EXHIBIT 10.9
CAPITAL STOCK PURCHASE AGREEMENT
THIS CAPITAL STOCK PURCHASE AGREEMENT, dated as of December 3, 2002, by
and between South Coast Radiologists Holding, Inc., a Florida corporation
("Seller"), the record and beneficial owner of 100% of the outstanding shares of
capital stock of South Coast Radiologist Corporation ("Company"), and Laguna
Niguel MRI, Inc., a California Corporation ("Purchaser").
BACKGROUND
Seller is engaged in the business of operating an outpatient diagnostic
imaging center. (the "Center")
The parties hereto desire to provide for the acquisition by Purchaser
of the Company through the sale by Seller to Purchaser of all the outstanding
shares of capital stock of the Company which are owed beneficially and of record
by Seller on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound, agree as follows:
SECTION 1. ACQUISITION OF CAPITAL STOCK.
1.1 SALE AND PURCHASE OF SHARES. Subject to the terms and conditions of
this Agreement, at the Closing (as herein defined), Seller shall sell, transfer
and deliver to Purchaser the shares of the common stock of the Company in the
aggregate constituting all of the outstanding shares of the Company's capital
stock (the "Shares") and Purchaser shall purchase the Shares from Seller for the
consideration set forth in Section 2. Except as otherwise set forth herein, all
assets will remain vested with the Company as of Closing.
SECTION 2. PURCHASE PRICE, PAYMENT AND CLOSING
2.1 PURCHASE PRICE. The purchase price for the Shares shall be one
dollar ($1.00) and other good and valuable consideration (the "Purchase Price").
2.2 CLOSING. The closing of the sale of the shares pursuant to this
Agreement (the "Closing") shall take place at 10:00 a.m. on December 3, 2002, at
the offices of Seller located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx, or otherwise on such date and location as may be mutually agreed upon
by the parties, including via facsimile (the "Closing Date").
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER.
The Seller hereby represents and warrants to the Purchaser as of the
date of this Agreement and as of the Closing Date as follows:
3.1 ORGANIZATION OF SOUTH COAST RADIOLOGISTS HOLDING, INC. The Seller
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, and has all necessary corporate power and
authority to carry on its business as presently conducted, to own and lease the
assets which it owns and leases and to perform all its obligations under each
agreement and instrument by which it is bound.
3.2 POWER AND AUTHORIZATION. The Seller has full capacity, legal right,
power and authority to enter into and perform its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
the Seller and constitutes the legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms.
3.3 OWNERSHIP OF SHARES. The Seller owns all the Shares beneficially
and of record, free and clear of any restriction, mortgage, deed of trust,
pledge, lien, security interest or other charge, claim or encumbrance. Upon
delivery to the Purchaser of the certificates for the Shares at the Closing, the
Purchaser will acquire good, valid and marketable title to the Shares, free and
clear of any restriction, mortgage, deed of trust, pledge, lien, security
interest or other charge, claim or encumbrance (except for applicable securities
laws restrictions).
3.4 BROKERS. No person acting on behalf of the Seller or any of its
affiliates or under the authority of any of the foregoing is or will be entitled
to any broker's or finder's fee or any other commission or similar fee, directly
or indirectly, from any of such parties in connection with any of the
transactions contemplated by this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller as of the
date of this Agreement and of the Closing Date as follows:
4.1 ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, and has all necessary corporate power and authority to carry on its
business as presently conducted, to own and lease the assets which it owns and
leases and to perform all its obligations under each agreement and instrument by
which it is bound.
4.2 POWER AND AUTHORIZATION. The Purchaser has full legal right, power
and authority to enter into and perform its obligations under this Agreement.
The execution, delivery and performance by Purchaser of this Agreement have been
duly authorized by all necessary corporate action. This Agreement has been duly
and validly executed and delivered by the Purchaser and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
4.3 BROKERS. No person acting on behalf of the Purchaser or any of its
affiliates or under the authority of any of the foregoing is or will be entitled
to any broker's or finder's fee or any other commission or similar fee, directly
or indirectly, from any of such parties in connection with any of the
transactions contemplated by this Agreement.
SECTION 5. CONDITIONS.
5.1 CONDITIONS TO PURCHASER'S OBLIGATIONS. At the Closing, it shall be
a condition of the Purchaser's obligation to consummate the transactions
contemplated by this Agreement that the following, if not otherwise waived by
Purchaser, shall be true:
(a) REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
warranties of the Seller contained in this Agreement shall be true, correct and
complete in all material respects as of the Closing Date. On such date, the
shareholder of the Seller shall have executed and delivered to the Purchaser a
certificate to such effect.
(b) PERFORMANCE. The Seller shall have performed and complied in all
material respects with all covenants and agreements contained herein required to
be performed or complied with by them prior to or at the Closing Date. The
President of the Seller shall have executed and delivered to the Purchaser a
certificate to such effect.
(c) ORDERS, DECREES, JUDGMENTS. No order, decree or judgment of any
court or governmental body shall have been issued and remain in effect at such
date restraining, prohibiting, restricting or delaying the consummation of the
transactions contemplated by this Agreement.
(d) CONSENTS. All consents or approvals required for the consummation
of the transactions contemplated by this Agreement by any third party shall have
been obtained.
(e) GOVERNMENTAL APPROVALS. All approvals, consents, permits or
licenses from any federal, state or local governmental agency or body required
in connection with the consummation of the transactions contemplated hereby
shall have been duly obtained to the extent that such approvals, consents,
permits or licenses can be legally obtained prior to such date.
5.2 CONDITIONS TO SELLER'S OBLIGATIONS. At the Closing, it shall be a
condition of the Seller's obligation to consummate the transactions contemplated
by this Agreement that the following, if not otherwise waived by Seller, shall
be true:
(a) REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
warranties of the Purchaser contained in this Agreement shall be true, correct
and complete in all material respects as of the Closing Date. On such date, the
shareholders of the Purchaser shall have executed and delivered to the Seller a
certificate to such effect.
(b) PERFORMANCE. The Purchaser shall have performed and complied in all
material respects with all covenants and agreements contained herein required to
be performed or complied with by them prior to or at the Closing Date. The
President of the Purchaser shall have executed and delivered to the Seller a
certificate to such effect.
(c) ORDERS, DECREES, JUDGMENTS. No order, decree or judgment of any
court or governmental body shall have been issued and remain in effect at such
date restraining, prohibiting, restricting or delaying the consummation of the
transactions contemplated by this Agreement.
(d) CONSENTS. All consents or approvals required for the consummation
of the transactions contemplated by this Agreement by any third party shall have
been obtained.
(e) GOVERNMENTAL APPROVALS. All approvals, consents, permits or
licenses from any federal, state or local governmental agency or body required
in connection with the consummation of the transactions contemplated hereby
shall have been duly obtained to the extent that such approvals, consents,
permits or licenses can be legally obtained prior to such date.
(f) RECORDS. The Purchaser, at its expense, shall have made
arrangements with respect to the transfer of all records associated with the
Company, whether in storage or otherwise, to the Center.
(g) DVI. The Seller, or any affiliate of the Seller, shall have been
released from any and all debt obligations to DVI Financial Services, Inc.
relating to the Center.
5.3 DELIVERIES AT THE CLOSING. At the Closing, in addition to the other
actions contemplated elsewhere herein:
(a) The Seller shall deliver, or shall cause to be delivered, to the
Purchaser the following:
(i) copies of the Company's certificates or articles of
incorporation, or the corresponding charter documents and all amendments thereof
of date.
(ii) the original corporate seals, minute books, and stock
transfer and record books of the Company as they exist on the Closing and such
of its files, books and records as Purchaser may request; and
(iii) such other documents and instruments as Purchaser may
reasonably request to effectuate or evidence the transactions contemplated by
this Agreement.
(b) The Purchaser shall deliver, or shall cause to be delivered, to the
Seller:
(i) the resolutions, certificates, documents and instruments
required to be delivered by it by this Agreement; and
(ii) the Purchase Price.
6. COVENANTS OF THE SELLER
6.1. COOPERATION. The Seller shall use reasonable efforts in good faith
to perform and fulfill all conditions and obligations to be fulfilled or
performed by them hereunder, to the end that the transactions contemplated
hereby will be fully and timely consummated.
6.2. ACCESS. Until the Closing, the Seller shall give the Purchaser,
its attorneys, accountants and other authorized representatives access, upon
reasonable notice and at reasonable times, to offices, suppliers, employees,
business and financial records, contracts, business plans, budgets and
projections, agreements and commitments and other documents and information
concerning the Company (the "Information") and persons employed by or doing
business with the Company, except such documents covered by the attorney-client
privilege. In order that the Purchaser may have full opportunity to make such
examination and investigation as it may desire of the Company, the Seller will
furnish the Purchaser and Purchaser's representatives during such period with
all such Information as such representatives may reasonably request and cause
the respective officers, employees, consultants, agents, accountants and
attorneys of the Seller to cooperate fully with the representatives of the
Purchaser in connection with such review and examination; provided, however,
that the Purchaser will hold the documents and information concerning the
Company confidential in accordance with Section 8.2 hereof.
6.3. ACTIONS PRIOR TO CLOSING. The Seller shall cause the Company to
conduct business pending the Closing only in the ordinary and usual course.
Without limiting the generality of the foregoing, the Seller will not cause the
Company, except in the ordinary and usual course, without the prior written
consent of the Purchaser to (i) make any acquisition or disposition of assets
used in connection with the Company; (ii) enter into any contract (other than
this Agreement or as otherwise provided for in this Agreement) or terminate any
contract or other right relating to the Company; or (iii) make any loans,
advances or capital contributions to, or investments in, any other entity or
person involved in the operation of the Company, other than travel or other
advances to employees in the ordinary course of business.
7. COVENANTS OF PURCHASER
7.1. COOPERATION. The Purchaser covenants and agrees that it shall use
its best efforts in good faith to perform and fulfill all conditions and
obligations to be fulfilled or performed by it hereunder, to the end that the
transactions contemplated hereby will be fully and timely consummated.
7.2. TAXES AND FEES. The Purchaser shall pay all sales, use, transfer,
recordation and documentary taxes and fees, if any, arising out of the transfer
of the Shares pursuant to this Agreement.
8. MUTUAL COVENANTS
8.1. GENERAL COVENANTS. Following the execution of this Agreement, the
Purchaser and the Seller agree:
(a) If any event should occur, either within or without the knowledge
or control of any party, which would prevent fulfillment of the conditions to
the obligations of any party hereto to consummate the transactions contemplated
by this Agreement, to use its or their reasonable efforts to cure the same as
expeditiously as possible;
(b) To cooperate fully with each other in preparing, filing,
prosecuting, and taking any other actions which are or may be reasonable and
necessary to obtain the consent of any governmental instrumentality or any third
party to accomplish the transactions contemplated by this Agreement;
(c) To deliver such other instruments of title, certificates, consents,
endorsements, assignments, assumptions and other documents or instruments, in
form reasonably acceptable to the party requesting the same and its counsel, as
may be reasonably necessary to carry out and/or to comply with the terms of this
Agreement and the transactions contemplated herein;
(d) To confer on a regular basis with the other, report on material
operational matters and promptly advise the other orally and in writing of any
change or event having or which, insofar as can reasonably be foreseen could
have, a material adverse effect on such party or which would cause or constitute
a material breach of any of the representations, warranties or covenants of such
party contained herein; and
(e) To promptly provide the other (or its counsel) with copies of all
other filings made by such party with any state or federal governmental entity
in connection with this Agreement or the transactions contemplated hereby.
8.2. CONFIDENTIALITY. As used herein, "Confidential Information" means
any information or data that party has acquired from another party that is
confidential or not otherwise available to the public, whether oral or written,
including without limitation any analyses, computations, studies or other
documents prepared from such information or data by or for the directors,
officers, employees, agents or representatives of such party (collectively, the
"Representatives"), but excluding information or data which (i) the party can
demonstrate it independently developed, (ii) became information available to the
public other than as a result of such party's violation of this Agreement, (iii)
became available to such party from a source other than the other party if that
source was not bound by a confidentiality agreement with such other party and
such source lawfully obtained such information or data, or (iv) is required to
be disclosed by applicable law, provided that promptly after being compelled to
disclose any such information or data, the party being so compelled shall
provide prompt notice thereof to the other party so that such other party may
seek a protective order or other appropriate remedy. Each party covenants and
agrees that it and its Representatives shall keep confidential and shall not
disclose any Confidential Information, except to its Representatives and lenders
who need to know such information and keep it confidential. Each party shall be
responsible for any breach of this provision by its Representatives. In the
event that the Closing does not occur, each will promptly return to the other
all copies of such other party's Confidential Information.
9. MISCELLANEOUS
9.1 EMPLOYEES. The Purchaser may elect, in its sole discretion, to
continue the employment of all or any of the employees used by the Seller in the
operation of the Business under employment policies in force by Purchaser on the
Closing Date. The Purchaser shall have no obligation to hire or extend benefits
to any existing employee of the Company as of the Closing Date and has the right
to terminate any existing employees, whether under a contract with the Company
or the Seller or otherwise. To the extent that the Seller provides benefits
under one of the Seller's benefit plans to any individual that the Purchaser
employs post-Closing pursuant to this Agreement, the Purchaser shall reimburse
the Seller for all costs incurred relating thereto. The Seller will provide the
Purchaser with a reconciliation of any amounts due.
9.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the parties in this Agreement and in the schedules delivered
pursuant hereto shall survive the consummation of the transactions herein
contemplated.
9.3 FURTHER ASSURANCES. Each party hereto shall use best reasonable
efforts to comply with all requirements imposed hereby on such party and to
cause the transactions contemplated hereby to be consummated as contemplated
hereby and shall, from time to time and without further consideration, either
before or after the Closing, execute such further instruments and take such
other actions as any other party hereto shall reasonably request in order to
fulfill its obligations under this Agreement and to effectuate the purposes of
this Agreement and to provide for the orderly and efficient transition of the
ownership of Company to Purchaser.
9.4 COSTS AND EXPENSES. Except as otherwise expressly provided herein,
each party shall bear its own expenses in connection herewith.
9.5 PUBLIC ANNOUNCEMENTS. Prior to the Closing, neither Company, Seller
nor Purchaser shall make any public announcement or disclosure relating to the
transactions contemplated herein without the prior agreement of each other party
hereto, provided that each party shall use best reasonable efforts to consult
with the other in advance of any disclosure required by law or proper auditing
considerations, but the agreement of the other parties hereto shall not be
required.
9.6 NOTICES. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if and
when hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by facsimile, receipt acknowledged, addressed as
set forth below or to such other person or persons and/or at such other address
or addresses as shall be furnished in writing by any party hereto to the others.
Any such notice or communication shall be deemed to have been given as of the
date received, in the case of personal delivery, or on the date shown on the
receipt or confirmation therefore in all other cases.
TO PURCHASER:
Laguna Niguel MRI, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxxx
TO SELLER:
South Coast Radiologists Holding, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
9.7 GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the State of Florida.
Venue of any action arising hereunder shall be Hillsborough County, Florida.
9.8 SECTION HEADINGS AND DEFINED TERMS. The section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
9.9 SEVERABILITY. The invalidity or unenforceability of any particular
provision, or part of any provision, of this Agreement shall not affect the
other provisions or parts hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions or parts were omitted.
9.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original; and any person may
become a party hereto by executing a counterpart hereof, but all of such
counterparts together shall be deemed to be one and the same instrument.
9.11 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the purchase and sale of the Capital
Stock and supersedes all prior agreements and understandings.
9.12 COLLECTION SERVICES. Following the Closing, the Seller agrees to
provide the Purchaser with collection services pursuant to the Collection
Services Agreement attached hereto as Exhibit A.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement, under seal, all as of the date first above written.
South Coast Radiologists Holding, Inc.
By: /s/
--------------------------------
Name:
Title:
Laguna Niguel MRI, Inc.
By: /s/
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Name:
Title:
