ASSET PURCHASE AGREEMENT
AGREEMENT made this 28th day of February, 1997, by and between IntegraMed
America, Inc., a Delaware corporation, having its principal place of business at
Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Buyer") and Fertility
Centers of Illinois, S.C., an Illinois medical corporation, with its principal
place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000 ( "Seller").
RECITALS
Buyer is engaged in the business of owning certain assets and providing
management and administrative services to medical practices specializing in the
treatment of human infertility, encompassing the provision of in vitro
fertilization and other assisted reproductive services ("Infertility Services");
and
Xxxxx X. Xxxxxxx, M.D., Xxxxx Xxxxx, M.D. Xxxxx Xxxxx, M.D., and Xxxxx
Xxxxxx, M.D. are Illinois physicians (collectively, "Physicians") engaged in the
practice of providing Infertility Services through Seller (the "Practice");
Seller wishes to sell and Buyer wishes to purchase certain assets utilized
in connection with the Practice, and Buyer desires to acquire the exclusive
right to provide management and related administrative services to Seller in
connection with the continued operation of the Practice, pursuant to the terms
of a Management Agreement dated February 28, 1997.
In consideration of the mutual promises and covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
PURCHASE OF ASSETS
1.01 Assets of Practice
(a) Subject to the terms and conditions set forth in this Agreement
and based upon the representations, warranties and covenants made herein, at the
Closing (as herein defined), Seller shall sell, assign, convey and transfer to
Buyer and Buyer shall acquire from Seller the assets and property of the
Practice, free and clear of all liens and encumbrances, as set forth in Exhibit
1.01 ("Practice Assets").
(b) Practice Assets to be acquired by Buyer shall include the name
FERTILITY CENTERS OF ILLINOIS, and Seller agrees to change its name within 30
days of the Closing
Date, if requested to do so by Buyer.
(c) Seller will prior to the Closing Date acquire certain fixed assets
from F.R.E.A. Ultrasound Services, S.C., which is owned by Xxxxx Xxxxxxx, M.D.
and Xxxxxxx Xxxxxxx, his wife; Fertility and Reproductive Endocrinology
Associates, S.C., owned by Xxxxx Xxxxxxx, M.D.; Fertility & Reproductive
Medicine Associates, S.C., owned by Xxxxx Xxxxx, M.D.; and, Xxxxx Xxxxx, M.D.,
S.C., owned by Xxxxx Xxxxx, M.D. (collectively referred to herein as "Associated
Practice Assets"). The Associated Practice Assets will be included in the
Practice Assets to be acquired by Buyer, at net book value, on the Closing Date.
1.02 Excluded Assets
The term Practice Assets does not include, and Seller reserves and
does not sell or transfer to Buyer any right, title to or interest in, the
assets listed in Exhibit 1.02 ( collectively, "Excluded Assets").
ARTICLE II
PURCHASE PRICE
2.01 Purchase Price.
Upon and subject to the terms and conditions set forth herein and in
consideration for the sale of the Practice Assets, Buyer shall pay Seller on the
Closing Date the net book value, determined in accordance with GAAP, of Seller's
fixed assets (the "Purchase Price").
2.02 Manner of Payment
Buyer shall pay the Purchase Price on the Closing Date in certified
funds.
2.03 Allocation of Purchase Price
The purchase price shall be allocated among the assets of Seller as
set forth on Exhibit 2.03 hereto, and the parties agree to respect such
allocation for tax purposes and to cause all tax returns, including IRS Form
8594, to be filed consistent therewith.
2.04 Closing Statement.
Seller shall deliver to Buyer unaudited statements dated not more than
three (3) days prior to Closing Date ( the "Closing Statement"), which shall set
forth the dollar value as of the date of the Closing Statement of the Practice
Assets provided for in paragraph 2 of Exhibit 1.01.
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2.05 Assumption of Liabilities
Subject to the conditions herein set forth, from and after the Closing
Date, Buyer shall assume and shall pay, perform and discharge (the following
being collectively referred to as "Assumed Liabilities") only those liabilities
set forth in Exhibit 2.05. Buyer shall not assume, acquire or otherwise become
responsible or liable for any liabilities other than those specifically set
forth herein and enumerated in Exhibit 2.05.
ARTICLE III
CLOSING
The closing ( the "Closing") of the transactions contemplated by this
Agreement shall be held at 2:00 p.m. on a mutually agreed date which is within
30 days (the "Closing Date") of completion of an offering of Buyer's securities
pursuant to which Buyer receives at least $6.0 million or more, net (the
"Offering")at the offices of Vector Securities, 0000 Xxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000 or such other date or at such other time or location
as to which Seller and Buyer may agree to in writing. The effective time of the
Closing shall be 12:00 midnight on the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, for the purpose of inducing Buyer
to enter into and consummate this Agreement, that:
4.01 Organization and Power
(a) Seller is a duly formed and existing medical corporation organized
under the laws of Illinois, whose only shareholders are Physicians. Each
Physician is duly licensed to practice medicine in the State of Illinois.
(b) Seller has full right, power and authority to enter into this
Agreement and to consummate the transactions herein contemplated and Seller has
received the consent of the Physician authorizing and approving this Agreement
and the transactions contemplated hereby.
(c) This Agreement constitutes the valid and binding obligation of
Seller fully enforceable against Seller in accordance with its terms.
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4.02 Authority; No Conflicting Instruments
(a) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated will not, and with notice or the lapse
of time or both would not, except for contracts, liens or encumbrances disclosed
in Exhibits 1.01 (a) and 2.05 (i) result in the breach of any of the terms or
conditions of, or constitute any default under, the Articles of Incorporation or
By-Laws of Seller or under any mortgage, bond, indenture, agreement, lease or
other instrument or obligation to which Seller is a party or by which it or any
of its properties or assets may be bound, except for any such breach which does
not materially adversely affect Seller or its business; (ii) violate any law or
regulation relating to Seller; and (iii) violate any judgment, award, order,
writ, injunction or decree relating to Seller.
(b) No consent, approval or authorization of, or declaration or filing
with any federal, state, local or foreign governmental or regulatory authority,
or any other third party, is required in connection with the execution and
delivery of this Agreement by Seller or the performance by Seller of the
transactions contemplated by this Agreement, except for (i) consents of lessors
under Seller's lease(s), real property or equipment; and (ii) any state
licensing board approvals relating to Seller's business and (iii) any consents
of third parties to contracts that are not material to Seller's business.
4.03 Practice Assets
Seller has good and marketable title to the Practice Assets which are
owned exclusively by Seller, free and clear of all liens, mortgages and
encumbrances of any kind or nature, except as set forth on Exhibit 1.01(a).
4.04 Financial Statements
Attached hereto as Exhibit 4.04 are the financial statements of Seller
consisting of Statement of Assets, Liabilities and Stockholders' Equity-Income
Tax Basis for the years ended October 31, 1994, 1995 and 1996, together with a
Statement of Assets, Liabilities and Stockholders' Equity-Income Tax Basis for
the two-month period ended December 31, 1996 (collectively, the "Financial
Statements").
(a) Seller does not have any liabilities, debts or obligations,
whether accrued, absolute or contingent, and whether due or to become due, which
are not reflected in the Financial Statements or which are not listed on Exhibit
2.05 if such liabilities are to be assumed by Buyer. As of the date hereof,
Seller has no unfunded liability under any Employee Benefit Plan ( as
hereinafter defined) and there are no circumstances, conditions events or
arrangements which may hereafter give rise to any such liabilities or
obligations which may be asserted against Buyer under any such plan.
(b) Seller has filed with appropriate federal, state and local
authorities ( or has obtained appropriate extensions of the time to file) all
tax returns required by law, regulation or otherwise to be filed by Seller for
all taxable periods ending on or prior to the date hereof for which tax returns
have become due. Seller has paid or made adequate provisions for the payment of
all taxes, penalties
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and interest which have or may become due for or during all taxable periods of
Seller ending on or prior to the date hereof.
4.05 Financial Position
Since December 31, 1996:
(a) There has not been (i) any change in the financial condition,
assets, properties, liabilities, business or results of operations of Seller
other than changes in the ordinary and usual course of business, none of which,
individually or in the aggregate, has been adverse to the business or operations
of Seller; (ii) any strike, labor trouble, employee dispute, property dispute,
lease or contract dispute, loss or destruction or property, actual or
threatened, claim or other event, adversely affecting, or which would adversely
affect, the financial position or business of Seller.
(b) Seller has not granted any wage or salary increase or bonus or any
fringe benefits, or created or amended any Employee Benefit Plan or other fringe
benefit plan (as hereinafter defined) or entered into any employment or labor
contract with any director, officer, employee or group of employees, except for
normal increases in a manner consistent with Seller's policies and practices.
4.06 Licenses
(a) Seller holds all such licenses, orders, approvals and permits
("Licenses") of every kind or nature which are material to the operation of
Seller's business and operations and such Licenses are in full force and effect
and no action., proceeding or, investigation has been instituted or threatened
with reference to or affecting the existence of said Licenses. A list of all
Licenses is set forth on Exhibit 4.06. Seller is in compliance in all respects
with the terms and conditions of such Licenses and with all requirements,
standards and procedures of the federal, state and local governmental or
regulatory bodies which issued said Licenses.
(b) To the best of Seller's knowledge and belief, Seller is in
compliance in all material respects with all federal, state and local laws,
ordinances, codes, regulations, orders, requirements, standards and procedures
which are applicable to the Practice.
4.07 Litigation
(a) To the best of Seller's knowledge and belief, there are no
actions, suits, claims or legal, administrative or arbitration proceedings or
investigations pending or, threatened against, involving or affecting Seller or
Seller's properties or assets, except as set forth on Exhibit 4.07(a). Seller
has no notice or knowledge of any outstanding orders, writs, injunctions or
decrees of any court, governmental agency or arbitration tribunal against,
involving or affecting Seller or Seller's properties or assets except as set
forth on Exhibit 4.07(a). Buyer shall have no liability or obligation with
respect to any matter which arose out of Seller's operations prior to the
Closing Date whether
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set forth on Exhibit 4.07(a).
(b) To the best of Seller's knowledge and belief, Seller has received
no notice of any violation of applicable law, order, regulation or requirement
related to either Seller, the Practice, or the Assets, and is not aware of any
condition or state of facts that could result in any such notice.
4.08 Third-Party Xxxxxxxx
(a) To the best of Seller's knowledge and belief, all xxxxxxxx by
Seller to third-party payors are true and correct in all respects and are in
compliance in all respects with all applicable laws and regulations and the
policies of such third-party payors.
(b) Neither Seller nor any of it's officers, directors, employees or
agents, on behalf of or for the benefit of Seller, directly or indirectly, has
(i) offered or paid any amount to, or made any financial arrangement with, any
of Seller's past or present customers or potential customers in order to obtain
business from such customers, other than standard pricing or discount
arrangements consistent with proper business practices (ii) given, or agreed to
give, or is aware that there has been given, or that there is an agreement to
make any gift or gratuitous payment of any kind, nature or description (whether
in money, property or services) to any past or present customer, supplier,
source of financing, landlord, subtenant, licensee or anyone else at any time of
the year (iii) made, or has agreed to make, or is aware that there is any
agreement to make any political contribution or any contributions, payment or
gifts of their respective funds or property to or for the private use of any
governmental official, employee or agent where either the payment or the purpose
of such contribution, payment or gift relates to the business of Seller and is
illegal under the laws of the United States, any state thereof or any other
jurisdiction (foreign or domestic), or (iv) made, or has agreed to make, or is
aware that there have been, or that there is any agreement to make, any payments
to any person with the intention or understanding that any part of such payment
was to be used directly or indirectly for the benefit of any past or present
customer, employee, supplier or landlord of Seller, or for any purpose other
than that reflected in the documents supporting the payments.
4.09 Contracts and Agreements
(a) Exhibit 4.09(a) is a list as of the date hereof of all the
material contracts or agreements related to the business of Seller to which
Seller is a party, all of which are valid and existing, in full force and
effect, and binding upon the parties thereto in accordance with their terms.
Seller has paid in full or accrued all amounts due thereunder which are
currently due and as separately identified on Exhibit 4.09(a). Except as
otherwise disclosed, no approval or consent of any person or entity is needed in
order that the contracts and other agreements as listed continue in full force
and effect with respect to Buyer from and after the Closing Date.
(b) Seller and Physicians are in compliance with all terms and
provisions of all
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contracts material to the operation of the Practice or by which the Practice or
the Seller is bound or affected; and all such contracts are legally valid and
binding in accordance with their terms and in full force and effect except as
may be limited by bankruptcy, moratorium, reorganization, insolvency and other
similar laws of general application relating to or affecting the rights of
creditors, and by general principles of equity.
(c) All documents, Exhibits and other materials delivered or made
available, by or on behalf of Seller to Buyer in connection with this Agreement
and the transactions contemplated hereby, are true and complete. The information
furnished by or on behalf of Seller to Buyer in connection with this Agreement
and the transactions contemplated hereby does not, in light of the circumstances
under which the statements contained in the information so furnished are made,
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements contained therein not false or misleading.
There is no fact which Seller has not disclosed to Buyer which adversely
affects, or insofar as Seller can foresee, will adversely affect the Practice
Assets or the ability of Seller to perform its obligations under this Agreement
or any other agreement entered into in connection with this transaction.
4.10 Insurance Seller has maintained at all times since November 28, 1993,
with responsible and financially solvent insurance companies, adequate insurance
covering risks of such types and in such amounts as are customary for other
professional corporations of similar size engaged in Seller's business. Exhibit
4.10 contains a true and complete list of all policies of insurance relating to
comprehensive liability coverage, the amount of coverage, the period of
coverage, the type of coverage and all pending claims under such policies.
4.11 Personnel
(a) Exhibit 4.11(a) lists each current employee, both full-time and
part-time, of Seller and all current consultants of Seller and discloses their
duties, the date of hire or contract, the annual compensation, bonuses and
incentive arrangements with each.
(b) Exhibit 4.11(b) describes all of Seller's fringe benefit plans
generally available to Seller's employees ("Employee Benefit Plans"). Seller has
complied with the terms and conditions of such Employee Benefit Plans. Seller
has no obligations to establish or create any employee pension benefit plan or
defined benefit plan for the benefit of any of its employees to become effective
after the date hereof. Buyer shall have no obligations relating to the Employee
Benefit Plans or the employees covered thereunder and Buyer shall have no
obligations for employees of Seller arising out of federal or state law or case
decisions as to employment matters arising prior to Closing Date except in each
case for those obligations Buyer assumes hereunder relating to accrued salaries
and wages ( including accrued vacation and sick leave) or permanent and
temporary employees, any accrued bonuses of managerial employees and any accrued
bonus hours of temporary employees of Seller.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer, for the purpose of inducing Seller to enter into and consummate this
Agreement, hereby represents and warrants to Seller that:
5.01 Organization, Power and Authority
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full power and
authority, corporate and otherwise, to carry on its business as now conducted
and to own or lease and to operate its properties and assets now owned or leased
and operated by it, to conduct the business of Seller and to consummate the
transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement by Buyer
has been duly authorized by all requisite corporate action, and no further
action or approval is required in order to constitute this Agreement as a valid,
binding and enforceable obligation of Buyer, and this Agreement constitutes the
valid and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms.
(c) The execution and delivery of this Agreement and the consummation
of the transactions as herein contemplated will not violate any provisions of
any applicable law or of the Certificate of Incorporation or By-Laws of Buyer,
or any order, judgment or decree of any court or other agency of government
binding on Buyer, or conflict with, result in a breach of or constitute ( with
due notice or lapse of time or both) a default under any contractual obligation
of Buyer, result in or require the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of Buyer's properties or assets ,
require any approval of or any consent of any person under any contractual
obligation of Buyer or conflict with or result in any breach or default under
any of the terms, conditions or provisions of any indenture, mortgage, deed of
trust or other instrument to which Buyer is a party or by which it or its
properties may be bound or affected.
ARTICLE VI
INDEMNIFICATION
6.01 Survival of Representations and Warranties
The representations and warranties contained in this Agreement and in
any instrument or certificate delivered pursuant to, or provided for in this
Agreement ("Representations and Warranties"), shall survive the consummation of
the transactions contemplated by this Agreement
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for a period of one (1) year after the Closing Date; provided, however, that the
expiration of the applicable period would not preclude either party from
indemnification by the other relating to any third-party Claim ( as defined
herein). Each party to this Agreement shall be deemed to have relied upon each
and every representation and warranty of the other party, regardless of any
investigation made at any time by the party relying on such representation and
warranty.
6.02 Indemnification
(a) After the Closing Date, Seller shall indemnify Buyer against, and
defend and hold Buyer harmless from, all demands, claims, actions or causes of
action, assessments, losses, damages, deficiencies, liabilities, costs and
expenses ( including interest, penalties and reasonable attorneys' fees and
disbursements) (excluding indirect, punitive and consequential damages)
(hereinafter collectively called "Claim") arising out of or in connection with
(i) any breach of the Representations and Warranties, covenants or agreements of
Seller contained in this Agreement or any agreement or instrument delivered by
Seller pursuant to this Agreement; and (ii) the operations of Seller (including,
but not limited to provision of services, actions of officers and directors, use
of trademarks, service marks, logos or other proprietary symbols) on or prior to
the Closing Date except as expressly assumed by Buyer pursuant hereto. Upon the
assertion of any Claim against Buyer that may give rise to a liability of a
Seller hereunder, Buyer shall notify said Seller of the existence of such Claim
(which notice shall include a description thereof) and Buyer shall give said
Seller reasonable opportunity to defend and/or settle such Claim at said
Seller's own expense and with counsel of its own selection, which counsel shall
be reasonably satisfactory to Buyer; provided, however, that in the case of any
Claim, Buyer shall have the right to participate in any administrative or
judicial proceedings with respect to such Claim, at its expense and with counsel
of its choice. If a Seller shall, after ten (10)-days notice thereof by Buyer,
fail, in Buyer's judgment to take adequate action to defend any Claim, Buyer
shall have the right to undertake the defense, compromise or settlement of such
Claim on behalf of, for the account of, and at the risk of a Seller. If the
Claim is one that cannot by its nature be solely defended by a Seller, then
Buyer shall, at its expense, make available all information and assistance as
may reasonably be requested by a Seller.
(b) After the Closing Date, Buyer shall indemnify Seller against, and
defend and hold Seller harmless from Claims arising out of or in connection with
(i) any breach of the Representations and Warranties, covenant or agreement of
Buyer contained in this Agreement or any agreement or instrument delivered by
Buyer pursuant to this Agreement; and (ii) the management by Buyer of the
Practice after the Closing Date. Upon the assertion of any Claim that may give
rise to a liability of Buyer hereunder, Seller shall notify Buyer of the
existence of such claim (which notice shall include a description thereof) and
Seller shall give Buyer reasonable opportunity to defend and/or settle such
Claim at Buyer's own expense and with counsel of its own selection, which
counsel shall be satisfactory to Seller; provided, however, that in the case of
any Claim, a Seller shall have the right to participate in any administrative or
judicial proceedings with respect to such Claim, at its expense and with counsel
of its choice. If Buyer shall, after ten (10) days-notice thereof by a Seller,
fail to defend any Claim, said Seller shall have the right to undertake the
defense, compromise or settlement of such Claim on behalf of, for the account
of, and at the risk
9
of Buyer. If the Claim is one that can not by its nature be solely defended by
Buyer, then said Seller shall, at its sole expense, make available all
information and assistance as may be requested by Buyer.
(c) The respective rights of the parties to be indemnified by the
other shall not in any way be limited by the existence or non-existence of
insurance coverage.
ARTICLE VII
CERTAIN COVENANTS
7.01 Conduct Prior to Closing Date
(a) During the period from the date of this Agreement through the
Closing Date, Seller agrees to conduct its business in the ordinary and normal
course of business. In connection therewith, Seller shall use its best efforts
to (i) maintain all patient lists, records, billing and collection data,
goodwill associated with the Practice, and all material files and records and
intangible assets related to the continued operation of the Practice, (ii)
preserve, protect and maintain the Practice Assets (iii) use its efforts to
preserve the good standing of Seller and to keep available the services of
present employees and agents and to preserve the goodwill of suppliers, patients
and others having business relationships with Seller and the Practice; (iv) not
sell, lease, or otherwise dispose of any of the Practice Assets, or other
properties, rights or claims, except in the ordinary course of business, without
Buyer's written consent.
(b) After the date of this Agreement, Seller will deliver to Buyer
copies of all interim financial statements since December 31, 1996 ("Interim
Financial Statements") with five (5) days after preparation of the Interim
Financial Statements, but in no event later than three (3) business days prior
to the Closing Date. Seller will not have any liabilities, debts or obligations,
whether accrued, absolute or contingent, and whether due or to become due, which
will not be reflected in the Interim Financial Statements or which are not
listed on Exhibit 2.05 if such liabilities are to be assumed by Buyer.
7.02 Conduct After Closing Date
Seller assumes any and all liabilities for taxes and deficiencies with
respect to the operation of the Practice prior to the Closing Date.
ARTICLE VIII
CONDITION TO OBLIGATIONS
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8.01 Conditions to Seller's Obligations The obligations of Seller under
this Agreement are subject to the satisfaction on or before the Closing Date of
the following conditions, any of which may be waived by Seller by proceeding
with the Closing:
(a) The representations and warranties of Buyer set forth in this
Agreement shall be true on and as of the Closing Date with the same effect as
though made on such date. Buyer shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by Buyer prior to or on the Closing Date and Buyer shall have
delivered to Seller a certificate, dated as of the Closing Date, to all such
effects;
(b) No suit, action or other proceeding shall be pending before any
court or other government agency in which it is sought to restrain or prohibit
performance of this Agreement or the consummation of the transactions
contemplated herein or in connection herewith to subject Seller to liability on
the ground that it has breached any law or duty or otherwise acted improperly,
nor shall any such suit, action, or proceeding be threatened;
(c) Buyer shall have delivered in form satisfactory to Seller and
which is consistent with this Agreement the documents identified below:
1. The consideration required pursuant to Section 2.01 hereof.
2. The opinion of Xxxxxx X. Xxxxx, Esq. legal counsel to Buyer, dated
the Closing Date, in the form of Exhibit 8.01(c)2 attached hereto.
3. An agreement of Buyer assuming the liabilities, including without
limitation office and equipment leases, of Seller set forth on Exhibit 2.01 and
taking assets subject to liens and encumbrances set forth on Exhibit 1.01(a).
8.02 Conditions to Buyer's Obligation The obligations of Buyer under this
Agreement are subject to the satisfaction on or before the Closing Date of the
following conditions, any of which may be waived by Buyer by proceeding with the
Closing:
(a) The representations and warranties of Seller set forth in this
Agreement shall be true on and as of the Closing Date with the same effect as
though made on such date. Seller shall have performed all obligations and
complied with by Seller prior to or on the Closing Date and Seller shall have
delivered to Buyer, a certificate, dated as the Closing Date, to all such
effects.
(b) No suit, action or other proceeding shall be pending before any
court or other government agency in which it is sought to restrain or prohibit
performance of this Agreement or the consummation of the transactions
contemplated herein or in connection herewith to subject Buyer to liability on
the ground that it has breached any law or duty or otherwise acted improperly,
nor shall any such suit, action or proceeding be threatened except as disclosed
on Exhibit 4.07(a);
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(c) Buyer receiving at least $6.0 million or more, net, in the
Offering.
(d) Seller shall have delivered in form reasonably satisfactory to
Buyer and consistent with this Agreement the documents identified below:
1. A Certificate of Good Standing of Seller, dated not earlier than
thirty (30) days prior to the Closing Date, from the Secretary of State of
Seller's incorporation.
2. An assignment to Buyer transferring to Buyer all of the right,
title and interest of Seller in and to all telephone numbers utilized by Seller
in the operation of its business.
3. An assignment of all office and equipment leases listed on Exhibits
4.09 (a). Buyer will credit Seller with or provide to Seller an amount equal to
any security deposit held by the Lessor under such lease(s).
4. Such bills of sale and instruments of title as requested by Buyer
as shall convey to Buyer all of the Practice Assets , free and clear of all
liens.
5. An assignment to Buyer of all executory agreements of Seller set
forth on or referred to in Exhibit 4.09(a) including separate assignments of
each agreement listed in Paragraph 5 of Exhibits 1.01.
6. The opinion of Xxxxxx X. Xxxxxxx, Esq., legal counsel to Seller and
Physicians, dated the Closing Date, in the form annexed hereto as Exhibit
8.01(d) 6.
7. Certified copies of resolutions adopted by Seller and Physicians
authorizing and approving the transaction contemplated by this Agreement.
ARTICLE IX
MISCELLANEOUS
9.01 Seller represents and warrants to Buyer that Seller has not dealt
with or retained any broker or finder or agreed to pay any commission or fee to
any broker or finder for or on account of this Agreement or the transactions
contemplated hereby. Buyer represents and warrants to Seller that it has not
dealt with or retained any broker or finder for or on account of this Agreement
or the transactions contemplated hereby. Each party agrees to indemnify the
other against any loss, cost or expense, including attorneys' fees, as a result
of any claim for a fee or commission asserted by any broker or finder with
respect to this Agreement or the consummation thereof whose claim arises through
dealings with such broker or finder by the indemnifying party.
9.02 If at any time after the Closing Date any further assignment,
transfers or
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assurances in law are reasonably necessary or desirable to carry out the
provisions of this Agreement, the parties to this Agreement shall execute and
deliver any and all assignments, transfers, and assurances in law, and do all
things, reasonably necessary or proper to such end and otherwise to carry out
the provisions and intent of this Agreement.
9.03 Any notice or other communication required, by, or which may be
given pursuant to this Agreement shall be in writing and mailed, certified or
registered mail, postage prepaid, return receipt requested, or overnight
delivery service, such as Fedex or Airborne Express, prepaid, and shall be
deemed given when received. Any such notice or communication shall be sent to
the address set forth below:
If to Buyer, at:
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxx, President
With a copy to:
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx, General Counsel
And if to Seller, at:
Fertility Centers of Illinois, S.C.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, M.D.
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Any party may change the persons and addressees to which notices or
other communications are to be sent to it by giving written notice of any such
change to the other party hereto.
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9.04 The headings contained in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
9.05 All Exhibits referred to in this Agreement are deemed annexed
hereto and made a part of this Agreement.
9.06 This Agreement, together with the Exhibits:
(a) Constitutes the entire agreement among the parties to it with
respect to the purchase and sale of the Practice Assets and supersedes all prior
agreements and understandings;
(b) May not be modified or discharged, nor may any of its terms
be waived, except by an instrument in writing, signed by the party or parties to
be charged; and
(c) Shall bind and inure to the benefit of the parties and their
respective successors and permitted assigns. Nothing expressed or mentioned in
this Agreement is intended, or will be construed, to give any person, firm
corporation or other entity, other than the parties to this Agreement and their
respective successors and assigns, any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any of its provisions.
9.07 This Agreement may not be assigned by any party hereto without
the prior written consent of the other party. No assignment or delegation of any
rights or obligations hereunder shall release the assignor from any of its
liabilities hereunder.
9.08 The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same. No waiver of any nature, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or of any
breach of any other term, covenant, representation or warranty of this
Agreement.
9.09 This Agreement may be executed in any number of separate
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9.10 This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois, irrespective of the principal place of
business of the parties hereto. Any and all claims, disputes, or controversies
arising under, out of, or in connection with this Agreement or any breach
thereof, except for equitable relief sought pursuant to Article IX, shall be
determined by binding arbitration in the State of Illinois, County of Xxxx
(hereinafter "Arbitration"). The party seeking determination shall subject any
such dispute, claim or controversy to either (i) JAMS/Endispute or (ii) the
American Arbitration Association, and the rules of commercial arbitration of the
selected entity shall govern. The Arbitration shall be conducted and decided by
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three (3) arbitrators, unless the parties mutually agree, in writing at the time
of the Arbitration, to fewer arbitrators. In reaching a decision, the
arbitrators shall have no authority to change or modify any provision of this
Agreement. Each party shall bear its own expenses and one-half the expenses and
costs of the arbitrators. Any application to compel Arbitration, confirm or
vacate an arbitral award or otherwise enforce this Paragraph shall be brought in
the Courts of the State of Illinois or the United States District Court for the
Northern District of Illinois, to whose jurisdiction for such purposes FCI and
INMD hereby irrevocably consent and submit.
IN WITNESS WHEREOF, the parties have executed this Agreement the date
first above written by their respective duly authorized officers.
INTEGRAMED AMERICA, INC.
By:_____________________________
Xxxxxxx Xxxxx, President
FERTILITY CENTERS OF ILLINOIS, S.C.
By:__________________________________
Xxxxx Xxxxxxx, M.D., President
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