EXHIBIT 99.2
UNIT PURCHASE AGREEMENT
UNIT PURCHASE AGREEMENT dated as of November 8, 1999 ("Effective Date")
by and between FCG MANAGEMENT SERVICES, LLC, a Delaware limited liability
company ("COMPANY"), and NEW YORK AND PRESBYTERIAN HOSPITAL (doing business as
New York-Presbyterian Hospital), a New York not-for-profit corporation
("PURCHASER").
RECITALS:
WHEREAS, Company intends to engage in the "Business" as defined in the
Restated Operating Agreement;
WHEREAS, FCG Management Holdings, Inc. ("FCG Holdings"), a Delaware
corporation and wholly-owned subsidiary of First Consulting Group, Inc., a
Delaware corporation, owns all of the issued and outstanding units of Company
immediately prior to the Effective Date;
WHEREAS, Company proposes to issue and sell One Hundred Fifty (150) of
its unissued Class B Units (the "PURCHASED UNITS") to Purchaser on the terms set
forth in this Agreement; and
WHEREAS, Purchaser desires to purchase the Purchased Units on the terms
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AGGREGATE PURCHASE PRICE" shall have the meaning set forth in
Section 2.4.
"AGREEMENT" means this Unit Purchase Agreement, including all
Schedules and Exhibits referenced herein.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person; PROVIDED, HOWEVER, that notwithstanding the foregoing,
the Company shall not be considered an Affiliate of Purchaser and Purchaser
shall not be considered an Affiliate of the Company. For the
purposes of this definition, "CONTROL," when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"ANCILLARY AGREEMENTS" means: (i) the Restated Operating Agreement
and (ii) the Investor Rights Agreement.
"ASSOCIATES" means:
(I) Affiliates, stockholders, directors, officers, employees,
agents, attorneys, accountants and representatives of a Person; and
(II) all stockholders, directors, officers, employees, agents,
attorneys, accountants and representatives of each Affiliate of a Person.
"CLOSING" shall have the meaning set forth in Section 2.5.
"CLOSING DATE" shall have the meaning set forth in Section 2.5.
"CONSENT" means any third party (including any governmental
agency) consent, authorization, approval or waiver required for the consummation
of the transactions set forth in this Agreement and the Ancillary Agreements.
"CONVERSION" means the conversion of the Company from a limited
liability company to a corporation pursuant to the Restated Operating Agreement.
"EFFECTIVE DATE" shall have the meaning set forth in the preamble
to this Agreement.
"FCG HOLDINGS" shall mean FCG Management Holdings, Inc., a
Delaware corporation.
"FULLY DILUTED BASIS" shall mean the calculation of the proportion
of Units held based on all Units outstanding.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended.
"INVESTOR RIGHTS AGREEMENT" means the Investor Rights Agreement by
and among Company, Purchaser and FCG Holdings to be entered into as of the
Closing Date , as the same may be amended and in effect from time to time.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, option, right of first refusal, easement,
restriction (including transfer restriction) or other similar encumbrance of any
kind in respect of such asset.
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"MATERIAL ADVERSE EFFECT" means, with respect to any Person, a
material adverse effect on the business, assets, financial condition or results
of operations of such Person.
"PERSON" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association or organization,
joint venture, government or department or agency thereof, or other entity of
whatever nature.
"PURCHASED UNITS" shall have the meaning set forth in the
Recitals.
"RESTATED OPERATING AGREEMENT" means the Amended and Restated
Operating Agreement, to be entered into between Company, Purchaser and FCG
Holdings as of the Closing Date, in the form previously delivered and agreed to
by the parties thereto, as the same may be amended and in effect from time to
time.
"SECURITIES ACT" shall have the meaning set forth in Section 4.7.
"UNITS" means all issued and outstanding limited liability company
units of the Company.
ARTICLE 2
SALE AND TRANSFER OF UNITS; CLOSING
2.1 AUTHORIZATION. All action on the part of Company and the Members
(as defined in the Restated Operating Agreement) of Company necessary for the
authorization, execution, delivery and performance of this Agreement by Company
and the admittance of Purchaser as a Member and the issuance of the Purchased
Units in connection therewith has been taken or will be taken prior to the
Closing (as defined in Section 2.5).
2.2 OPERATING AGREEMENT. As of the Closing, the Purchased Units shall
have the rights, preferences, privileges and restrictions set forth in the
Restated Operating Agreement.
2.3 PURCHASE AND SALE OF PURCHASED UNITS. At the Closing, Company will
sell and transfer the Purchased Units to Purchaser, and Purchaser will purchase
the Purchased Units from Company on the terms and subject to the conditions set
forth in this Agreement.
2.4 PURCHASE PRICE. The purchase price for the Purchased Units will be
$100.00 per unit. The aggregate purchase price for the Purchased Units will be
$15,000.00 (the "AGGREGATE PURCHASE PRICE").
2.5 CLOSING. The closing of the sale of the Purchased Units to
Purchaser (the "CLOSING") shall take place at the offices of Purchaser, 000 Xxxx
Xxxxxxxxxx Xxx., Xxxx 0000, Xxx Xxxx, Xxx Xxxx at 3:00 p.m. (New York time) on
the Effective Date. For purposes of this Agreement, "CLOSING DATE" shall mean
the time and date as of which the Closing actually takes place.
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2.6 DELIVERY. At the Closing, subject to the terms and conditions
hereof, Purchaser shall make the payment to Company of the Aggregate Purchase
Price by check or federal funds wire transfer made payable to the order of
Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company represent and warrant to Purchaser the following:
3.1 ORGANIZATION AND STANDING. Company is a limited liability company
duly organized, validly existing and in good standing as a limited liability
company under the laws of Delaware. Company is duly qualified and authorized to
do business and is in good standing in all jurisdictions in which the nature of
its activities and of its properties makes such qualification necessary, except
for those jurisdictions in which failure to do so would not have a Material
Adverse Effect on Company. Company has made available to Purchaser or its
counsel prior to the Effective Date complete and correct copies of the
organizational documents of Company and any amendments thereto.
3.2 POWER AND AUTHORIZATION. Company has all requisite power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement and the Ancillary Agreements to which it is a party, to issue and
sell the Purchased Units and to carry out the provisions of this Agreement and
the Ancillary Agreements to which it is a party and to carry on its business as
currently conducted and as currently proposed to be conducted. The execution,
delivery and performance by Company of this Agreement and each of the Ancillary
Agreements to which it is a party, and the consummation by Company of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary action on the part of Company.
3.3 CAPITALIZATION.
(a) Immediately following the Closing, the issued and
outstanding Units shall be as specified in SCHEDULE A to the Restated
Operating Agreement. All issued and outstanding Units on the Closing Date:
(i) will have been duly authorized and validly issued; and (ii) will be fully
paid and non-assessable. The rights, preferences, privileges and restrictions
of the outstanding Units will be as stated in the Restated Operating
Agreement. Except as may be granted pursuant to the Ancillary Agreements, (x)
there are no outstanding options, warrants, subscriptions, calls or
commitments of any character relating to or entitling any Person to purchase
or otherwise acquire any interests or other securities of Company; (y) there
are no obligations or securities convertible into or exchangeable or
exercisable for any interests or other securities of Company or any
commitments of any character relating to or entitling any Person to purchase
or otherwise acquire any such interests or other securities; and (z) there
are no preemptive or similar rights to subscribe for or to purchase any
interests or other securities of Company.
(b) When issued in compliance with the provisions of this
Agreement and the Restated Operating Agreement, the Purchased Units will be
duly and validly issued, fully paid
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and nonassessable, and will be free of any Liens other than those provided in
this Agreement or the Ancillary Agreements and under applicable state and
federal securities laws as set forth herein or as otherwise required by such
laws at the time the transfer is proposed.
3.4 GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
by Company of this Agreement and each of the Ancillary Agreements does not
require any action by or in respect of, or filing with, any governmental body,
agency, official or authority by Company, including any filings or other
requirements pursuant to the HSR Act, other than any such action or filing the
failure to obtain or complete which would not have, individually or in the
aggregate, a Material Adverse Effect on Company or which would not materially
and adversely affect Company's ability to consummate the transactions
contemplated hereby and thereby and other than: (i) such filings as have been
made prior to the Closing; and (ii) such post-Closing filings as may be required
under applicable state securities laws, which will be timely filed within the
applicable periods therefor. Company has obtained or will obtain prior to the
Closing any necessary consents, authorizations, approvals and orders, and has
made all registrations, qualifications, designations, declarations or filings
with all federal, state, or other relevant governmental authorities required on
the part of Company in connection with the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.
3.5 NON-CONTRAVENTION. The execution, delivery of and consummation of
the transactions contemplated by this Agreement (including the transactions
contemplated by the Ancillary Agreements) do not and will not, with notice or
lapse of time or both, conflict with, or result in any breach or violation of or
constitute grounds for the occurrence of a declaration of a default or
termination of (i) Company's certificate of formation or other organizational
documents (including the Restated Operating Agreement), (ii) any contract,
agreement, undertaking, commitment or instrument to which Company is a party or
by which it or either of them or their respective properties are bound or (iii)
any license, judgment, order, injunction, decree, statute, law, rule or
regulation, domestic or foreign, applicable to Company, or their respective
properties or assets.
3.6 CONSENTS. There are no agreements, contracts or other instruments
binding upon Company that require a Consent as a result of the execution,
delivery and performance of this Agreement or any of the Ancillary Agreements,
or the consummation of the transactions contemplated hereby and thereby.
3.7 COMPLIANCE WITH LAWS. Company is not in violation of any statutes,
laws, ordinances, governmental rules or regulations or any judgment, order or
decree (federal, state, local or foreign) to which it is subject, nor has it
failed to obtain any licenses, permits, franchises or other governmental
authorization necessary to the ownership or operation of its properties or the
conduct of its business as intended to be conducted, which violations or
failures would be reasonably likely to have a Material Adverse Effect on
Company.
3.8 LITIGATION. There is no action, proceeding or investigation pending
against Company in any court or before any governmental authority or arbitration
board or tribunal, foreign or domestic, and, to the best knowledge of Company,
there is no such action, proceeding or investigation threatened.
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3.9 FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Company who might be entitled to any fee or commission upon consummation of
the transactions contemplated by this Agreement and each of the Ancillary
Agreements.
3.10 NO OPERATIONS. Prior to the Effective Date, the Company has not
conducted any operations or incurred any liability or obligation other than
those expressly set forth in the Company's Certificate of Formation and original
Operating Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Company that:
4.1 ORGANIZATION AND STANDING. Purchaser is a not-for-profit
corporation duly incorporated, validly existing and in good standing under the
laws of New York. Purchaser is duly qualified and authorized to do business and
is in good standing as a foreign corporation in all jurisdictions in which the
nature of its activities and of its properties makes such qualification
necessary, except for those jurisdictions in which failure to do so would not
have a Material Adverse Effect on Purchaser.
4.2 CORPORATE POWER AND AUTHORIZATION. Purchaser has all requisite
corporate power and authority to own and operate its properties and assets, to
execute and deliver this Agreement and the Ancillary Agreements to which it is a
party and to carry out the provisions of this Agreement and the Ancillary
Agreements to which it is a party and to carry on its business as currently
conducted and as currently proposed to be conducted. The execution, delivery and
performance by Purchaser of this Agreement and each of the Ancillary Agreements
to which it is a party, and the consummation by Purchaser of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action on the part of Purchaser. This Agreement and each of the Ancillary
Agreements to which it is a party constitute, or upon execution and delivery
will constitute, valid and binding agreements of Purchaser enforceable in
accordance with their terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights; (ii) as general principles of equity
restrict the availability of equitable remedies; and (iii) to the extent that
the enforceability of the indemnification provisions contained in the Ancillary
Agreements may be limited by applicable laws.
4.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and performance
by Purchaser of this Agreement and each of the Ancillary Agreements to which it
is a party does not require any action by or in respect of, or filing with, any
governmental body, agency, official or authority by Purchaser, including any
filings or other requirements pursuant to the HSR Act, other than any such
action or filing the failure to obtain or complete which would not have,
individually or in the aggregate, a Material Adverse Effect on Purchaser or
which would not materially and adversely affect Purchaser's ability to
consummate the transactions contemplated hereby and thereby, and other than: (i)
such filings as have been made prior to the Closing; and
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(ii) such post-closing filings as may be required under applicable state
securities laws, which will be timely filed within the applicable periods
therefor.
4.4 NON-CONTRAVENTION. The execution, delivery and performance by
Purchaser of this Agreement and each of the Ancillary Agreements to which it is
a party do not and will not (i) contravene or conflict with the organizational
documents of Purchaser, and (ii) assuming compliance with the matters referred
to in Section 4.3, contravene or conflict with or constitute a material
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to Purchaser, which violation would have a
Material Adverse Effect on Purchaser.
4.5 CONSENTS. There are no agreements, contracts or other instruments
binding upon Purchaser which require a Consent as a result of the execution,
delivery and performance of this Agreement or any of the Ancillary Agreements,
or the consummation of the transactions contemplated hereby and thereby.
4.6 FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Purchaser who might be entitled to any fee or commission upon consummation of
the transactions contemplated by this Agreement and each of the Ancillary
Agreements.
4.7 INVESTMENT REPRESENTATIONS. Purchaser understands that the
Purchased Units have not been registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). Purchaser also understands that the Purchased
Units are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Purchaser's representations
contained in this Agreement. Purchaser hereby represents and warrants as of the
date hereof and as of the Closing Date as follows:
(a) ACCREDITED INVESTOR. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(b) PURCHASER BEARS ECONOMIC RISK. Purchaser must bear the
economic risk of this investment indefinitely unless the Purchased Units are
registered pursuant to the Securities Act, or an exemption from registration is
available. Purchaser understands that Company has no present intention of
registering the Purchased Units. Purchaser also understands that there is no
assurance that any exemption from registration under the Securities Act will be
available and that, even if available, such exemption may not allow Purchaser to
transfer all or any portion of the Purchased Units or under the circumstances,
in the amounts or at the times Purchaser might propose.
(c) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Purchased Units for Purchaser's own account for investment only, and not with a
view towards their distribution.
(d) INVESTMENT EXPERIENCE. Purchaser represents that by reason of
its, or of its management's, business or financial experience, Purchaser has the
capacity to protect its own interests in connection with the transactions
contemplated in this Agreement.
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(e) REVIEW OF COMPANY INFORMATION. Purchaser has had an
opportunity to discuss Company's business, management and financial affairs with
directors, officers and management of Company and has had the opportunity to
review Company's operations and facilities. Purchaser has also had the
opportunity to ask questions of and receive answers from, Company and its
management regarding the terms and conditions of this investment.
(f) RESTRICTED SECURITIES. Purchaser acknowledges and agrees that
the Purchased Units must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available.
(g) LEGENDS. Each certificate representing the Purchased Units
shall be stamped or otherwise imprinted with a legend substantially similar to
the following (in addition to any legend required under applicable state
securities laws or as provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
Subject to any restrictions to the contrary in the Restated Operating Agreement,
Company shall be obligated to reissue promptly unlegended certificates at the
request of any holder thereof if the holder shall have obtained an opinion of
counsel (which counsel may be counsel to Company) reasonably acceptable to
Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or legend. Any
legend endorsed on an instrument pursuant to applicable state securities laws
and the stop-transfer instructions with respect to such securities shall be
removed upon receipt by Company of an order of the appropriate blue sky
authority authorizing such removal.
(h) Notwithstanding anything to the contrary contained herein,
nothing in this Section 4.7 shall be deemed to constitute a waiver of the rights
hereunder by or on behalf of Purchaser, including, without limitation, any
rights to indemnification based on the representations and warranties set forth
in this Agreement or any Ancillary Agreement. The validity of the
representations and warranties shall not be affected by any investigation made
by or on behalf of Purchaser.
ARTICLE 5
POST-CLOSING COVENANTS OF COMPANY AND PURCHASER
Company and Purchaser agree that:
5.1 FURTHER EFFORTS. Subject to the terms and conditions of this
Agreement, each party will use commercially reasonable efforts to take, or cause
to be taken, all actions and to do,
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or cause to be done, all things necessary or desirable under applicable laws and
regulations to consummate the transactions contemplated by this Agreement and
the Ancillary Agreements. Company and Purchaser each agree to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be necessary or desirable in order to consummate
or implement expeditiously the transactions contemplated by this Agreement and
the Ancillary Agreements.
5.2 CERTAIN FILINGS. Company and Purchaser shall cooperate with one
another (a) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required,
including any filings or other requirements pursuant to the HSR Act, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and the Ancillary Agreements and (b)
in taking such actions or making any such filings, in furnishing such
information as may be required in connection therewith, and in seeking timely to
obtain any such actions, consents, approvals or waivers.
5.3 PUBLIC ANNOUNCEMENTS. The parties agree not to issue any press
release or make any public statement with respect to this Agreement and the
Ancillary Agreements or the transactions contemplated hereby and thereby and,
except as may be required by applicable law or any listing agreement with any
national securities exchange, will not issue any such press release or make any
such public statement, in each case without the other party's prior consent.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 CONDITIONS TO OBLIGATION OF PURCHASER. The obligation of Purchaser
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Closing.
(b) Company shall have executed and delivered each of the
Ancillary Agreements to be executed and delivered by it, in each case
substantially in the form previously delivered and agreed to by the parties
thereto.
(c) Company shall have received any Consents relating to the
execution, delivery and performance by such party of this Agreement and the
Ancillary Agreements to be executed by them, except any such Consents where the
failure to obtain would not have a Material Adverse Effect on Company or
adversely and materially affect the ability of Purchaser to consummate the
transactions contemplated hereby, and all such Consents shall be in full force
and effect on and as of the Closing Date.
(d) The representations and warranties of Company contained in
this Agreement shall be true in all material respects, in each case as of the
date hereof and as of the Closing Date.
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(e) Company shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to the
Closing Date.
(f) Purchaser shall have received all documents it may
reasonably request relating to the authority of Company and FCG Holdings to
enter into and perform this Agreement and the Ancillary Agreements, all in form
and substance reasonably satisfactory to Purchaser.
(g) All actions, proceedings, instruments and documents
required to carry out this Agreement and the Ancillary Agreements shall be
reasonably satisfactory in form and substance to counsel for Purchaser.
6.2 CONDITIONS TO OBLIGATIONS OF COMPANY. The obligation of Company to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Closing.
(b) Purchaser shall have executed and delivered each of the
Ancillary Agreements to be executed by them, in each case substantially in the
form previously delivered and agreed to by the parties thereto.
(c) Company and Purchaser shall have received all Consents
relating to the execution, delivery and performance by Company and Purchaser of
this Agreement and the Ancillary Agreements to be executed by them, except any
such Consents where the failure to obtain would not have a Material Adverse
Effect on Company or adversely and materially affect the ability of Purchaser to
consummate the transactions contemplated hereby, and all such Consents shall be
in full force and effect on and as of the Closing Date.
(d) The representations and warranties of Purchaser contained
in this Agreement shall be true in all material respects, in each case as of the
date hereof and as of the Closing Date.
(e) Purchaser shall have performed in all material respects
all of its obligations hereunder required to be performed by it at or prior to
the Closing Date.
(f) Company shall have received all documents they may
reasonably request relating to the authority of Purchaser to enter into and
perform this Agreement and the Ancillary Agreements, all in form and substance
reasonably satisfactory to Company.
(g) All actions, proceedings, instruments and documents
required to carry out this Agreement and the Ancillary Agreements shall be
reasonably satisfactory in form and substance to counsel for Company.
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ARTICLE 7
MISCELLANEOUS
7.1 NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including telecopy or similar writing) and
shall be given,
if to Purchaser, to:
NewYork-Presbyterian Hospital
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, XX
Telecopy: (000) 000-0000
with a copy to:
NewYork-Presbyterian Hospital
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx FassTelecopy: (000) 000-0000
if to Company, to:
FCG Management Services, LLC
c/o First Consulting Group, Inc.
000 X. Xxxxx Xxxx. 0xx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: General Counsel
(000) 000-0000
with a copy to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effective (i) if
personally delivered, at the time delivered by hand, (ii) if delivered by
facsimile transmission, upon confirmation of transmission, (iii) if by courier,
on the business day such courier guarantees delivery, and (iv) if delivered by
first class U.S. Mail, seven business days after deposit in the U.S. Mail,
postage prepaid.
7.2 AMENDMENTS AND WAIVERS.
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(a) Any provisions of this Agreement may be amended or waived
prior to the Closing Date if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Purchaser and Company, or in
the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
7.3 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
7.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns.
7.5 APPLICABLE LAW. This agreement is made under, and shall be
construed and enforced in accordance with, the laws of the state of Delaware
applicable to agreements made and to be performed solely therein, without giving
effect to principles of conflicts of law.
7.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
7.7 ENTIRE AGREEMENT. This Agreement and the Ancillary Agreements
constitute the entire agreement among the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
subject matter hereof. No representation, inducement, promise, understanding,
condition or warranty not set forth herein or therein has been made or relied
upon by either party hereto. None of this Agreement or the Ancillary Agreements,
nor any provision hereof or thereof, is intended to confer upon any person other
than the parties hereto rights or remedies hereunder or thereunder.
7.8 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
7.9 HEADINGS; PRONOUNS. The section headings used in this Agreement are
for convenience of reference only and are not to be considered in construing or
interpreting this Agreement. All pronouns contained herein and any variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the parties hereto may require.
7.10 SURVIVAL. The representations and warranties made by any party
herein shall survive any investigation made by Purchaser and the closing of the
transactions contemplated
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hereby for a period of the later of eighteen (18) months or the date of the
Company's first audit following the Closing.
IN WITNESS WHEREOF, the parties hereto here caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
FCG MANAGEMENT SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Printed Name: Xxxxxx X. Xxxxxxxx
----------------------
Title: Chief Executive Officer
-----------------------------
NEW YORK AND PRESBYTERIAN HOSPITAL
By: /s/ Xxxxx X. Xxxxxx XX
----------------------------
Printed Name: Xxxxx X. Xxxxxx XX
-----------------------
Title: Executive Vice President
----------------------------
