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EXHIBIT 2.5
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
EMERGENCY MEDICINE INTERNETWORK, INC.
AND
HEALTHSTREAM, INC.
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TABLE OF CONTENTS
ARTICLE HEADING PAGE
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ARTICLE 1......................................................................1
CERTAIN DEFINITIONS.......................................................1
ARTICLE 2......................................................................3
PURCHASE AND SALE OF ASSETS...............................................3
2.1. Purchase and Sale of Assets...................................3
2.2. Assignment of Leases, Contracts and Other Acquired Assets.....5
2.3. Excluded Assets...............................................5
2.4. No Assumption of Liabilities..................................6
2.5. Assignment of Contracts.......................................6
ARTICLE 3......................................................................6
CONSIDERATION.............................................................6
3.1. Purchase Price................................................6
3.2. Earn Out Shares...............................................7
3.3. Escrow........................................................7
3.4. Allocation of Purchase Price..................................8
ARTICLE 4......................................................................8
CLOSING; OBLIGATIONS OF THE PARTIES.......................................8
4.1. Closing Date..................................................8
4.2. Obligations of the Parties at the Closing.....................8
ARTICLE 5.....................................................................10
REPRESENTATIONS AND WARRANTIES BY SELLER.................................10
5.1. Authorization................................................10
5.2. Organization, Good Standing and Qualification................10
5.3. Subsidiaries.................................................10
5.4. No Violation.................................................10
5.5. Financial Statements.........................................10
5.6. Acquired Assets..............................................11
5.7. Title to Properties; Encumbrances............................11
5.8. Real Property Owned or Leased................................11
5.9. Fixed Assets and Other Personal Property Leases..............11
5.10. Intellectual Property........................................11
5.11. No Undisclosed Liability.....................................12
5.12. Absence of Certain Changes...................................12
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ARTICLE HEADING PAGE
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5.13. Tax Matters..................................................13
5.14. Compliance with Applicable Law...............................14
5.15. Litigation...................................................14
5.16. Insurance....................................................14
5.17. Employee Benefit Plans.......................................14
5.18. Contracts and Commitments....................................16
5.19. Accounts Receivable..........................................16
5.20. Accounts Payable.............................................16
5.21. Customers and Suppliers......................................16
5.22. Labor Matters................................................16
5.23. No Breach....................................................16
5.24. Professional Fees............................................17
5.25. Consents and Approvals.......................................17
5.26. Purchase Entirely for Own Account............................17
5.27. Reliance Upon Seller's Representation........................17
5.28. Restricted Securities........................................17
5.29. Legends......................................................18
ARTICLE 6.....................................................................18
REPRESENTATIONS AND WARRANTIES BY BUYER..................................18
6.1. Organization and Good Standing...............................18
6.2. Authorization................................................18
6.3. Valid and Binding Agreement..................................19
6.4. No Violation.................................................19
6.5. Professional Fees............................................19
6.6. Consents and Approvals.......................................19
ARTICLE 7.....................................................................19
COVENANTS AND AGREEMENTS OF THE PARTIES..................................19
7.1. Conduct of Business Pending the Closing......................19
7.2. Access; Further Assurances...................................20
7.3. Disclosure Letter............................................21
7.4. Confidentiality..............................................21
7.5. Public Statements and Press Releases.........................21
7.6. Taxes........................................................21
7.7. Consents and Approvals.......................................22
7.8. Bulk Sales Compliance........................................22
ARTICLE 8.....................................................................22
CONDITIONS TO BUYER'S OBLIGATIONS........................................22
8.1. Representations and Warranties...............................22
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ARTICLE HEADING PAGE
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8.2. Performance by Seller........................................22
8.3. Certificates of Seller.......................................22
8.4. Opinion of Counsel for Seller................................22
8.5. Consents and Approvals.......................................22
8.6. Resolutions..................................................22
8.7. Litigation...................................................23
8.8. No Material Adverse Change; Due Diligence Review.............23
8.9. Non-Competition Agreement....................................23
8.10. Audit........................................................23
8.11. Agreement....................................................23
8.12. Payroll Taxes................................................23
ARTICLE 9.....................................................................23
CONDITIONS TO SELLER'S OBLIGATIONS.......................................23
9.1. Representations and Warranties...............................23
9.2. Performance..................................................24
9.3. Officer's Certificate........................................24
9.4. Opinion of Counsel for Buyer.................................24
9.5. Resolutions..................................................24
ARTICLE 10....................................................................24
INDEMNIFICATION..........................................................24
10.1. Indemnification by Seller....................................24
10.2. Indemnification by Buyer.....................................25
10.3. Procedure....................................................25
ARTICLE 11....................................................................26
SURVIVAL OF REPRESENTATIONS..............................................26
11.1. Survival of Representations..................................26
11.2. Statements as Representations................................26
11.3. Remedies Cumulative..........................................27
ARTICLE 12....................................................................27
TERMINATION OF AGREEMENT.................................................27
ARTICLE 13....................................................................27
MISCELLANEOUS............................................................27
13.1. Expenses.....................................................27
13.2. Assignability; Parties in Interest...........................28
13.3. Entire Agreement; Amendments.................................28
13.4. Headings.....................................................28
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ARTICLE HEADING PAGE
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13.5. Severability.............................................28
13.6. Notices..................................................28
13.7. Governing Law............................................29
13.8. Counterparts.............................................29
Schedule 3.2 Organizations Qualifying for Earn Out...........................31
Exhibit A.....................................................................32
Exhibit B.....................................................................33
Exhibit C.....................................................................34
Exhibit D.....................................................................35
Exhibit E.....................................................................36
Exhibit F.....................................................................37
Exhibit G.....................................................................38
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered
into this 27th day of January, 2000 between Emergency Medicine Internetwork,
Inc., a Texas corporation ("Seller") and HealthStream, Inc., a Tennessee
corporation ("Buyer").
RECITALS
WHEREAS, Seller desires to sell to Buyer at the Closing, as hereinafter
defined, and Buyer desires to purchase from Seller substantially all of its
assets, as more fully described herein, upon and subject to the terms and
conditions contained in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the premises and of the mutual
representations, warranties and covenants which are made and to be performed by
the respective parties, it is agreed as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
Unless otherwise defined herein, terms used herein shall have the
meanings set forth below:
"Accounts Payable" means accounts payable, trade accounts payable and
other payables of the Business.
"Acquired Assets" means the assets sold, assigned, transferred and
delivered to Buyer hereunder as set forth in Sections 2.1 and 2.2 hereof.
"Affiliate" of any person shall mean any corporation, proprietorship,
partnership or business entity which, directly or indirectly, owns or controls,
is under common ownership or control with, or is owned or controlled by, such
person and directors, officers or any 5% or more owners of such person.
"Agreement" means this Asset Purchase Agreement (including the exhibits
and schedules hereto and the Disclosure Letter).
"Bulk Sales Laws" shall mean the Uniform Commercial Code Bulk Transfer
provisions of any jurisdiction relating to bulk sales which are applicable to
the sale of the Acquired Assets by Seller hereunder.
"Business" means the business and operations conducted by Seller at the
date of this Agreement and/or the Closing Date and such business and operations
relating to the Acquired Assets.
"Buyer" as defined in the first paragraph of this Agreement means
HealthStream, Inc.
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"Claim" means any claim, lawsuit, demand, suit, inquiry made, hearing,
investigation, notice of violation, litigation, proceeding, arbitration, or
other dispute, whether civil, criminal, administrative or otherwise.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Contract" means any agreement, contract, commitment, or other binding
arrangement or understanding, whether written or oral.
"Disclosure Letter" means the disclosure letter delivered by Seller to
Buyer prior to the execution and delivery of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to this Agreement
to a particular section or provision of ERISA shall be deemed to refer to the
corresponding section or provision of any successor law.
"GAAP" means generally accepted United States accounting principles,
applied on a basis consistent with the accounting principles used in the
preparation of the Audited Financial Statements.
"Governmental Authority" means any local, state, provincial, federal,
or international governmental authority or agency which has had or now has
jurisdiction over any portion of the subject of this Agreement or the Business.
"Material" means any Claim, circumstance or state of facts which
results in, or would reasonably be expected to result in, Losses or the
expenditure or commitment of $25,000 or more, or which results in any material
limitation or restriction on the ability of Seller to conduct the Business prior
to Closing, or Buyer to conduct the Business after Closing.
"Material Adverse Effect" means any circumstances, developments,
occurrences, states of fact or matters which have, or would reasonably be
expected to have, a material adverse effect in respect of the operations,
financial condition or results, or prospects in respect of the Business or the
Acquired Assets.
"Order" means any decree, order, injunction, rule, judgment, consent of
or by a Governmental Authority.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permits" means any licenses, permits, variances, interim permits,
permit applications, approvals or other authorizations under any Regulation
applicable to the Business.
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"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture, governmental entity or other entity.
"Plan" means any "employee benefit plan," as defined in Section 3(3) of
ERISA, that covers any employee or former employee of Seller.
"Proceeding" means any action, suit, litigation, arbitration,
proceeding (including any civil, criminal, administrative, investigative or
appellate proceeding and any informal proceeding), prosecution, contest,
hearing, inquiry, inquest, audit, examination, investigation, challenge,
controversy or dispute commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Body or any arbitrator.
"Regulation" means any law, statute, regulation, ruling, rule, Order or
Permit, of, administered or enforced by or on behalf of any Governmental
Authority.
"Seller" as defined in the first paragraph of this Agreement means
Emergency Medicine Internetwork, Inc. and each corporation, partnership, joint
venture or other business organization in which Seller owns directly, any
capital stock or other equity interest, or with respect to which Seller or a
subsidiary thereof, alone or in combination with others, is in a control
position.
"Taxes" mean all taxes, charges, fees, duties, levies or other
assessments, including, without limitation, income, gross receipts, net
proceeds, ad valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, valued added, license, payroll,
unemployment, environmental, customs duties, capital stock, disability, stamp,
leasing, lease, user, transfer, fuel, excess profits, occupational and interest
equalization, windfall profits, severance and employees' income withholding and
social security taxes imposed by the United States or any foreign country or by
any state, municipality, subdivision or instrumentality of the United States or
of any foreign country or by any other tax authority, including all applicable
penalties and interest, and such term shall include any interest, penalties or
additions to tax attributable to such Taxes.
"Tax Return" means any report, return or other information required to
be supplied to a taxing authority in connection with Taxes.
ARTICLE 2.
PURCHASE AND SALE OF ASSETS
2.1. PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions
of this Agreement and except as set forth in Section 2.3 hereof, at the Closing,
Seller shall sell, transfer, convey, assign and deliver to Buyer and Buyer shall
purchase, acquire and accept from Seller all of the assets owned by Seller
(wherever located) related to, or used in conjunction with, the Business and all
of Seller's right, title and interest therein and thereto. All of the assets
sold, assigned, transferred and delivered to Buyer hereunder are referred to
collectively herein as the "Acquired
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Assets." The Acquired Assets include, but not by way of limitation, any and all
of Seller's right, title and interest in and to the following assets:
(a) Fixed Assets. Any and all of the machinery, equipment,
installations, furniture, furnishings, office equipment, maintenance equipment
and supplies, materials and other items of leasehold improvements or personal
property of every kind and description, including those items described in
Section 2.1(a) of the Disclosure Letter (the "Fixed Assets");
(b) Cash. Any cash or cash equivalents in excess of the $25,000 to be
retained by Seller;
(c) URLs. Any and all of the URLs of Seller, as described in Section
2.1(b) of the Disclosure Letter (the "URLs");
(d) Inventories. Any and all of the inventories, including all raw
materials, work in process, supplies and finished goods inventories, wherever
located (the "Inventories");
(e) Prepaid Assets. All prepaid rent, prepaid property taxes, prepaid
supplies, advances and other prepaid expenses and all deposits and deferred
charges attributable to any contracts, commitments, understandings, leases or
agreements of the Business (the "Prepaid Assets");
(f) Information and Records. Any and all computer software, production
records, product files, technical information, confidential information, price
lists, marketing plans and strategies, sales records, advertising materials,
product development techniques or plans, supplier lists, customer lists and
files (including customer credit and collection information), details of client
or consultant contracts, and other proprietary information, together with the
following papers and records in Seller's care, custody or control or otherwise
available to it: all personnel and labor relations records and all worker's
compensation loss records and insurance claims (the "Information and Records");
(g) Intellectual Property. Any and all United States and foreign
patents, patent applications, patent licenses, service names, service marks,
trade names, trademarks, trade name and trademark registrations (and
applications therefor), copyrights and copyright registrations (and applications
therefor), drawings, trade secrets, inventions, processes, engineering and
production designs, formulae, technology, source code, developmental products,
processes and applications, and all derivatives thereof, including but not
limited to all rights in respect of the names "EMINet" and "Emergency Medicine
Internetwork," and all predecessor names, including those items described in
Sections 2.1(f) of the Disclosure Letter (the "Intellectual Property");
(h) Accounts Receivable. Any and all accounts receivable, trade
receivables and other receivables (the "Receivables");
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(i) Other Rights. Any and all claims, deposits to third parties,
prepayments, refunds, causes of action, causes in action, rights of recovery,
rights of set-off, and rights of recoupment (including any such item relating to
the payment of taxes in connection with the Business) and permits and licenses
used in the operation of the Business; and
(j) Other Assets. Any and all other tangible or intangible property,
including goodwill, located at or used in connection with the Business (the
"Other Assets").
2.2. ASSIGNMENT OF LEASES, CONTRACTS AND OTHER ACQUIRED ASSETS. Subject
to the terms and conditions set forth in this Agreement, Seller will assign and
transfer to Buyer, effective as of the Closing, all of Seller's right, title and
interest in and to, and Buyer will take assignment of and assume, the following
rights, interests and obligations that are used or arise in connection with or
relate to the operation of the Business (and all of the following shall be
deemed included in the term "Acquired Assets" as used herein):
(a) Real Property Leases. Leases of real property listed in Section
2.2(a) of the Disclosure Letter (the "Real Property Leases");
(b) Fixed Assets and Other Personal Property Leases. Leases of
equipment, machinery, installations and other personal property listed in
Section 2.2(b) of the Disclosure Letter (the "Fixed Assets and Other Personal
Property Leases");
(c) Other Contracts. (i) All other contracts listed in Sections 2.2(c)
of the Disclosure Letter and (ii) such other contracts or agreements as shall be
(A) entered into between the date hereof and the Closing in the ordinary course
of business and in accordance with the provisions of this Agreement, (B)
expressly accepted and approved in writing by Buyer prior to the Closing and (C)
listed in Section 2.2(c) of the Disclosure Letter as of the Closing
(collectively, the "Other Contracts"); and
(d) Permits and Licenses. Permits and licenses used in the operation of
the Business listed in Section 2.2(d) of the Disclosure Letter.
2.3. EXCLUDED ASSETS. The following assets of Seller shall be retained
by Seller and are not being sold or assigned to Buyer hereunder (all of the
following are referred to collectively as the "Excluded Assets"):
(a) $25,000 worth of cash, bank balances, monies in possession of any
banks and similar cash equivalents;
(b) any asset or property associated with an pension plan of Seller;
(c) all minute books and corporate records, tax returns and litigation
files of Seller; and
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(d) any of the rights of Seller under this Agreement.
2.4. NO ASSUMPTION OF LIABILITIES. Buyer shall not assume, and shall
not be deemed to have assumed, any debt, claim, obligation, liability, expenses
or Taxes of Seller of any kind, character or description, whether accrued,
absolute, contingent or otherwise, no matter whether arising before or after the
Closing, and whether or not reflected or reserved against in Seller's financial
statements, books of accounts or records, including but not by way of limitation
the following (collectively, the "Excluded Liabilities"):
(a) any debt, claim, obligation or liability relating to employees or
former employees of Seller (or its predecessors) relating to incidents or causes
of action that accrue prior to Closing;
(b) any debt, claim, obligation or liability relating to any Plan;
(c) any debt, claim, obligation or liability relating to any Taxes of
Seller;
(d) any debt, claim, obligation or liability relating to any lawsuits
or insurance claims of Seller in respect of the Business which arise out of or
are based on facts in existence prior to the Closing.
2.5. ASSIGNMENT OF CONTRACTS. Anything in this Agreement to the
contrary notwithstanding, this Agreement shall not constitute an agreement to
assign, and the Acquired Assets shall not include, any claim, contract,
instrument, agreement, license, lease, commitment, sales order, purchase order
or any claim or right, or any benefit arising thereunder or resulting therefrom,
if an attempted assignment thereof, without the consent of a third party
thereto, would constitute a breach thereof or in any way affect the rights of
Buyer or Seller thereunder. Seller shall be responsible for the payment of any
transfer or assignment fees required by any third party to effect the assignment
of any such contracts or agreements. If such consent is not obtained, or if an
attempted assignment thereof would be ineffective or would affect such rights,
Seller will cooperate with Buyer, at no cost to Buyer, in any arrangement
designed to provide for Buyer the benefits under any such claims, contracts,
instruments, agreements, licenses, leases, commitments, sales orders or purchase
orders, including, without limitation, enforcement for the benefit of Buyer of
any and all rights of Buyer or Seller against a third party thereto arising out
of a breach or cancellation by such third party or otherwise; and any transfer
or assignment to Buyer of any property or property rights or any contract or
agreement which shall require the consent or approval of any third party shall
be made subject to such consent or approval being obtained.
ARTICLE 3.
CONSIDERATION
3.1. PURCHASE PRICE. The purchase price ("Purchase Price") for the
Acquired Assets shall be:
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(a) $640,000 in cash paid Seller at Closing by certified or cashier's
check or wire transfer of Federal or other immediately available funds as
follows:
(i) $125,000 of this shall be held by Buyer until the exact
amount owed to the Internal Revenue Service for past due payroll taxes
and interest and penalties thereon is known and then shall be paid
directly to the Internal Revenue Service, with any remainder paid to
Seller;
(ii) $124,000 shall be paid directly to Polaris Group; and
(iii) $391,000 of this shall be paid directly to Seller.
(b) 145,893 shares of Buyer's common stock (the "Consideration Shares")
(83,393 of which will be delivered to Seller at Closing, and 62,500 of which
will be paid to the Escrow Fund described in Section 3.3 herein at Closing).
3.2. EARN OUT SHARES. Seller shall also be eligible to receive (up to
an aggregate of 14,107 shares of Buyer's common stock) as additional
consideration, one (1) share of Buyer's common stock for each sixteen dollars
($16) of contract value from contracts signed by Seller between January 1, 2000
and March 31, 2000 with the organizations listed on Schedule 3.2 attached hereto
(the "Earn Out Shares"). Any Earn Out shares earned pursuant to this Section 3.2
hereof shall be distributed to Seller no later than June 30, 2000.
3.3. ESCROW. (a) At the Closing, pursuant to an Escrow Agreement,
substantially in the form attached hereto as Exhibit A (the "Escrow Agreement"),
the parties shall establish an escrow (the "Escrow Fund") comprised of 62,500 of
the Consideration Shares (the "Escrow Shares"). The Escrow Shares shall be
maintained in escrow for the purposes of satisfying any claims by Buyer for
indemnification under Article 10 and the Escrow Agreement until the expiration
of one year from the Closing Date (the "Escrow Period").
(b) Upon expiration of the Escrow Period, and subject to the terms of
Section 3.3(c) herein, Article 10 herein and the Escrow Agreement, the escrow
agent under the Escrow Agreement (the "Escrow Agent") shall deliver or cause to
be delivered to Seller a certificate representing the number of shares of
Buyer's Common Stock comprising the Escrow Shares.
(c) If upon expiration of the Escrow Period, Buyer shall have asserted
a claim for indemnity in accordance with the Escrow Agreement and such claim is
pending or unresolved at the time of such expiration, the Escrow Agent shall
retain in escrow, and withhold from delivery to Seller the value of the asserted
amount of the claim until such matter is finally resolved. If it is finally
determined that Buyer is entitled to recover on account of such claim, the
Escrow Agent shall deliver or cause to be delivered to Buyer Escrow Shares in
the amount due and payable with respect to such claim. The remainder of the
Escrow Shares, if any, following such delivery to Buyer in accordance with this
Section 3.3(c) and the Escrow Agreement, shall be delivered to Seller pursuant
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to this Agreement. For purposes of this Section 3.3(c), a claim will be deemed
to have been finally resolved only as provided in the Escrow Agreement.
(d) The right to receive the Escrow Shares upon expiration of the
Escrow Period is an integral part of the Purchase Price, and shall not be
transferable or assignable by, but shall inure to the benefit of the successors,
representatives, or estate of, Seller.
3.4. ALLOCATION OF PURCHASE PRICE. The parties hereto will agree to an
allocation of the Purchase Price among the Acquired Assets for Federal and State
income tax purposes.
ARTICLE 4.
CLOSING; OBLIGATIONS OF THE PARTIES
4.1. CLOSING DATE. The closing (the "Closing") shall take place and be
effective for all purposes immediately after all of the conditions to Closing in
Articles 8 and 9 hereof have been met at the offices of Bass, Xxxxx & Xxxx PLC,
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or at such other time
and place as the parties hereto mutually agree (the "Closing Date").
4.2. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, Buyer shall deliver to Seller (or Seller's agent):
(i) the consideration as specified in Section 3.1;
(ii) copy of resolutions of the Board of Directors of Buyer,
certified by Buyer's Secretary, authorizing the execution,
delivery and performance of this Agreement and the other
documents referred to herein to be executed by Buyer, and the
consummation of the transactions contemplated hereby;
(iii) a certificate of Buyer certifying as to the accuracy
of Buyer's representations and warranties at and as of the
Closing and that Buyer has performed or complied with all of the
covenants, agreements, terms, provisions and conditions to be
performed or complied with by Buyer at or before the Closing;
(iv) the opinion of Bass, Xxxxx & Xxxx PLC, legal counsel
for Buyer, the terms of which are substantially as set forth in
Exhibit D;
(v) an executed copy of the Escrow Agreement, in the form
attached as Exhibit A; and
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(vi) such other certificates and documents as Seller or its
counsel may reasonably request.
(b) At the Closing, Seller will deliver to Buyer:
(i) such bills of sale, endorsements, assignments, and other
good and sufficient instruments of conveyance and transfer, in
form and substance reasonably satisfactory to Buyer, as shall be
effective to vest in Buyer all of Seller's title to and interest
in the Acquired Assets, all of Seller's contracts and
commitments, books, records and other data relating to the
Acquired Assets and the Business (except minute and stock books
and similar corporate records and any other documents and records
which Seller is required by law to retain in its possession),
and, simultaneously with such delivery, will take such steps as
may be necessary to put Buyer in actual possession and operating
control of the Acquired Assets and the Business;
(ii) copy of resolutions of the Board of Directors and
Shareholders of Seller, certified by Seller's Secretary,
authorizing the execution, delivery and performance of this
Agreement and the other documents referred to herein to be
executed by Seller, and the consummation of the transactions
contemplated hereby;
(iii) a certificate of Seller certifying as to the accuracy
of its representations and warranties at and as of the Closing
and that Seller has performed or complied with all of the
covenants, agreements, terms, provisions and conditions to be
performed or complied with by it at or before the Closing;
(iv) the opinion of Xxxx Xxxxxxx, legal counsel for Seller,
the terms of which are substantially as set forth in Exhibit C;
(v) executed copies of the Non-Competition Agreement by the
employees of Seller, in substantially the form of Exhibit B
hereto;
(vi) an executed copy of the Shareholders' Agreement in the
form of Exhibit E hereto;
(vii) an executed copy of the Voting Agreement in form of
Exhibit F hereto;
(viii) an executed copy of the Co-Sale Agreement in the form
of Exhibit G hereto;
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(ix) certificates evidencing the transfers of the URLs
listed in Section 2.1(b) of the Disclosure Letter; and
(x) such other certificates and documents as Buyer or its
counsel may reasonably request.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES BY SELLER
Seller hereby represents and warrants as follows:
5.1. AUTHORIZATION. Seller has full corporate power and authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The Board of Directors and Shareholders of
Seller have taken all action required by law, its Articles of Incorporation and
Bylaws and otherwise to authorize the execution and delivery by Seller of this
Agreement and the consummation by Seller of the transactions contemplated
hereby. This Agreement constitutes the valid and binding agreement of Seller,
enforceable against it in accordance with its terms.
5.2. ORGANIZATION, GOOD STANDING AND QUALIFICATION. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Texas. Seller has full corporate power and authority to carry on
its business as now conducted and possesses all governmental and other permits,
licenses and other authorizations to own, lease or operate its assets and
properties as now owned, leased and operated and to carry on its business as
presently conducted. Seller is not licensed or qualified to do business as a
foreign corporation in any jurisdiction and neither the properties owned or
leased nor the business transacted by it makes such licensing or qualification
to do business as a foreign corporation necessary, and no other jurisdiction has
demanded, requested or otherwise indicated that (or inquired whether) Seller is
required so to qualify.
5.3. SUBSIDIARIES. Seller neither owns nor has an interest in, directly
or indirectly, any other corporation, partnership, joint venture or other
business organization.
5.4. NO VIOLATION. The execution and delivery of this Agreement by
Seller does not, and the consummation of the transactions contemplated hereby
will not, (a) violate any provision of, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which it is a party or by which its assets or
properties bound; (b) violate any provision of its Articles of Incorporation or
Bylaws; (c) violate any order, arbitration award, judgment, writ, injunction,
decree, statute, rule or regulation applicable to it; or (d) violate any other
contractual or legal obligation or restriction to which it is subject.
5.5. FINANCIAL STATEMENTS. Seller has delivered to Buyer: (a) balance
sheets of Seller as at December 31 in each of the years 1997, 1998 and 1999 (the
"Balance Sheet"), and the related
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statements of income and cash flows for the fiscal year ended December 31, 1999,
including the notes thereto (the "Financial Statements"). The Financial
Statements fairly present the assets, liabilities, financial condition and
results of operations of Seller as at the respective dates thereof and for the
periods therein referred to, all in accordance with GAAP ; the Financial
Statements reflect the consistent application of such accounting principles
throughout the periods involved.
5.6. ACQUIRED ASSETS. The Acquired Assets comprise all the properties
and assets employed by Seller in connection with the Business and which are
necessary for the conduct of such Business, as currently conducted.
5.7. TITLE TO PROPERTIES; ENCUMBRANCES. Seller has good, valid and
marketable title to, or valid leasehold interests in, all of the Acquired Assets
constituting real property or tangible or intangible personal property and
Seller has full right to sell, convey, transfer, assign and deliver any and all
of its right, title and interest in and to such Acquired Assets, free and clear
of any mortgage, pledge, lien, security interest, conditional sale agreement,
encumbrance or charge of any kind.
5.8. REAL PROPERTY OWNED OR LEASED. Section 5.8 of the Disclosure
Letter sets forth a complete and accurate list and legal description of all real
property included in the Acquired Assets (including a specific identification of
any such fixtures not owned by Seller) which Seller owns or leases, to the
extent related to the Business. True copies of all such leases for real property
have been delivered to Buyer prior to the date hereof. Except as set forth in
Section 5.8 of the Disclosure Letter, no consent to the consummation of the
transactions contemplated by this Agreement is required from the lessor of any
such real property. Seller holds valid leasehold interests in and to the leases
listed in Section 5.8 of the Disclosure Letter, free and clear of any mortgage,
pledge, lien, security interest, lease, encumbrances or charge of any kind,
other than mortgages, pledges, liens, security interests, leases, encumbrances
and charges granted by or in respect of the interests of lessors or other third
parties, which do not Materially impact the rights of Seller.
5.9. FIXED ASSETS AND OTHER PERSONAL PROPERTY LEASES. Section 5.9 of
the Disclosure Letter sets forth a correct and complete list of all of the Fixed
Assets other than items acquired by Seller in the ordinary course of business
from the date hereof through the Closing Date (which Seller will identify in
writing to Buyer, prior to the Closing, in the Disclosure Letter). The Fixed
Assets and Other Personal Property Leases listed in Section 2.2(b) of the
Disclosure Letter hereto include all leases by Seller of any item of personal
property used by Seller in connection with the operation of the Business. Except
as disclosed in Section 5.9 of the Disclosure Letter, all of the equipment and
personal property leased by Seller under the Fixed Assets and Other Personal
Property Leases is currently used by Seller in the ordinary course of the
Business. Seller has delivered to Buyer correct and complete copies of all Fixed
Assets and Other Personal Property Leases.
5.10. INTELLECTUAL PROPERTY. Section 5.10 of the Disclosure Letter is
an accurate and complete list of all patents, patent licenses, trademarks, trade
names, trademark registrations, service names, service marks, copyrights,
website domain names, formulas and applications therefor owned
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by Seller or used or required by Seller in the operation of the Business, title
to all of which is held by Seller free and clear of all adverse claims, liens,
security agreements, restrictions or other encumbrances. There is no
infringement action, lawsuit, claim or complaint which asserts that Seller's
operations violate or infringe the patent rights or the trademarks, trade names,
trademark registration, service names, service marks or copyrights of others
with respect to any apparatus or method of Seller used in the operation of the
Business or any adversely held patent, trademark, trade name, trademark
registration, service names, service marks or copyrights, and, Seller is not in
any way making use of any confidential information or trade secrets of any
person except with the consent of such person.
5.11. NO UNDISCLOSED LIABILITY. Seller does not have any liabilities or
obligations of any nature, whether absolute, accrued, contingent or otherwise
and whether due or to become due (including, without limitation, liabilities for
Taxes and interest, penalties and other charges payable with respect thereto)
which alone or in the aggregate may affect Seller's ability to transfer the
Acquired Assets hereby or, from and after Closing, Buyer's right, title and
interest in and to the Acquired Assets and Buyer's use and enjoyment thereof.
The reserves reflected in the Financial Statements are adequate, appropriate and
reasonable in accordance with GAAP. Furthermore, Seller does not know or have
reason to know of any basis for the assertion against Seller of any such
liability or obligation of any nature not fully reflected or reserved against in
the Financial Statements.
5.12. ABSENCE OF CERTAIN CHANGES. Except as and to the extent set forth
in Section 5.12 of the Disclosure Letter, since December 31, 1999, Seller has
not:
(a) suffered any Material change in its working capital, financial
condition, assets, liabilities, business or prospects, experienced any labor
difficulty, or suffered any Material casualty loss (whether or not insured);
(b) made any change in the Business or operations or in the manner of
conducting the Business other than changes in the ordinary course of business;
(c) incurred any obligations or liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except items incurred
in the ordinary course of business and consistent with past practice, or
experienced any change in any assumptions underlying or methods of calculating
any bad debt, contingency or other reserves;
(d) paid, discharged or satisfied any claim, lien, encumbrance or
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), other than claims, encumbrances or liabilities (i) which are
reflected or reserved against in the Financial Statements and which were paid,
discharged or satisfied since the date thereof in the ordinary course of
business and consistent with past practice, or (ii) which were incurred and
paid, discharged or satisfied since December 31, 1999 in the ordinary course of
business and consistent with past practice;
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(e) written off as uncollectible any Receivables or any portion
thereof, except for immaterial write-offs made in the ordinary course of
business, consistent with past practice and at a rate no greater than during the
twelve (12) months ended December 31, 1999;
(f) canceled any other debts or claims, or waived any rights, of
substantial value;
(g) sold, transferred or conveyed any of its properties or assets
(whether real, personal or moved, tangible or intangible), except in the
ordinary course of business and consistent with past practice;
(h) disposed of or permitted to lapse, or otherwise failed to preserve
the exclusive rights of the Business to use any patent, trademark, trade name,
logo or copyright or any such application, or disposed of or permitted to lapse
any license, permit or other form of authorization, or disposed of or disclosed
to any person any trade secret, formula, process or know-how;
(i) granted any increase in the compensation of any officer, director,
employee or agent (including, without limitation, any increase pursuant to any
bonus, pension, profit sharing or other plan or commitment), or adopted any such
plan or other arrangements; and no such increase, or the adoption of any such
plan or arrangement, is planned or required;
(j) made any change in any method of accounting or accounting practice;
(k) made any capital expenditures or commitments in excess of $10,000
in the aggregate for replacements or additions to property, plant, equipment or
intangible capital assets;
(l) paid, loaned or advanced any amount to or in respect of, or sold,
transferred or leased any properties or assets (real, personal or mixed,
tangible or intangible) to, or entered into any agreement, arrangement or
transaction with, any of the officers or directors of Seller, any affiliates or
associates of Seller or any of their respective officers or directors, or any
business or entity in which any of such persons has any direct or Material
indirect interest, except for compensation to the officers and employees of
Seller at rates not exceeding the rates of compensation in effect at December
31, 1999 and advances to employees in the ordinary course of business for travel
and expense disbursements in accordance with past practice, but not in excess of
$1,000 at any one time outstanding; or
(m) agreed, whether in writing or otherwise, to take any action
described in this Section 5.12.
5.13. TAX MATTERS. Seller has duly filed all Tax Returns required to be
filed by it and has duly paid all Taxes and other charges due or claimed to be
due by Governmental Authorities. The reserves for Taxes contained in the
Financial Statements and carried on the books of Seller are adequate to cover
all tax liabilities as of the date of this Agreement. Seller has not incurred
any Taxes other than in the ordinary course of business; there are no tax liens
(other than liens for current
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Taxes not yet due) upon any properties or assets of Seller (whether real,
personal or mixed, tangible or intangible), and, except as reflected in the
Financial Statements, there are no pending or threatened questions or
examinations relating to, or claims asserted for, Taxes or assessments against
Seller, and there is no basis for any such question or claim. Seller has not
granted or been requested to grant any extension of the limitation period
applicable to any claim for Taxes or assessments of the Business with respect to
Taxes.
5.14. COMPLIANCE WITH APPLICABLE LAW. Seller has in the past duly
complied and is presently duly complying, in the conduct of its business and the
ownership of the Acquired Assets with all applicable laws, whether statutory or
otherwise, rules, regulations, orders, ordinances, judgments and decrees of all
Governmental Authorities (collectively, "Laws"). Seller has not received any
notice of, or notice of any investigation of, a possible violation of any
applicable Laws, or any other Law or requirement relating to or affecting the
operations or properties of Seller.
5.15. LITIGATION. Except as set forth in Section 5.15 of the Disclosure
Letter, there are no Claims pending or threatened by or against, or otherwise
affecting the Business at law or in equity or before or by any Governmental
Authority. Seller does not know or have any reason to know of any basis for any
such Claim. No Claim set forth in Section 5.14 of the Disclosure Letter, could,
if adversely decided, have a Material Adverse Effect on the condition (financial
or otherwise), liabilities, earnings or prospects of Seller.
5.16. INSURANCE. Section 5.16 of the Disclosure Letter hereto sets
forth a complete and accurate list and brief description (including policy
numbers, deductibles, carriers and effective and termination dates) of all
policies of fire, liability, workmen's compensation, health, title and other
forms of insurance presently in effect with respect to Seller. All such policies
are valid, outstanding and enforceable policies; and will remain in full force
and effect at least through the respective dates set forth in Section 5.16 of
the Disclosure Letter without the payment of additional premiums; and will not
in any way be affected by, or terminate or lapse by reason of, the transactions
contemplated by this Agreement. Seller has not been refused any insurance nor
has its coverage been limited, by any insurance carrier to which it has applied
for insurance or with which it has carried insurance during the last five years.
5.17. EMPLOYEE BENEFIT PLANS.
(a) Except as disclosed in Section 5.17 of the Disclosure Letter hereto
and made a part hereof, Seller does not maintain any retirement or deferred
compensation plan, savings, incentive, stock option or stock purchase plan,
unemployment compensation plan, vacation pay, severance pay, bonus or benefit
arrangement, group medical plan, insurance or hospitalization program or any
other fringe benefit arrangements, including all Plans for any employee,
consultant or agent of Seller, whether pursuant to contract, arrangement, custom
or informal understanding in the operation of the Business.
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(b) Except as disclosed in Section 5.17 of the Disclosure Letter,
Seller does not have any commitment, whether formal or informal and whether
legally binding or not, (i) to create any additional such Plan; (ii) to modify
or change any such Plan; or (iii) to maintain for any period of time any such
Plan. Section 5.17 of the Disclosure Letter contains an accurate and complete
description of the funding policies (and commitments, if any) of Seller with
respect to each such existing Plan.
(c) None of the Plans listed in Section 5.17 of the Disclosure Letter
provide for continuing benefits or coverage after termination or retirement from
employment, except with respect to any "group health plan" as defined in Code
Section 4980B(g) and ERISA Section 607. With respect to any Plan which is a
"group health plan," as so defined, Seller warrants that in all "qualified
events" (including those resulting from the transaction contemplated by this
Agreement) occurring prior to or on the Closing Date, Seller has or will cause
to be offered to Seller's eligible employees and their "qualified beneficiaries"
the opportunity to elect continuation coverage under ERISA Section 602 to the
extent required by ERISA Sections 601-607 and will provide that coverage, if
elected, at no expense to Buyer or Seller.
(d) Neither Seller nor any "affiliate" of Seller (as defined in ERISA)
has ever participated in or withdrawn from a multi-employer plan as defined in
Section 4001(a)(3) of Title IV of ERISA, and Seller has not incurred and does
not owe any liability as a result of any partial or complete withdrawal by any
employer from such a multi-employer plan as described under Sections 4201, 4203,
or 4205 of ERISA.
(e) Except as disclosed in Section 5.17 of the Disclosure Letter, (i)
Seller has no unfunded past service liability in respect of any of its Plans;
(ii) the actuarially computed value of vested benefits under any such Plan does
not exceed the fair market value of the fund assets relating to such Plan; (iii)
neither Seller nor any Plan nor any trustee, administrator, fiduciary or sponsor
of any Plan has engaged in any prohibited transactions as defined in ERISA, or
the Code; (iv) all filings and reports as to such Plans required to have been
made on or prior to the Closing Date to the Internal Revenue Service, the United
States Department of Labor or other governmental agencies have been or will be
made on or prior to the Closing Date; (v) there is no Material litigation,
disputed Claim or Proceeding pending or threatened with respect to any of such
Plans, the related trusts, or any fiduciary, trustee, administrator or sponsor
of such Plans; (vi) such Plans have been established, maintained and
administered in all Material respects in accordance with their governing
documents and applicable provisions of ERISA and the Code and Treasury
Regulations promulgated thereunder; and (vii) there has been no "Reportable
Event" as defined in Section 4043 of ERISA with respect to any Employee Benefit
Plan subject to Subtitle B of Title IV of ERISA that has not been waived by the
PBGC.
(f) Seller has complied in all Material respects with all applicable
federal, state and local laws, rules and regulations relating to employees'
employment and/or employment relationships, including, without limitation, wage
related laws, anti-discrimination laws and employee safety laws in the operation
of the Business.
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(g) Except as disclosed in Section 5.17 of the Disclosure Letter or
otherwise set forth in the Agreement, Seller is not a party to any contract or
agreement or requirement of law which would require Buyer to hire, or subject
Buyer to liability if it did not hire, any employee of the Business or which
would require Buyer to pay or provide, or subject Buyer to liability if it did
not pay or provide, any employee benefits to any employee of the Business for
periods prior to or after the Closing Date (including any and all employee
benefits and any compensatory, over-time, vacation, sick or holiday pay).
5.18. CONTRACTS AND COMMITMENTS. Section 5.18 of the Disclosure Letter
is a list of contracts relating to the Business and the Acquired Assets. Seller
has delivered to Buyer correct and complete copies of each listed document.
Section 5.18 and Sections 2.2(a)-(d) of the Disclosure Letter together include
all the contracts to which Seller is a party or by which it is bound and which
relate to the Business or the operation thereof and the Acquired Assets.
5.19. ACCOUNTS RECEIVABLE. All Receivables, whether reflected in the
Financial Statements or otherwise, represent sales actually made in the ordinary
course of business; none of such Receivables is subject to any counterclaim or
set-off other than normal sales adjustments or allowances consistent with past
practice; and all such Receivables are current and collectible in accordance
with their respective terms, net of any reserve reflected in the Financial
Statements.
5.20. ACCOUNTS PAYABLE. All accounts and notes payable of Seller,
whether reflected in the Financial Statements, or otherwise, with an invoice
date prior to Closing shall be paid by Seller.
5.21. CUSTOMERS AND SUPPLIERS. Seller has not received any indication
from any customer or supplier (or otherwise has any reason to believe) that such
customer or supplier will not continue as a customer or supplier of Buyer after
the Closing.
5.22. LABOR MATTERS. There are no collective bargaining agreements in
effect between Seller and labor unions or organizations representing any
employees of Seller. During the past seven years, there has been no request for
collective bargaining or for an employee election from any employee, union or
the National Labor Relations Board. Seller is in compliance with all federal,
state and local laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and is not engaged in any unfair
labor practice. There is no unfair labor practice complaint against Seller
pending or threatened before the National Labor Relations Board or the United
States Department of Labor. There is no labor strike, dispute, slowdown or
stoppage in progress or threatened against or involving Seller. No question
concerning representation has been raised or is threatened respecting the
employees of Seller. No grievance or arbitration proceeding is pending and no
claim therefor exists. No private agreement restricts Seller from relocating,
closing or terminating any of its operations or facilities. Seller has not in
the past five years experienced any labor strike, dispute, slowdown, stoppage or
other labor difficulty.
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5.23. NO BREACH. Each arrangement (whether evidenced by a written
document or otherwise and of whatever type) referred to in this Agreement, the
Disclosure Letter or in any Schedule hereto under which Seller has any right,
interest or obligation is in full force and effect; there have been no
threatened cancellations thereof nor outstanding disputes thereunder, and Seller
has not breached any provision of, nor does there exist any default in any
Material respect under, or event (including the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby) which
is, or with the giving of notice or the passage of time or both would become, a
breach or default in any Material respect under the terms of any such
arrangement.
5.24. PROFESSIONAL FEES. Except as set forth in Section 5.24 of the
Disclosure Letter, Seller has not done anything to cause or incur any liability
or obligation for investment banking, brokerage, finders, agents or other fees,
commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and Seller does not know of any claim by
anyone for such a fee, commission, expense or charge.
5.25. CONSENTS AND APPROVALS. Seller has obtained or will have obtained
on or before the Closing all consents, approvals, authorizations or orders of
third parties, including Governmental Authorities, necessary for the
authorization, execution and performance of this Agreement by Seller.
5.26. PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
Seller in reliance upon Seller's representation to Buyer, which by Seller's
execution of this Agreement Seller hereby confirms, that the Common Stock to be
purchased by Seller (the "Securities") will be acquired for investment for
Seller's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Seller has no present
intention of selling, granting any participation in, or otherwise distributing
the same. By executing this Agreement, Seller further represents that it does
not have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to any of the Securities. Seller has had the opportunity to ask
questions of Buyer's officers and directors and to acquire such information
about shares of Buyer's common stock and its business and financial condition as
it has requested.
5.27. RELIANCE UPON SELLER'S REPRESENTATION. Seller understands that
the Common Stock is not registered under the Securities Act on the ground that
the sale provided for in this Agreement and the issuance of securities hereunder
is exempt from registration under the Securities Act pursuant to Section 4(2)
thereof, and that the Buyer's reliance on such exemption is predicated on the
Seller's representations.
5.28. RESTRICTED SECURITIES. Seller understands that the Common Stock
may not be sold, transferred, or otherwise disposed of without registration
under the Securities Act and any applicable state securities laws or any
exemptions therefrom, and that in the absence of an effective registration
statement covering the Common Stock or an available exemption from registration
under
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the Securities Act and any applicable state securities laws, the Common Stock
must be held indefinitely. In particular, Seller is aware that the Common Stock
may not be sold pursuant to Rule 144 promulgated under the Securities Act unless
all of the conditions of that Rule are met and Seller receives an opinion of
counsel that such conditions have been met. Among the conditions for use of Rule
144 may be the availability of current information to the public about the
Buyer. Such information is not now available. Further any stock that is
transferred pursuant to the restrictions in this Section 5.28, and distributed
to Xxxxx Xxxxxxx, M.D., or other key employees of Seller, shall be subject to
restrictions from sale for two years from the date of Closing. These
restrictions shall lift after one year from Closing on 75% of the shares held by
these people, and on the remaining 25% of the shares two years from Closing.
5.29. LEGENDS. To the extent applicable, each certificate or other
document evidencing any of the Common Stock shall be endorsed with the legends
substantially in the form set forth below:
(a) The following legend under the Securities Act:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
SUCH ACT, OR UNLESS THE BUYER HAS RECEIVED AN OPINION OF COUNSEL OR
OTHER EVIDENCE, SATISFACTORY TO THE BUYER AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
and the following legend:
THE TRANSFERABILITY OF THE SHARES EVIDENCED BY THIS CERTIFICATE IS
RESTRICTED BY THE PROVISIONS OF A SHAREHOLDERS' AGREEMENT ENTERED INTO
BETWEEN THE HOLDER OF THIS CERTIFICATE AND THE COMPANY. A COPY OF THE
SHAREHOLDERS' AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY AND MAY BE REVIEWED AT SUCH OFFICE UPON REQUEST.
(b) Any legend imposed or required by applicable state securities laws.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer hereby represents and warrants to Seller as follows:
6.1. ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee and has full corporate
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power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
6.2. AUTHORIZATION. The Board of Directors of Buyer has taken, or will
take prior to Closing, all action required by law, its Charter, its Bylaws and
otherwise to authorize the execution and delivery by Buyer of this Agreement and
the consummation by Buyer of the transactions contemplated hereby.
6.3. VALID AND BINDING AGREEMENT. This Agreement constitutes a valid
and binding agreement of Buyer, enforceable against Buyer in accordance with its
terms.
6.4. NO VIOLATION. The execution and delivery of this Agreement by
Buyer does not, and the consummation of the transactions contemplated hereby
will not, (a) violate any provision, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which Buyer is a party or by which it is bound;
(b) violate any provision of Buyer's Charter or Bylaws; (c) violate any order,
arbitration award, judgment, writ, injunction, decree, statute, rule or
regulation applicable to Buyer; or (d) violate any other contractual or legal
obligation or restriction to which Buyer is subject.
6.5. PROFESSIONAL FEES. Buyer has not done anything to cause or incur
any liability for investment banking, brokerage, finders, agents or other fees,
commissions, expenses or charges in connection with the negotiation,
preparation, execution and performance of this Agreement or the consummation of
the transactions contemplated hereby, and Buyer does not know of any claim by
anyone for such a commission or fee.
6.6. CONSENTS AND APPROVALS. Buyer has obtained or will have obtained
prior to the Closing all consents, approvals, authorizations or orders of third
parties, including Governmental Authorities, necessary for the authorization,
execution and performance of this Agreement by Buyer.
ARTICLE 7.
COVENANTS AND AGREEMENTS OF THE PARTIES
7.1. CONDUCT OF BUSINESS PENDING THE CLOSING.
(a) Seller will take such action as may be necessary to maintain,
preserve, renew and keep in full force and effect the existence, rights and
franchises of Seller, to preserve the business organizations of Seller intact,
to keep available to Buyer Seller's officers and employees, and to preserve for
Buyer the present relationships of Seller with its suppliers and customers and
others having business relationships with respect to the Business.
(b) Seller will not do or omit to do any act, or permit any act or
omission to act, which may cause a breach of any Contract of Seller, or any
breach of any representation, warranty, covenant or agreement made by Seller
herein.
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(c) Seller will duly comply with all laws applicable to it and its
business and operations and all Laws, compliance with which is required for the
valid consummation of the transactions contemplated by this Agreement.
(d) Seller will not (i) grant any increase in the wages or salary of
any officer, employee or agent of Seller, except normal wage or salary increases
for employees (other than officers and other management employees) in the
ordinary course of business and consistent with past practice; (ii) by means of
any bonus or pursuant to any plan or arrangement or otherwise, increase by any
amount or to any extent the benefits or compensation of any such officer,
employee or agent; (iii) enter into any employment agreement, sales agency or
other contract or arrangement with respect to the performance of personal
services which is not terminable by it without liability on not more than 30
days notice; (iv) enter into or extend any labor contract with any hourly-paid
employees or any union; or (v) agree to take any such action.
(e) Seller will not terminate or modify any lease, license, permit,
contract or other agreement to which it is a party.
(f) Seller will not mortgage, pledge or subject to lien or any other
encumbrance, any of the Acquired Assets.
(g) Seller will not enter into any transaction involving more than
$10,000 or a commitment extending more than six months.
(h) Seller will not directly or indirectly (through a representative or
otherwise) solicit or furnish information to any prospective acquirers, commence
negotiations with any other party or enter into any agreement with any other
party concerning the sale of Seller's capital stock or assets or any part
thereof, or involving the merger, consolidation, liquidation, dissolution,
acquisition or combination of or share exchange with any other entity.
(i) Seller will not make any cash distributions to its Shareholders.
(j) Seller will not enter into any transaction outside the ordinary
course of business.
(k) Seller will not enter into any agreement to do any of the
foregoing.
7.2. ACCESS; FURTHER ASSURANCES.
(a) After the execution of this Agreement and continuing until the
Closing, Seller shall permit Buyer and its counsel, accountants, engineers and
other representatives full access during normal business hours to all of the
directors, officers, facilities, properties, books, contracts, commitments and
records of or relating to Seller and will furnish Buyer and its representatives
during such period with all such information concerning the affairs of Seller
and such copies of such documents relating thereto, as Buyer or its
representatives may request.
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(b) At any time and from time to time after the Closing, at Buyer's
request and without further consideration, Seller will execute and deliver such
other instruments of sale, transfer, conveyance, assignment, and delivery and
confirmation and take such action as the Buyer may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to Buyer and
to place Buyer in possession and control of, and to confirm Buyer's title to,
the Acquired Assets, and to assist Buyer in exercising all rights and enjoying
all benefits with respect thereto.
7.3. DISCLOSURE LETTER. Seller shall have the continuing obligation to
supplement or amend promptly the Disclosure Letter being delivered pursuant to
this Agreement with respect to any matter hereafter arising or discovered which,
if existing or known at the date of this Agreement, would have been required to
be set forth or described in the Disclosure Letter.
7.4. CONFIDENTIALITY. Subject to Section 7.5, whether or not the
Closing occurs, each of the parties will treat in confidence all documents,
materials and other information (including without limitation information
relating to supply and sales agreements and relationships with third parties)
disclosed by any other party, whether during the course of the negotiations
leading to the execution of this Agreement or thereafter, in its investigation
of the other parties and in the preparation of agreements, schedules and other
documents relating to the consummation of the transactions contemplated hereby.
If this Agreement is terminated, each of the parties will use its best efforts
to return to the other party all originals and copies of nonpublic documents and
materials, including summaries and compilations thereof, of the type provided
for in this Section 7.4 which have been furnished in connection with this
Agreement.
7.5. PUBLIC STATEMENTS AND PRESS RELEASES. Prior to the Closing, no
party will issue or cause the publication of any press release, public
announcement, statement, acknowledgment or other public revelation (including
any announcement to employees or customers of, or others having business
dealings with, Seller, Buyer or any of them) with respect to this Agreement or
the transactions contemplated hereby (a "Public Statement") without the prior
consent of the other party to such Public Statement and its contents, which
consent will not be unreasonably withheld; provided, however, that nothing
herein will prohibit:
(a) any party from issuing or causing publication of any Public
Statement to the extent that such party determines such action to be required by
applicable law, in which event the party making such determination will use
reasonable efforts to allow the other party reasonable time to comment on such
Public Statement in advance of its issuance, or
(b) Buyer from engaging in discussions with customers, suppliers,
employees, distributors and others engaging in business with Seller, provided
that such discussions relate to Buyer's due diligence review or Buyer's conduct
of the Business after Closing, and are not intended to result in general public
statements or disclosures (or are not reasonably likely to have such effect).
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7.6. TAXES. Seller will be responsible for, and hereby agrees to assume
and pay, all sales and similar Taxes which may be due to any jurisdiction or
governmental body as a result of the sale and transfer of the Acquired Assets.
7.7. CONSENTS AND APPROVALS. The parties shall, in a timely, accurate
and complete manner, take all necessary corporate and other action and use all
reasonable efforts to obtain all consents, approvals, permits, licenses and
amendments of agreements required by such party to carry out the transactions
contemplated in this Agreement.
7.8. BULK SALES COMPLIANCE. Buyer hereby waives compliance by Seller
with the provisions of the Bulk Sales Laws of any and all states, and Seller
covenants and agrees to pay and discharge when due all claims, liabilities and
related expenses which may be asserted against Buyer by reason of such
noncompliance.
ARTICLE 8.
CONDITIONS TO BUYER'S OBLIGATIONS
All obligations of Buyer hereunder are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
8.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by Seller in this Agreement and the statements contained in the Disclosure
Letter or in any instrument, list, certificate or writing delivered by Seller
pursuant to this Agreement shall be true when made and at and as of the time of
the Closing as though such representations and warranties were made at and as of
the Closing.
8.2. PERFORMANCE BY SELLER. Seller shall have performed and complied
with all covenants, agreements, obligations and conditions required by this
Agreement to be so complied with or performed.
8.3. CERTIFICATES OF SELLER. Seller shall have delivered to Buyer a
certificate, dated the Closing Date, certifying as to the fulfillment of the
conditions specified in Sections 8.1 and 8.2 hereof.
8.4. OPINION OF COUNSEL FOR SELLER. Buyer shall have received an
opinion of the Seller's counsel, Xxxx Xxxxxxx, dated the Closing Date, in form
and substance satisfactory to Buyer's counsel, Bass, Xxxxx & Xxxx PLC, to the
effect set forth in Exhibit C hereto.
8.5. CONSENTS AND APPROVALS. Buyer shall have received from Seller
executed counterparts of the consents referred to in Section 5.25 hereof, and
all other consents required, for the consummation of the transactions
contemplated hereby, all of which consents shall be in form and substance
satisfactory to Buyer.
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8.6. RESOLUTIONS. Buyer shall have received from Seller copies of the
resolutions of the Board of Directors and Shareholders of Seller authorizing the
execution, delivery and performance of this Agreement and the other documents
referred to herein to be executed by Seller, and the consummation of the
transactions contemplated hereby.
8.7. LITIGATION. On the date of the Closing, Seller shall not be a
party to, nor will there otherwise be pending or threatened, any judicial,
administrative, or other action, proceeding or investigation which, if adversely
determined might, in the opinion of Buyer, have a Material Adverse Effect upon
the Business, the Acquired Assets, Buyer or the transactions contemplated
hereby; and there shall be no Claim pending against Seller or Buyer seeking to
enjoin, prohibit, restrain or otherwise prevent the transactions contemplated
hereby.
8.8. NO MATERIAL ADVERSE CHANGE; DUE DILIGENCE REVIEW. Since the date
of this Agreement, there shall not have been any Material Adverse Effect.
Because Buyer has not had an opportunity to review fully the Business as at the
date of this Agreement, Buyer shall have a period of five (5) days from the date
hereof in which to conduct a business financial and legal due diligence review
of the properties, assets, results, operations, condition, suppliers, customers
and prospects of Seller. In the event during such review, Buyer in good faith
reasonably determines that such review has revealed information which either had
not been previously fully disclosed to or known by Buyer (whether or not such
disclosure was required by this Agreement), and would, if known to Seller as of
the date of this Agreement, constitute a breach of this Agreement, or would
otherwise have a Material Adverse Effect, then Buyer may terminate this
Agreement by written notice thereof to Seller, in which case, no party will have
any further obligations or liabilities in respect of this Agreement.
8.9. NON-COMPETITION AGREEMENT. Key employees of Seller, including
Xxxxx Xxxxxxx, M.D., shall have entered into a non-competition agreement with
Buyer on substantially the terms and conditions set forth on Exhibit B hereto
(the "Non-Competition Agreement").
8.10. AUDIT. Seller's financial statement for the past three (3) fiscal
years shall have been audited by a certified public accountant and to the
satisfaction of Buyer and its auditors.
8.11. AGREEMENT. Seller shall have entered into the Shareholders'
Agreement, Voting Agreement and Co-Sale Agreement attached hereto as Exhibits E,
F and G, respectively.
8.12. PAYROLL TAXES. Seller shall have received notification from the
Internal Revenue Service stating the exact amount owed by Seller for past due
payroll taxes and interest and penalties thereon.
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ARTICLE 9.
CONDITIONS TO SELLER'S OBLIGATIONS
All obligations of Seller under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
9.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Buyer in this Agreement shall be true when made and at and as of the
time of the Closing as though such representations and warranties were made at
and as of such date.
9.2. PERFORMANCE. Buyer shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be so
complied with or performed.
9.3. OFFICER'S CERTIFICATE. Buyer shall have delivered to Seller a
Certificate of the Chief Executive Officer of Buyer, dated the Closing Date,
certifying as to the fulfillment of the conditions specified in Sections 9.1 and
9.2 hereof.
9.4. OPINION OF COUNSEL FOR BUYER. Seller shall have received an
opinion of Buyer's counsel, Bass, Xxxxx & Xxxx PLC, dated the Closing Date, in
form and substance satisfactory to Seller's counsel, Xxxx Xxxxxxx, to the effect
set forth on Exhibit D hereto.
9.5. RESOLUTIONS. Seller shall have received from Buyer a copy of the
resolutions of the Board of Directors of Buyer authorizing the execution,
delivery and performance of this Agreement and the other documents referred to
herein to be executed by Buyer, and the consummation of the transactions
contemplated hereby.
ARTICLE 10.
INDEMNIFICATION
10.1. INDEMNIFICATION BY SELLER. Seller hereby agrees to defend,
indemnify and hold harmless Buyer, each fiduciary of Buyer's employee benefit
plans and each of Buyer's shareholders, affiliates, officers, directors,
employees, agents, successors and assigns ("Buyer's Indemnified Persons") and
shall reimburse Buyer's Indemnified Persons for, from and against each claim,
loss, liability, cost and reasonable expense (including interest, penalties,
costs of preparation and investigation, and the reasonable fees, disbursements
and expenses of attorneys, accountants and other professional advisors)
(collectively, "Losses"), directly or indirectly relating to, resulting from or
arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by or of Seller
contained herein, any Schedule hereto, the Disclosure Letter or in any
certificate, document or instrument delivered to Buyer pursuant hereto.
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(b) Any Tax liability of Seller relating to the Assets, the Business or
employees of Seller, not previously paid, which is successfully asserted or
assessed against it for any event or period prior to the Closing Date
(regardless of whether the possibility of the assertion or assessment of any
such Tax liability shall have been disclosed to Buyer at or prior to the
Closing).
(c) Any Losses suffered or incurred by Buyer by reason of the failure
by Seller to comply with Bulk Sales Laws.
(d) Any other Loss related to any of the foregoing.
10.2. INDEMNIFICATION BY BUYER. Buyer hereby agrees to defend,
indemnify and hold harmless Seller, and shall reimburse Seller for, from and
against Losses directly or indirectly relating to, resulting from or arising out
of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by Buyer contained
herein or in any certificate, document or instrument delivered to Seller
pursuant hereto.
(b) Any other Loss related to the foregoing.
10.3. PROCEDURE.
(a) The indemnified party shall promptly notify the indemnifying party
of any Claim, demand, action or Proceeding for which indemnification will be
sought under Sections 10.1 or 10.2 of this Agreement, and, if such Claim,
demand, action or Proceeding is a third party Claim, demand, action or
Proceeding, the indemnifying party will have the right at its expense to assume
the defense thereof using counsel reasonably acceptable to the indemnified
party. The failure to provide such prompt notice shall not affect the
indemnification provided hereunder except to the extent, if any, the
indemnifying party shall have been actually prejudiced as a result of such delay
or failure. Should the indemnifying party assume the defense of such a third
party Claim, demand, action or Proceeding or should the indemnified party
unreasonably withhold its consent to the assumption by the indemnifying party of
the defense of any Claim, the indemnifying party shall not be liable to the
indemnified party for legal expenses subsequently incurred by the indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to participate, at its own expense, with respect to any such third
party Claim, demand, action or Proceeding, it being understood that the
indemnifying party shall control any defense assumed by the indemnifying party.
In connection with any such third party Claim, demand, action or Proceeding,
Buyer and Seller shall cooperate with each other and provide each other with
access to and retain all relevant books and records in their possession. No such
third party Claim, demand, action or Proceeding shall be settled without the
prior written consent of the indemnified party. If a firm written offer is made
to settle any such third party Claim, demand, action or Proceeding and the
indemnifying party proposes to accept such settlement and the indemnified party
refuses to consent to such settlement, then: (i) the indemnifying party shall be
excused from, and the indemnified party shall be solely responsible for,
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all further defense of such third party Claim, demand, action or Proceeding; and
(ii) the maximum liability of the indemnifying party relating to such third
party Claim, demand, action or Proceeding shall be the amount of the proposed
settlement if the amount thereafter recovered from the indemnified party on such
third party Claim, demand, action or Proceeding is greater than the amount of
the proposed settlement. Whether or not the indemnifying party shall have
assumed the defense of any such third party Claim, action, demand or Proceeding,
no indemnified party shall admit any liability with respect to, or settle,
compromise or discharge any such Claim, demand, action or Proceeding without the
indemnifying party's prior written consent, which shall not be unreasonably
withheld.
Buyer and Seller shall cooperate with each other with respect to
resolving any claim or liability with respect to which one party is obligated to
indemnify any other person hereunder, including by making commercially
reasonable efforts to mitigate or resolve any such claim or liability. In the
event that Buyer or Seller shall fail to make such commercially reasonable
efforts to mitigate or resolve any claim or liability, then notwithstanding
anything else to the contrary herein, the other party shall not be required to
indemnify any person for any Losses that could reasonably be expected to have
been avoided if Buyer or Seller, as the case may be, had made such efforts.
(b) Except as hereafter set forth, (i) neither Seller nor Buyer shall
have any liability under this Article 10 unless the aggregate of all Losses to
which the party who shall be entitled to indemnification exceeds, on a per claim
or per liability basis, an amount equal to $10,000 (exclusive of legal and other
expenses) in which event the indemnifying party shall be liable for all Losses
in excess of $10,000; (ii) in no event shall the aggregate liability of Seller
or Buyer under this Article 10 exceed $1,000,000, except for Losses incurred by
Buyer resulting from a breach by Seller of its representations made pursuant to
Section 5.13 or from any Claim made by a Governmental Authority or other third
party relating to Seller's operation of the Business prior to the Closing Date.
(c) Indemnification claims shall be reduced by and to the extent (i)
that an indemnitee shall actually receive proceeds under insurance policies,
risk sharing pools, or similar arrangements specifically as a result of, and in
compensation for, the subject matter of an indemnification claim by such
indemnitee, and (ii) indemnitee's available net tax benefits directly
attributable to Losses incurred in connection with any such claim.
(d) Entitlement to indemnification pursuant to this Article 10 shall be
conditioned upon claims in respect thereof being submitted, if at all, to the
party from whom indemnification is sought within 12 months from and after the
Closing Date, except that Buyer may give notice of and may make a claim relating
to (i) a breach by Seller of its representations made pursuant to Section 5.13
hereof at any time prior to 90 days after the expiration of the appropriate
statute of limitations with respect thereto, (ii) any Claim made by a
Governmental Authority or other third party relating to Seller's operation of
the Business prior to the Closing Date at any time, and (iii) Seller's ownership
of the Acquired Assets at any time.
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ARTICLE 11.
SURVIVAL OF REPRESENTATIONS
11.1. SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants and agreements by the parties contained in this Agreement shall
survive the Closing for a period of two years.
11.2. STATEMENTS AS REPRESENTATIONS. All statements contained in the
Disclosure Letter or in any certificate, Schedule, list, document or other
writing delivered pursuant hereto or in connection with the transactions
contemplated hereby shall be deemed representations and warranties for all
purposes of this Agreement.
11.3. REMEDIES CUMULATIVE. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto of any other
rights or the seeking of any other remedies against the other party hereto.
ARTICLE 12.
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing:
(a) By mutual agreement of Seller and Buyer.
(b) By Buyer, upon ten (10) days' prior written notice to Seller if
there has been a Material violation or breach by the Seller of any of the
agreements, representations or warranties contained in this Agreement which has
not been waived in writing, or if any of the conditions set forth in Article 8
hereof have not been satisfied by the Closing or have not been waived in writing
by Buyer.
(c) By Seller, upon ten (10) days' prior written notice to Buyer if
there has been a Material violation or breach by the Buyer of any of the
agreements, representations or warranties contained in this Agreement which has
not been waived in writing, or if any of the conditions set forth in Article 9
hereof have not been satisfied by the Closing or have not been waived in writing
by Seller.
(d) By Buyer pursuant to Section 8.7 hereto.
(e) By either Buyer or Seller if the transactions contemplated by this
Agreement shall not have been consummated on or before February 29, 2000.
(f) By either Buyer or Seller if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt
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or insolvent, or if a third party commences any bankruptcy, insolvency,
reorganization or similar proceeding involving the other.
ARTICLE 13.
MISCELLANEOUS
13.1. EXPENSES. All fees and expenses incurred by Seller, including
without limitation legal fees and expenses, in connection with this Agreement
will be borne by Seller and all fees and expenses incurred by Buyer, including
without limitation, legal fees and expenses, in connection with this Agreement
will be borne by Buyer. If this transaction is not consummated, all expenses
relating to the audit of Seller shall be borne by Seller.
13.2. ASSIGNABILITY; PARTIES IN INTEREST.
(a) Buyer may assign any or all of its rights hereunder to any
affiliate or any direct or indirect subsidiary of Buyer, and Buyer shall advise
Seller of any such assignment and shall designate such party as the assignee and
transferee of the Assets purchased. Any such assignee shall assume all of
Buyer's duties, obligations and undertakings hereunder, but the assignor shall
remain liable hereunder.
(b) Seller may not assign, transfer or otherwise dispose of any of its
rights hereunder without the prior written consent of Buyer.
(c) All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
heirs, successors, assigns and legal or personal representatives of the parties
hereto, provided that the rights and obligations under all licenses and
trademarks hereunder shall under no circumstances be assignable.
13.3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the
Disclosure Letter, exhibits, Schedules, lists and other documents and writings
referred to herein or delivered pursuant hereto, which form a part hereof,
contains the entire understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, warranties, covenants
or undertakings other than those expressly set forth herein or therein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Agreement may be amended only by a
written instrument duly executed by all parties or their respective heirs,
successors, assigns or legal personal representatives. Any condition to a
party's obligations hereunder may be waived but only by a written instrument
signed by the party entitled to the benefits thereof. The failure or delay of
any party at any time or times to require performance of any provision or to
exercise its rights with respect to any provision hereof, shall in no manner
operate as a waiver of or affect such party's right at a later time to enforce
the same.
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13.4. HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
13.5. SEVERABILITY. The invalidity of any term or terms of this
Agreement shall not affect any other term of this Agreement, which shall remain
in full force and effect.
13.6. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered in person, by electronic facsimile transmission, cable
telegram, telex, or other standard form of telecommunications or mailed (by
overnight courier or registered or certified mail, postage prepaid, return
receipt requested) as follows:
If to Seller:
Emergency Medicine Internetwork, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, M.D.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Buyer:
HealthStream, Inc.
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Broad
Facsimile: (000) 000-0000
with a copy to:
Bass, Xxxxx & Xxxx PLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Brothers, Esq.
Facsimile: (000) 000-0000
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or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
13.7. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Tennessee, without
regard to its conflict of laws rules.
13.8. COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, with the same effect as if the signatories executing
the several counterparts had executed one counterpart, provided, however, that
the several executed counterparts shall together have been signed by Buyer and
Seller. All such executed counterparts shall together constitute one and the
same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of Buyer and by Seller on the date first above
written.
BUYER:
HEALTHSTREAM, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------
Title: Chief Executive Officer
------------------------------
SELLER:
EMERGENCY MEDICINE INTERNETWORK, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: President
------------------------------
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SCHEDULE 3.2
ORGANIZATIONS QUALIFYING FOR EARN OUT
ORGANIZATION CONTRACT VALUE
--------------------------------------------------------------------------------
Lennoway Community Ambulance $ 27,000
Lansing Fire Department $ 22,500
City of Baytown $ 8,342
GPU $ 26,730
Trans Ocean Offshore $ 22,500
Compaq $ 8,464
Austin City EMS $ 85,050
Rural Metro North Texas $ 25,125
---------
TOTAL $225,711
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EXHIBIT A
Escrow Agreement
39
EXHIBIT B
Non-Competition Agreement
40
EXHIBIT C
Opinion of Seller's Counsel
41
EXHIBIT D
Opinion of Buyer's Counsel
42
EXHIBIT E
Shareholders' Agreement
43
EXHIBIT F
Voting Agreement
44
EXHIBIT G
Co-Sale Agreement
