Exhibit 2.1
STOCK PURCHASE AND NOTE PAYOFF AGREEMENT
This Stock Purchase and Note Payoff Agreement (the
"AGREEMENT"), is dated as of April 7, 1999, by and between Iatros Health
Network, Inc., a Delaware corporation ("PURCHASER"), HF Holdings, a Delaware
corporation ("SELLER"), Home Technology Health Care, Inc. ("PARENT"), Southland
Medical Supplies, Inc., d/b/a Southland Medical Supply, a Tennessee corporation
("COMPANY"), Xxxxxx Xxxxxxxx ("XXXXXXXX"), Xxxxxx Xxxxx ("XXXXX"), Xxxxxxx
Xxxxxx ("XXXXXX" and, together with Xxxxx and Xxxxxxxx, the "OTHER PARTIES"),
and Continental Illinois Venture Corporation, a Delaware corporation ("CIVC").
RECITALS:
WHEREAS, the Seller owns all of the issued and
outstanding shares of capital stock of the Company (the "SHARES");
WHEREAS, Parent is the holder of that certain indebtedness of
the Company in favor of Parent in the aggregate amount (including accrued but
unpaid interest) of $4,395,460 (the "NOTES");
WHEREAS, Seller desires to pay $2,115,000 in full satisfaction
of its obligations under the Notes and Parent will cancel the all amounts due
under the Notes in exchange for such payment;
WHEREAS, Seller now desires to sell and Purchaser desires to
purchase, the Shares upon the terms and conditions hereinafter set forth; and
WHEREAS, the parties hereto are parties to that certain
Distribution and Release Agreement, dated the date hereof (the "RELEASE
AGREEMENT"), and Company and WCN, LLC, a Tennessee limited liability company
("WCN"), are parties to that certain Lease Agreement, dated the date hereof (the
"LEASE AGREEMENT");
NOW, THEREFORE, for and in consideration of the mutual
promises, covenants and conditions herein contained and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
STATEMENT OF AGREEMENT
ARTICLE I
PAYOFF OF THE NOTES
1.1 PAYOFF OF NOTES. In full satisfaction of all amounts due
and owing by the Company to Parent under the Notes, Purchaser shall cause the
Company irrevocably to pay to Parent the aggregate sum of Two Million One
Hundred Fifteen Thousand Dollars ($2,115,000) (the "PAYOFF AMOUNT"). In exchange
for, and immediately upon receipt of the Payoff Amount, Parent agrees to (i)
cancel any remaining amounts due under the Notes, (ii) xxxx all evidences of the
Notes as "Paid and Canceled" and (iii) deliver to the Company all evidences of
the Notes. Payment of the Payoff Amount shall be made by delivery at the Closing
(as defined herein) of a cashier's check or wire transfer to an account
designated by Parent.
ARTICLE II
SALE AND TRANSFER OF SHARES
2.1 PURCHASE AND SALE. Seller shall sell, convey, transfer and
deliver to Purchaser at the Closing, and Purchaser shall purchase and accept,
all of the Shares, duly endorsed for transfer and free and clear of all security
interests, liens, charges, pledges, claims, demands or encumbrances.
2.2 PURCHASE PRICE. The purchase price for the Shares (the
"SHARE PURCHASE PRICE") shall be Five Thousand Dollars ($5,000). Payment of the
Share Purchase Price shall be made by delivery at the Closing of a cashier's
check or wire transfer to an account designated by Seller.
2.3 CLOSING. The closing hereunder (the "CLOSING") shall take
place on the date hereof upon the execution and delivery of this Agreement by
the parties hereto (the "CLOSING DATE").
ARTICLE III
REPRESENTATIONS AND WARRANTIES
As an inducement to Purchaser to execute this Agreement and to
enter into the transactions contemplated by this Agreement, CIVC, Company,
Parent and Seller, jointly and severally (except that, with respect to Section
3.6, each such party makes such representation on behalf of itself only, and
except for Section 3.7), and the Other Parties (with respect only to (i)
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Section 3.6 (where each such party makes such representation on behalf of itself
only) and (ii) with respect to Section 3.7), represent and warrant to Purchaser
that:
3.1 ORGANIZATION, GOOD STANDING AND AUTHORITY OF THE COMPANY.
The Company, Parent and Seller are corporations duly organized, validly existing
and in good standing under the laws of their respective states of incorporation.
The Company, Parent and Seller have all requisite corporate authority and power
to carry on their respective businesses as are now conducted, and to own, lease
and operate the assets owned, leased or operated by them.
3.2 AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not violate or
result in a breach of any of the terms or provisions of, or constitute a default
(or any event which, with notice or the passage of time, or both, would
constitute a default) under, or conflict with or result in the termination of,
or accelerate the performance required by, (i) any agreement, indenture or other
instrument to which the Company, Parent or Seller is a party or by which it is
bound, (ii) the Certificate of Incorporation, Bylaws or similar organizational
documents of the Company, Parent or the Seller, (iii) any judgment, decree,
order or award of any court, governmental body or arbitrator by which the
Company, Parent or Seller is bound, or (iv) any law, rule or regulation
applicable to the Company, Parent or Seller, in case of (i)-(iv) above the
violation, breach of, or default under which could have a material adverse
effect on Company, Parent or Seller.
3.3 NO LEGAL BAR. Neither the Seller, Parent nor the Company
is prohibited by any order, writ, injunction or decree of any body of competent
jurisdiction from consummating the transactions contemplated by this Agreement
and the transactions contemplated hereby, and no action or proceeding is pending
against Seller, Parent or Company which questions the validity of this Agreement
or the transactions contemplated hereby, any of the transactions contemplated
hereby or thereby or any action which has been taken by any of the parties in
connection herewith or therewith or in connection with any of the transactions
contemplated hereby or thereby.
3.4 TITLE; POSSESSION. Seller has good and marketable title to
all of the issued and outstanding Shares of the Company, and there are no
security interests, liens or other encumbrances whatsoever with respect thereto.
Parent has good and marketable title to the Notes, and there are no security
interests, liens or other encumbrances whatsoever with respect thereto. There
are no options, warrants, convertible securities or other instruments
representing, exercisable for or convertible into Shares or any other equity
interest in the Company.
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3.5 AUTHORIZATION. Seller and Parent have all requisite
corporate power and authority to enter into this Agreement, and Seller and
Parent have taken all necessary corporate action to authorize and to execute,
endorse and deliver the stock certificate(s) representing the Shares and to
authorize the repayment and cancellation of the Notes, respectively. Upon
execution and delivery by Seller, Parent and the Company, this Agreement shall
be binding and enforceable against Seller, Parent and Company in accordance with
its terms.
3.6 RELATED PARTY CLAIMS, INDEBTEDNESS AND AGREEMENTS.
Effective as of the Closing, except for the Lease Agreement, the Addenda (as
defined in the Lease Agreement) there is no (i) outstanding indebtedness
(including but not limited to any outstanding checks) between Company and
Parent, between Company and Seller, or between Company and any employee,
director, employee, or Affiliate of Seller or Parent, (ii) except for the
Distribution and Release Agreement, any agreements, contracts or understandings
between the Company and any shareholder or director thereof, or any of their
respective Affiliates, and (iii) any Claim (as defined herein) by such party
hereto or any of its Affiliates against the Company. As used herein, "AFFILIATE"
shall mean, as to any individual, corporation, partnership or other entity
("PERSON"), (i) any officer, director, or shareholder of such Person, (ii) any
other controlling, controlled by or under common control with such Person, or
(iii) any individual related by blood or marriage to such Person. For purposes
of the foregoing definition, "CONTROL" shall mean the ownership of 10% or more
of the voting securities of such Person, or the direct or indirect power to
direct or cause the direction of the management of a Person, by ownership of
equity securities, by contract, or otherwise.
3.7 LEASE AGREEMENT. The Other Parties represent and warrant
that WCN has good and marketable title to the real property located at 0000
Xxxxx Xxxxxx and 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, and that the Lease
Agreement has been duly authorized by all necessary corporate action of WCN.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to execute this Agreement and to
enter into the transactions contemplated by this Agreement, Purchaser represents
and warrants to Seller that:
4.1 ORGANIZATION, GOOD STANDING AND AUTHORITY. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company has full authority and power to carry on
its business as it is now
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conducted, and to own, lease and operate the assets owned, leased or operated by
it. The Agreement has been duly authorized, executed and delivered by Purchaser
and constitutes a legal, valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms.
4.2 AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not violate or
result in a breach of any of the terms or provisions of, or constitute a default
(or any event which, with notice or the passage of time, or both, would
constitute a default) under, or conflict with or result in the termination of,
or accelerate the performance required by, (i) any agreement, indenture or other
instrument to which Purchaser is a party or by which it is bound, (ii) the
Certificate of Incorporation, Bylaws or similar organizational documents of
Purchaser, (iii) any judgment, decree, order or award of any court, governmental
body or arbitrator by which Purchaser is bound, or (iv) any law, rule or
regulation applicable to Purchaser.
4.3 NO LEGAL BAR. Purchaser is not prohibited by any order,
writ, injunction or decree of any body of competent jurisdiction from
consummating the transactions contemplated by this Agreement and all other
agreements referenced herein, and no action or proceeding is pending against
Purchaser which questions the validity of this Agreement or any such other
agreements, any of the transactions contemplated hereby or thereby or any action
which has been taken by any of the parties in connection herewith or therewith
or in connection with any of the transactions contemplated hereby or thereby.
ARTICLE V
INDEMNIFICATION
5.1 INDEMNIFICATION BY SELLER, PARENT, CIVC, OTHER PARTIES AND
XXXXX. Seller, Parent and CIVC hereby agree, jointly and severally, and the
Other Parties hereby agree (with respect to Section 3.6), to indemnify and hold
Purchaser and the Company, and their respective officers, directors, controlling
persons and agents, harmless from and against any claim, liability, obligation,
loss or other damage (including, without limitation, reasonable attorneys' fees
and expenses) (any of such items hereinafter referred to as a "CLAIM") asserted
against, imposed upon or incurred by Purchaser, its officers, directors,
controlling persons and agents, arising out of any inaccuracy in or breach of
any of Seller's, Parent's or the Company's representations and warranties, and
in the case of each Other Party out of the breach of any
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representation and warranty made by such Other Party, set forth in Article III
of this Agreement; PROVIDED, HOWEVER, that none of CIVC, Parent, Seller or the
Other Parties shall indemnify Purchaser for or against any Claim arising from a
breach of Section 3.6 unless such entity (or any Affiliate thereof) is, in its
own capacity, in breach of Section 3.6; PROVIDED, FURTHER, that aggregate amount
of all indemnity payments hereunder shall be limited to the sum of the Payoff
Amount and the Share Purchase Price. In addition, Xxxxx hereby agrees to
indemnify the other parties hereto against any and all Claims made by Xxxxx
Xxxxx against the Company.
5.2 INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to
indemnify and hold Seller and Parent harmless from and against any claim,
liability, obligation, loss or other damage (including, without limitation,
reasonable attorneys' fees and expenses) asserted against, imposed upon or
incurred by Seller arising out of any inaccuracy in or breach of any of
Purchaser's covenants or its representations and warranties set forth in Article
IV of this Agreement.
5.3 CLAIMS PROCESS. As soon as is reasonably practicable after
Purchaser, Parent or Seller becomes aware of any claim that it has which is
covered under this Article V, Purchaser, Parent or Seller, as the case may be
("INDEMNIFIED PARTY") shall notify the other party ("INDEMNIFYING PARTY") in
writing, which notice shall describe the claim in reasonable detail, and shall
indicate the amount (estimated, if necessary to the extent feasible) of the
claim. In the event of a third party claim which is subject to indemnification
under this Article V, the Indemnifying Party shall promptly defend such claim by
counsel of its own choosing, subject to the approval of the Indemnified Party,
which approval shall not unreasonably be withheld, and the Indemnified Party
shall cooperate with the Indemnifying Party in the defense of such claim
including the settlement of the matter on the basis stipulated by the
Indemnifying Party (with the Indemnifying Party being responsible for all costs
and expenses of such settlement to the extent that such costs or expenses arise
with respect to a claim for which the Indemnifying Party is liable hereunder).
Any such settlement shall include a complete and unconditional release of the
Indemnified Party from the claim.
5.4 SURVIVAL; CLAIMS. The representations and warranties set
forth in Articles III and IV above, and the indemnification rights set forth in
this Article V, shall survive this Agreement until the second anniversary of the
date hereof.
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ARTICLE VI
MISCELLANEOUS
6.1 EXPENSES. Each party hereto shall bear and pay all costs
and expenses incurred by it in connection with the transactions contemplated by
this Agreement including, without limitation, fees, costs and expenses of its
own financial consultants, accountants and counsel.
6.2 ATTORNEYS' FEES. In the event any party brings an action
to enforce this Agreement, the prevailing party or parties in such action shall
be entitled to recover reasonable costs incurred in connection therewith,
including reasonable attorneys' fees. Reasonable attorneys' fees shall include
reasonable charges allocated for internal counsel.
6.3 ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, oral or written, between the parties hereto and the Deceased
with respect to the subject matter hereof, and contains the entire agreement
between such parties with respect to the transactions contemplated hereby. No
party to this Agreement shall be entitled to rely on any representation,
warranty or agreement not set forth in this Agreement.
6.4 AMENDMENTS. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of all of the
parties hereto.
6.5 SUCCESSORS; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted transferees and assignees.
Neither this Agreement nor any interest herein may directly or indirectly be
transferred or assigned by any party, in whole or in part, without the written
consent of the other parties, which consent shall not be unreasonably withheld.
6.6 NOTICES. Any notice, demand or request required or
permitted to be given under the provisions of this Agreement shall be in writing
and shall be deemed to have been duly given on the earlier of (a) the date
actually received by the party in question, by whatever means and however
addressed, or (b) the date sent by telecopy, or on the date of personal
delivery, if delivered by hand, or on the date signed for if sent, prepaid, by
Federal Express or similar nationally-recognized overnight delivery service, to
the following addresses, or to such other addresses as either party may request,
in the case of Seller, by notifying Purchaser, and in the case of Purchaser, by
notifying Seller:
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If to Purchaser: Iatros Health Network, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to: Xxxx Xxxxx Xxxx & XxXxxx, LLP
0000 X Xxxxxx, X.X.
Xxxxx 0000 - Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller: Home Technology Health Care, Inc.
X/x XXXX
000 Xxxxx Xx Xxxxx Street, 7th Floor
Chicago, IL
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
With copies to: Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, P.C
Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
6.7 WAIVER. No waiver hereunder shall be valid unless set
forth in writing.
6.8 SEVERABILITY. In the event that any term or provision of
this Agreement or any application thereof shall be held by a tribunal of
competent jurisdiction to be unlawful or unenforceable, the remainder of this
Agreement and any other application of such term or provision shall continue in
full force and effect and the parties shall endeavor to replace the unlawful or
unenforceable provision with one that is lawful and enforceable and which gives
the fullest effect to the intent of the parties as expressed herein.
6.9 NO THIRD PARTY BENEFICIARY. This Agreement is for the
benefit of, and may be enforced only by, the parties hereto, and their
respective successors and permitted transferees and assignees, and is not for
the benefit of, and may not be enforced by, any third party.
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6.10 APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to the conflicts of laws provisions thereof.
6.11 CONSTRUCTION. The titles and headings to sections herein
are inserted for convenience of reference only, and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement. The
parties acknowledge that each party and its counsel have reviewed and revised
this Agreement and that consequently any rule of construction to the effect that
any ambiguities are to be resolved against the drafting party is not applicable
in the interpretation of this Agreement or any exhibits or schedules hereto.
6.12 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement.
6.13 UNCONDITIONAL RELEASE. Except with respect to this
Agreement, the Lease Agreement, the Addenda, the Distribution and Release
Agreement (and any side letter referenced therein), Seller and each of Xxxxxxxx,
Xxxxx and Xxxxxx, on behalf of themselves and their respective Affiliates,
hereby forgives, releases and forever discharges each other party hereto, their
Affiliates, subsidiaries, officers, directors, agents, servants, employees,
attorneys, accountants, legal representatives, predecessors, successors and
assigns (collectively, the "RELEASED PERSONS") from all, and any manner of,
action or actions, causes of action, suits, obligations, liabilities,
trespasses, libels, damages, claims, contests and demands of whatsoever kind or
character, in law or in equity, joint or several, known or unknown, suspected or
unsuspected, whether having arisen or hereafter to arise, which Seller or
Xxxxxxxx, Xxxxx and Xxxxxx, and their respective Affiliates, ever had, now has
or claims to have, or hereafter can, shall, or for any reason have, against any
Released Person arising out of any agreement, document, writing, instrument,
transaction, matter, statement, act, omission, thing, or cause whatsoever.
6.14 RESIGNATIONS. Each of Xxxxxxxx and Xxxxx hereby resigns
from any and all positions with the Company. CIVC represents that all
representatives and/or nominees of CIVC have resigned from any and all positions
with the Company.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date and year first above written.
SOUTHLAND MEDICAL SUPPLY, INC.:
Name:
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Its:
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HF HOLDINGS, INC.:
Name:
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Its:
--------------------------------
IATROS HEALTH NETWORK, INC.:
By:
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Name: Xxxxxx X. Xxxx
Its: Chairman and Chief Executive Officer
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Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxx
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Xxxxxxx Xxxxxx
CONTINENTAL ILLINIOS VENTURE CORPORATION
By:
--------------------------------
Name:
Its:
HOME TECHNOLOGY HEALTH CARE, INC.
By:
--------------------------------
Name:
Its:
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