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Exhibit 2.1
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of November
17, 1998, is by and between The Presbyterian Foundation for Philadelphia, Inc.,
a Pennsylvania non-profit corporation ("SELLER"), and Match, Inc., a Texas
corporation ("PURCHASER").
RECITALS:
WHEREAS, Seller beneficially owns five hundred thirty-three thousand
three hundred thirty-three shares of Series A Senior Convertible Preferred Stock
(the "PREFERRED STOCK") of Iatros Health Network, Inc. ("IATROS"), which were
issued to Seller pursuant to the terms and conditions of that certain Securities
Purchase Agreement dated as of July 25, 1994, by and between Seller and Iatros,
a copy of which is attached hereto as Exhibit A; and
WHEREAS, Seller desires to sell, and Purchaser desire to purchase, all
of the Preferred Stock (which, for purposes of this Agreement, shall be referred
to collectively as the "SHARES") in accordance with the terms and conditions of
this 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:
ARTICLE I
SALE AND TRANSFER OF SHARES; CLOSING
1.1 Shares. Subject to the terms and conditions of this Agreement,
Seller will sell and transfer the Shares to Purchaser, and Purchaser will
purchase the Shares from Seller.
1.2 Purchase Price. The purchase price (the "PURCHASE PRICE") for the
Shares will be One Million Dollars ($1,000,000.00).
1.3 Closing. The purchase and sale (the "CLOSING") provided for in this
Agreement shall take place upon the execution and delivery of this Agreement by
the parties.
1.4 Deliveries. At Closing:
(a) Seller shall execute the Stock Pledge Agreement in
the form of Exhibit B hereto (the "Stock Pledge Agreement"), under which Seller
will agree to hold the Shares and deliver to Purchaser certificates representing
the Shares, duly endorsed (or accompanied by duly executed stock powers), for
transfer to Purchaser upon payment by Purchaser of the Note (as hereinafter
defined).
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(b) Purchaser shall deliver to Seller:
(i) Two Hundred Thousand Dollars ($200,000.00) by
bank cashier's or certified check payable to the order of, or by wire transfer
to accounts specified by, Seller;
(ii) a non-recourse promissory note payable to Seller
in the principal amount of Eight Hundred Thousand Dollars ($800,000.00) in the
form of Exhibit C hereto (the "Note"); and
(iii) a copy of the Stock Pledge Agreement executed by
Purchaser.
1.5 Further Assurances. Seller shall, from time to time after the date
hereof, as and when required by Purchaser, or by Purchaser's successors or
assigns, execute and deliver on behalf of Purchaser such stock powers and other
instruments, and there shall be taken or caused to be taken all such further and
other action, as shall be appropriate, advisable or necessary, in order to vest,
perfect or confirm, of record or otherwise, in Purchaser all right and title to,
and possession of, the Shares and to otherwise carry out the purposes of this
Agreement, subject, however, to the terms of the Stock Pledge Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 Organization and Good Standing; Authority; No Conflict. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Pennsylvania. Seller has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Seller and constitutes the legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
2.2 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 Seller is a party or by which it is bound, (ii) the Certificate of
Incorporation, Bylaws or similar organizational documents of Seller, (iii) any
judgment, decree, order or award of any court, governmental body or arbitrator
by which Seller is bound, or (iv) any law, rule or regulation applicable to
Seller.
2.3 No Legal Bar. Seller is not prohibited by any order, writ,
injunction or decree of any body of competent jurisdiction from consummating the
transactions contemplated by this
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Agreement and all other agreements referenced herein, and no action or
proceeding is pending against Seller 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.
2.4 Title; Possession. Seller has good and marketable title to the
Shares being transferred hereby and there are no security interests, liens or
other encumbrances whatsoever with respect thereto. Seller has possession of the
certificates representing the Shares being transferred hereby.
2.5 No Brokerage Fees. Seller has not dealt with, nor is obligated to
make any payment to, any finder, broker, investment banker or financial advisor
in connection with any of the transactions contemplated by this Agreement or the
negotiations looking toward the consummation of such transactions, other than
brokerage fees, if any, which may be payable by Seller to X.X. Xxxx & Co., Inc.,
for which Seller shall solely responsible.
2.6 Dividends in Arrears. Iatros has not made any payment of dividends
to Purchaser or any of its affiliates on the Shares since the issuance thereof,
and neither Purchaser nor any affiliate of Purchaser has taken any action to
appoint any members to the Iatros Board of Directors.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, SELLER IS NOT MAKING ANY REPRESENTATIONS OR
WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SHARES OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 Organization and Good Standing; Authority; No Conflict. Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Texas. Purchaser has all requisite corporate power and
authority to enter into this Agreement, the Note and the Stock Pledge Agreement
(the "Transaction Documents") and to consummate the transactions contemplated
hereby. The Transaction Documents have been duly authorized, executed and
delivered by Purchaser and constitute the legal, valid and binding obligations
of Purchaser, enforceable against Purchaser in accordance with their terms.
3.2 Transaction Documents Not in Breach of Other Instruments. The
execution and delivery of the Transaction Documents, 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
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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.
3.3 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 the Transaction Documents and all other agreements
referenced herein, and no action or proceeding is pending against Purchaser
which questions the validity of the Transaction Documents 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.
3.4 No Brokerage Fees. Purchaser has not dealt with, nor is obligated to
make any payment to, any finder, broker, investment banker or financial advisor
in connection with any of the transactions contemplated by this Agreement or the
negotiations looking toward the consummation of such transactions.
3.5 Shareholder, Director and Officer. Xxxxxx X. Xxxx owns all of the
issued and outstanding shares of Purchaser, and is the sole director and officer
of Purchaser.
3.6 Purchaser's Investigation and Experience. Purchaser acknowledges
that Seller is making no representations or warranties whatsoever with respect
to the value of the Shares or the rights provided by the Shares to a holder
thereof. Purchaser has undertaken any and all investigation with respect to
Iatros and the Shares which Purchaser deems necessary or desirable with respect
to the transactions contemplated by the Transaction Documents and is relying
solely on its own investigation as to the value of the Shares and the risks of
ownership thereof. Purchaser and its shareholder have substantial experience in
investments comparable to an investment in the Shares, have the resources
necessary and appropriate to assume the risks of an investment in the Shares and
to protect their interests therein, and have been advised by legal counsel with
respect to the transactions contemplated by the Transaction Documents.
3.7 Investment Intent. Purchaser is acquiring the Shares for its own
account and not on behalf of any other person. Purchaser is acquiring the Shares
for investment and not with a view to distribution or with the intent to divide
its participation with others by reselling or otherwise distributing the Shares.
Purchaser understands that the Shares are being sold hereunder without
registration under the Securities Act of 1933, as amended (the "1933 Act"), and
any applicable state securities laws, by reason of their issuance in a
transaction exempt from the registration requirements of the 1933 Act and such
state laws, and that they must be held indefinitely unless they are subsequently
registered under the 1933 Act and such state laws, or
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such subsequent disposition thereof is exempt from registration. Purchaser is an
"accredited investor" within the meaning of Rule 501, promulgated under the 1933
Act.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification by Seller. Seller hereby agrees to indemnify
and hold Purchaser 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 Purchaser arising
out of any inaccuracy in or breach of any of Seller's representations and
warranties set forth in Article 2 of this Agreement.
4.2 Indemnification by Purchaser. Purchaser hereby agrees to
indemnify and hold Seller 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
representations and warranties set forth in Article 3 of this Agreement.
4.3 Claims Process. As soon as is reasonably practicable after
Purchaser or Seller becomes aware of any claim that it has which is covered
under this Article 4, Purchaser 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 4, 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). Any such settlement shall include a complete and unconditional
release of the Indemnified Party from the claim.
4.4 Survival; Claims. The representations and warranties set
forth in Articles 2 and 3 above, and the indemnification rights set forth in
this Article 4, shall survive for a period of one (1) year after the date
hereof. No party shall have any liability for any breach of any representation
or warranty set forth herein unless the other party shall have given it written
notice of such breach promptly upon becoming aware of same and prior to the
first anniversary of the date of this Agreement. Such notice shall identify the
applicable Section of this Agreement, the alleged breach and the amounts for
which the indemnitor is alleged to be liable in detail. The indemnitor shall be
entitled to assume the defense of any third-party claim, provided that it admits
in writing its obligation to indemnify the indemnitee for such claim.
ARTICLE V
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MISCELLANEOUS
5.1 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.
5.2 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.
5.3 Entire Agreement. This Agreement (including all Exhibits
hereto) supersedes any and all other agreements, oral or written, between the
parties hereto 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.
5.4 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.
5.5 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.
5.6 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:
If to Purchaser: Match, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000-0000
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 - East Tower
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Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller: The Presbyterian Foundation for
Philadelphia, Inc.
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to: Xxxxxx, Xxxxx & Xxxxxxx, LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
5.7 Waiver. No waiver hereunder shall be valid unless set forth
in writing.
5.8 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.
5.9 No Third Party Beneficiary. This Agreement is for the
benefit of, and may be enforced only by, Seller and Purchaser, 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.
5.10 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania, without regard to the conflicts of laws provisions thereof.
5.11 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.
5.12 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement.
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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.
THE PRESBYTERIAN FOUNDATION FOR
PHILADELPHIA, INC.
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Its: Executive Vice President
MATCH, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Its: President
