STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and entered
into as of the close of business on December 31, 2000, (the "Effective Date") by
and between Prime Medical Services, Inc., a Delaware corporation ("Seller") and
Innovative Medical Technologies, Inc., an exempted company incorporated in the
Cayman Islands with limited liability ("Purchaser").
Preliminary Statements
Seller owns all of the outstanding capital stock of Prostatherapies,
Inc., a Delaware corporation (the "Company") and desires to sell such capital
stock to Purchaser subject to the terms and conditions set forth in this
Agreement.
Purchasers desires to acquire all of such capital stock subject to the
terms and conditions set forth in this Agreement.
Statement of Agreement
For and in consideration of the mutual promises and covenants contained
in this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1 Sale of Stock. As of the Effective Date, subject to the terms
and conditions of this Agreement, and in reliance on the representations and
warranties of Seller, Seller hereby transfers to Purchaser all of the
outstanding shares of the Company's capital stock (the "Shares"). Purchaser, in
exchange for the Shares, will pay to Seller the amount of $950,000 as the
purchase price (the "Purchase Price"). The Purchase Price shall be tendered by
Purchaser's delivery on or before the Closing (as hereinafter defined) of (a) a
promissory note duly executed by Purchaser in the principal amount of $950,000,
in the form attached hereto as Exhibit A (the "Promissory Note"), and (b) a
stock certificate evidencing the issuance hereby to Seller of shares of
Purchaser's common stock amounting to 0.1% of Purchaser's total shares of
outstanding capital stock (including any additional shares received solely as a
result of the ownership of such shares, the "Share Consideration"). At any time
after the Effective Date Purchaser shall have the right, in its sole discretion,
to redeem the shares constituting the Share Consideration by delivery to Seller
of either (1) $100 cash or (2) securities of equivalent value of any entity
which, by merger, consolidation or otherwise, acquires substantially all of the
assets or business of Purchaser ("Substitute Securities"). If such redemption
right is exercised using Substitute Securities, the redemption rights shall
survive and be again exercisable with respect to such Substitute Securities. Any
such redemption shall be deemed effective immediately upon tender of such
consideration, and, upon such tender, Purchaser shall be entitled to reflect
cancellation of such shares in it stock record books without any action on the
part of Seller. The parties agree that neither Purchaser nor Seller does, as a
result of this Agreement, any documents, instruments or certificates
contemplated by or executed in connection with this Agreement (collectively,
including this Agreement, the "Transaction Documents"), or the consummation of
any of the transactions contemplated by this Agreement or any Transaction
Document, assume any debts, liabilities or obligations of the Company or any
Subsidiary (as hereinafter defined).
Subject only to the conditions to closing described in the
following sentence of this paragraph, the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place within 30
calendar days of the Effective Date on a date mutually agreed upon by the
parties. The date on which the Closing takes place is referred to in this
Agreement as the "Closing Date"). Notwithstanding the foregoing:
(A) Seller may elect, in its sole discretion, to terminate
this Agreement without any obligation hereunder if:
(i) Purchaser fails to execute and deliver, at or
prior to the Closing, the Promissory Note, a Mutual Non-Competition
Agreement in form and substance satisfactory to both Seller and
Purchaser (the "Non-Compete"), and an Assignment and Security Agreement
securing Purchaser's obligations under the Promissory Note, in form and
substance satisfactory to Seller (the "Security Agreement");
(ii) any of the representations or warranties made by Purchaser in this
Agreement or any other Transaction Document, shall, in any material respect, be
untrue, incorrect or misleading;
(iii) there has, after the Effective Date, been a
material change in the condition or nature of the Company's and the
Subsidiaries' businesses that, in the aggregate, could reasonably be
believed to materially increase the value of the Shares;
(iv) Purchaser has not delivered to Seller, at or
prior to the Closing, such good standing certificates, certificates of
existence, officer's certificates and resignations as Seller may
reasonably request; and
(B) Purchaser may elect, in its sole discretion, to terminate
this Agreement without any obligation hereunder if:
(i) Seller fails to execute and deliver, at or prior
to the Closing, the Non-Compete and one or more stock certificates
representing the Shares, accompanied by blank stock power(s) in a form
provided by Purchaser;
(ii) any of the representations or warranties made by
Seller in this Agreement or any other Transaction Document (as
hereinafter defined), shall, in any material respect, be untrue,
incorrect or misleading;
(iii) there has, after the Effective Date, been a
material change in the condition or nature of the Company's and the
Subsidiaries' businesses that, in the aggregate, could reasonably be
believed to materially decrease the value of the Shares;
(iv) Seller has not delivered to Purchaser, at or
prior to the Closing, such good standing certificates, certificates of
existence, and officer's certificates as Purchaser may reasonably
request.
Section 2 Representations and Warranties of Seller. Purchaser
acknowledges and agrees that Purchaser's sole remedy for any breach by Seller of
a representation or warranty set forth in this Section shall be to seek
indemnification pursuant to the express provisions of Section 4 and Section 6(f)
of this Agreement. Seller hereby represents and warrants to Purchaser that (with
the understanding that such representations and warranties are deemed to be made
as of both the Effective Date and the Closing):
(a) Organization and Standing; Authority. The Company is a
corporation duly organized, validly existing and in good standing under the Laws
(as hereinafter defined) of the State of Delaware and has the corporate power
and authority to conduct its business as now conducted. Seller is a corporation
duly organized, validly existing and in good standing under the Laws of the
State of Delaware and has the corporate power and authority to conduct its
business as now conducted and to enter into and perform this Agreement. The
execution, delivery and performance by Seller of this Agreement and any other
Transaction Documents to which Seller is a party have been duly authorized by
all necessary corporate action of Seller, its officers, directors and
shareholders and the Transaction Documents have been duly executed and delivered
by Seller and are enforceable against Seller in accordance with their terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other Laws of general application affecting enforcement of
creditors' rights generally, (ii) as limited by Laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent any indemnification provisions may be limited
by applicable federal or state securities Laws.
(b) Subsidiaries. The Company owns the interests described below in the
following entities (each, a "Subsidiary"):
(i) California I Prostatherapy Limited Partnership.
The Company owns a 5.875% limited partnership interest and a 20%
general partnership interest in California I Prostatherapy Limited
Partnership, a California limited partnership.
(ii) Texas I Prostatherapy Limited Partnership. The
Company owns a 33.5% limited partnership interest and a 20% general
partnership interest in Texas I Prostatherapy Limited Partnership, a
Texas limited partnership.
(iii) North Carolina Prostatherapy Limited
Partnership I. The Company owns a 6.75% limited partnership interest
and a 20% general partnership interest in North Carolina Prostatherapy
Limited Partnership I, a North Carolina limited partnership.
Except as disclosed in writing to Purchaser or as set forth in the
partnership agreements of each of the Subsidiaries (the "Subsidiary
Organizational Documents"), there are no rights or options to acquire any
ownership interest in or from a Subsidiary, nor are there any rights or options
to acquire any securities that are exercisable or exchangeable for, or
convertible into, ownership interests of a Subsidiary.
(c) Capitalization. The Company has an authorized
capitalization consisting of 1,000 shares of common stock, of which 100 shares
are issued and outstanding. All of such issued and outstanding shares of common
stock are owned entirely by Seller. There are no other rights or options to
acquire any capital stock of or from the Company, nor are there any rights or
options to acquire any securities that are exercisable or exchangeable for, or
convertible into, capital stock of the Company. All such outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable.
(d) Conflicting Agreements and Other Matters. The execution,
delivery and performance by Seller of this Agreement and the other Transaction
Documents and compliance by Seller with the terms and provisions thereof and the
sale of the Shares by Seller, does not violate any provision of any Law, or
conflict with or result in a breach of, the Certificate of Incorporation or
bylaws of the Company or the Certificate of Incorporation or bylaws of Seller.
Seller does not have any knowledge of any pending or threatened adverse
activities by or of any of the Subsidiaries. Furthermore, Seller does not have
any knowledge that any Subsidiary, or any limited partner of any Subsidiary, is
not in compliance with any restrictions on outside activities applicable to such
party pursuant to the respective Subsidiary's partnership agreement.
(e) Consents, Etc. Assuming the correctness of the
representations by Purchaser in Section 3, no authorization, consent, approval,
license, qualification or exemption from, nor any filing, declaration or
registration with, any court, any federal or state governmental agency or
regulatory authority or any securities exchange or any other Person, other than
authorizations, consents, approvals, licenses or qualifications to do business
in the states as a foreign corporation and required pursuant to state "blue sky"
laws is required in connection with the execution, delivery or performance by
Seller of this Agreement or the other Transaction Documents on or prior to the
date hereof or the transfer of the Shares (except such as have been obtained on
or prior to the date hereof and are, and will be on the Closing Date, in full
force and effect).
(f) Proceedings, Litigation, Etc. Seller has no knowledge of
any laws, rules, regulations, ordinances, orders, writs, judgments, decrees,
determinations or awards ("Laws") promulgated by any federal, state, county, or
local judicial or governmental authority ("Governmental Authority") which (i)
are applicable to the Company, the Subsidiaries or their respective businesses
and (ii) when complied with by the Company and/or such Subsidiary would, in the
aggregate, materially and adversely affect the business or operations of the
Company and the Subsidiaries as conducted on the Effective Date. None of Seller,
the Company nor any Subsidiary is in violation of any Law of any Governmental
Authority (or subject to or party to any order of any Governmental Authority
arising out of any action, suit or proceeding under any Law) which could affect
the ability of the parties hereto to consummate the transactions contemplated
hereby. There is no pending (or, to the knowledge of Seller, threatened),
action, suit, proceeding at law or in equity, arbitration or administrative or
other proceeding by or before (or, to the knowledge of Seller, any investigation
by) any Governmental Authority against or affecting the Company.
(g) Disclosure of Liens, Liabilities and other Obligations.
Seller has (i) disclosed in writing to Purchaser all liabilities and obligations
of the Company and the Subsidiaries that are individually in excess of $25,000;
(ii) provided Purchaser with true and complete copies or descriptions of all
agreements, arrangements or understandings pursuant to which the Company or any
Subsidiary may or will have executory obligations after the Closing Date; (iii)
disclosed to Purchaser in writing all liens or encumbrances that related to the
Company's or any Subsidiary's assets.
(h) Ownership of Assets. Except as otherwise disclosed in
writing to Purchaser on or before the Closing Date, the Company and each
Subsidiary owns unencumbered title to all of the assets and properties, tangible
or intangible, real or personal, that are used in the conduct of its respective
business.
(i) Existing Agreement. Seller represents that an officer of
Urologix has orally indicated to Seller that Urologix would continue to honor
the existing terms of a certain contract pursuant to which EDAP/Technomed has,
prior to the Closing, provided certain supplies and equipment to Seller in
connection with the business of Seller. Purchaser agrees that Seller does not
represent or warrant that the terms and provisions of such contract will, as
written, remain enforceable after the Closing.
Section 3 Representations of Purchaser. Seller acknowledges and agrees
that Seller's sole remedy for any breach by Purchaser of a representation or
warranty set forth in this Section shall be to seek indemnification pursuant to
the express provisions of Section 4 and Section 6(f) of this Agreement. The
Purchaser represents and warrants to Seller as follows (with the understanding
that such representations and warranties are deemed to be made as of both the
Effective Date and the Closing):
(a) Organization and Standing; Authority. Purchaser is an
exempted company incorporated in the Cayman Islands with limited liability, is
duly organized, validly existing and in good standing under the Laws of the
Cayman Islands and has the corporate power and authority to conduct its business
as now conducted and to enter into and perform any Transaction Document to which
it is a party. The execution, delivery and performance by Purchaser and/or
Xxxxxx Xxxxxxxx, M.D. ("Xxxxxxxx") of this Agreement and/or any other
Transaction Document, have been duly authorized by all necessary corporate or
other action of Purchaser and Xxxxxxxx, including any necessary action by the
officers, directors and shareholders of any of the foregoing. The Transaction
Documents have been duly executed and delivered by each of Purchaser and/or
Xxxxxxxx and are enforceable against each of them in accordance with their
terms. Xxxxxxxx owns all of the outstanding equity or other ownership interests
in Purchaser (after giving effect to any rights or options that are exercisable
or exchangeable for, or convertible into, any equity or other ownership
interests of Purchaser).
(b) Purchase Entirely for Own Account. This Agreement is made
with Purchaser in reliance upon Purchaser's express representation to Seller
that the Shares will be acquired for investment for such Purchaser's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the Shares.
The Purchaser further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Shares.
(c) Authority. The execution, delivery and performance by
Purchaser of this Agreement and the other Transaction Documents have been duly
authorized by all necessary action on behalf of Purchaser, and this Agreement
and the other Transaction Documents to which Purchaser is a party have been duly
executed and delivered by Purchaser. This Agreement and the other Transaction
Documents constitute valid and binding obligations of Purchaser, enforceable in
accordance with their respective terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other Laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by Laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies, and (iii) to the extent any indemnification
provisions may be limited by applicable federal or state securities Laws. The
execution and delivery of this Agreement and performance of the transactions
contemplated by this Agreement and compliance with its provisions by Purchaser
will not violate any provision of Law and will not conflict with or result in
any breach of any of the terms, conditions or provisions of, or constitute a
default under, its articles of incorporation or bylaws.
(d) Restricted Securities. Purchaser understands that the
Shares it is purchasing are "restricted securities" under the federal securities
Laws because they are being acquired from Seller in a transaction not involving
a public offering and that under such Laws the Shares may be resold without
registration under the Securities Act of 1933, as amended (the "Securities Act")
and applicable state securities Laws only in certain limited circumstances. In
this regard, Purchaser represents that it is familiar with Rule 144, as
promulgated under the Securities Act, and understands the resale limitations
imposed thereby and by the Securities Act.
(e) Disclosure of Information. Purchaser has received and
reviewed all the information it considers necessary or appropriate for deciding
whether to purchase the Shares. Purchaser further represents that it is relying
solely on its own expertise and that of its consultants, and not on any
representation of Seller not expressly contained in this Agreement. The
Purchaser has had an opportunity to ask questions and receive answers from
Seller regarding the Company, its business and the acquisition of the Shares.
(f) Investment Experience. Purchaser is an "accredited
investor," and has not retained or consulted with any "purchaser representative"
(as such terms are defined in Rule 501 of Regulation D promulgated under the
Securities Act) in connection with its execution of this Agreement and the
consummation of the transactions contemplated hereby. Purchaser is an investor
in securities of companies and acknowledges that it is able to fend for itself,
can bear the economic risk of its investment, and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Shares.
Section 4 Indemnification.
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(a) Indemnification of Purchaser. Seller (and its successors
and assigns) hereby agrees to indemnify and hold harmless Purchaser, the
Company, each parent company, subsidiary and/or affiliate of either of the
foregoing (including, without limitation, each Subsidiary) and each shareholder,
member, partner (or other owner), officer, director, manager, agent, employee,
representative or similarly situated party of any of the foregoing
(collectively, the "Purchaser Indemnified Parties") from and against any and all
damages, losses, claims, liabilities, demands, charges, suits, penalties, costs,
and expenses (including court costs and attorneys' fees and expenses incurred in
investigating and preparing for any litigation, investigation, compliance action
or proceeding but excluding such items as have been disclosed to the other party
in writing prior to the Closing Date) (collectively, "Indemnifiable Costs"),
including, without limitation, Indemnifiable Costs arising in connection with
the commencement or assertion of any action, investigation, proceeding, demand,
or claim by a third party, which includes, without limitation, any Governmental
Authority (collectively, a "Third-Party Action"), which any of the Purchaser
Indemnified Parties may sustain, arising out of or related to (i) any breach or
default by Seller of any of the representations, warranties, covenants or
agreements of Seller contained in this Agreement or any Transaction Document,
(ii) any actual or alleged actions or omissions by Seller or any affiliate of
Seller (other than the Company and the Subsidiaries), regardless of whether
occurring or existing before, on, or after the Closing Date, (iii) any actual or
alleged actions or omissions by the Company, or any of the Company's directors,
officers, shareholders, agents, employees, representatives, subsidiaries and/or
affiliates occurring prior to the Closing Date (regardless of whether such
Indemnifiable Costs are asserted at any time before or after the Closing Date),
or (iv) any claim that the structure of the Company's or the Subsidiaries'
businesses or business relationships violates any Laws of any Governmental
Authority regulating or legislating the provision of or billing for healthcare
or the practice of medicine, but only to the extent such claim or alleged claim
specifically relates to acts occurring or circumstances existing prior to the
Closing Date.
Notwithstanding the foregoing, (A) no Purchaser Indemnified
Party shall be entitled to assert any claim for indemnification under this
Section unless and until such time as all claims of such Purchaser Indemnified
Party, individually and not in combination with other Purchaser Indemnified
Parties, exceed $50,000 in the aggregate, after which time all claims of such
Purchaser Indemnified Party in excess of $50,000 in the aggregate may be
asserted, and (B) Seller's obligations under this Section shall not exceed the
amount of the Purchase Price.
(b) Indemnification of Seller. Purchaser hereby agrees to
indemnify and hold harmless Seller, each parent company, subsidiary and/or
affiliate of Seller, and each shareholder, member, partner (or other owner),
officer, director, manager, agent, employee, representative or similarly
situated party of any of the foregoing (collectively, the "Seller Indemnified
Parties") from and against any and all Indemnifiable Costs, including, without
limitation, Indemnifiable Costs arising in connection with the commencement or
assertion of any Third-Party Action, which any of the Seller Indemnified Parties
may sustain, arising out of or related to (i) any breach or default by Purchaser
of any of the representations, warranties, covenants or agreements of Purchaser
contained in this Agreement or any Transaction Document, (ii) any actual or
alleged actions or omissions by Purchaser or any affiliate of Purchaser (other
than the Company and the Subsidiaries), regardless of whether occurring or
existing before, on, or after the Closing Date, (iii) any actual or alleged
actions or omissions by the Company, or any of the Company's directors,
officers, shareholders, agents, employees, representatives, subsidiaries and/or
affiliates occurring after the Closing Date, or (iv) any claim that the
structure of the Company's or the Subsidiaries' businesses or business
relationships violates any Laws of any Governmental Authority regulating or
legislating the provision of or billing for healthcare or the practice of
medicine, but only to the extent such claim or alleged claim specifically
relates to acts occurring or circumstances existing after the Closing Date that
differ in one or more material respects from acts occurring or circumstances
existing immediately prior to the Closing Date.
Notwithstanding the foregoing, (A) no Seller Indemnified Party
shall be entitled to assert any claim for indemnification under this Section
unless and until such time as all claims of such Seller Indemnified Party,
individually and not in combination with other Seller Indemnified Parties,
exceed $50,000 in the aggregate, after which time all claims of such Seller
Indemnified Party in excess of $50,000 in the aggregate may be asserted, and (B)
Purchaser's obligations under this Section shall not exceed the amount of the
Purchase Price.
(c) Defense of Third-Party Claims. A party entitled to
indemnification under this Section shall give prompt written notice to the
indemnifying party of the commencement or assertion of any Third-Party Action in
respect of which such indemnified party shall seek indemnification hereunder.
Any failure to so notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have to the indemnified party
under this Section except to the extent that the failure to give such notice
materially and adversely prejudices indemnifying party. The indemnifying party
shall have the right to assume control of the defense of, settle, or otherwise
dispose of such Third-Party Action on such terms as it deems appropriate;
provided, however, that:
(i) The indemnified party shall be entitled, at his, her, or its own
expense, to participate in the defense of such Third-Party Action;
(ii) The indemnifying party shall obtain the prior
written approval of the indemnified party, which approval shall not be
unreasonably withheld, before entering into or making any settlement,
compromise, admission, or acknowledgment of the validity of such
Third-Party Action or any liability in respect thereof if, pursuant to
or as a result of such settlement, compromise, admission, or
acknowledgment, injunctive or other equitable relief would be imposed
against the indemnified party;
(iii) The indemnifying party shall not consent to the
entry of any consent order, decree or judgment or enter into any
settlement that does not (except as agreed to in writing by the
indemnified party) include as an unconditional term thereof the
execution and delivery of a release from all liability in respect of
such Third-Party Action by each claimant or plaintiff to, and in favor
of, each indemnified party;
(iv) The indemnifying party shall not be entitled to
control (but shall be entitled to participate at its own expense in the
defense of), and the indemnified party shall be entitled to have sole
control over, the defense or settlement, compromise, admission, or
acknowledgment of any Third-Party Action as to which the indemnifying
party fails to assume the defense within thirty (30) days; provided,
however, that the indemnified party shall make no settlement,
compromise, admission, or acknowledgment which would give rise to
liability on the part of the indemnifying party, without the prior
written consent of the indemnifying party;
(v) The indemnifying party shall make payments of all
amounts required to be made pursuant to the foregoing provisions of
this Section to or for the account of the indemnified party from time
to time promptly upon receipt of bills or invoices relating thereto or
when otherwise due and payable, provided that the indemnified party has
agreed in writing to reimburse the indemnifying party for the full
amount of such payments if the indemnified party is ultimately
determined not to be entitled to such indemnification; and
(vi) The parties hereto shall extend reasonable
cooperation in connection with the defense of any Third-Party Action
pursuant to this Section and, in connection therewith, shall furnish
such records, information, and testimony and attend such conferences,
discovery proceedings, hearings, trials, and appeals as may be
reasonably requested.
(d) No Rights of Offset Against Promissory Note. Purchaser
agrees that, notwithstanding any contrary provision in the Promissory Note,
Purchaser is not entitled to and will not attempt to offset any Indemnifiable
Costs that may be or become owed pursuant to this Section against amounts that
Purchaser owes Seller pursuant to the Promissory Note, unless and only to the
extent that (i) Purchaser and Seller have agreed that Purchaser is entitled to
receive such Indemnifiable Costs pursuant to this Section or (ii) Purchaser has
been finally determined to be entitled to the Indemnifiable Costs in accordance
with the provisions of Section 6(f) of this Agreement relating to binding
arbitration.
(e) Costs of Voluntary Restructuring After the Closing
Excluded. Purchaser agrees that any and all costs, expenses and charges
associated with any voluntary restructuring of the Company's and/or the
Subsidiaries' businesses (or the Company's and/or the Subsidiaries' business
relationships) after the Closing cannot be Indemnifiable Costs, and Purchaser
agrees that no Purchaser Indemnified Party will be permitted to seek any
reimbursement for any such costs, expenses or charges.
Section 5 Post-Closing Covenants.
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(a) Public Statements and Press Releases. The parties hereto
covenant and agree that, except as provided for hereinbelow, each will not from
and after the date hereof make, issue or release any public announcement, press
release, statement or acknowledgment of the existence of, or reveal publicly the
terms, conditions and status of, the transactions provided for herein, without
the prior written consent of the other parties hereto as to the content and time
of release of and the media in which such statements or announcement is to be
made, provided, however, that the following shall not be a breach of this
Section: (a) filings and disclosures required by the Securities and Exchange
Commission, and (b) announcements, statements, acknowledgments or revelations
which either party is required by Law to make, issue or release as long as such
party shall have given, to the extent reasonably possible, not less than two (2)
calendar days prior notice to the other parties hereto, and shall have
attempted, to the extent reasonably possible, to clear such announcement,
statement, acknowledgment or revelation with the other parties hereto. Each
party hereto agrees that it will not unreasonably withhold any such consent or
clearance. The provisions of this Section shall not limit or restrict any
party's communications with its personal consultants or advisors, including,
without limitation, its attorneys, accountants and financial advisors.
(b) Transition of Business. Seller agrees to provide all good
faith efforts and cooperation in order to assist Purchaser and the Company in
transitioning the management of the Company's business after the Closing,
including the relationships maintained by the Company's management with respect
to the Company's business and employees existing immediately prior to the
Closing. Seller agrees to not take any action or make any disclosure, including
disclosures related to the transactions contemplated by this Agreement, which
might alter or impair any relationship with any Subsidiary partner, customer, or
other person or entity which did business with the Company prior to the Closing.
Section 6 Miscellaneous.
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(a) Survival of Representations and Warranties. Except as
otherwise provided herein, all agreements, covenants, representations and
warranties contained herein shall survive the execution and delivery of this
Agreement and the closing of the transactions contemplated herein; provided,
however, that the representations and warranties contained in Section 2 and in
Section 3 of this Agreement (and any indemnification obligations that may arise
out of a breach of such representations and warranties) shall only survive for a
period of one year following the Closing Date.
(b) Expenses. Regardless of whether the transactions
contemplated hereby are consummated, each party hereto shall pay all of its
costs and expenses incurred by it in connection with the negotiation and
preparation of this Agreement and the Transaction Documents, including the fees
and disbursements of its legal counsel and accountants.
(c) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures delivered by
telecopy shall be considered for all purposes to be the same as original
signatures.
(d) Severability. If any provision of this Agreement is held
by final judgment of a court of competent jurisdiction to be invalid, illegal or
unenforceable, such invalid, illegal or unenforceable provision shall be severed
from the remainder of this Agreement, and the remainder of this Agreement shall
be enforced. In addition, the invalid, illegal or unenforceable provision shall
be deemed to be automatically modified, and, as so modified, to be included in
this Agreement, such modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Texas.
(f) Arbitration. Any controversy between the parties regarding
this Agreement and any claims arising out of this Agreement or its breach shall
be submitted to binding arbitration by either party. The arbitration proceedings
shall be conducted by a single arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. The arbitration shall be
conducted in Atlanta, Georgia and the arbitrator shall have the right to award
actual damages and attorney fees and costs, but shall not have the right to
award punitive, exemplary or consequential damages against either party.
Notwithstanding the foregoing, (i) any party may seek equitable relief in a
court of law rather than pursuant to arbitration under this Section and (ii)
Seller may pursue any enforcement of or any action arising out of the Security
Agreement in a court of law.
(g) Further Assurances. Each party of this Agreement hereby
covenants and agrees, without the necessity of any further consideration, to
execute and deliver any and all such further documents and take any and all such
other actions as may be necessary to appropriately carry out the intent and
purposes of this Agreement and to consummate the transactions contemplated. Each
party will use its good faith efforts to carry out and comply with the
provisions of this Agreement.
(h) Successors and Assigns. Neither party may assign any of
its rights or obligations under this Agreement without first obtaining the
written consent of the other party in each instance. The provisions of this
Agreement shall be binding upon, and inure to the benefit of, the permitted
respective successors, assigns, heirs, executors and administrators of the
parties hereto.
(i) Collateral Agreements, Amendments and Waivers. This
Agreement (together with the documents delivered pursuant hereto) supersedes all
prior documents, understandings, and agreements, oral or written, relating to
this transaction and constitutes the entire understanding among the parties with
respect to the subject matter hereof. Any modification or amendment to, or
waiver of, any provision of this Agreement (or any document delivered pursuant
to this Agreement unless otherwise expressly provided therein) may be made only
by an instrument in writing executed by each party thereto. No failure or delay
on the part of any party in exercising any right, power, or privilege hereunder
or under any of the Transaction Documents shall operate as a waiver of such
right, power, or privilege; nor shall any single or partial exercise of any such
right, power, or privilege preclude any other or future exercise thereof or the
exercise of any other right, power or privilege.
(j) Notices. Any notices required or permitted to be given
under this Agreement (and, unless otherwise expressly provided therein, under
any Transaction Document) shall be given in writing and shall be deemed received
(a) when delivered personally or by courier service to the relevant party at its
address as set forth below or (b) if sent by mail, on the third (3rd) day
following the date when deposited in the United States mail, certified or
registered mail, postage prepaid, to the relevant party at its address indicated
below:
Seller: Prime Medical Services, Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000
Xxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to: Xx. Xxxxxxx X. XxXxxx
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Purchaser: Innovative Medical Technologies, Inc.
c/o Daedalus Consulting Group
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, M.D.
Facsimile: (000) 000-0000
with copies to: Xx. Xxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, X.X.
0000 X. Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
and: Xx. Xxxxxxx Xxxxxx, Esq.
Wilson, Walker, Xxxxxxxx & Slopen
000 Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, Xxxxxxx, XXXXXX X00 0X0
Each party may change its address for purposes of this Section by
proper notice to the other parties.
(k) Construction, Knowledge and Materiality. This Agreement
and any other Transaction Document shall be construed without regard to the
identity of the person who drafted the various provisions of the same. Each and
every provision of this Agreement and the other Transaction Documents shall be
construed as though all of the parties participated equally in the drafting of
the same. Consequently, the parties acknowledge and agree that any rule of
construction that a document is to be construed against the drafting party shall
not be applicable either to this Agreement or any other Transaction Document.
For purposes of this Agreement, whenever there are references to "material" or
"materially," such terms shall be deemed to mean an economic impact exceeding
$50,000 with respect to the fact or matter being referred to or described. As
used herein, "day" or "days" refers to calendar days unless otherwise specified
in each instance. When the term "knowledge" is used in this Agreement in
reference to (i) Seller, it shall mean such items as are within the actual
knowledge of Xxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, M.D., Xxxxx Xxxxxx and
Xxxxxx Xxxxxxxx, without any obligation to investigate and (ii) Purchaser, it
shall mean such items as are within the actual knowledge of Xxxxxxxx or Xxxx
Xxxx without any obligation to investigate.
[Signature pages follow.]
S-1
SIGNATURE PAGE
TO
STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, Seller and Purchaser have executed this Stock
Purchase Agreement as of the day and year first above written.
SELLER: Prime Medical Services, Inc., a Delaware corporation
By:
Xxxxxx Xxxxxxxx, Senior Vice President
and Chief Financial Officer
PURCHASER: Innovative Medical Technologies, Inc.,
an exempted company incorporated in the
Cayman Islands with limited liability
By:
Xxxxxx Xxxxxxxx, M.D., President
A-1
EXHIBIT A
FORM OF PROMISSORY NOTE
