PARTNERSHIP INTEREST PURCHASE AGREEMENT
By and Among
HealthMatics G.P.,
GW Acquisition Corp.,
Physician Computer Network, Inc.
and
PCN HP Venture Corp.
Dated as of December 4, 1998
PARTNERSHIP INTEREST PURCHASE AGREEMENT, dated as of December 4, 1998, by
and among HealthMatics G.P., a New York general partnership (formerly
HealthPoint, G.P.)(the "Partnership"), GW Acquisition Corp., a Delaware
Corporation ("Buyer"), Physician Computer Network, Inc., a New Jersey
corporation ("PCN"), and PCN HP Venture Corp., a Delaware corporation
("Seller").
W I T N E S S E T H :
WHEREAS, Seller, a wholly owned subsidiary of PCN, and GW Investment Corp.,
a North Carolina corporation ("GWIC")(as successor in interest to Intelligent
Medical Systems, Inc.), a wholly owned subsidiary of Glaxo Wellcome Inc., a
North Carolina corporation ("Glaxo"), are parties to a Partnership Agreement
dated as of January 25, 1996 (the "Partnership Agreement"), pursuant to which
the Seller and GWIC (each a "Partner" and collectively, the "Partners") formed
the Partnership, a joint venture partnership established to, among other things,
develop and market innovative electronic clinical information systems; and
WHEREAS, Glaxo, PCN and the Partnership are parties to a Transaction
Agreement dated as of January 25, 1996 (the "Transaction Agreement"), pursuant
to which each of the parties thereto entered into certain agreements regarding,
among other things, the distribution by PCN of the Partnership's products and
services; and
WHEREAS, PCN wishes to cause Seller to sell and Buyer wishes to purchase
Seller's right, title and interest in the Partnership (the "Partnership
Interest") on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, in connection with such purchase and sale, PCN, Glaxo and the
Partnership wish to terminate all of their respective rights and obligations
under the Transaction Agreement on the terms and subject to the conditions set
forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants, agreements, representations and warranties herein contained, and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto intending to be legally bound hereby
agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used herein and not otherwise
herein defined shall have the meanings given to such terms in Schedule 1 to the
Transaction Agreement and the Partnership Agreement (such definitions to be
equally applicable to both th singular and plural forms of the terms defined).
ARTICLE 2
SALE AND PURCHASE OF PARTNERSHIP INTEREST
Section 2.1 SALE OF PARTNERSHIP INTEREST.
At the Closing provided for in Section 3.1, Seller shall sell, assign and
transfer the Partnership Interest to Buyer free and clear of all liens, security
interests and other encumbrances of any kind and Buyer shall purchase the
Partnership Interest for the purchase price provided in Section 2.2.
Section 2.2 PURCHASE PRICE AND PAYMENT FOR PARTNERSHIP INTEREST. (a)
PURCHASE PRICE. The purchase price for the Partnership Interest is
$4,619,103.25, plus the forgiveness of certain debt and liabilities as set forth
on SCHEDULE 7.12 (the "Purchase Price").
(b) CLOSING PAYMENT.
The Purchase Price shall be paid by Buyer as follows. At the Closing, Buyer
shall deliver to Seller $4,619,103.25 in immediately available funds by wire
transfer to an account designated by Seller on the Closing Date (the "Cash
Consideration").
Section 2.3 TRANSACTIONS ON THE CLOSING DATE. (a) At the Closing, Seller
will deliver to Buyer the following:
(i) resignations of the members of the Management
Committee and officers of the Company listed on SCHEDULE 2.3;
(ii) any and all confidential documents and information
concerning the Partnership or the business of the Partnership acquired or held
by the Seller or PCN during Seller's incumbency as a Partner in the Partnership,
other than any such documents or information (a list of the categories of which
shall be delivered to Buyer at the Closing) acquired or held by PCN solely in
its capacity as a reseller of the Partnership's products; and
(iii) each of the payments, certificates and documents
contemplated by Article 7 (which payments shall be made in immediately available
funds).
(b) At the Closing, Buyer will deliver to Seller the following:
(i) the Purchase Price in accordance with Section 2.2
above and Section 7.12 below; and
(ii)each of the certificates and documents contemplated
by Article 8.
Section 2.4 TERMINATION OF RIGHTS AS PARTNER AND TRANSACTION AGREEMENT.
Effective as of the consummation of the Closing provided for herein, none of
PCN, Seller or any of their respective Affiliates (collectively, "PCN
Entities") shall have any further rights or obligations under or pursuant to the
Partnership Agreement or the Transaction Agreement, the Transaction Agreement
being terminated as of the consummation of the Closing.
Section 2.5 ACKNOWLEDGMENT. The Partnership hereby consents to the
transfer of the Partnership Interestfrom Seller to Buyer in accordance with the
terms of this Agreement and acknowledges that, from and after the Closing (if
the Closing occurs), Seller shall no longer be deemed to be, or have any \
rights or obligations as, a partner of the Partnership.
ARTICLE 3
CLOSING AND TERMINATION CLOSING.
Section 3.1 The closing of the transactions provided for herein (the
"Closing") will take place at the offices of Winthrop, Stimson, Xxxxxx &
Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M. (local time)
on November 30, 1998 (the "Closing Date") or at such other place, time and date
as may be agreed upon by Buyer and Seller.
Section 3.2 TERMINATION. Anything contained in this Agreement other tha
in this Section 3.2 to the contrary notwithstanding, this Agreement may be
terminated in writing at any time:
(a) without liability on the part of any party hereto (unless
occasioned by reason of a breach by any party hereto of any of its
representations, warranties or obligations hereunder) by mutual consent of Buye
and Seller;
(b) without liability on the part of any party hereto (unless
occasioned by reason of a breach by any party hereto of any of its
representations, warranties or obligations hereunder) by either Buyer or Seller
if the Closing shall not have occurred on or before December 31, 1998 (or such
later date as may be agreed upon in writing by the parties hereto);
(c) by Buyer, if Seller shall breach any of its representations,
warranties or obligations hereunder and such breach shall not have been cured o
waived and Seller shall not have provided reasonable assurance that such breach
will be cured on or before the Closing Date; or
(d) by Seller, if Buyer shall breach any of its representations,
warranties or obligations hereunder and such breach shall not have been cured o
waived and Buyer shall not have provided reasonable assurance that such breach
will be cured on or before the Closing Date.
Section 3.4 SURVIVAL OF PROVISIONS. Notwithstanding the termination of this
Agreement pursuant to Section 3.2, the provisions of Sections 6.2 (Expenses) and
6.3 (Confidentiality) shall survive such termination and continue in effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Each of Seller and PCN represents and warrants to Buyer on the date hereof
and on the Closing Date that:
Section 4.1 CORPORATE ORGANIZATION AND AUTHORITY. Each of Seller and PCN is
a corporation duly organized, validly existing and in good standing under the
laws of Delaware and New Jersey, respectively, and has all corporate power and
authority to carry on its business as now being conducted and to own its
properties. Each of Seller and PCN has full corporate power and authority to
enter into this Agreement, the Confidentiality Agreement (as defined below) and
the Releases (as defined below) to which it is a party (the "Party Releases")
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by each of Seller and PCN of the Agreement,
the Confidentiality Agreement and the Party Releases have been duly authorized
by all requisite corporate action. Each of this Agreement, the Confidentiality
Agreement and the Party Releases has been duly executed and delivered by Seller
and PCN, and (assuming due execution and delivery by Buyer and the Partnership
of this Agreement) each of this Agreement, the Confidentiality Agreement and the
Party Releases constitute, and the Associated Document (as defined in Section
7.11 hereto) when executed and delivered will constitute, a valid and binding
obligation of Seller and PCN, enforceable in accordance with their respective
terms.
Section 4.2 OWNERSHIP OF THE PARTNERSHIP INTEREST. Seller is the lawful
record and beneficial owner of the Partnership Interest. Except as set forth on
SCHEDULE 4.2, the Seller owns the Partnership Interest free and clear of all
pledges, liens, security interests, encumbrances, claims, options, restrictions
or charges (the "Encumbrances") except for restrictions on transfer under
federal and state securities laws. Any and all Encumbrances set forth on
SCHEDULE 4.2 shall be released by the Closing, and proof of such release shall
be delivered to the Buyer prior to or at the Closing pursuant to Section 7.10
hereof. Upon the delivery of the Partnership Interest in the manner contemplated
under Section 2.3, Buyer will acquire the beneficial and legal, valid and
indefeasible title to such Partnership Interest, free and clear of all
Encumbrances, except for restrictions on transfer under federal and state
securities laws.
Section 4.3 NO VIOLATION. Except as set forth on SCHEDULE 4.3, none of
Seller, PCN and, to the best knowledge of PCN, the Partnership is subject to or
bound by any provision of:
(a) any law, statute, rule, regulation or judicial or administrative
decision,
(b) any articles or certificate of incorporation or by-laws,
(c) any mortgage, deed of trust, lease, note, shareholders'
agreement, partnership agreement, agreement regarding debt for money borrowed
bond, indenture, other instrument or agreement, license, permit, trust,
custodianship, other restriction, or
(d) any judgment, order, writ, injunction or decree of any
court, governmental body, administrative agency or arbitrator, that would
prevent or be violated by or that would result in the creation of any
Encumbrance or under which there would be a default or right of termination
as a result of, the execution, delivery and performance by Seller and PCN of
this Agreement or the Releases and the consummation of the transactions
contemplated hereby or thereby. Except as set forth on SCHEDULE 4.3,
no consent, approval or authorization of or declaration or filing with any
individual, corporation, partnership, trust or unincorporated organization
or any government or any agency or political subdivision thereof (a "Person")
is required for the valid execution, delivery and performance by Seller and PCN
of this Agreement or the Releases and the consummation of the transactions
contemplated hereby or thereby. Any required consent, approval or
authorization of or declaration or filing with any Person, as set forth on
SCHEDULE 4.3, shall be delivered to Buyer prior to or at the Closing,
pursuant to Section 7.3 hereof.
Section 4.4 LITIGATION. Except as set forth on SCHEDULE 4.4, there is (i)
no outstanding consent, order, judgment, injunction, award or decree of any
court, government or regulatory body or arbitration tribunal against or
involving the Partnership, PCN, with respect to the Partnership, or Seller in
Seller's capacity as a Partner in the Partnership, (ii) no action, suit, dispute
or governmental, administrative, arbitration or regulatory proceeding pending
or, to Seller's and PCN's best knowledge, threatened against or involving the
Partnership, PCN (with respect to the Partnership) or Seller in Seller's
capacity as a Partner in the Partnership and (iii) to Seller's and PCN's best
knowledge, no investigation pending or threatened against or relating to the
Partnership, PCN (with respect to the Partnership), any of their respective
officers or directors as such or Seller in such Seller's capacity as a Partner
in the Partnership (collectively, "Proceedings").
Section 4.5 BROKERAGE. No broker or finder has acted directly or indirectly
for either one or both of Seller or PCN in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder's fee or other commission in respect thereof based in any
way on agreements, arrangements or understandings made by or on behalf of either
one or both of Seller or PCN.
Section 4.6 SELLER'S AND PCN'S BEST KNOWLEDGE. The term "Seller's and PCN's
best knowledge", shall mean the best knowledge of Seller and PCN after due
inquiry.
Section 4.7 BOOKS AND RECORDS. Seller and PCN have and will make available
for inspection by Buyer and its attorneys, accountants and such other
representatives of Buyer as Buyer shall designate in writing, all books of
account of the Partnership which are in the custody or possession of Seller or
PCN.
Section 4.8 CERTAIN LIABILITIES. Neither Seller nor PCN has incurred or
created any liability or obligation of the Partnership, and no such liability or
obligation of the Partnership so created is outstanding.
Section 4.9 NO LENDERS. Each of Seller and PCN is not a party to any
agreement regarding debt for money borrowed with any person other than those
listed on SCHEDULE 4.9.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller on the date hereof and on the
Closing Date that:
Section 5.1 ORGANIZATION. Buyer is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware.
Section 5.2 CORPORATE AUTHORITY. Buyer has full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance by
Buyer of this Agreement has been duly authorized by all requisite corporate
action. This Agreement has been duly executed and delivered by Buyer, and
(assuming due execution and delivery by Seller, PCN and the Partnership) this
Agreement constitutes a valid and binding obligation of Buyer, enforceable in
accordance with its terms.
Section 5.3 NO VIOLATION. None of Buyer, any of its Affiliates, or, to the
best of Buyer's knowledge, the Partnership, is subject to or bound by any
provision of:
(a) any law, statute, rule, regulation or judicial or administrative
decision,
(b) any articles or certificate of incorporation or by-laws,
(c) any mortgage, deed of trust, lease, note, shareholders'
agreement, partnership agreement, agreement regarding debt for money borrowed,
bond, indenture, other instrument or agreement, license, permit, trust,
custodianship, other restriction, or
(d) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator,
that would prevent or be violated by or that would result in the creation of
any Encumbrance or under which there would be a default or right of
termination as a result of, the execution, delivery and performance by Buyer of
this Agreement and the consummation of the transactions contemplated hereby. No
consent, approval or authorization of or declaration or filing with any Person
is required for the valid execution, delivery and performance by Buyer of this
Agreement and the consummation of the transactions contemplated hereby.
Section 5.4 LEGAL PROCEEDINGS, ETC. There is no legal, administrative,
arbitrative or other action or proceeding or governmental investigation relating
to the transactions pursuant to this Agreement or the Partnership Agreement
pending, or, to the knowledge of Buyer, threatened against Buyer, any of its
Affiliates or any director, officer or employee thereof.
Section 5.5 BROKERAGE. No broker or finder has acted directly or indirectly
for Buyer or any of its Affiliates in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder's fee or other commission in respect thereof based in any
way on agreements, arrangements or understandings made by or on behalf of Buyer
or any of its Affiliates.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.1 PERFORMANCE, SATISFACTION OF CONDITIONS. Each of the parties
hereto shall not take or omit to take any action that would result in the
failure of the conditions set forth in this Agreement or that in any way would
prevent the consummation of the transactions contemplated hereby. Seller, PCN
and the Partnership shall use their diligent efforts to satisfy or cause to be
satisfied all the conditions to the obligations of Buyer set forth in this
Agreement. Buyer and the Partnership will use their diligent efforts to satisfy
or cause to be satisfied all conditions to the obligations of the Seller and PCN
set forth in this Agreement.
Section 6.2 EXPENSES. Buyer and Seller will each bear their own fees, costs
and expenses incurred by them in connection with the negotiation, execution and
performance of this Agreement and each shall not be liable to the other for the
payment of such fees, costs and expenses, including without limitation,
brokerage or finder's fees and accountants' and attorneys' fees incurred by the
other party.
Section 6.3 ACCESS TO INFORMATION AND CONFIDENTIALITY. Seller, PCN and the
Partnership agree that Buyer and its attorneys, accountants and such other
representatives of Buyer as Buyer shall designate to them in writing may conduct
such reasonable investigation with respect to the business, business prospects,
assets, liabilities (contingent or otherwise), results of operations,
facilities, management, employees and financial condition of the Partnership as
will permit Buyer to evaluate its interest in the transactions contemplated by
this Agreement. Each of the parties hereto will hold and will cause their
respective representatives to hold in strict confidence, unless compelled to
disclose by judicial or administrative process, or, in the written opinion of
its counsel, by other requirements of law, all documents and information
concerning any one or more of the Seller, PCN and the Partnership furnished to
Buyer and all documents and information concerning Buyer furnished to Seller or
PCN in connection with the transactions contemplated by this Agreement (except
to the extent that such information can be shown to have been (a) in the public
domain through no fault of either Seller or Buyer or (b) later lawfully acquired
by either Seller or Buyer from other sources that are not under an obligation of
confidentiality) and will not release or disclose such information to any other
Person, except in connection with this Agreement to its lenders, auditors,
attorneys, financial advisors and other consultants and advisors.
Section 6.4 NO SOLICITATION. Seller and PCN shall not, and shall direct
each of their respective affiliates, officers, employees, representatives or
agents not to, directly or indirectly, encourage, solicit, initiate or engage in
discussions or negotiations with, or provide any non-public information to, any
Person concerning any sale of shares of the capital stock of the Seller or the
Partnership Interests or similar transactions involving the Partnership or enter
into any agreement with respect thereto. Seller and PCN will promptly
communicate to Buyer the terms of any proposal which it may receive in respect
of all such transactions prohibited by the foregoing. Nothing contained in this
Section 6.4 shall limit or prevent PCN from engaging, soliciting or initiating
any negotiations with (i) any lender or current secured party of PCN; or (ii)
any Person regarding the sale of all or substantially all of the assets,
business, or shares of capital stock of PCN.
Section 6.5 PRESS RELEASES. Except as required by law or stock exchange
regulation, any public announcements regarding the transactions contemplated
hereby shall be made only with the mutual consent of Seller and Buyer. Each
party shall consult with the other party regarding the timing and content of any
public announcement required by any such law or regulation.
Section 6.6 CONSENTS. Seller, PCN, Buyer and the Partnership will use
diligent efforts to obtain the consents, if any, of other Persons required for
the consummation of the transactions contemplated hereby.
Section 6.7 GOVERNMENT FILINGS. Each party hereto will, as promptly as
practicable, make or cause to be made all governmental filings required to be
made by it and will comply with all applicable government waiting periods or
notification or other procedures required to be complied with by it in
connection with the transactions contemplated by this Agreement.
Section 6.8 THIRD PARTY INDEMNITY. Buyer agrees that to the extent that any
one or more of Buyer, GWIC, Glaxo and their respective Affiliates are
indemnified by or are entitled to seek indemnification from any third party
purchaser of any of the assets, business or interest in HealthMatics (any such
third party being referred to herein as a "Third Party Indemnitor") with respect
to any loss, deficiency, liability, damages, assessments, judgments, costs and
expenses of any kind or nature (an "Indemnified Loss"), none of Buyer, GWIC,
Glaxo or any of their respective Affiliates will assert a claim against or seek
to recover any Indemnified Loss from any of PCN, Seller or any of their
respective Affiliates (to the extent Buyer, GWIC, Glaxo or any such Affiliate
has the right to do so) unless and until the person seeking indemnity shall, in
such person's reasonable judgment, have exercised commercially reasonable
efforts to collect from any Third Party Indemnitor with respect to such
Indemnified Loss. To the extent that any one or more of Buyer, GWIC, Glaxo and
their respective Affiliates does collect an Indemnified Loss from any of PCN,
Seller or any of their respective Affiliates with respect to any matter as to
which there is a Third Party Indemnitor, such paying person shall, to the extent
of such payment, be subrogated to the rights of the payee against such Third
Party Indemnitor.
Section 6.9. ACKNOWLEDGEMENT. Each of PCN and Seller acknowledge and agree
that neither PCN nor Seller shall have, and each of PCN and Seller hereby waive,
any rights whatsoever, including but not limited to patent, trademark,
copyright, trade secret or any other intellectual property rights ("IP Rights")
in any assets (including but not limited to the source code and any upgrades and
enhancements to the source code for any product) owned, created or invented by
or on behalf of the Partnership, including but not limited to past and present
versions of the Partnership's clinical patient record product currently marketed
as HealthMatics Series 4, and work in progress on enhancements and new verions
(all such assets hereinafter referred to as "Partnership Assets"). Without
limiting the foregoing, each of PCN and Seller acknowledge and agree that
neither PCN nor Seller shall have any right to any of the Partnership Assets
through an escrow as contemplated in Section 7.4 of the Partnership Agreement,
and each of PCN and Seller acknowledge and agree that no such escrow for any of
the Partnership Assets shall be established. To the extent that each of PCN and
Seller shall have, or may be deemed to have, rights including but not limited to
IP Rights in any Partnership Assets, each of PCN and Seller hereby assigns to
Buyer all such rights, including but not limited to IP Rights. In connection
with the assignment referred to in the preceding sentence, each of PCN and
Seller hereby agree to perform, during or after the term of this Agreement, any
and all such further acts as may be requested by Buyer or the Partnership,
including the execution and delivery of documents or instruments, as is
necessary or desirable to transfer, perfect or defend Buyer's or the
Partnership's rights including but not limited to IP Rights in the Partnership
Assets.
ARTICLE 7
CONDITIONS PRECEDENT OF BUYER
Buyer need not consummate the transactions contemplated by this Agreement
unless the following conditions shall be fulfilled:
Section 7.1 REPRESENTATIONS AND WARRANTIES. Except as otherwise
contemplated or permitted by this Agreement, (a) the representations and
warranties of Seller and PCN contained in this Agreement or in any certificate
or document delivered to Buyer pursuant hereto shall be deemed to have been made
again at and as of the Closing Date and shall then be true in all respects and
(b) Seller and PCN shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by Seller
and PCN prior to or on the Closing Date, and Buyer shall have been furnished
with a certificate of an officer of Seller, dated the Closing Date, certifying
to the effect of clauses (a) and (b) of this Section 7.1.
Section 7.2 NO ACTIONS. No action, suit, or proceeding before any court or
governmental or regulatory authority shall be pending, no investigation by any
governmental or regulatory authority shall have been commenced, and no action,
suit or proceeding by any governmental or regulatory authority shall have been
threatened, against Buyer, Seller, PCN, the Partnership or any of the
principals, officers, managers or directors of any of them, seeking to restrain,
prevent or change the transactions contemplated hereby or questioning the
legality or validity of any such transactions or seeking damages in connection
with any such transactions. There shall be in effect no order or injunction of a
court or governmental authority of competent jurisdiction restraining,
prohibiting, invalidating or setting aside, in whole or in part, the
transactions contemplated hereby.
Section 7.3 CONSENTS. All consents of third parties, including, without
limitation, the approval of the Board of Directors of Buyer, governmental
authorities and non-governmental self-regulatory agencies, all consents referred
to on Schedule 4.3 and all filings with and notifications of governmental
authorities, regulatory agencies (including non-governmental self-regulatory
agencies) or other entities which regulate the business of Buyer, Seller, PCN,
or the Partnership necessary on the part of Buyer, Seller, PCN, or the
Partnership, to the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and to permit the continued
operation of the respective businesses of Buyer or the Partnership in
substantially the same manner after the Closing Date as theretofore conducted
shall have been obtained or effected.
Section 7.4 REGULATORY APPROVALS. Any required governmental filings shall
have been made, all applicable waiting periods shall have expired or been
terminated, and all requisite governmental approvals for the consummation of the
transactions contemplated hereby shall have been received on terms satisfactory
to Buyer.
Section 7.5 EMPLOYMENT AGREEMENTS. Each of the persons listed on SCHEDULE
7.5 shall have duly executed and delivered to Buyer his Employment Agreement.
Section 7.6 CONFIDENTIALITY AGREEMENT. Each of Seller, PCN and the
Partnership shall have duly executed and delivered to Buyer a confidentiality
agreement (the "Confidentiality Agreement") substantially in the form attached
hereto as EXHIBIT A.
Section 7.7 NO MATERIAL ADVERSE CHANGE. No material adverse change in the
condition (financial or otherwise), results of operations, properties, business
or prospects of the Partnership shall have occurred.
Section 7.8 RESIGNATIONS. Seller and PCN shall have delivered to Buyer the
resignations of those persons appointed by Seller and PCN as their
representatives to the Management Committee of the Partnership who are listed on
SCHEDULE 2.3.
Section 7.9 GENERAL RELEASES. Buyer shall have received a general release
through the date of the Closing from (i) all lenders of PCN (the "Lenders") with
respect to any claims, causes of action or demands of whatever nature arising
out of or related to Buyer's relationship with PCN and the Partnership; (ii) all
lenders of Seller with respect to any claims, causes of action or demands of
whatever nature arising out of or related to Buyer's relationship with Seller
and the Partnership; (iii) PCN with respect to any claims, causes of action or
demands of whatever nature arising out of or related to Buyer's relationship
with Seller, PCN or the Partnership; and (iv) Seller with respect to any claims,
causes of action or demands of whatever nature arising out of or related to
Buyer's relationship with Seller, PCN or the Partnership. Notwithstanding the
foregoing, (i) neither the Seller nor PCN shall release or be required to
release any party with respect to the reseller relationship, as provided in the
definitive distribution agreement referred to in Section 7.11 hereof, between
PCN and the Partnership and (ii) neither PCN nor Seller shall release GWIC or
Buyer from any right of contribution against GWIC or Buyer from and with respect
to any liability or obligation of the Partnership to third parties for or with
respect to which the partners of the Partnership are jointly and severally
liable as a result of being or having been partners of the Partnership.
Buyer shall have also received a general release through the date of the
Closing from (i) PCN with respect to any claims, causes of action or demands of
whatever nature against any current or former officer or manager of the
Partnership arising out of or related to such officer's or manager's
relationship with Seller, PCN or the Partnership; and (ii) Seller with respect
to any claims, causes of action or demands of whatever nature of whatever nature
against any current or former officer or manager of the Partnership arising out
of or related to such officer's or manager's relationship with Seller, PCN or
the Partnership.
Section 7.10 RELEASE FROM LIENS ON PARTNERSHIP INTEREST. Seller and PCN
shall have delivered to Buyer evidence reasonably satisfactory to Buyer and its
counsel that all Encumbrances of any kind with respect to the Partnership
Interest listed on SCHEDULE 4.2 hereto have been released and discharged.
Section 7.11 ASSOCIATED DOCUMENT. Prior to the Closing Date, the
Partnership and PCN shall have executed and delivered a definitive distribution
agreement acceptable to the Partnership and PCN (the "Associated Document").
Section 7.12 CERTAIN INDEBTEDNESS. The amounts set forth on SCHEDULE 7.12
hereto reflect the capital contributions and accounts payable which are past due
and owing to the Partnership by Seller and PCN. Such indebtedness is hereby
forgiven by the Partnership effective at the Closing.
Section 7.13 SATISFACTORY INVESTIGATION. Buyer shall have satisfactorily
completed its investigation of the business, assets and financial condition of
the Partnership in connection with the transactions contemplated hereby and
shall have been satisfied with such results. Buyer shall have satisfactorily
completed its investigation of any event or condition arising or discovered
after the date of this Agreement that could reasonably be expected to result in
a failure of any of Buyer's conditions hereunder to be fulfilled.
ARTICLE 8
CONDITIONS PRECEDENT OF SELLER
Seller need not consummate the transactions contemplated hereby unless the
following conditions shall be fulfilled:
Section 8.1 REPRESENTATIONS AND WARRANTIES. Except as otherwise
contemplated or permitted by this Agreement, (a) the representations and
warranties of Buyer contained in this Agreement or in any certificate or
document delivered to Seller pursuant hereto shall be deemed to have been made
again at and as of the Closing Date and shall then be true in all respects and
(b) Buyer shall have performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date, and Seller shall have been furnished a certificate of an
officer of Buyer, dated the Closing Date, certifying to the effect of clauses
(a) and (b) of this Section 8.1.
Section 8.2 NO ACTIONS. No action, suit, or proceeding before any court or
governmental or regulatory authority shall be pending, no investigation by any
governmental or regulatory authority shall have been commenced, and no action,
suit or proceeding by any governmental or regulatory authority shall have been
threatened, against Buyer, Seller, PCN, the Partnership or any of its
principals, officers, managers or directors, seeking to restrain, prevent, or
change the transactions contemplated hereby or questioning the legality or
validity of any such transactions or seeking damages in connection with any such
transactions.
Section 8.3 CONSENTS. All consents of third parties including, without
limitation, the approval of the Board of Directors of Seller and PCN,
governmental authorities, and non-governmental self-regulatory agencies, and all
filings with and notifications of governmental authorities, regulatory agencies
(including non-governmental self-regulatory agencies) or other entities which
regulate the business of Seller or Buyer, necessary on the part of Seller or
Buyer, to the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, other than routine post-closing
notifications or filings, shall have been obtained or effected.
Section 8.4 REGULATORY APPROVALS. All required governmental filings shall
have been made, all applicable waiting periods shall have expired or been
terminated, and all requisite governmental approvals for the consummation of the
transactions contemplated hereby shall have been received on terms satisfactory
to the Seller and PCN.
Section 8.5 TERMINATION LETTER. Glaxo and the Partnership shall have sent a
letter substantially in the form of SCHEDULE 8.5 hereof terminating its rights
under the Transaction Agreement.
Section 8.6 BUYER'S RELEASE. Glaxo and Buyer shall have delivered to the
Lenders a release through the Closing with respect to any claim, causes of
action or demands of whatever nature arising out of or relating to the Lenders'
relationship with PCN and the Partnership on or prior to the Closing.
ARTICLE 9
INDEMNIFICATION
Section 9.1 INDEMNIFICATION BY SELLER AND PCN. Each of Seller and PCN
hereby agrees to jointly and severally defend, indemnify and hold harmless Buyer
and the Partnership and their respective successors, assigns and affiliates
(collectively, the "Buyer Indemnitees") from and against any and all losses,
deficiencies, liabilities, damages, assessments, judgments, costs and expenses,
including attorneys' fees and expenses (both those incurred in connection with
the defense or prosecution of the indemnifiable claim and those incurred in
connection with the enforcement of this provision) (collectively, "Buyer
Losses"), caused by, resulting from or arising out of:
(a) (i) breaches on the part of Seller or PCN of their representation
and warranties and (ii) failures by Seller or PCN to perform or otherwise
fulfill any undertaking or other agreement or obligation hereunder;
(b) any and all actions, suits, proceedings, claims, demands,
incident to any of the foregoing or such indemnification; and
(c) PROVIDED, HOWEVER, that if any claim, liability, demand,
assessment, action, suit or proceeding shall be asserted in respect of which a
Buyer Indemnitee proposes to demand indemnification ("Buyer Indemnified
Claims"), Buyer or such other Buyer Indemnitee shall notify Seller or PCN
thereof, provided further, however, that the failure to so notify Seller or PCN
shall not reduce or affect Seller's or PCN's obligations with respect thereto
except to the extent that Seller or PCN is materially prejudiced thereby. Seller
and PCN shall have the right promptly upon receipt of such notice to assume the
control of the defense, compromise or settlement of any such Buyer Indemnified
Claims (provided that any compromise or settlement must be reasonably approved
by Buyer), including, at its own expense, employment of counsel reasonably
satisfactory to Buyer; provided, however, that if Seller or PCN shall have
exercised its right to assume such control, Buyer may, in its discretion and at
their expense, employ counsel to represent it (in addition to counsel employed
by Seller or PCN) in any such matter, and in such event counsel selected by
Seller or PCN shall be required to cooperate with such counsel of Buyer in such
defense, compromise or settlement.
Section 9.2 Indemnification By Buyer Buyer hereby agrees to defend,
indemnify and hold harmless Seller, PCN and their successors, assigns and
affiliates (collectively, "Seller Indemnitees") from and against any and all
losses, deficiencies, liabilities, damages, assessments, judgments, costs and
expenses, including attorneys' fees and expenses (both those incurred in
connection with the defense or prosecution of the indemnifiable claim and those
incurred in connection with the enforcement of this provision) (collectively,
"Seller Losses"), caused by, resulting from or arising out of:
(a) (i) breaches on the part of Buyer of its representations and
warranties; and (ii) failures by Buyer to perform or otherwise fulfill any
undertaking or agreement or obligation hereunder; and
(b) any and all actions, suits, proceedings, claims and demands incident to
any of the foregoing or such indemnification; and
(c) PROVIDED, HOWEVER, that if any claim, liability, demand, assessment,
action, suit or proceeding shall be asserted in respect of which a Seller
Indemnitee proposes to demand indemnification ("Seller Indemnified Claims"),
Seller or such other Seller Indemnitee shall notify Buyer thereof, provided
further, however, that the failure to so notify Buyer shall not reduce or affect
Buyer's obligations with respect thereto except to the extent that Buyer is
materially prejudiced thereby. Buyer shall have the right promptly upon receipt
of such notice to assume the control of the defense, compromise or settlement of
any such Seller Indemnified Claims (provided that any compromise or settlement
must be reasonably approved by Seller or PCN) including, at its own expense,
employment of counsel reasonably satisfactory to Seller or PCN; provided,
however, that if Buyer shall have exercised its right to assume such control,
Seller or PCN may, in their discretion and at their expense, employ counsel to
represent it (in addition to counsel employed by Buyer) in any such matter, and
in such event counsel selected by Buyer shall be required to cooperate with such
counsel of Seller or PCN in such defense, compromise or settlement.
ARTICLE 10
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 10.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The covenants
contained in this Agreement shall survive the Closing Date indefinitely. The
representations and warranties contained herein shall survive the Closing Date
until the third anniversary thereof, it being understood and agreed that any
claim brought on or before such third anniversary date shall survive until the
final resolution of such claim and that such period shall be extended for the
amount of time that relief is being sought from a Third Party Indemnitor as
provided in Section 6.8 hereof.
ARTICLE 11
MISCELLANEOUS
Section 11.1 COOPERATION. Each of the parties hereto shall use its
reasonable efforts to take or cause to be taken all actions, to cooperate with
the other party hereto, with respect to all actions, and to do or cause to be
done all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement.
Section 11.2 ACCESS TO BOOKS AND RECORDS. After the Closing, the Buyer and
the Partnership agree to make reasonably available to the Seller and PCN upon
notice and during normal business hours (including the right to make copies) (i)
any and all books and records reasonably necessary to respond to inquires
regarding the Partnership from regulatory authorities, or to defend claims or to
prepare required financial statements and tax returns, and (ii) in connection
with the Seller's or PCN's review of any such books and records and preparation
of financial statements and tax returns, any and all personnel as are reasonably
requested by the Seller or PCN, who will render assistance as may reasonably be
requested by Seller or PCN; provided, however, that Seller or PCN shall pay all
out of pocket costs and expenses with respect thereto. For a period of four (4)
years following the Closing, none of the Buyer, GWIC nor the Partnership will
dispose of, alter or destroy any such books, records or other data with respect
to the Partnership without giving thirty (30) days prior written notice to the
Seller and PCN in order to permit them, at their own expense, to examine or
duplicate such books, records or other data.
Section 11.3 WAIVER. Any failure of Seller or PCN to comply with any of its
obligations or agreements herein contained may be waived only in writing by
Buyer. Any failure of Buyer to comply with any of its obligations or agreements
herein contained may be waived only in writing by Seller or PCN.
Section 11.4 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon receipt of: hand
delivery; certified or registered mail, return receipt requested; by a
nationally recognized overnight courier service; or telecopy transmission with
confirmation of receipt:
If to Seller or PCN, to:
Physician Computer Network, Inc.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: President
(with a copy to)
Xxxxxx Xxxxxx Butowsky Xxxxxxx
Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxx Xxxxx, Esq.
If to Buyer to:
GW Acquisition Corp.
C/O Glaxo Wellcome Inc.
Five Xxxxx Drive
Research Xxxxxxxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Corporate Secretary
(with a copy to)
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Such names and addresses may be changed by written notice to each
person listed above.
Section 11.5 GOVERNING LAW AND CONSENT TO JURISDICTION. (a) This Agreement
shall be governed by and construed in accordance with the internal substantial
laws and not the choice of law rules of the State of New York, USA.
(b) Any judicial proceeding brought with respect to this Agreement must be
brought in any court of competent jurisdiction in the State of New York, and, by
execution and delivery of this Agreement, each party (i) accepts, generally and
unconditionally, the exclusive jurisdiction of such courts and any related
appellate court, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement and (ii) irrevocably waives any
objection it may now or hereafter have as to the venue of any such suit, action
or proceeding brought in such a court or that such court is an inconvenient
forum. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH THEY ARE BOTH PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
Section 11.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 11.7 HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 11.8 ENTIRE AGREEMENT. This Agreement, including the Exhibits and
Schedules hereto and the documents referred to herein, embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Section 11.9 AMENDMENT AND MODIFICATION. This Agreement may be amended or
modified only by written agreement of the parties hereto.
Section 11.10 BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns; nothing in this Agreement, express or implied, is
intended to confer on any Person other than the parties hereto and their
respective successors and assigns (and, to the extent provided in Sections 9.1
and 9.2, the other Buyer Indemnitees and Seller Indemnitees) any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
Section 11.11 ASSIGNABILITY. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other parties, provided,
however, that the Seller and/or PCN shall be entitled to assign their interests
in this Agreement, subsequent to the Closing, in connection with a sale of all
or substantially all of the assets of PCN to a third party.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
GW ACQUISITION CORP.
By:
Name:
Title:
PHYSICIAN COMPUTER NETWORK, INC.
By:
Name:
Title:
PCN HP VENTURE CORP.
By:
Name:
Title:
HEALTHMATICS G.P.
PCN HP VENTURE CORP.
By:
Name:
Title:
GW INVESTMENT CORP.
By:
Name:
Title:
Agreed to and Acknowledged
as to Sections 6.8 and 11.2:
GW INVESTMENT CORP.
By:
Name:
Title:
Agreed to and Acknowledged
as to Section 6.8:
GLAXO WELLCOME INC.
By:
Name:
Title:
SCHEDULE 2.3
RESIGNATIONS
The resignations of each of Xxxxx Xxxxx and Xxxxxx Xxxxx as members of
the Management Committee of HealthMatics, G.P.
SCHEDULE 4.2
ENCUMBRANCES
Fleet Bank, N.A., as the administrative agent, pursuant to a Guarantee
and Collateral Agreement among certain subsidiaries of Physician Computer
Network, Inc. ("PCN") in favor of Fleet Bank, N.A., as the administrative agent
for the lenders, dated September 10, 1997 ("Lenders Guarantee and Collateral
Agreement"), as modified by the Forbearance and Amendment Agreement among PCN,
the subsidiaries party thereto, Fleet Bank, N.A., as the administrative agent,
and the lenders party thereto, dated April 22, 1998, as further modified by the
Second Forbearance and Amendment Agreement among PCN, the subsidiaries party
thereto, Fleet Bank, N.A., as the administrative agent, and the lenders party
thereto, dated as of the date hereof, shall provide Buyer with evidence of the
release of the following liens prior to or at the Closing:
UCC-1 Financing Statements in favor of Fleet Bank, N.A., as
administrative agent, filed with:
Secretary of State: Delaware
Secretary of State: New Jersey
County Clerk: Xxxxxx County, New Jersey
Xxxxxxx & Marsal Inc., as agent, pursuant to a Guarantee and collateral
Agreement among certain subsidiaries of PCN in favor of Xxxxxxx & Marsal, Inc.,
as agent for the lenders, dated July 22, 1998 (the "Guarantee and Collateral
Agreement"), shall provide Buyer with evidence of the release of the following
liens prior to or at the Closing:
UCC-1 Financing Statements in favor of Xxxxxxx & Marsal, Inc., as
agent, filed with:
Secretary of State: Delaware
Secretary of State: New Jersey
County Clerk: Xxxxxx County, New Jersey
SCHEDULE 4.3
NO VIOLATIONS- SELLER
The consent of Fleet Bank, N.A., as the administrative agent, is
required pursuant to the Lenders Guarantee and Collateral Agreement, dated
September 10, 1997 and shall be provided to Buyer prior to or at the Closing.
The consent of Xxxxxxx & Marsal, Inc., as agent, is required pursuant
to the Guarantee and Collateral Agreement, dated July 22, 1998 and shall be
provided to Buyer prior to or at the Closing.
SCHEDULE 4.4
LIST OF LITIGATION
None
SCHEDULE 4.9
NO LENDERS
Fleet Bank, N.A., as the administrative agent, pursuant to a Guarantee
and Collateral Agreement among certain subsidiaries of Physician Computer
Network, Inc. ("PCN") in favor of Fleet Bank, N.A., as the administrative agent
for the lenders, dated September 10, 1997 ("Lenders Guarantee and Collateral
Agreement"), as modified by the Forbearance and Amendment Agreement among PCN,
the subsidiaries party thereto, Fleet Bank, N.A., as the administrative agent,
and the lenders party thereto, dated April 22, 1998, as further modified by the
Second Forbearance and Amendment Agreement among PCN, the subsidiaries party
thereto, Fleet Bank, N.A., as the administrative agent, and the lenders party
thereto, dated as of the date hereof.
SCHEDULE 5.3
NO VIOLATIONS- BUYER
None
SCHEDULE 7.5
EMPLOYMENT AGREEMENTS
Mr. Xxxx Xxxxx shall have executed and delivered his Employment Agreement
with the Partnership to the Buyer prior to or at the Closing.
SCHEDULE 7.12
CERTAIN PAYMENTS
PCN HP Capital Contributions $183,000.00
Accounts Payable to HM for product licenses $197,896.75
===========
(as of November 24, 1998)
Total $380,896.75
SCHEDULE 8.5
TERMINATION LETTER
December 4, 1998
Physician Computer Network, Inc.
PCN HP Venture Corp.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Attention: President
Re: TERMINATION OF TRANSACTION AGREEMENT
Dear Gentlemen:
Reference is hereby made to the Partnership Interest Purchase Agreement,
dated December 4, 1998, by and among HealthMatics G.P., Physician Computer
Network, Inc. ("PCN"), PCN HP Venture Corp. ("Seller") and GW Acquisition Corp.
(the "Agreement").
This letter is delivered in satisfaction of the condition to Seller's and
PCN's obligations under the Agreement. The undersigned hereby agrees to the
termination of the Transaction Agreement (as defined in the Agreement) as of the
Closing (as defined in the Agreement).
Very truly yours,
GLAXO WELLCOME INC.
By: _____________________
Name:
Title:
