended on or prior to the respective dates of the Financial Statements or
any liability or obligation in connection with any transaction or state of
affairs entered into or existing on or before the respective dates thereof,
which are not either fully reflected on the Financial Statements or otherwise
disclosed to AACA in Exhibit 4.14 hereto.
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4.8 PROPERTIES.
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(i) Set forth on Exhibit 4.8(i) is an identification of the material
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real and tangible personal properties presently owned by PAG and
used in the Business. All tangible personal property, equipment,
vehicles, furnishings, and fixtures included within the assets of
PAG or required to be used in the ordinary course of its business
are being conveyed as a result of the merger "AS IS, WHERE IS."
(ii) Set forth on Exhibit 4.8(ii) is an accurate and complete list of all
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real or personal property which is used by PAG in the Business and
which is either not owned by PAG or is leased or rented by PAG.
4.9 TAXES AND TAX RETURNS. For all tax periods ended prior to the date
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of this Agreement, except as set forth on Exhibit 4.9, PAG has filed all
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federal, state, local and other tax returns required by law to be filed and,
except as set forth on Exhibit 4.9, such returns were filed on or before the due
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dates of such returns (as extended by any valid extensions of time) ("Tax
Returns") and has paid or will pay all taxes of every kind and description
(including, without limitation, all net income, gross income, gross receipts,
sales, use, lease, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation, property
or other taxes, customs, duties, fees, assessments or charges, together with any
interest, penalties, additions to tax or additional amounts imposed by any
taxing authority, domestic, or foreign ("Taxes") which are due as of and for all
periods through the Effective Time. No claim has ever been made by an authority
in a jurisdiction where PAG does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no liens or security
interests on any of PAG's assets that arose in connection with any failure (or
alleged failure) to pay any Taxes. PAG has withheld and paid all Taxes required
to have been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder or other third party.
All Tax Returns filed by PAG correctly reflected all facts regarding the income,
business, assets, operations, activities and status of PAG and all other
information required to be shown thereon. PAG has complied
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in all respects with all applicable laws, rules and regulations relating to the
filing of Tax Returns with respect to, and the payment of Taxes. The Tax
Returns of PAG have not been audited by the Internal Revenue Service or any
state or local taxing authority. No federal, state, local or foreign audits,
administrative proceedings, court proceedings or ruling requests are presently
pending with respect to any Taxes or Tax Returns with respect thereto. PAG has
not filed a consent pursuant to Section 341(f) of the Code, or agreed to have
Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset
(as such term is defined in Section 341 (f)(4) of the Code) owned by PAG. No
property of PAG is property that PAG is required to treat as being owned by
another person pursuant to the provisions of Section 168(f)(6) of the Code, or
is "tax-exempt use property" within the meaning of Section 168(h) of the Code,
or is subject to a lease, other than a "true" lease for federal income tax
purposes. PAG is not required to include in income any adjustment pursuant to
Section 481(a) of the Code by reason of a voluntary change in accounting method
initiated by PAG, nor does PAG, nor any of the PAG Physicians, have any
knowledge that the Internal Revenue Service has proposed any adjustment or
change in accounting methods. Except as set forth on Exhibits 4.9 and 4.10,
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with respect to PAG Real and Personal Property Leases PAG is not currently under
any contractual obligation to indemnify any person with respect to Taxes. No
person who is not a United States citizen, and no corporation or other entity
which was not organized within the United States owns beneficially more than
five percent (5%) of the outstanding shares of PAG and therefore no withholding
of tax pursuant to Section 1445 of the Code is required. PAG is not a United
States Real Property Holding Corporation as defined in Section 897 of the Code.
PAG is not a party to any agreement that under certain circumstances could
obligate it to make any payments that will not be deductible under Code Section
280(G). No consent extending the statute of limitations has been filed by or on
behalf of PAG with respect to any liability for Taxes for any year.
4.10 CONTRACTS.
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4.10.1. PAG contracts and PAG Physicians Contracts. Exhibit 4.10(i)
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is a list of all agreements of PAG (the "PAG Contracts") and Exhibit 4.10(ii) is
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a list of all agreements of each PAG Physician with respect to PAG (the "PAG
Physician Contracts"). Except as set forth in Exhibits 4.10(i) and 4.10 (ii)
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hereto, neither PAG nor any of the PAG Physicians with respect to PAG,
respectively, is a party to any material contract, agreement, lease, or power of
attorney of any kind with respect to the Business. As to PAG, except as noted
on Exhibit 4.10(i), all PAG Contracts, and as to the PAG Physicians, all PAG
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Physician Contracts, are valid and are in full force and effect according to
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their material terms, and no material default by PAG or the PAG Physician or
Physicians, as the case may be, exists under any such contract, lease or
agreement and (to the best of the PAG Physicians' and PAG's knowledge) no
condition or state of facts exists which, with notice or the passage of time, or
both, would constitute a default under any such contract, lease or agreement.
To the knowledge of PAG, with respect to all PAG Contracts and, to the knowledge
of the PAG Physicians, with respect to the PAG Physician Contracts, all PAG
Contracts and all PAG Physician Contracts are valid as to the other contracting
parties thereto and there is no material default by any such party existing
under the contracts and no condition or state of facts exists which, with notice
or the passage of time, or both would constitute a default by any such party
thereunder. All PAG Contracts and all PAG Physician Contracts are enforceable
in accordance with their respective terms by PAG or the PAG Physicians, as the
case may be, against all other parties thereto in all material respects (except
as enforceability may be restricted, limited or delayed by bankruptcy,
insolvency, moratorium or similar laws affecting or relating to the enforcement
of creditors' rights in general and except as enforceability is subject to
general principles of equity, regardless of whether enforceability is considered
in a proceeding at law or in equity).
4.10.2. Neither the execution, the delivery, nor the performance of
this Agreement by PAG and the PAG Physicians will cause any default in or breach
of any provision of the PAG Charter, as amended, the PAG bylaws or any agreement
or commitment to which PAG is a party or by which PAG or the PAG Physicians are
bound, and none of such actions will result in either acceleration, or any
similar right of any other party, under any PAG Contract or PAG Physician
Contract, or constitute a default under any PAG Contract or PAG Physician
Contract, or result in the creation or imposition of any Encumbrance against any
of the assets of PAG. With respect to the PAG Physician Contracts, all accounts
receivable with respect to each PAG Physician's performance of each such
contract has been assigned to PAG and, with respect to future performances by
each such PAG Physician, the accounts receivable therefrom shall be assigned to
Newco pursuant to such PAG Physician's Individual Employment with Newco.
4.11 COMPLIANCE WITH LAWS. Except as described in Exhibit 4.11, to the
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best of each of the PAG Physician's knowledge, PAG is in compliance with the
laws, regulations, rules and decrees of all governmental authorities whatsoever
relating to the conduct of its business, including, without limitation, the Fair
Labor Standards Act.
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4.12 LITIGATION. Except as described in Exhibit 4.12 hereof, there is no
---------- ------------
litigation, action, suit, proceeding or governmental investigation pending or
(to the best of the PAG Physicians' or PAG's knowledge) threatened against PAG
or affecting PAG or the Business or any of its assets, at law or in equity or
before any federal, state, municipal, local or other governmental authority, or
before any arbitrator, nor does any PAG Physician nor PAG know of any reasonable
basis for any such litigation, action, suit, proceeding or investigation. None
of the PAG Physicians nor PAG is subject to any order, writ or decree of any
court or other governmental authority.
4.13 EMPLOYEE BENEFITS.
-----------------
4.13.1 Except as identified on Exhibit 4.13.1, PAG is not a party to
--------------
any collective bargaining or labor agreement or to any written employment
agreement, profit sharing, deferred compensation, bonus, stock option, stock
purchase, pension, retainer, consulting, retirement, welfare, or incentive plan
or policy or increases in the rate of remuneration entered into with or for the
benefit of present or former employees, whether or not unionized, of PAG or any
other like agreement, plan or policy.
4.13.2 All PAG plans, funds, programs, agreements, arrangements,
commitments or policies (collectively, the "Plans") which: (i) are or have ever
been maintained or participated in by PAG and which are currently in effect or
as to which PAG has any ongoing liability or obligation whatsoever; and (ii)
constitute (A) "pension plans" (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) or (B) "welfare
plans" (as defined in ERISA Section 3(1)) are identified on Exhibit 4.13.2. PAG
--------------
has provided copies of all Plans to AACA.
4.13.3 Except as set forth on Exhibit 4.13.3, PAG has never
--------------
maintained, sponsored, contributed to or been required to contribute to a
defined benefit plan (within the meaning of Code Section 414(j)) and is not, and
has never been, a member of a controlled group of corporations (within the
meaning of Code Section 414(b)), a group of trades or businesses under common
control (within the meaning of Code Section 414(c)) or an affiliated service
group (within the meaning of Code Section 414 (m)).
4.13.4 WITH RESPECT TO EACH PLAN:
(i) Such Plan is, and at all times has been, operated and
administered substantially in compliance with the requirements of all applicable
statutes, orders or governmental rules or regulations currently in effect
including, without limitation, ERISA and the Code.
-13-
(ii) No prohibited transaction (as defined in ERISA Section 406 or
Code Section 4975) has occurred in connection with which PAG or any fiduciary of
such Plan is or could be subject to a civil penalty pursuant to ERISA Section
502, a tax imposed by Code Section 4975 or liability for a breach of fiduciary
responsibility under ERISA.
(iii) No action, suit, grievance, arbitration or other manner of
litigation or claim with respect to such Plan or its assets (other than routine
claims for benefits made in the ordinary course of administration of such Plan)
is pending or, to the knowledge of PAG or any of the PAG Physicians, threatened
against or with respect to such Plan, PAG or any fiduciary (as defined in ERISA
Section 3(21)) of such Plan. To the knowledge of PAG and the PAG Physicians,
there is no basis for any such claim.
(iv) If such Plan provides medical benefits to any present or
former employee of PAG, such Plan has been operated in compliance with ERISA
Sections 601 through 609 and either Code Section 162(i)(2) and (k) and the
regulations promulgated thereunder (prior to 1989) or Code Section 4980B and the
regulations promulgated thereunder (after 1988).
(v) There has been no failure to file on a timely basis any
report or return required to be filed by law with respect to such Plan. All
disclosures required by law to be made to participants in such Plan have been
made on a timely basis.
(vi) No representation or communication with respect to
participation, eligibility for benefits, vesting, benefit accrual or coverage
under such Plan has been made by PAG or any trustee, fiduciary, officer,
director, employee or other agent of PAG to any of its employees or their
beneficiaries which (A) is not in accordance with the terms of such Plan and (B)
could have material adverse economic consequences to PAG or such Plan.
(vii) Such Plan has been operated in accordance with such
provisions, if any, of the Code as may be applicable to obtain the federal
income tax consequences intended for such Plan.
4.13.5 Each Plan which is a "pension plan" (as defined in ERISA
Section 3(2)) and its related trust, if any, are qualified under Code Section
401(a) and exempt from tax under Code Section 501(a) and have been determined by
the Internal Revenue Service to be so qualified. Nothing has occurred since the
most recent such determination which has or could adversely affect the qualified
status of such Plan or the tax exempt status of its related trust.
-14-
4.14 LIABILITIES. All liabilities and obligations of PAG direct,
-----------
indirect or contingent, are either listed in the PAG Financial Statements or on
Exhibit 4.14 attached hereto.
------------
4.15 INSURANCE. All insurance maintained by PAG is listed and described
---------
on Exhibit 4.15 attached hereto. Except as identified on Exhibit 4.15, PAG has
------------ ------------
not in the past three years made any claims with respect to its insurance
coverage.
4.16 ABSENCE OF CERTAIN CHANGES. Except as described in Exhibit 4.16,
-------------------------- ------------
since October 31, 1995, PAG has not:
(i) incurred or suffered any obligations or liabilities (absolute or
contingent) except current liabilities incurred in the ordinary
course of business;
(ii) issued any stock or other corporate securities or granted any option
or right with respect to the acquisition of any of its corporate
securities;
(iii) declared or made (or become obligated for) any payment or
distribution or dividend to shareholders or purchased or redeemed
(or became obligated to purchase or redeem) any shares of its
capital stock;
(iv) mortgaged, pledged or subjected (whether or not voluntarily) to any
Encumbrance, any of its assets, other than Encumbrances incidental
to the conduct of its business or the ownership of its property and
assets which were not incurred in connection with the borrowing of
money, or the obtaining of advances or credit, and which do not in
the aggregate impair the use or value thereof in the operation of
its business;
(v) sold, assigned or transferred or agreed to sell, assign or transfer
any of its tangible assets or canceled any debts or claims, except
in each case in the ordinary course of business;
(vi) sold, assigned, or transferred or agreed to sell, assign or transfer
any trade names, or other intangible assets, or permitted existing
rights with respect thereto to lapse;
(vii) suffered any extraordinary loss or knowingly waived or permitted to
lapse any right of substantial value;
(viii) made any capital expenditures, or otherwise entered into any
executory transactions or commitments to make
-15-
any capital expenditures, in excess of $5,000 per item or $25,000 in the
aggregate;
(ix) failed to comply in any material respect with any applicable local,
state or federal law, rule or regulation; or
(x) suffered any event or condition of any character, materially and
adversely affecting its business, properties or prospects.
4.17 EMPLOYEES. Attached as Exhibit 4.17 is a listing of all current PAG
--------- ------------
employees and former PAG employees who are eligible to continue to receive
benefits by virtue of their former employment by PAG (including, as applicable,
their rates of pay, accrued sick leave, vacation and other benefits).
4.18 AUTHORITY. PAG has the corporate power to execute and deliver this
---------
Agreement and consummate the Merger and the other transactions contemplated
hereby and has taken (or by the Closing Date will have taken) all action
required by law, its Articles of Incorporation, bylaws or otherwise to authorize
such execution and delivery and the consummation of the Merger and the other
transactions contemplated hereby.
4.19 LICENSES. Exhibit 4.19 contains a copy of all governmental or other
-------- ------------
licenses held by (i) PAG relating to the operation of its business and (ii) the
PAG Physicians. Except for the licenses of PAG and the PAG Physicians listed in
Exhibit 4.19, there are no other licenses or permits required for PAG and the
------------
PAG Physicians to operate the Business. Except as disclosed in Exhibit 4.19,
------------
all such licenses are in full force and effect, and there have not been (and
there currently are not) any material default or deficiencies thereunder by any
party; and no event has occurred which (whether with or without notice, lapse of
time, or the happening or occurrence of any other event) would constitute a
material default or deficiency thereunder. None of the PAG Physicians nor PAG
is aware of any proceeding or investigation by any governmental agency
(including, without limitation, the Health Care Financing Administration or any
Ethics Board) relating to the Business. Except as disclosed in Exhibit 4.19,
------------
none of the PAG Physicians nor PAG have been the subject of a malpractice suit.
To the knowledge of the PAG Physicians and PAG there is not now, nor has there
ever been, any investigation or proceeding by any governmental agency or
licensing board to restrict, suspend or revoke any license of PAG.
4.20 NO FINDERS OR BROKERS. None of the PAG Physicians nor PAG, nor any
---------------------
officer or director thereof, has engaged any finder or
-16-
broker in connection with the transactions contemplated hereunder. The PAG
Physicians will indemnify and hold AACA harmless against claims (and attorneys'
fees and expenses in the defense thereof) of any person, firm or corporation for
finder's fees, broker's fees, brokerage commissions, sales commissions or the
like alleged in connection with the transactions contemplated hereunder due to
acts of the PAG Physicians or PAG.
4.21 DISCLOSURE. No representation or warranty by the PAG Physicians or
----------
PAG in this Agreement and no statement pertaining to the PAG Physicians or PAG
in this Agreement or any document, Exhibit or certificate furnished or to be
furnished to AACA pursuant hereto will contain any materially untrue statement
or omits or will omit to state a relevant fact necessary in order to make the
statements contained herein or therein not misleading. There are no facts known
to the PAG Physicians or PAG not described herein which would adversely affect
the future operations of PAG.
4.22 VALIDITY OF AGREEMENTS. Upon execution and delivery by all parties,
----------------------
this Agreement, the Articles of Merger, and all other agreements to be executed
by the PAG Physicians or PAG in connection herewith, will constitute the valid
and binding obligation of the PAG Physicians and PAG, as the case may be, and be
binding against them and enforceable in accordance with their respective terms
(except as enforceability may be restricted, limited, or delayed by bankruptcy,
insolvency, moratorium or similar laws affecting or relating to the enforcement
of creditors' rights in general and except as the enforceability is subject to
general principles of equity, regardless of whether enforceability is considered
in a proceeding at law or in equity).
4.23 TITLE TO ASSETS. Except as described in Exhibits 4.14 and 4.16
--------------- ------------- ----
hereto, PAG holds good and marketable title to its assets, free and clear of
restrictions on or conditions to transfer or assignment, and free and clear of
Encumbrances.
4.24 TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD-PARTY APPROVAL.
------------------------------------------------------------
Except as set forth on Exhibit 4.24, the execution and delivery of this
------------
Agreement by the PAG Physicians and PAG, and the consummation of the
contemplated transactions, (i) will not result in the creation or imposition of
any Encumbrance on any of the assets of PAG and (ii) will not require the
authorization, consent, or approval of any third party, including any
governmental subdivision or regulatory agency.
4.25 ACCOUNTS RECEIVABLE. The accounts receivable of PAG (the "Accounts
-------------------
Receivable") as of the Effective Time of the Merger, to the extent uncollected
as of the Effective Time of the Merger, will be validly existing and represent
monies due for goods sold
-17-
and delivered or services performed subject to customary discounts or other
adjustments by third parties. An aged listing of the Accounts Receivable of PAG
as of the Closing Date shall be delivered to AACA on or before the Closing Date
in connection with the Interim Balance Sheet and the schedule calculating the
Closing Date Adjustment as provided in Section 2.5(c) hereof.
4.26 SECURITIES LAWS.
---------------
4.26.1 RECEIPT OF INFORMATION. Since the commencement of
----------------------
negotiations, each PAG Physician has had access to and each PAG Physician has
received: (i) a copy of VIVRA's Prospectus dated February 9, 1995; (ii) a copy
of VIVRA's 1994 Annual Report to Stockholders; (iii) a copy of VIVRA's Annual
Report on Form 10-K for the fiscal year ended November 30, 1994; (iv) a copy of
VIVRA's Quarterly Reports on Form 10-Q for the quarters ended February 28, May
31 and August 30, 1995; (v) a copy of VIVRA's Proxy Statement for VIVRA's Annual
Meeting; (vi) a copy of the Prospectus Supplements to VIVRA's Prospectus dated
February 9, 1995; (vii) a copy of VIVRA's Form 8-K dated August 16, 1995 and
December 21, 1995; and (viii) such other information as the PAG Physicians have
reasonably requested.
4.26.2 INVESTMENT EXPERIENCE. Each PAG Physician represents that
---------------------
such PAG Physician is experienced in evaluating and investing in securities and
acknowledges that such PAG Physician is able to fend for himself, can bear the
economic risk of such PAG Physician's investment, and has such knowledge and
experience in financial and business matters that such PAG Physician is capable
of evaluating the merits and risks of the investment in VIVRA stock.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF AACA.
--------------------------------------
AACA represents, warrants, covenants and agrees to and with PAG and the PAG
Physicians, as follows.
5.1 ORGANIZATION AND STANDING OF AACA. AACA is a corporation duly
---------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
now being conducted, and is duly qualified to do business, in each jurisdiction
in which the nature of the property owned or leased or the nature of the
businesses conducted, specifically including the State of Tennessee, so require.
5.2 AUTHORITY. AACA has corporate power to execute and deliver this
---------
Agreement and consummate the transactions contemplated hereby and has taken (or
by the Closing Date will have taken) all
-18-
action required by law, its Certificate of Incorporation, its bylaws or
otherwise to authorize such execution and delivery and the consummation of the
transactions contemplated hereby.
5.3 NO FINDERS OR BROKERS. Neither AACA nor any officer or director
---------------------
thereof has engaged any finder or broker in connection with the transactions
contemplated hereunder. AACA will indemnify and hold the PAG Physicians
harmless against claims (and attorneys' fees and expenses in the defense
thereof) of any person, firm or corporation for finder's fees, broker's fees,
brokerage commissions, sales commissions or the like alleged in connection with
the transactions contemplated hereunder due to acts of AACA.
5.4 VALIDITY OF AGREEMENTS. Upon execution and delivery by all parties
----------------------
hereto, this Agreement, and all other agreements to be executed by AACA in
connection herewith will constitute the valid and binding obligation of AACA and
be binding against AACA and enforceable in accordance with their respective
terms (except as enforceability may be restricted, limited, or delayed by
bankruptcy, insolvency, moratorium or similar laws affecting or relating to the
enforcement of creditors' rights in general and except as the enforceability is
subject to general principles of equity, regardless of whether enforceability is
considered in a proceeding at law or in equity).
5.5 REQUIRED GOVERNMENTAL APPROVALS. AACA is in compliance in all
-------------------------------
material respects with the laws, rules, regulations and decrees of all
governmental authorities whatsoever relating to the conduct of its businesses,
and to the best of its knowledge no approval or consent of any governmental
authority or agency will be required at Closing for AACA to consummate the
transactions contemplated hereby.
5.6 LITIGATION. There is no litigation, action, suit, proceeding or
----------
governmental investigation pending or (to the best of AACA's knowledge)
threatened against AACA or affecting AACA or any of its businesses or any of its
assets, nor does AACA know of any reasonable basis for such litigation, action,
suit, proceeding or investigation. AACA is not subject to any order, writ or
decree of any court or governmental authority or agency.
5.7 VIVRA COMMON STOCK. The issuance of the VIVRA Common Stock pursuant
------------------
to the Merger hereunder has been duly authorized by all necessary corporate
action and upon consummation of the Closing will be duly and validly issued and
fully paid and nonassessable, registered pursuant to VIVRA's currently effective
registration statement dated March 15, 1995, and freely tradeable subject to the
limitations set forth in Section 2.6.
-19-
5.8 CERTIFICATE OF INCORPORATION AND BYLAWS OF AACA. A true, correct
-----------------------------------------------
and complete copy of the Certificate of Incorporation of AACA is attached hereto
as Exhibit 5.8. AACA has provided a copy of its Bylaws to PAG and to the PAG
-----------
Physicians.
5.9 DISCLOSURE. No representation or warranty by AACA in this Agreement
----------
and no statement pertaining to AACA in this Agreement or any document, Exhibit
or certificate furnished or to be furnished to PAG Physicians or PAG pursuant
hereto will contain any material untrue statement or omits or will omit to state
a relevant fact necessary in order to make the statements contained herein or
therein not misleading.
-20-
SECTION 6. REPRESENTATIONS AND WARRANTIES OF VIVRA.
---------------------------------------
VIVRA joins in this Agreement solely for the purpose of making the
following representations and warranties regarding VIVRA and the VIVRA Common
Stock. VIVRA hereby represents, warrants, covenants and agrees to and with PAG
and the PAG Physicians as follows.
6.1 ORGANIZATION AND STANDING OF VIVRA. VIVRA is a corporation duly
----------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full corporate power and authority to conduct its business as
now being conducted, and is duly qualified to do business, in each jurisdiction
in which the nature of the property owned or leased or the nature of the
businesses conducted so require.
6.2 AUTHORITY. VIVRA has corporate power to execute and deliver this
---------
Agreement and consummate the transactions contemplated hereby and has taken (or
by the Closing Date will have taken) all action required by law, its Certificate
of Incorporation, bylaws or otherwise to authorize such execution and delivery
and the consummation of the transactions contemplated hereby.
6.3 VALIDITY OF AGREEMENTS. Upon execution and delivery by all parties
----------------------
hereto, this Agreement, and all other agreements to be executed by VIVRA in
connection herewith to the extent that they relate to VIVRA, will constitute the
valid and binding obligation of VIVRA and be binding against VIVRA and
enforceable in accordance with their respective terms (except as enforceability
may be restricted, limited, or delayed by bankruptcy, insolvency, moratorium or
similar laws affecting or relating to the enforcement of creditors' rights in
general and except as the enforceability is subject to general principles of
equity, regardless of whether enforceability is considered in a proceeding at
law or in equity).
6.4 LITIGATION. There is no material suit, action, proceeding or
----------
investigation against or involving VIVRA or any of the properties or rights,
pending or, to the knowledge of VIVRA, threatened. There is no material
judgment, decree, injunction, rule or order of any governmental entity
outstanding against VIVRA. VIVRA is not in violation of any term of any
judgment, decree, injunction or order outstanding against it.
6.5 FINANCIAL STATEMENTS. VIVRA's audited consolidated financial
--------------------
statements including a balance sheet, income statement and statement of cash
flow, for the year ended November 30, 1994, and VIVRA's unaudited consolidated
financial statements, including a balance sheet, income statement and statement
of cash flow, for the period ended November 30, 1995, which have been previously
-21-
delivered to PAG and the PAG Physicians, fairly present, subject to normal
year-end adjustments with respect to the unaudited interim financial statements,
in conformity with generally accepted accounting principles applied on a
consistent basis, the consolidated financial position of VIVRA and its
consolidated subsidiaries as of the date thereof and their consolidated results
of operation and cash flows for the period then ended.
6.6 VIVRA COMMON STOCK. All of the shares of VIVRA Common Stock issued
------------------
under the provisions of this Agreement are duly authorized, fully paid and
nonassessable, are registered pursuant to VIVRA's currently effective
registration statement dated March 15, 1995, and are freely tradeable subject to
the limitations set forth in Section 2.6.
6.7 NO UNTRUE STATEMENTS. No representation or warranty by VIVRA
--------------------
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein not misleading or
necessary in order to provide PAG and PAG Physicians with complete and accurate
information as to VIVRA and the VIVRA Common Stock. Except as described in the
5.4 Registration Statement and other materials delivered by VIVRA under cover
dated December 13, 1995, and December 30, 1995, there are no facts known to
VIVRA which would materially and adversely affect the VIVRA Common Stock.
SECTION 7. COVENANTS OF AACA.
-----------------
7.1 BEST EFFORTS TO SECURE CONSENTS AND APPROVALS. AACA will take all
---------------------------------------------
necessary corporate and other action and will use its best efforts to obtain all
consents and approvals required of AACA to carry out the transactions
contemplated by this Agreement and to satisfy the conditions precedent specified
herein.
7.2 HANDLING OF DOCUMENTS. Until the Closing, AACA shall keep
---------------------
confidential all information provided by PAG or the PAG Physicians pursuant to
this Agreement which is not in the public domain, and shall exercise the same
care in handling such information as it would exercise with similar information
of its own. If the Closing does not occur, AACA shall return all such
documentation and keep the same confidential.
7.3 EMPLOYMENT. AACA will offer employment to all of PAG's employees,
----------
except the PAG Physicians, but these employees shall, upon acceptance of
employment with AACA, be "employees terminable at will" and subject to all
employment policies of AACA. Subsequent to the date of this Agreement, no
termination bonuses or severance pay is owed to or will be paid to any PAG
employees terminated as a result of the merger of PAG into AACA.
-22-
7.4 COMPENSATION. AACA reserves the right in the future to raise
------------
salaries of PAG's former employees consistent with the policies and standards
governing AACA employees generally. AACA will credit each former PAG employee
hired by AACA with his or her service anniversary with PAG for purposes of
determining vacation, sick leave and holidays and other fringe benefits provided
by AACA to its employees. To the extent permitted by ERISA, former PAG
employees shall be entitled to participate in all health, disability, retirement
and other benefit plans of AACA in accordance with the terms of such plans;
provided, however, that with respect to such health plans, AACA shall ensure
that such employees are eligible for coverage at the Effective Time, are not
subject to a "waiting period" as a result of the Merger, and are not subject to
exclusion for pre-existing conditions unless they have been subject to such an
exclusion under their current coverage.
SECTION 8. COVENANTS OF THE PAG PHYSICIANS AND PAG.
---------------------------------------
8.1 ACCESS AND INFORMATION. The PAG Physicians and PAG shall give to
----------------------
AACA and AACA's lenders, underwriters, investors and representatives reasonable
access during normal business hours to their respective premises, books,
accounts and records and all other relevant documents and will make available,
and use their respective best efforts to cause their respective independent
accountants to make available, copies of all such documents and information with
respect to the business and properties of PAG as representatives of AACA may
from time to time request, including, without limitation, the working papers
used to prepare the Financial Statements, all in such manner as not unduly to
disrupt their normal business activities. The foregoing shall be subject to
federal and state laws regarding the privacy of medical records.
8.2 CONDUCT OF BUSINESS. If there shall be a lapse of time between the
-------------------
date hereof and the Effective Time, except as otherwise approved by AACA, PAG
shall conduct its business only in the ordinary course consistent with past
practice and in such a manner that representations and warranties contained in
Section 4 shall be true and correct at and as of the Closing (except for changes
contemplated, permitted or required by this Agreement) and so that the
conditions to be satisfied by PAG and the PAG Physicians at the Closing shall
have been satisfied. PAG shall, consistent with conducting its business in
accordance with reasonable business judgment, preserve its business intact; use
its best efforts to keep available to PAG the services of its present employees
(except those dismissed by PAG or those who voluntarily discontinue their
employment); and preserve for AACA the goodwill of the suppliers, patients and
others having business relations with PAG.
-23-
8.3 BEST EFFORTS TO SECURE CONSENTS AND APPROVALS. The PAG Physicians
---------------------------------------------
and PAG shall take the necessary corporate or other action and shall each use
its or their, as the case may be, best efforts to secure before the Closing all
necessary consents, approvals and amendments of agreements required of the PAG
Physicians and PAG to carry out the transactions contemplated by this Agreement
and to satisfy the conditions precedent specified herein. Each PAG Physician
will use his best efforts to have all PAG Physician Contracts of such PAG
Physician continue in effect with respect to such PAG Physician as an employee
of Newco following the Effective Time.
SECTION 9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PAG PHYSICIANS AND
-----------------------------------------------------------------
PAG.
---
All obligations of the PAG Physicians and PAG which are to be discharged
under this Agreement at the Closing are subject to the performance, at or prior
to the Closing, of all covenants and agreements contained herein which are to be
performed by AACA at or prior to the Closing and to the fulfillment at, or prior
to, the Closing, of each of the following conditions (unless expressly waived in
writing by the PAG Physicians at any time at or prior to the Closing).
9.1 REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
-----------------------------------
warranties made by AACA and VIVRA contained in Sections 5 and 6, respectively,
of this Agreement shall be true as of the date of this Agreement, and shall be
true at and as of the date of Closing in all material respects; AACA shall have
performed and complied with in all material respects all covenants and
conditions required by this Agreement to be performed or complied with by AACA
prior to or at the Closing; and the PAG Physicians shall have been furnished
with a certificate of the President or any Vice President of AACA and of VIVRA
dated as of the Closing, certifying to the truth of such representations and
warranties as of the Closing and to the fulfillment of such covenants and
conditions.
9.2 AUTHORITY. All action required to be taken by or on the part of
---------
AACA or VIVRA to authorize the execution, delivery and performance of this
Agreement by AACA and the consummation of the transactions contemplated hereby
shall have been duly and validly taken by the Board of Directors of AACA and of
VIVRA.
9.3 NO OBSTRUCTIVE PROCEEDING. No action or proceedings shall have been
-------------------------
instituted against, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting against the PAG
Physicians which seek to, or would, render it unlawful as of the Closing to
effect the
-24-
transactions contemplated hereby, and no such action shall seek damages in a
material amount by reason of the transactions contemplated hereby. Also, no
substantive legal objection to the transactions contemplated by this Agreement
shall have been received from or threatened by any governmental department or
agency.
9.4 NO MATERIAL ADVERSE CHANGE. As of the date of this Agreement,
--------------------------
there shall have been no material adverse changes in the business or assets of
AACA.
9.5 MASTER MERGER AGREEMENT. All of the conditions precedent to the
-----------------------
obligations of the parties set forth in the Master Merger Agreement shall have
been met or waived, as the case maybe, by all parties to the Master Merger
Agreement except as otherwise specifically provided therein.
SECTION 10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF AACA.
-----------------------------------------------
All obligations of AACA which are to be discharged under this Agreement at
the Closing are subject to the performance, at or prior to the Closing, of all
covenants and agreements contained herein which are to be performed by the PAG
Physicians and PAG at or prior to the Closing and to the fulfillment at or prior
to the Closing of each of the following conditions (unless expressly waived in
writing by AACA at any time at or prior to the Closing):
10.1 REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
-----------------------------------
warranties of the PAG Physicians and PAG contained in Section 4 of this
Agreement shall be true as of the date of this Agreement, and shall be true at
and as of the date of Closing in all material respects; the PAG Physicians and
PAG shall have performed or complied with in all material respects all covenants
and conditions required by this Agreement to be performed or complied with by
the PAG Physicians and PAG prior to or at the Closing; and AACA shall be
furnished with a certificate of the PAG Physicians, dated the Closing,
certifying to the truth of such representations and warranties as of the time of
the Closing and to the fulfillment of such covenants and conditions.
10.2 NO OBSTRUCTIVE PROCEEDING. No action or proceedings shall have been
-------------------------
instituted against, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting against AACA or its
affiliates which seeks to, or would, render it unlawful as of the Closing to
effect the Merger in accordance with the terms hereof, and no such action shall
seek damages in a material amount by reason of the transactions contemplated
hereby. Also, no substantive legal objection to the transactions contemplated
by this Agreement shall have been
-25-
received from or threatened by any governmental department or agency.
10.3 CONSENTS AND APPROVALS. Each of the parties to any PAG Contract
----------------------
under which the Merger contemplated hereby would constitute or result in a
default or acceleration of obligations shall have given such consent as may be
necessary to permit the consummation of the Merger contemplated hereby without
constituting or resulting in a default or acceleration under such agreement, and
any consents required from any public or regulatory agency or organization
having jurisdiction shall have been given.
10.4 NO ADVERSE CHANGE. As of the date of this Agreement, no event
-----------------
shall have occurred or have been threatened which has or would have a material
and adverse effect upon PAG; and PAG shall not have sustained any loss or damage
to its assets or property, whether or not insured, or union activity that
affects materially and adversely its ability to conduct its business.
10.5 RELEASE OF ENCUMBRANCES. All Encumbrances shall have been released
-----------------------
at or prior to the Closing.
10.6 LICENSES. AACA shall not have learned that there is any material
--------
impediment beyond its control to its ability to obtain all business licenses to
operate the Business. The PAG Physicians shall not have learned that there is
any material impediment beyond their control to their ability to transfer their
licenses to practice medicine to, and to practice medicine through, Newco.
10.7 POOLING. AACA shall be satisfied that the business combination to
-------
be effected by the Merger may be accounted for as a pooling of interests under
generally accepted accounting principles and all applicable SEC rules and
regulations.
10.8 MASTER MERGER AGREEMENT. All of the conditions precedent to the
-----------------------
obligations of the parties set forth in the Master Merger Agreement shall have
been met or waived by all parties to the Master Merger Agreement except as
otherwise specifically provided therein.
10.9 TERMINATION OF PLANS. As of the Closing Date, PAG shall have
--------------------
terminated all of its Plans by action of its board of directors and, where
required by law, by notice to the participants in the Plans. However, as of the
Closing Date, PAG as the Plan Sponsor of the "Pediatric Allergy Group Employees'
Retirement Plan and Trust" and of the "Pediatric Allergy Group Employees' Money
Purchase Pension Plan and Trust (the "Qualified Plans"), remains responsible for
the following matters with respect to the Qualified Plan, which responsibilities
will devolve upon AACA, and the costs
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of carrying out such responsibilities shall be Physician Expenses as defined in
the Management Services Agreement:
(i) filing with respect to each Qualified Plan on or before July 31,
1996 a federal information return (form 5500C/R) for the plan year
ended December 31, 1995;
(ii) effecting terminating distributions to all participants of the
Qualified Plans from their trusts;
(iii) filing with respect to each Qualified Plan on or before the last day
of the seventh month following the terminating distributions a final
federal information return (Form 5500 C/R) for the final short plan
year; and
(iv) reporting all distributions to the Internal Revenue Service and to
the participants under forms 1099-R on or before January 31, 1997.
Notwithstanding the foregoing, the PAG Physicians, acknowledging that it is
their intent to remain solely liable for the Qualified Plans, shall remain and
continue to be liable for any and all claims, losses and damages that are
connected with or result or arise from the Qualified Plans.
SECTION 11. TERMINATION.
-----------
AACA on the one hand, or PAG and the PAG Physicians on the other hand, may
by giving written notice to the other at any time on or prior to the Closing
Date (unless extended by mutual agreement of the parties) terminate this
Agreement if (a) a material default shall be made by the other in the observance
of or in the due and timely performance of the covenants and agreements herein
contained, which default cannot be cured on or prior to the Closing, or (b) if,
as of the Closing, the conditions precedent to the performance of the
obligations of the one, including those specified in the Master Merger
Agreement, shall not have been fulfilled and shall not have been waived by such
party.
SECTION 12. INDEMNIFICATION.
---------------
12.1 INDEMNITY BY THE PAG PHYSICIANS. The PAG Physicians, jointly and
-------------------------------
severally (except as otherwise provided in Section 12.3 below), shall indemnify,
defend and hold harmless AACA and each affiliate of AACA from and against the
following, any one of which shall be deemed to be an "AACA indemnifiable loss"
under this Agreement:
-27-
(a) all Undisclosed Liabilities;
(b) any and all losses, damages, costs or deficiencies resulting from
any and all misrepresentations or breaches of warranty or failures
to perform agreements or undertakings by the PAG Physicians or PAG
contained in or made pursuant to this Agreement or in other
agreements executed by the PAG Physicians or PAG in connection with
this Agreement; and
(c) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses (including, without
limitation, attorneys' fees, interest, penalties and amounts paid in
settlement of any such claim) incident to any of the foregoing.
12.2 UNDISCLOSED LIABILITIES. For purposes of Section 12.1 hereof, the
-----------------------
term "Undisclosed Liabilities" shall mean:
(i) any liability for any sales tax (or any interest or penalties with
respect thereto) payable as a result of the consummation of the
transactions contemplated hereby that is not reflected in Exhibit
-------
4.14;
----
(ii) except as stated in Exhibit 4.14 hereto, any liability under any
------------
employee benefit or welfare plan or regarding withholding taxes owed
to or with respect to any employee or independent contractor of PAG
accruing prior to the date of Closing;
(iii) liabilities and obligations of the PAG Physicians or PAG for any
breach or violation, as of the date of Closing, of any PAG Physician
Contracts or PAG Contracts;
(iv) liabilities and obligations of the PAG Physicians or PAG for
environmental or ecological matters or conditions existing at or
before the Closing, including those relating to the use, transport,
disposal, handling or storage of hazardous or toxic materials,
pollutants, contaminants, petroleum products, or waste (including,
without limitation, medical waste);
(v) any liability or obligation of the PAG Physicians or PAG accruing at
or before the date of Closing for violations of law;
(vi) any liability of the PAG Physicians or PAG with respect to a breach
of this Agreement;
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(vii) any liability or obligation to Medicare, Medicaid, Blue Cross/Blue
Shield (or any other third party payor) as a result of recapture of
amounts paid by any such payor to the PAG Physicians or PAG or any
overpayments made by such payor to the PAG Physicians or PAG or any
disallowance of any claim of the PAG Physicians or Seller;
(viii) any tort liability, products liability or malpractice liability of
the PAG Physicians or PAG accruing at or before the date of Closing;
(ix) liabilities and obligations of the PAG Physicians or PAG incurred in
connection with the preparation of this Agreement and the
consummation of transaction contemplated hereby, including, without
limitation, legal and accounting fees;
(x) any liability of PAG which is not reflected in the PAG Financial
Statements referred to in Section 4.7 hereof or in Exhibit 4.14
------------
hereto (other than liabilities arising in the ordinary course of
business prior to the Effective Time of the Merger under the PAG
Contracts); and
(xi) any liability whatsoever, of PAG, the PAG Physicians, AACA, VIVRA,
or otherwise incurred in connection with the Qualified Plans
referred to in Section 10.9 hereof either before or after the
Effective Time.
12.3 JOINT AND SEVERAL LIABILITY OF PAG PHYSICIANS. The PAG Physicians
---------------------------------------------
shall be jointly and severally liable for all AACA indemnifiable losses except
for any AACA indemnifiable losses arising from or connected with (i) each PAG
Physician's malpractice, (ii) each PAG Physician's violations of law or, (iii)
each PAG physician's violation of any PAG Physician Contract, for which each PAG
Physician shall remain severally liable only.
12.4 PAYMENT FOR AACA INDEMNIFIABLE LOSSES. The PAG Physicians shall pay
-------------------------------------
to AACA or any affiliate of AACA, as the case may be, all amounts owed to AACA
pursuant to Section 12.1 within thirty (30) days after written demand therefor.
In the event that any third person, including, without limitation, any
governmental taxing authority, shall assert any claim or action against AACA or
an affiliate of AACA which, if successful, might result in an AACA indemnifiable
loss, AACA shall notify the PAG Physicians, in writing, of such claim or action,
and at the PAG Physicians' option, they may, at their sole expense, assume
control over the defense of such claim or action, but in any event AACA (and its
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affiliate, as the case may be) shall have the right to participate in the
defense of any such claim or action. If, after notice thereof, the PAG
Physicians shall not assume the defense of, or if after so assuming such defense
they shall fail to continue to defend, any such claim or action, AACA (and its
affiliate, as the case may be) may defend any such claim or action and AACA (and
its affiliate, as the case may be) may then settle or compromise such claim or
action on terms it deems reasonable. The PAG Physicians shall promptly satisfy
and pay any final judgment rendered with respect to any such claim or action or
any compromise or settlement thereof and shall pay the reasonable expenses,
legal or otherwise of AACA (and its affiliate, as the case may be) in the
defense of any such claim or action. If the PAG Physicians do not pay any such
AACA indemnifiable loss pursuant to any such judgment, settlement or compromise
within thirty (30) days after written demand, AACA may pay the same and set off
the amount paid against any payments due the PAG Physicians. If AACA (or an
affiliate of AACA) suffers an AACA indemnifiable loss directly (not as a result
of a third party claim or action), AACA will first recover such AACA
indemnifiable loss pursuant to the terms of the Escrow Agreement, then, if the
remaining Escrowed Shares are insufficient to cover the AACA indemnifiable loss
or if the Escrow Agreement has expired, AACA may set off the amount of the same
against payments due the PAG Physicians or demand payment therefor from the PAG
Physicians. For purposes hereof, an "affiliate" of AACA shall mean any person
or entity directly or indirectly controlling, controlled by, or under common
control with AACA.
12.5 INDEMNITY BY AACA. AACA shall indemnify, defend and hold harmless
-----------------
the PAG Physicians from and against the following, any one of which shall be
defined to be a "PAG indemnifiable loss" under this Agreement:
(a) any and all losses, damages, costs or deficiencies resulting
from any and all misrepresentations or breaches of warranty or failures to
perform agreements or undertakings by AACA contained in or made pursuant to this
Agreement or in other agreements executed by AACA in connection with this
Agreement;
(b) any and all losses, damages, costs or deficiencies incurred by
the PAG Physicians arising from any failure by AACA to satisfy any obligation
under the non-PAG Physician PAG Contracts to be performed by AACA by their
stated terms after the Closing Date; and
(c) any and all actions, suits, proceedings, claims, demands
assessments, judgments, costs and expenses (including, without limitation,
attorneys' fees, interest, penalties and
-30-
amounts paid in settlement of any such claim) relating to any of the foregoing.
12.6 PAYMENT FOR PAG INDEMNIFIABLE LOSSES. AACA shall pay the PAG
------------------------------------
Physicians all amounts owed to them pursuant to Section 12.5 within thirty (30)
days after written demand therefor. In the event that any third person shall
assert any claim or action against the PAG Physicians which, if successful,
might result in a claim for a PAG indemnifiable loss, the PAG Physicians shall
notify AACA in writing of such claim or action, and at AACA's option, AACA may,
at its sole expense, assume control over the defense of such claim or action,
but in any event the PAG Physicians shall have the right to participate in the
defense of any such claim or action. If after notice thereof, AACA shall not
assume the defense of, or if after so assuming it fails to continue to defend,
any such claim or action, the PAG Physicians may defend any such claim or action
and the PAG Physicians may then settle or compromise such claim or action on
terms they deem reasonable. AACA shall promptly satisfy any final judgment
rendered with respect to any such claim or action or any compromise or
settlement thereof and shall pay the reasonable expenses, legal or otherwise, of
the PAG Physicians in the defense of any such claim or action.
If the PAG Physicians suffer a PAG indemnifiable loss directly (not as a
result of a third party claim or action) the PAG Physicians may set off the
amount of the same against payments due AACA or demand payment therefor from
AACA.
12.7 REMEDIES CUMULATIVE. The remedies provided herein shall be
-------------------
cumulative and shall not preclude any party from asserting any other rights or
seeking any other remedies to which such party is entitled by law.
12.8 SURVIVAL. The representations and warranties of the parties set
--------
forth in this Agreement shall expire three (3) years after the Effective Time
except that the representations and warranties of the PAG Physicians as to tax
and ERISA matters shall survive for seven (7) years after the Effective Time and
except that there shall be no limitation as to the survival of the
representations and warranties of the parties contained in Sections 4.3, 4.4,
4.18. 4.22, 5.2, 5.4, 6.2, and 6.3.
SECTION 13. MISCELLANEOUS.
-------------
13.1 EXPENSES. All expenses of the preparation of this Agreement and of
--------
the other agreements and transactions contemplated hereby, including, without
limitation, counsel fees, accounting fees, investment advisor's fees and
disbursements, shall be borne
-31-
by the PAG Physicians in the case of PAG or any of the PAG Physicians and by
AACA in the case of AACA.
13.2 NOTICES. All notices, demands and other communications hereunder
-------
shall be written and shall be deemed to have been duly given if delivered in
person or mailed by Federal Express (or other national air courier service),
charges prepaid, to the address set forth below:
To AACA or VIVRA: Asthma & Allergy CareAmerica, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, President
with a copy to: Xxxx X. Xxxxxx, Xx., Esq.
Parker, Hudson, Rainer & Xxxxx
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
To PAG or the Pediatric Allergy Group, P.A.
PAG Physicians: Xxxx X. Xxxxxx, Xx., M.D.
Xxxxxxx X. Xxxxx, M.D.
Xxxxxx X. Xxxxxx, M.D.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
with a copy to: Xxxxx Xxxxxxxx, Esq.
The Bogatin Law Firm
000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
or to such other address as AACA or the PAG Physicians may designate by notice
to the other. Notices delivered in person shall be deemed delivered on the date
of delivery and notices sent via air courier service, as aforesaid, shall be
deemed delivered on the date of delivery as indicated by the records of the
courier service. Rejection or other refusal to accept or inability to deliver
because of a changed address of which no notice was given shall be deemed to be
a receipt of the notice, request or other communication. Any notice, request or
other communication required or permitted to be given by any party may be given
by such party's legal counsel.
13.3 ENTIRE AGREEMENT. This Agreement and the Exhibits, and the other
----------------
agreements and schedules and documents delivered pursuant hereto constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersede all prior and
-32-
contemporaneous agreements, understandings, letters of intent negotiations and
discussions, whether written or oral, of the parties, and there are no
representations, warranties or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein. No supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by the parties to be bound thereby.
13.4 GOVERNING LAW; TAX REPORTING; ACCOUNTING TREATMENT. The validity
--------------------------------------------------
and construction of this Agreement shall be governed by the laws of the State of
Tennessee, except insofar as this Agreement may specify that the laws of
Delaware may apply to the Merger. With respect to tax reporting, the parties
agree and intend that the Merger will be treated for United States income tax
purposes as a tax-free reorganization described in the Internal Revenue Code of
1986, as amended (the "Code"), Section 368, and all of the parties shall report
the Merger in accordance with the relevant tax regulations. With respect to
accounting treatment, any increase or decrease in tax required by Section 481 of
the Code to place the accounts of PAG on the accrual method of accounting shall
be taken into account by AACA and VIVRA and not by PAG or the PAG Physicians.
13.5 ARBITRATION.
-----------
13.5.1 The parties will attempt through good faith negotiations to
resolve their disputes regarding this Agreement. The term "disputes" includes,
without limitation, any disagreements between the parties concerning the
existence, formation, interpretation and implementation of this Agreement. If
the parties are to resolve their disputes by negotiation, either party may
commence arbitration by sending a written notice of arbitration to the other
party. The notice will state the dispute with particularity.
13.5.2 There shall be three arbitrators. If the parties fail to
select mutually acceptable arbitrators within ten (10) days after the notice of
arbitration, a tribunal of arbitrators (one selected by PAG, one selected by
AACA, and one who shall be appointed by the first two arbitrators), who shall be
located in the State of Tennessee, shall be appointed as soon as possible on the
request of either party. If any party fails to select an arbitrator within ten
(10) days after demand, such arbitrator shall be appointed by the American
Arbitration Association. The fee payable to the arbitrators shall be based upon
the then current fee schedule of the American Arbitration Association.
13.5.3 The parties shall have reasonable rights of discovery.
-33-
13.5.4 Except as set forth in this Section, the tribunal shall
conduct the arbitration according to the Commercial Arbitration Rules of the
American Arbitration Association. Arbitration shall take place in the State of
Tennessee unless the parties otherwise agree. The tribunal shall base the
decision on the express language of this Agreement. Within ten (10) days after
the tribunal is appointed, or as soon thereafter as shall be reasonably
practicable, the tribunal will conduct a hearing on the dispute. Each party may
make written submissions to the tribunal, and each party shall have a reasonable
opportunity for rebuttal, but no longer than ten (10) days. As soon as
reasonably practicable, but not later than ten (10 ) days after the hearing is
completed, the tribunal shall arrive at a final decision, which shall be reduced
to writing, signed by the tribunal and mailed to each party and its legal
counsel.
13.5.5 All decisions of the tribunal shall be final, and binding on
all parties, and (except as provided below) shall constitute the only method of
resolving disputes. Judgment may be entered upon the decision in accordance
with applicable law in any court having jurisdiction.
13.5.6 This arbitration section and all decisions of the tribunal
shall be specifically enforceable in a court of law, or in the arbitral
tribunal.
13.5.7 This arbitration section and all decisions of the arbitrator
shall be specifically enforceable in a court of law, or in the arbitral
tribunal.
13.6 SECTION AND EXHIBIT HEADINGS. The Section and Exhibit headings are
----------------------------
for reference only and shall not limit or control the meaning of any provisions
of this Agreement.
13.7 WAIVER. No delay or omission on the part of any party hereto in
------
exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement.
13.8 NATURE AND SURVIVAL OF REPRESENTATIONS. All statements contained in
--------------------------------------
any certificate delivered by or on behalf of a party to this Agreement in
connection with the transactions contemplated hereby shall be deemed to be
representations and warranties made by such party hereunder. The covenants,
representations and warranties made by the parties each to the other in this
Agreement or pursuant hereto shall survive the Effective Time as set forth in
Section 12.8 of this Agreement.
13.9 EXHIBITS. All Exhibits, schedules and documents referred to in, or
--------
attached to, this Agreement are integral parts of this Agreement as if fully set
forth herein and all statements appearing therein shall be deemed to be
representations. All items
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disclosed hereunder shall be deemed disclosed only in connection with the
specific representation to which they are explicitly referenced.
13.10 AMENDMENTS. This Agreement may be amended, but only in writing,
----------
signed by the parties hereto.
13.11 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall comprise one and the same instrument. Any signature page to this
Agreement may be witnessed by a telecopy or other facsimile of any original
signature page and any signature page of any counterpart hereof may be appended
to any other counterpart hereof to form a completely executed counterpart
hereof.
13.12 ATTORNEYS' FEES. In the event that a suit, action, arbitration, or
---------------
other proceeding of any nature whatsoever, including, without limitation, any
proceeding under the U.S. Bankruptcy Code and involving issues peculiar to
federal bankruptcy law, any action seeking a declaration of rights or any action
for rescission, is instituted to interpret or enforce this Agreement or any
provision of this Agreement, the prevailing party shall be entitled to recover
from the losing party the prevailing party's reasonable attorneys', paralegals',
accountants', and other experts' professional fees and all other fees, costs,
and expenses actually incurred and reasonably necessary in connection therewith,
as determined by the judge or arbitrator at trial or other proceeding, or on any
appeal or review, in addition to all other amounts provided by law.
13.13 RULES OF CONSTRUCTION. All references herein to the singular shall
---------------------
include the plural, and vice versa, and all references herein to the neuter
shall include the masculine or feminine, as the case may be, and vice versa.
When general words or terms are used herein followed by the word "including" (or
another form of the word "include") and words of particular and specific
meaning, the general words shall be construed in their widest extent, and shall
not be limited to persons or things of the same general kind or class as those
specifically mentioned in the words of particular and specific meaning. All
parties have participated in the drafting of this Agreement. No provision of
this Agreement shall be construed against or interpreted to the disadvantage of
a party by reason of such party having or being deemed to have drafted,
structured or dictated such provisions.
13.14 TIME. Time is of the essence of this Agreement.
----
13.15 FURTHER ASSURANCES. Following the Closing, PAG Physicians and AACA
------------------
will, at the request of the other, execute and deliver such other instruments or
assignment, transfer and
-35-
conveyance and take such other actions as a party may reasonably request to more
effectively effect the Merger and other transactions contemplated by this
Agreement. To the extent that PAG's rights under any PAG Contract, by virtue of
the Merger, require the consent of another person which consent has not been
obtained prior to, or concurrent with, the execution hereof, PAG Physicians will
cooperate with AACA in any reasonable arrangement that is designed to provide
for AACA the benefit of such asset, but PAG Physicians will not be obligated to
replace such asset with one of equal value or otherwise assume additional
material liability not contemplated in this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ASTHMA & ALLERGY CAREAMERICA, INC.,
a Delaware corporation ("AACA")
By:
--------------------------------
Title:
--------------------------
VIVRA INCORPORATED, a Delaware
corporation ("VIVRA")
By:
--------------------------------
Title:
--------------------------
PEDIATRIC ALLERGY GROUP, A
PROFESSIONAL ASSOCIATION, a Tennessee
professional corporation ("PAG")
By:
--------------------------------
Title:
--------------------------
_____________________________________
XXXX X. XXXXXX, XX., M.D., an
individual resident of Tennessee
("Xxxxxx")
_____________________________________
XXXXXXX X. XXXXX, M.D., an individual
resident of Tennessee ("Xxxxx")
_____________________________________
XXXXXX X. XXXXXX, M.D., an individual
resident of Tennessee ("Xxxxxx")
-36-
