AHN PARTNERS, L.P.
ADMISSION AGREEMENT
ADMISSION AGREEMENT, dated as of April __, 1996, by and between
ACCESS HEALTH, INC., a Delaware corporation (the "Subscriber"), and AHN
PARTNERS, L.P., a Delaware limited partnership (the "Company") of which
AMERICA'S HEALTH NETWORK, L.L.C., a Delaware limited liability company
(the "General Partner"), is the sole general partner.
1. AGREEMENT TO SUBSCRIBE.
(a) The Subscriber hereby subscribes for and agrees to purchase,
[X] as a Class A Partner, or
[ ] as a Class B Partner,
(i) the interest in the Company (the "First Closing Partnership
Interest") set forth opposite the name of the Subscriber on the
signature page to this Admission Agreement (expressed in terms of a
percentage representing the Post Recoupment Percentage Interest (as
defined in the Partnership Agreement [as defined below] to be owned by
the Subscriber subject to the terms and conditions of the Partnership
Agreement), and the Company hereby agrees to issue and sell such
Percentage Interests to the Subscriber, on the terms set forth herein,
for the purchase price (the "First Closing Purchase Price") equal to
the dollar amount set forth as such opposite the name of the Subscriber
on the signature page to this Admission Agreement; and
(ii) the interest in the Company (the "Second Closing Partnership
Interest"), if any, set forth opposite the name of the Subscriber on
the signature page to this Admission Agreement (also expressed in terms
of a percentage representing the Post Recoupment Percentage Interest to
be owned by the Subscriber subject to the terms and conditions of the
Partnership Agreement), and the Company hereby agrees to issue and sell
the Second Closing Partnership Interest to the Subscriber, on the terms
set forth herein, for the purchase price (the "Second Closing Purchase
Price") equal to the dollar amount set forth as such opposite the name
of the Subscriber on the signature page to this Admission Agreement.
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The Subscriber acknowledges that the First Closing Partnership Interest shall be
subject to dilution from the sale of the Second Closing Partnership Interest to
the Subscriber, if any, and from sales of interests in the Company to other
subscribers contemporaneously with the Second Closing (as defined in
Section 1(c)).
(b) The First Closing Partnership Interest and the Second Closing
Partnership Interest are collectively referred to in this Agreement as the
"Partnership Interest." The First Closing Purchase Price shall be payable to
the following account, which shall be a separate, segregated account (the
"Escrow Account") maintained by Xxxxx & Company Incorporated in its capacity
as escrow agent (the "Escrow Agent"):
To: Chemical Bank
ABA# 000000000
Account Name: XXXXX & COMPANY INCORPORATED
A/C No.: 000-000-000
The Subscriber agrees and acknowledges that Xxxxx shall have full discretion to
invest the funds in Dreyfus Treasury Prime Cash Management (the "Fund"), which
is a money market fund investing in securities issued and guaranteed as to
principal and interest by the U.S. Government, including U.S. Treasury
Securities.
If and to the extent that (i) on or prior to the date hereof PJHP (as defined in
the Partnership Agreement) or any Affiliate (as defined in the Partnership
Agreement) of PJHP (collectively, "PJHP") delivers to the Company a fully
executed Admission Agreement in the form of this Agreement (other than with
respect to the information set forth on Schedule A hereto), pursuant to which
PJHP has agreed to subscribe for a First Closing Partnership Interest of [ ]%
for a First Closing Purchase Price of $[ ] and a Second Closing
Partnership Interest of [ ]% for a Second Closing Purchase Price of
$[ ] (in each subject to the receipt of consent from its board of
directors) and (ii) on or prior to May 15, 1996 PJHP pays the First Closing
Purchase Price for its First Closing Partnership Interest by cancelling all
of obligations for borrowed money due PJHP from the Company and the balance of
such price by cash, then the First Closing Purchase Price paid by the Subscriber
into the Escrow Account and any Affiliate will be paid to the Company. In all
other cases, the Company will cause the First Closing Purchase Price paid by the
Subscriber to be returned to the Subscriber promptly after May 15, 1996,
together with all interest earned therein at the rate paid by the Fund to an
account to be designated in writing by the Subscriber, in which case all
transactions occurring at the First Closing shall automatically be fully
rescinded and shall be of no further force or effect with respect to either
the Company or the Subscriber. The Second Closing Purchase Price shall be
payable by wire transfer of immediately available funds to the following bank
account of the Company:
To: SunTrust Bank, Central Florida, N.A.
000 Xxxxx Xxxxxx Xxxxxx
[ ] = Confidential Treatment Requested
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Xxxxxxx, XX 00000
000-000-0000
ABA# 000000000
For Benefit of:
AHN Partners, L.P.
0000 Xxxxxxxxx Xxxxxxx Xxxxx X-00X
Xxxxxxx, XX 00000-0000
Account No: 0215-252-137-195
(c) The Escrow Agent's obligations and duties in connection herewith are
confined to those specifically stated in this Agreement. The Escrow Agent shall
not be in any manner liable or responsible for the sufficiency, correctness,
genuineness or validity of any instruments deposited with it or with reference
to the form of execution thereof, or the identity, authority or rights of any
person executing or depositing same. The Escrow Agent shall not be liable for
any loss which may occur, except for its own gross negligence or willful
misconduct. The Company and the Subscriber hereby agree to jointly indemnify
the Escrow Agent for, and to hold it harmless against any loss, liability or
expense arising out of or in connection with this Agreement and carrying out
its duties hereunder, including the costs and expenses of defending itself
against any claim of liability, except in those cases where the Escrow Agent
has been guilty of gross negligence or willful misconduct. Anything in this
agreement to the contrary notwithstanding, in no event shall the Escrow Agent
be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(d) The closing of the purchase and the sale of the First Closing
Partnership Interest (the "First Closing") and the closing of the purchase and
the sale of the Second Closing Partnership Interest (the "Second Closing," and,
together with the First Closing, the "Closings") shall take place at the offices
of Xxxxxxxxxx & Xxxxx, a Professional Corporation, at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, counsel for the Company, or at such other place as may be
agreed upon by the Company, the Subscriber and each of the other persons (the
"Other Subscribers") whose names are set forth on Schedule A-1 to the
Partnership Agreement as persons who will become Class A Partners of the
Company. The First Closing shall take place on April 16, 1996, or other date
or other time, as may be agreed upon by the Company, the Subscriber and each of
the Other Subscribers. The Second Closing shall be held on January 6, 1997, or
other date or other time, as may be agreed upon by the Company, the Subscriber
and each of the Other Subscribers.
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2. ADOPTION OF THE PARTNERSHIP AGREEMENT.
The Subscriber hereby intends that its signature hereon shall constitute
an irrevocable subscription to the Company for the Partnership Interest as well
as the specific acceptance and adoption of each and every provision of that
certain Amended and Restated Limited Partnership Agreement, dated as of
April 3, 1996 (the "Partnership Agreement"), which Partnership Agreement is
incorporated herein and made a part hereof by reference, and hereby agrees to
be bound and governed by the provisions of the Partnership Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a material
inducement to the Subscriber to enter into and perform its obligations under
this Agreement, the Company hereby represents and warrants that, except as
disclosed in the Disclosure Schedule dated as of the date of this Agreement
and attached to this Agreement (the "Disclosure Schedule"):
(a) ORGANIZATION, STANDING, ETC. The Company is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite partnership power and authority to own
and operate its properties and to carry on its business and to enter into this
Agreement and issue the Partnership Interests. The Company has delivered to
the Subscriber a complete and correct copy of the Partnership Agreement. The
Company has no direct or indirect ownership interest (by way of stock ownership
or otherwise) in any other firm, corporation, association or business
enterprise.
(b) QUALIFICATION TO DO BUSINESS. The Company is duly qualified or
licensed and in good standing as a foreign corporation duly authorized to do
business in each jurisdiction wherein the ownership of its property or the
conduct of its business requires such qualification or license and where the
failure to be so qualified or licensed might have a material adverse effect on
the Company. The Company has all requisite power and authority to own and
operate its properties, to lease the properties it leases and to conduct its
business in the manner and in the jurisdictions where now conducted.
(c) CAPITALIZATION.
(i) After giving effect to the issuance of the all partnership
interests contemplated by the Partnership Agreement, the respective Post
Recoupment Percentage Interests of the Partners will be as set forth in
Schedule A-2 to the Partnership Agreement.
(ii) Except as set forth in Schedule A-2 to the Partnership
Agreement, the Company has neither granted or issued, nor agreed to grant or
issue, any option, warrant or other commitment to issue or to acquire any
partnership interest.
(d) FINANCIAL STATEMENTS. Incorporated as part of the Disclosure
Schedule is the unaudited consolidated balance sheet of the Company as of
March 31, 1996 (the "Balance
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Sheet"). The Balance Sheet (i) was compiled from the books and records of the
Company regularly maintained by management and used to prepare the financial
statements of the Company prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied with prior periods; and
(ii) present fairly the financial position of the Company at March 31, 1996 in
accordance with GAAP.
(e) ABSENCE OF UNDISCLOSED LIABILITIES. Except for liabilities which
are set forth in the Balance Sheet which have arisen in the ordinary course of
business in amounts usual and normal, both individually and in the aggregate,
for the Company (none of which are liabilities for breach of contract, breach
of warranty, torts, infringements, claims or lawsuits), the Company has no
material obligations or liabilities (whether accrued, absolute, contingent,
unliquidated, or otherwise, whether due or to become due) arising out of
actions, inactions or transactions entered into or any state of facts existing
at or prior to the date hereof, including without limitation any liabilities
for federal state or local taxes arising from the dissolution of America's
Health Network, Inc.
(f) NO VIOLATION. The performance by the Company and the General
Partner of their respective obligations hereunder and the consummation of the
transactions contemplated hereby will not (i) violate, conflict with or result
in a breach of any provision of the Partnership Agreement; (ii) violate, or be
in conflict with, or constitute a default (with or without due notice or lapse
of time or both) under, or permit the termination of, or cause the acceleration
of the maturity of any debt or obligation of the Company under, require the
consent of any other party to, constitute a breach of, create a loss of a
material benefit under, or result in the creation or imposition of any lien
upon any property or assets of the Company or the General Partner under, any
mortgage, indenture, lease, agreement or other instrument to which the Company
or the General Partner is a party or by which the Company or the General
Partner or the assets thereof, may be bound; (iii) violate any statute or law
or violate any judgment, decree, order, regulation or rule of any court or
governmental authority to which the Company or the General Partner is subject;
or (iv) violate any contract, agreement or commitment to which the Company or
the General Partner is bound.
(g) NO MATERIAL ADVERSE CHANGE. Since December 31, 1995, neither the
business, operations, property nor affairs of the Company have been materially
adversely affected by any occurrence or development, whether or not insured
against, and the Company has no knowledge of any threatened occurrence or
development which would, individually or in the aggregate, materially adversely
affect its properties or assets, its business, operations or affairs.
(h) VALIDITY OF THIS AGREEMENT. The execution, delivery and performance
by the Company of this Agreement, and the consummation of the transactions
contemplated hereby have been duly authorized and approved by all necessary
corporate actions. The
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execution and delivery of this Agreement will not violate any provision of law
and will not conflict with, or result in a breach of any of the terms of, or
constitute a default under any agreement, instrument or other restriction to
which the Company is a party or by which it is bound.
(i) CONSENTS. No consent, approval or authorization of or designation,
declaration or filing with any other person, including without limitation any
governmental authority, on the part of the Company is required in connection
with the valid execution, delivery or performance of this Agreement or the
consummation of any transaction contemplated hereby.
(j) TITLE TO PROPERTIES; ENCUMBRANCES. The Company has good and
marketable title to all of its properties and assets (tangible and intangible),
subject to no Liens (as defined below) other than the following:
(i) the Company's leases of its office and production
facilities;
(ii) the Company's license of intangible rights from IVI
Publishing, Inc. pursuant to the License Agreement, dated May 25, 1995 and other
license agreements entered into in the ordinary course of its business;
(iii) deposits under worker's compensation, unemployment
insurance and similar laws or secure statutory obligations; and
(iv) Liens created in conjunction with equipment leases to
secure the lease obligation created thereby.
As used herein, "Liens" shall mean any mortgage, pledge, security interest,
conditional sale or other title retention agreement, encumbrance, lien,
easement, claim, right, covenant, restriction, right of way, warrant, option
or charge of any kind.
(k) CONTRACTS AND COMMITMENTS. The Disclosure Schedule contains a
complete list (stated without duplication) of all contracts and commitments of
the Company which are material to the operations, business or financial
condition of the Company (the "Material Contracts") and which will be
enforceable against the Company after the Effective Date (other than agreements
with physician/hosts paid at an annual rate of $100,000 or less). The Material
Contracts are valid and binding and in full force and effect and there does
not exist any default by the Company, or, to the Company's best knowledge, by
any other party thereto, or event which with notice or lapse of time or both
would constitute a default by the Company, or, to the Company's best knowledge,
by any other party thereto, under a Material Contract which default would allow
the termination thereof.
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(l) LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the Company, threatened in any
court or before any governmental agency or instrumentality against or affecting
the Company or the business, operations, financial condition or properties or
assets of the Company, or which would prevent the carrying out of this
Agreement of the Partnership Agreement, or any of the transactions
contemplated hereby or thereby, or declare the same unlawful or cause the
rescission hereof. The Company has not been charged with, nor to its
knowledge, is it threatened with or under an investigation with respect to, any
charge concerning any violation of any provision of any federal, state or local
law, regulation, ordinance, order or administrative ruling, nor is the Company
in default with respect to any order, writ, injunction or decree of any court,
governmental agency or instrumentality.
(m) SECURITIES LAWS. The sale of the Securities, as provided in this
Agreement, is exempt from the registration and prospectus delivery requirement
of the Securities Act of 1933, as amended (the "Securities Act"), and is
registered or qualified (or is exempt from registration or qualification) under
the registration or qualification requirements of all applicable state
securities laws. Neither the Company nor anyone acting on its behalf will
take any action hereafter that would cause the loss of such exemption.
(n) DISCLOSURE. None of this Agreement, the Disclosure Schedule, the
Memorandum and the Forecast (Memorandum and Forecast being defined in
Section 4.1) nor any certificate or other instrument referred to herein or
otherwise furnished to the Subscriber by the Company contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein, in the light of the
circumstances under which they were made, not misleading. There is no fact
known to the Company relating to the business, affairs, operations, condition
or prospects of the Company which materially adversely affects the same and
which has not been disclosed to the Subscriber by the Company.
4. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER.
The Subscriber acknowledges that the Partnership Interest is offered
pursuant to an exemption from registration under the Securities Act. In
connection therewith the Subscriber makes the following representations,
warranties and acknowledgements, realizing that they are being relied upon by
the Company for purposes of determining the Subscriber's suitability as an
investor in the Company and compliance by the Company with applicable
Federal and state securities laws and regulations:
(a) The Subscriber has read the Confidential Private Placement
Memorandum entitled "America's Health Network, G.P." and dated August 1995,
together with the supplement thereto dated March 18, 1996 (as so amended, the
"Memorandum") and the
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Forecast Financial Statements of AHN Partners, L.P. (together with assumptions)
dated March 29, 1996 (the "Forecast"). The Subscriber has such knowledge and
expertise in financial and business matters that the Subscriber is capable of
evaluating the merits and risks of an investment in the Partnership Interest and
the Subscriber is able to bear the economic risk of investment in the Company
Interest and the complete loss of the Subscriber's investment.
(b) The Subscriber has received and read or reviewed and is familiar
with the Partnership Agreement and such other documents which relate to its
subscription for the Partnership Interest, and the Subscriber confirms that all
documents, agreements, records and books pertaining to the investment in the
Company and requested by the Subscriber have been made available or delivered to
the Subscriber.
(c) The Subscriber has obtained, to the extent the Subscriber has
deemed necessary, the Subscriber's own personal professional advice with respect
to the risks inherent in investment in the Partnership Interest, the suitability
of such investment in light of the Subscriber's financial condition and
investment needs, and legal, tax and accounting matters.
(d) In connection with the Subscriber's acquisition of the Partnership
Interest, the Subscriber has been afforded the opportunity to ask questions of
and receive answers from representatives of the General Partner and from persons
authorized to act on the Company's behalf concerning (i) the terms and
conditions of this investment, and (ii) the Company and its operations. In
addition, the Subscriber has been afforded the opportunity to obtain any
additional information which the Company possesses or could acquire without
unreasonable effort or expense which the Subscriber requires in order to verify
the accuracy of the information provided by the Company.
(e) The Subscriber understands that future operating results of the
Company are subject to events over which the Company will have only partial or
no control and to various uncertainties inherent in the Company's activities.
No representation has been made or could be made as to the amount of future
profits or losses of the Company.
(f) The Subscriber has adequate means of providing for its current
needs and possible business contingencies, has no need for liquidity of
investment in the Partnership Interest and has no reason to anticipate any
change in business circumstances, financial or otherwise, which may cause or
require any sale or distribution of the Partnership Interest.
(g) The Subscriber understands that investment in the Company is an
illiquid investment. In particular, the Subscriber recognizes that:
(i) The Subscriber must bear the economic risk of
investment in the Partnership Interest for an indefinite period of time, since
the Partnership Interest has not been registered under the Securities Act, and,
therefore, cannot be sold unless either it is
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subsequently registered under the Securities Act or an exemption from such
registration is available and a favorable opinion of counsel for the Partnership
to that effect is obtained (if requested by the General Partner);
(ii) The Subscriber will not have the right to require
registration of the Partnership Interest under the Securities Act and will not
be entitled to the benefits of Rule 144 thereunder, and
(iii) No established market for the Partnership Interest
will exist and it is extremely unlikely that any public market for the
Partnership Interest will develop.
(h) The Subscriber represents that the Partnership Interest is being
purchased by it or for its own account, for purposes of investment and not for
the account of any other person and not for distribution, assignment or resale
to others, and no other person has a direct or beneficial interest in the
Partnership Interest. The Subscriber understands and acknowledges that the
Partnership Interest has not been registered under the Securities Act or under
state laws.
(i) The Subscriber, if a corporation, partnership, trust or other
entity, is authorized and otherwise duly qualified to purchase and hold the
Partnership Interest and to enter into this Admission Agreement.
(j) All information which the Subscriber has provided to the Company
concerning the Subscriber's financial position and knowledge of financial and
business matters, or, in the case of a corporation, partnership, trust or other
entity, concerning the knowledge of financial and business matters of the
person(s) making the investment decision on behalf of such entity, is correct
and complete as of the date set forth on the signature page hereof, and if
there should be any adverse change in such information prior to his, her, or its
subscription being accepted, he, she, or it will immediately provide the Company
with such information.
(k) The Subscriber acknowledges and is aware that the Company has no
financial operating history; this is the Company's first venture; and the
Partnership Interest involves a high degree of risk of loss by the Subscriber of
its entire investment in the Company.
(l) The Subscriber is an "accredited investor" as defined in Rule 501
under the Securities Act, inasmuch as the Subscriber is:
(Please initial all applicable descriptions)
____ An entity with total assets at the time of purchase in excess of
$5,000,000, which was not formed for the purpose of investing in
the Company and which is one or more of the following:
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_______ corporation;
_______ partnership;
_______ limited liability company; or
_______ a tax-exempt organization as described in
Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
____ A personal (non-business) trust with total assets in excess of
$5,000,000, which was not formed for the purpose of investing in
the Company and whose decision to invest in the Company has been
directed by a person who has such knowledge and experience in
financial and business matters that he is capable of evaluating
the merits and risks of the investment.
____ Licensed, or subject to supervision, by U.S. Federal or state
examining authorities as a "bank," "savings and loan association,"
"insurance company" or "small business investment company" (as
such terms are used and defined in 17 CFR SECTION 230.501(a)).
____ Registered with the U.S. Securities and Exchange Commission (the
"Commission") as a broker or dealer or an investment company, or
has elected to be treated or qualifies as a "business development
company" (within the meaning of Section 2(a)(48) of the Investment
Company Act of 1940 or Section 202(a)(22) of the Investment
Advisers Act of 1940).
____ Any other entity in which all of the equity owners are persons
described above.
5. CONDITIONS OF THE SUBSCRIBER'S OBLIGATIONS.
(a) CONDITIONS TO BE MET AT THE FIRST CLOSING. The Subscriber's
obligations to purchase the First Closing Partnership Interest and pay the First
Closing Purchase Price therefor are subject to the fulfillment to its reasonable
satisfaction of the following conditions:
(i) The representations and warranties of the Company made in
writing by or on behalf of the Company in connection with the transactions
contemplated hereby shall be true and correct at and as of the date of the First
Closing (the "First Closing Date").
(ii) Each of the other persons (the "Other Subscribers") whose
names are set forth on Schedule A to the Partnership Agreement as persons who
will become Class A Partners of the Company (other than PJHP) has entered into
a Subscription Agreement with the Company substantially in the form of this
Agreement and each of the Other Partners (other
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than PJHP) has paid the First Closing Purchase Price pursuant to the terms and
conditions of such Subscription Agreement. PJHP has entered into a Subscription
Agreement with the Company substantially in the form of this Agreement, except
that its obligations shall be subject to the receipt of consent from its board
of directors to the transactions contemplated thereby and which agreement shall
terminate if such consent shall not have been received by May 15, 1996.
(iii) The Subscriber and the Company shall have entered into that
certain joint venture agreement, substantially in the form of Schedule II
annexed hereto.
(iv) The Subscriber and PJHP have entered into the Partnership
Interest Option Agreement pursuant to which PJHP has granted the Subscriber the
right to require a 4.00% Post Recoupment Percentage Interest from PJHP on the
terms and conditions set forth therein.
(v) The Subscriber shall have received a certificate executed by the
President of the Company, dated as of the Closing Date, certifying that the
conditions specified in clauses (i) through (ii) of this Section 5(a) have been
fulfilled.
(vi) All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory in substance and form to the
Subscriber, and Subscriber shall have received all such counterpart originals or
certified or other copies of the Partnership Agreement and this Agreement as the
Subscriber may reasonably request.
(b) CONDITIONS TO BE MET AT THE SECOND CLOSING. The Subscriber's
obligations to purchase the Second Closing Partnership Interest and pay the
Second Closing Purchase Price therefor are subject to the fulfillment to its
reasonable satisfaction of the following conditions:
(i) The representations and warranties of the Company made in
writing by or on behalf of the Company in connection with the transactions
contemplated hereby shall be true and correct at and as of the date of the
Second Closing (the "Second Closing Date").
[
]
[ ] = Confidential Treatment Requested
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[
]
[ ] = Confidential Treatment Requested
12
[
]
(vi) PJHP has performed each of the obligations to be performed by
it at the Second Closing.
(vii) The Subscriber shall have received a certificate executed by
the President of the Company, dated as of the Closing Date, certifying that the
conditions specified in clauses (i) through (v) of this Section 5(b) have been
fulfilled.
(viii) All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory in substance and form to
the Subscriber.
(c) Any failure on the part of any Subscriber to pay any portion of the
First Closing Purchase Price or the Second Closing Purchase Price when due
shall render the Subscriber a "Delinquent Partner" under Section 4.2 of the
Partnership Agreement and shall enable the Company and its Partners to employ
the rights and remedies set forth therein, without limiting such additional
rights or remedies as the Company or its Partners may have at law or in equity.
6. SUBSCRIBER'S INDEMNIFICATION.
(a) The Subscriber acknowledges that the Company will rely upon the
representations, warranties and agreements of the Subscriber set forth in
Section 4, each of which shall survive after the date of the Subscriber's
execution and delivery of this Agreement. The Subscriber agrees to hold
harmless and indemnify the Company and the General Partner and its officers,
directors and stockholders and any other person who may be deemed to control
the General Partner from and against all liabilities, damages, losses, costs
and expenses (including reasonable attorneys' fees) which it may incur by
reason of the failure of the Subscriber to fulfill any of the terms or
conditions of this Admission Agreement, or by reason of any inaccuracy or
breach of the representations and warranties and agreements made by the
Subscriber in Section 4 or in connection with the Partnership Interest in any
manner whatsoever.
(b) The Company acknowledges that the Subscriber will rely upon the
representations, warranties and agreements of the Company set forth in
Section 3, each of which shall survive after the date of the Subscriber's
execution and delivery of this Agreement.
[ ] = Confidential Treatment Requested
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The Company agrees to hold harmless and indemnify the Subscriber from and
against all liabilities, damages, losses, costs and expenses (including
reasonable attorneys' fees) which it may incur by reason of the failure of the
Company to fulfill any of the terms or conditions of this Admission Agreement,
or by reason of any inaccuracy or breach of the representations and warranties
and agreements made by the Company in Section 3 or in connection with the
Partnership Interest in any manner whatsoever.
7. MISCELLANEOUS.
(a) The Subscriber agrees that this Admission Agreement shall be binding
upon the Subscriber's permitted successors and assigns. Notwithstanding the
foregoing, the Subscriber may not assign this Admission Agreement without the
prior written consent of the Company.
(b) Notwithstanding any of the representations, war ranties,
acknowledgements or agreements made herein by the Subscriber, the Subscriber
does not thereby or in any other manner waive any rights granted to the
Subscriber under United States or other applicable securities laws.
(c) This Admission Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by such parties.
(d) This Admission Agreement shall be enforced, governed and construed
(both as to validity and performance) in all respects in accordance with the
laws of the State of Delaware applicable to agreements made and to be performed
wholly in the State of Delaware.
(e) Within five days after receipt of a written request from the
Company, the Subscriber will provide such information, to execute and deliver
such documents and to take, or forbear from taking, such actions as reasonably
may be necessary to comply with any and all laws and ordinances to which the
Company is subject.
(f) All notices sent hereunder shall be in writing. If sent to the
Company, such notices shall be addressed to the Company at its address in the
Partnership Agreement. If sent to the Subscriber, such notices shall be
addressed to the Subscriber at the address (including telecopier number) set
forth below opposite its name.
(g) The Subscriber and the Company agree that any legal suit, action or
proceeding arising out of or relating to this Agreement may be instituted in a
state, city or federal court in the State of New York; PROVIDED, that the
Company may bring suit in the
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courts of any country or place where the Subscriber or any of its assets may be
found and, by execution and delivery of this Agreement, the Subscriber
irrevocably submits to such jurisdiction. To the extent permitted by law, the
Subscriber irrevocably waives trial by jury and any objection which it may now
or hereafter have to the venue of any suit, action or proceeding, arising out
of or relating to the Partnership Agreement or this Agreement brought in the
State of New York and to the extent permitted by law hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in the State
of New York has been brought in an inconvenient forum. If any agent appointed
by the Subscriber refuses to accept service, the Subscriber agrees that service
upon it by certified mail return receipt requested sent to the address
specified by the Subscriber below shall constitute sufficient notice. Nothing
herein shall affect the right to serve process in any other manner permitted by
law orshall limit the right of the Company to bring proceeding against the
Subscriber in the courtsof any other jurisdiction.
(h) If the Subscriber defaults in the performance of any of its
obligations under this Agreement, the Company shall have all rights and remedies
provided at law and equity. All costs and expenses of collection, including
attorneys' fees, shall be added to and become part of the obligations of the
Subscriber under this Agreement.
(i) This Admission Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each party hereto has caused this Admission Agreement to
be duly executed on the date indicated beneath its name.
AHN PARTNERS, L.P., a Delaware
limited partnership
By: America's Health Network, LLC,
General Partner
By:_____________________________
Name:
Title: Manager
ACCESS HEALTH, INC.
By:_____________________________
Name:
Title:
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Name and Address of Subscriber:
Access Health, Inc.
00000 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
First Closing Partnership
Interest (expressed as
Post Recoupment Percentage
Interest): [ ]% Purchase Price: $[ ]
Second Closing Partnership
Interest (expressed as
Post Recoupment Percentage
Interest): [ ]% Purchase Price: $[ ]
[ ] = Confidential Treatment Requested
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DISCLOSURE SCHEDULE
Material Contracts of the Company are as follows:
1. Letter Agreement, dated as of May 25, 1995, between America's Health
Network, Inc. ("AHN, Inc.") and IVI Publishing, Inc.
2. Agreement, dated as of June 8, 1995, between AHN, Inc. and Mayo
Foundation for Medical Education and Research.
3. Business Center Lease, dated June 30, 1995, between AHN, Inc. and
Universal City Florida Partners ("Universal City").
4. Consulting Agreement, dated as of July 1, 1995, between AHN, Inc. and
The Providence Journal Broadcasting Corp.
5. Sublease Agreement, dated as of August 1, 1995, between AHN, Inc. and
Providence Journal Satellite Services, Inc.
6. Telemarketing and Fulfillment Services Agreement, executed on June 20,
1995 and June 28, 1995, between AHN, Inc. and National Call Center, Inc.
7. Fiber Optics Service Agreement, dated February 29, 1996, between AHN,
Inc. and Triumph Communications, Inc. ("Triumph").
The Company is seeking the consent of Xxxxxx Communications Galaxy, Inc.
("Xxxxxx") to the assignment of the Sublease Agreement pursuant to which AHN
Inc. subleased a transmission signal from Providence Journal Satellite Services,
Inc.
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