EXHIBIT 10.4
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of January ____, 1996, by and among ASTHMA & ALLERGY CAREAMERICA, INC.,
a Delaware corporation ("AACA"); its parent company, VIVRA INCORPORATED, a
Delaware corporation ("VIVRA") (VIVRA is entering into this Agreement solely for
the purposes set out in Section 6 hereof); XXXXXX X. XXXXXXXXX, III, M.D., P.C.,
a Tennessee professional corporation ("GHT") and XXXXXX X. XXXXXXXXX, III
("Xxxxxxxxx").
W I T N E S S E T H:
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WHEREAS, GHT owns and operates a pediatric allergy practice with its
principal office location located at ________________________ together with its
satellite locations in the Memphis, Tennessee area (collectively the
"Business");
WHEREAS, Xxxxxxxxx owns all of the outstanding stock of GHT;
WHEREAS, the parties desire to merge GHT with and into AACA, with AACA
being the surviving corporation in the merger, in exchange for VIVRA Common
Stock;
WHEREAS, for federal income tax purposes, it is intended that the merger
shall qualify as a "reorganization" within the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended;
WHEREAS, for accounting purposes, it is intended that the merger shall be
accounted for as a pooling of interests;
WHEREAS, GHT and Xxxxxxxxx have entered into that certain Master Merger
Agreement of even date with AACA; Xxxxxxx X. Xxxxxxxxx, M.D., P.C. ("PLL");
Xxxxxxx X. Xxxxxxxxx, M.D. ("Xxxxxxxxx"); Pediatric Allergy Group, a
Professional Association, a Tennessee professional corporation ("PAG"); PAG's
shareholders, Xxxxxx X. Xxxxxx, M.D., an individual resident of Tennessee
("Xxxxxx"), Xxxx X. Xxxxxx, Xx., M.D., an individual resident of Tennessee
("Xxxxxx") and Xxxxxxx X. Xxxxx, M.D., an individual resident of Tennessee
("Xxxxx") (with Xxxxxx, Xxxxxx and Xxxxx being collectively referred to herein
as the "PAG Physicians"), which contemplates that PLL and PAG will merge into
AACA at the same time that GHT merges into AACA;
WHEREAS, the merger of GHT into AACA is subject to the simultaneous
consummation of the mergers of PLL and PAG into AACA;
WHEREAS, the PAG Physicians, Xxxxxxxxx and Xxxxxxxxx wish for there to be
formed a new Tennessee professional corporation "Newco") through which to
practice medicine; and
WHEREAS, the parties wish for the PAG Physicians, Lieberman, Treadwell,
Newco and AACA to enter into certain agreements as conditions precedent to the
consummation of the merger of GHT into AACA as set forth in the Master Merger
Agreement,
NOW, THEREFORE, in consideration of these premises and the agreements
contained herein, the sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, do hereby agree as follows:
SECTION 1. THE MERGER.
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1.1 AGREEMENT TO MERGE. On the terms, subject to the conditions, and
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for the consideration hereinafter stated, the parties hereto agree that GHT
shall be merged with and into AACA, with AACA being the surviving corporation
(the "Surviving Corporation"). The merger of GHT with and into AACA (the
"Merger") shall become effective as of the "Effective Time" (as hereinafter
defined).
1.2 EFFECTIVE TIME OF MERGER. At or prior to the "Closing" (as
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hereinafter defined), AACA, on the one hand, and GHT on the other hand, shall
execute a certificate of merger in the form attached hereto on Exhibit 1.2(i)
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(the "Certificate of Merger") and Articles of Merger in the form attached hereto
as Exhibit 1.2(ii) (the "Articles of Merger") to effect the Merger in accordance
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with all appropriate legal requirements and shall deliver and file such
Certificate of Merger as required by the Delaware General Corporation Law and
such Articles of Merger as are required by the Tennessee Professional
Corporation Act. The Merger shall become effective upon the latter of the time
and date of filing with the Delaware Secretary of State or the time and date of
filing with the Tennessee Secretary of State, or at such later date and time as
may be specified by mutual agreement of the parties in the Certificate of Merger
and the Articles of Merger (the time and date of such
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filing or such later time and date being referred to herein as the "Effective
Time").
1.3 PLAN OF MERGER. In accordance with the requirements of the
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Tennessee Business Corporation Act, AACA and GHT hereby adopt the Plan of Merger
set forth as Exhibit A to the Articles of Merger (the "Plan of Merger"). If
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there are any inconsistencies between the provisions of the Plan of Merger and
the provisions of this Agreement, the provisions of this Agreement shall
prevail.
SECTION 2. TERMS OF THE MERGER.
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2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
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AACA immediately prior to the consummation of the Merger shall be the
Certificate of Incorporation of the Surviving Corporation until otherwise
amended or repealed in accordance with law.
2.2 BYLAWS. The Bylaws of AACA immediately prior to the consummation of
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the Merger shall be the Bylaws of the Surviving Corporation until otherwise
amended or repealed in accordance with law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of AACA in
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office immediately prior to the consummation of the Merger shall be the
directors and officers of the Surviving Corporation. All such directors and
officers shall hold office in accordance with the Surviving Corporation's
Certificate of Incorporation, Bylaws and applicable law.
2.4 MANNER AND BASIS OF CONVERTING SHARES.
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(a) At the Effective Time of the Merger, all of the issued and
outstanding shares of common stock, without par value, of GHT (the "GHT Common
Stock") prior to the Effective Time of the Merger (other than such shares held
by GHT in its treasury) shall, by virtue of the Merger and without any action by
the holder thereof, automatically be converted into the "Determined Amount" of
the Common Stock, $ .01 par value per share, of VIVRA ("VIVRA Common Stock").
For purposes hereof, the term "Determined Amount" shall mean the number of
shares of VIVRA Common Stock calculated by dividing $726,985 (the "Merger
Consideration"), adjusted up or down by the amount of the "Closing Date
Adjustment" (as hereinafter defined in Section 2.5(c)), by the average closing
price (as quoted by the New York Stock Exchange) of VIVRA Common Stock for the
ten-day trading period immediately preceding and including January 3, 1995 (said
average price being referred to herein as the "Closing Price"). Each share of
GHT Common Stock held in the treasury of GHT upon the Effective Time of the
Merger shall be cancelled, and
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no consideration shall be issued therefor. The Determined Amount of VIVRA
Common Stock less the number of shares and the cash equivalent of fractional
shares to be held in escrow as provided in the Escrow Agreement shall be
distributed to Xxxxxxxxx as set forth in Exhibit 2.4 hereof. Fractional shares
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may be paid in cash.
(b) Except as may be otherwise provided herein, in the event that
subsequent to the date of execution of this Agreement but prior to the Effective
Time of the Merger, the outstanding shares of VIVRA Common Stock or GHT Common
Stock shall have been increased, decreased, changed into or exchanged for a
different number or kind of shares through a recapitalization, reclassifi-
cation, stock dividend, stock split or reverse stock split, then an appropriate
and proportionate adjustment shall be made in the VIVRA Common Stock to be
delivered hereunder.
(c) At the Closing, Xxxxxxxxx shall surrender his certificates
representing all of the GHT Common Stock, duly endorsed for cancellation or
marked canceled as may be required by AACA.
2.5 MERGER CONSIDERATION ADJUSTMENT.
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(a) The Merger Consideration deliverable as a number of shares of
VIVRA Common Stock hereunder is based on the assumption that GHT's "Net Assets"
(as hereinafter defined) as of the Effective Time shall be at least $12,969 (the
"Agreed Amount"). To the extent that GHT's Net Assets as of the Effective Time
shall exceed the Agreed Amount, then Xxxxxxxxx, in the same percentages as set
forth in Exhibit 2.4, shall be entitled to receive additional shares of VIVRA
Common Stock in an amount equal to that number of shares determined by dividing
such excess by the Closing Price, and to the extent that GHT's Net Assets as of
the Effective Time shall be less than the Agreed Amount, then AACA shall be
entitled to receive from Xxxxxxxxx a return of shares of VIVRA Common Stock in
an amount equal to that number of shares determined by dividing such deficit by
the Closing Price with such return to be effected by Xxxxxxxxx by a transfer to
AACA as provided under the Escrow Agreement.
(b) For purposes hereof, the term "Net Assets" shall mean the sum of
(i) the value of GHT's "Accounts Receivable" (as hereinafter defined) as of the
Effective Time, plus (ii) the value of GHT's fixed assets which, for purposes of
this calculation, shall be deemed to be zero, plus (iii) cash, minus the amount
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of all "Liabilities" (as hereinafter defined) of GHT which have not been paid as
of the Effective Time. For purposes hereof, the term "Accounts Receivable"
shall mean (x) the sum of all receivables GHT posted in accordance with
historical practices with respect to the
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operations of the Business prior to the Effective Time arising from the
rendering of services to patients up to the Effective Time, including, without
limitation, those from private pay patients, private insurance payers, third
party payers or from governmental programs, but not including accounts
previously written off by GHT, and not including any accounts receivable for
which there is an unposted cash receipt as of the Effective Time, (y)
multiplied times seventy-five percent (75%), which represents an agreed-upon
allowance for bad debts and contractual allowances and payer discounts, (z)
multiplied times sixty percent (60%), which represents an agreed-upon after-tax
realization rate. For purposes hereof, the term "Liabilities" shall mean all
liabilities with respect to the operation of the Business and including, without
limitation, all liabilities of GHT as of the Effective Time for accrued sick
leave and vacation pay of employees of GHT as of the Effective Time and
including all liabilities for supplies, inventory and other goods ordered by GHT
prior to the Effective Time but not paid for as of the Effective Time, but not
including liabilities accruing in the ordinary course of business after the
Effective Time under the contracts and leases listed on Exhibit 2.5.
(c) For purposes of establishing the Determined Amount on the
Closing Date, the Merger Consideration shall be adjusted initially on or prior
to the Closing Date using GHT's December 31 balance sheet (the "Interim Balance
Sheet"). Such initial calculation shall be set forth on a schedule delivered by
Xxxxxxxxx to AACA together with a copy of the Interim Balance Sheet not less
than 2 days prior to the Closing. Such initial adjustment shall be deemed to be
the "Closing Date Adjustment."
(d) Within ninety (90) days after the Effective Time (or as soon
thereafter as possible), the parties shall make final adjustments to the Merger
Consideration (the "Post-Closing Adjustments"). AACA shall furnish to
Xxxxxxxxx, within sixty (60) days after the Effective Time, a balance sheet of
GHT with respect to the Business as of the close of business at the Effective
Time (the "Closing Balance Sheet") and a statement of AACA's proposed
Post-Closing Adjustments. The Closing Balance Sheet will be used to determine
any final adjustments to the Merger Consideration. Should Xxxxxxxxx dispute any
of the Post-Closing Adjustments proposed by AACA or the accuracy of the Closing
Balance Sheet, Xxxxxxxxx shall promptly (and in no event later than ten days
after receipt of the Closing Balance Sheet and AACA's proposed Post-
Closing Adjustments) advise AACA in writing. If after thirty (30) days after
delivery of the Closing Balance Sheet, AACA and Xxxxxxxxx are unable to agree on
the amount of the Post-Closing Adjustments, Xxxxxxxxx and AACA shall engage
Ernst & Young, Certified Public Accountants (the "Accountants") to review the
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Closing Balance Sheet and the proposed Post-Closing Adjustments and to determine
the amount of Post-Closing Adjustments, such determination to be made as soon as
practicable. In making such review and determination, the Accountants shall
utilize the terms and provisions of this Agreement. The decision of the
Accountants shall be binding on both Xxxxxxxxx and AACA. Each of AACA and
Xxxxxxxxx jointly shall pay one-half (1/2) of the reasonable fees and expenses
of the engagement of the Accountants.
(e) If any further adjustments are required in the Determined
Amount consideration by virtue of the foregoing provisions, the adjusted number
of shares shall be delivered to the party entitled to them or added to the
amount to be transferred to AACA under the Escrow Agreement, as the case may be,
within 10 days after the adjustments are determined pursuant to the foregoing
provisions.
2.6 HOLDING PERIOD WITH RESPECT TO POOLING. Xxxxxxxxx will hold his
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shares of VIVRA Common Stock for the required period from the date of issuance
until April 1, 1996, or until the date on which the combined financial
statements of AACA and GHT are reported, if it should occur earlier, in keeping
with the intent of the parties for AACA to account for the Merger as a pooling
of interest.
SECTION 3. CLOSING.
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3.1 CLOSING AND CLOSING DATE. The closing (the "Closing") of the Merger
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and the execution and delivery of the Certificate of Merger, the Articles of
Merger and the agreements and documents contemplated herein shall take place on
or before January 6, 1996, at 11:00 a.m. EST, at the offices of The Bogatin Law
Firm, 000 Xxxxx xxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, or at such
other place and time as may be deemed appropriate by the parties hereto. At or
before the Closing, AACA, on the one hand, and GHT, on the other hand, will
execute and deliver the Certificate of Merger and the Articles of Merger, and
thereafter cause them to be filed as provided in Section 1.2 hereof.
3.2 ACTION BY AACA. Upon the terms and subject to the conditions herein
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contained, at the Closing on the Closing Date, AACA will deliver to Xxxxxxxxx
the following:
(i) The certificates referred to in Section 9.1 hereof;
(ii) The opinion of counsel for AACA in form and substance satisfactory
to GHT and Xxxxxxxxx;
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(iii) Resolutions of the Board of Directors of AACA, certified by an
appropriate officer, authorizing the execution, delivery and
performance of this Agreement, the Certificate of Merger and the
other agreements to be delivered by AACA in connection with the
Closing hereunder (action of the Shareholder of AACA is not required
as provided by Section 252 of the Delaware General Corporation Law);
and
(iv) For Xxxxxxxxx, the Determined Amount of the VIVRA Common Stock which
shall be represented by two (2) share certificates (i) one, which
shall be deposited (together with an executed stock power) with the
Escrow Agent as provided in the Escrow Agreement and (2) one, which
shall be delivered directly to Xxxxxxxxx.
3.3 ACTION BY GHT AND XXXXXXXXX. Upon the terms and subject to the
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conditions herein contained, at the Closing on the Closing Date, GHT and
Xxxxxxxxx will deliver to AACA the following:
(i) The certificate referred to in Section 10.1 hereof;
(ii) The opinion of counsel for GHT and Xxxxxxxxx in form and substance
satisfactory to AACA;
(iii) Resolutions of the shareholders and the Board of Directors of GHT
certified by an appropriate officer, authorizing the execution,
delivery and performance of this Agreement, the Certificate of
Merger and the other agreements to be delivered by GHT in connection
with the Closing hereunder; and
(iv) The schedule showing the Closing Date Adjustment referred to in
Section 2.5(c) hereof.
3.4 ACTION BY ALL PARTIES. Upon the terms and subject to the conditions
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herein contained, at the Closing on the Closing Date, the parties will, as
appropriate, execute and deliver to each other the following:
(i) the "Xxxxxxxxx Noncompetition Agreement" between Xxxxxxxxx and AACA
in substantially the form attached hereto as Exhibit 3.4(i); and
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(ii) the "Escrow Agreement" between Xxxxxxxxx and AACA in substantially
the form attached hereto as Exhibit 3.4(ii).
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3.5 AUDIT. AACA shall have the right, either before or after the Closing,
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to cause its accounting firm to audit the financial statements of GHT for the
current year and for the three years prior to the current year. Xxxxxxxxx shall
cooperate reasonably in connection with any such audit or audits and will
execute management letters and other documents reasonably requested in
connection with any such audit or audits and any equity offering by AACA. AACA
will pay the cost of the audits required by AACA under this Agreement.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF GHT AND XXXXXXXXX.
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GHT and Xxxxxxxxx hereby represent, warrant, covenant and agree to and with
AACA, as follows.
4.1 GHT'S EXISTENCE AND POWER. GHT is a professional association duly
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organized, validly existing and in good standing under the laws of the State of
Tennessee. Neither the nature of its business as now conducted nor the
character or location of its properties require qualification by GHT to do
business in any other jurisdiction except for the states listed on Exhibit 4.1
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in which GHT is duly qualified to do business. GHT has the corporate power to
own its property and to carry on its business as now being conducted. GHT is
not subject to any noncompetition agreement.
4.2 ARTICLES OF INCORPORATION AND BYLAWS. True, correct and complete
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copies of the Articles of Incorporation and Bylaws of GHT are attached hereto
on Exhibit 4.2.
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4.3 GHT STOCK. GHT's authorized capital stock consists solely of _____
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shares of common stock authorized, of which ____ shares are issued (and
outstanding) to Xxxxxxxxx, as reflected on Exhibit 4.3 attached hereto. All
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such outstanding shares of capital stock of GHT have been duly and validly
authorized and issued and are fully paid and nonassessable. There are no
treasury shares of capital stock. There are no outstanding options, contracts,
preemptive rights, proxies, calls, commitments, demands or rights of any
character obligating GHT to issue any shares of stock or other securities of
GHT, or options or rights with respect thereto, and there are no existing or
outstanding securities convertible or exchangeable into shares of stock or other
securities of GHT. No shares of GHT's capital stock have been issued in
violation of any federal or state securities law. There have been no
transactions involving the equity interests of GHT since October 31, 1995.
4.4 OWNERSHIP OF GHT. Xxxxxxxxx is, and will be at the Closing and the
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Effective Time, owner of all of the issued and outstanding stock of GHT, free
and clear of all claims, security interests, pledges, options, rights of first
refusal, liens, financing statements, deeds of trust, mortgages, charges,
assessments, restrictions, leases and other encumbrances (all such claims,
security interests, pledges, options, rights of first refusal, liens, financing
statements, deeds of trust, mortgages, charges, assessments, restrictions,
leases and other encumbrances being referred to individually as an "Encumbrance"
and collectively as "Encumbrances") whatsoever. Xxxxxxxxx has the full legal
right, power and authority to enter into this Agreement and, except as
identified on Exhibit 4.4, the execution, delivery and performance
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of this Agreement by Xxxxxxxxx will not violate any agreement to which either he
or GHT is a party or any agreement affecting the GHT Common Stock.
4.5 INSIDER TRANSACTIONS. Except as disclosed in Exhibit 4.5 hereto,
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GHT is not, directly or indirectly, a party to any contract, lease or commitment
with any officer or director of GHT or any affiliate of any such director or
officer. As used in this Section 4.5, the term "affiliate" shall mean any
member of the immediate family of such officer or director or any corporation,
partnership, trust or other entity in which such officer or director has a
substantial interest or is a director, officer, partner or trustee.
4.6 AUTONOMY; SUBSIDIARIES. GHT is autonomous and has not ever been a
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subsidiary of any other corporation. GHT has no subsidiaries nor does it own
any shares of stock or other securities of, or interest in, any other
corporation, joint venture, partnership or business.
4.7 ACCURACY OF FINANCIAL STATEMENTS. Xxxxxxxxx has delivered to AACA as
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Exhibit 4.7 a copy of the financial statements of GHT for the years ended
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December 31, 1992, 1993 and 1994 and for the ten-month period ended October 31,
1995 (the "GHT Financial Statements"). The GHT Financial Statements have been
prepared based upon cash basis accounting, are complete and accurate and fairly
present the financial condition of and the income and expenses of GHT as of the
respective dates thereof, except as disclosed on Exhibit 4.7. GHT has no
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liabilities or obligations known or unknown, accrued, absolute or contingent,
whether or not now due and payable (including, without limitation, any liability
for federal, state or local taxes of GHT), for any period ended on or prior to
the respective dates of the Financial Statements or any liability or obligation
in connection with any transaction or state of affairs entered into or existing
on or before the respective dates thereof, which are not either fully reflected
on the Financial Statements or otherwise disclosed to AACA in Exhibit 4.14
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hereto.
4.8 PROPERTIES.
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(i) Set forth on Exhibit 4.8(i) is an identification of the material
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real and tangible personal properties presently owned by GHT and
used in the Business. All tangible personal property, equipment,
vehicles, furnishings, and fixtures included within the assets of
GHT or required to be used in the ordinary course of its business
are being conveyed as a result of the merger "AS IS, WHERE IS."
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(ii) Set forth on Exhibit 4.8(ii) is an accurate and complete list of all
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real or personal property which is used by GHT in the Business and
which is either not owned by GHT or is leased or rented by GHT.
4.9 TAXES AND TAX RETURNS. For all tax periods ended prior to the date
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of this Agreement, except as set forth on Exhibit 4.9, GHT has filed all
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federal, state, local and other tax returns required by law to be filed and,
except as set forth on Exhibit 4.9, such returns were filed on or before the due
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dates of such returns (as extended by any valid extensions of time) ("Tax
Returns") and has paid or will pay all taxes of every kind and description
(including, without limitation, all net income, gross income, gross receipts,
sales, use, lease, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation, property
or other taxes, customs, duties, fees, assessments or charges, together with any
interest, penalties, additions to tax or additional amounts imposed by any
taxing authority, domestic, or foreign ("Taxes") which are due as of and for all
periods through the Effective Time. No claim has ever been made by an authority
in a jurisdiction where GHT does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no liens or security
interests on any of GHT's assets that arose in connection with any failure (or
alleged failure) to pay any Taxes. GHT has withheld and paid all Taxes required
to have been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder or other third party.
All Tax Returns filed by GHT correctly reflected all facts regarding the income,
business, assets, operations, activities and status of GHT and all other
information required to be shown thereon. GHT has complied in all respects with
all applicable laws, rules and regulations relating to the filing of Tax Returns
with respect to, and the payment of Taxes. The Tax Returns of GHT have not been
audited by the Internal Revenue Service or any state or local taxing authority.
No federal, state, local or foreign audits, administrative proceedings, court
proceedings or ruling requests are presently pending with respect to any Taxes
or Tax Returns with respect thereto. GHT has not filed a consent pursuant to
Section 341(f) of the Code, or agreed to have Section 341(f)(2) of the Code
apply to any disposition of a subsection (f) asset (as such term is defined in
Section 341 (f)(4) of the Code) owned by GHT. No property of GHT is property
that GHT is required to treat as being owned by another person pursuant to the
provisions of Section 168(f)(6) of the Code, or is "tax-exempt use property"
within the meaning of Section 168(h) of the Code, or is subject to a lease,
other than a "true" lease for federal income tax purposes. GHT is not required
to include in income any adjustment pursuant to Section 481(a) of the Code by
reason of a voluntary change in
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accounting method initiated by GHT, nor does GHT, have any knowledge that the
Internal Revenue Service has proposed any adjustment or change in accounting
methods. Except as set forth on Exhibits 4.9 and 4.10, with respect to GHT Real
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and Personal Property Leases GHT is not currently under any contractual
obligation to indemnify any person with respect to Taxes. No person who is not
a United States citizen, and no corporation or other entity which was not
organized within the United States owns beneficially more than five percent (5%)
of the outstanding shares of GHT and therefore no withholding of tax pursuant to
Section 1445 of the Code is required. GHT is not a United States Real Property
Holding Corporation as defined in Section 897 of the Code. GHT is not a party
to any agreement that under certain circumstances could obligate it to make any
payments that will not be deductible under Code Section 280(G). No consent
extending the statute of limitations has been filed by or on behalf of GHT with
respect to any liability for Taxes for any year.
4.10 CONTRACTS.
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4.10.1. GHT Contracts. Exhibit 4.10(i) is a list of all agreements
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of GHT (the "GHT Contracts") and Exhibit 4.10(ii) is a list of all agreements
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with respect to Xxxxxxxxx (the "Xxxxxxxxx Contracts"). Except as set forth in
Exhibits 4.10(i) and 4.10 (ii) hereto, neither GHT nor Xxxxxxxxx is a party to
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any material contract, agreement, lease, or power of attorney of any kind with
respect to the Business. As to GHT, except as noted on Exhibit 4.10(i), all GHT
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Contracts, and as to Xxxxxxxxx, all the Xxxxxxxxx Contracts, are valid and are
in full force and effect according to their material terms, and no material
default by GHT or Xxxxxxxxx, as the case may be, exists under any such contract,
lease or agreement and (to the best of Xxxxxxxxx'x and GHT's knowledge) no
condition or state of facts exists which, with notice or the passage of time, or
both, would constitute a default under any such contract, lease or agreement.
To the knowledge of GHT, with respect to all GHT Contracts and, to the knowledge
of Xxxxxxxxx, with respect to the Xxxxxxxxx Contracts, all GHT Contracts and
Xxxxxxxxx Contracts are valid as to the other contracting parties thereto and
there is no material default by any such party existing under the contracts and
no condition or state of facts exists which, with notice or the passage of time,
or both would constitute a default by any such party thereunder. All GHT
Contracts and all Xxxxxxxxx Contracts are enforceable in accordance with their
respective terms by GHT or Xxxxxxxxx, as the case may be, against all other
parties thereto in all material respects (except as enforceability may be
restricted, limited or delayed by bankruptcy, insolvency, moratorium or similar
laws affecting or relating to the enforcement of creditors' rights in general
and except as enforceability is subject to general principles of equity,
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regardless of whether enforceability is considered in a proceeding at law or in
equity).
4.10.2. Neither the execution, the delivery, nor the performance of
this Agreement by GHT and Xxxxxxxxx will cause any default in or breach of any
provision of the GHT Charter, as amended, the GHT bylaws or any agreement or
commitment to which GHT or Xxxxxxxxx is a party or by which GHT or Xxxxxxxxx are
bound, and none of such actions will result in either acceleration, or any
similar right of any other party, under any GHT Contract or Xxxxxxxxx Contract,
or constitute a default under any GHT Contract or Xxxxxxxxx Contract, or result
in the creation or imposition of any Encumbrance against any of the assets of
GHT. With respect to the Xxxxxxxxx Contracts, all accounts receivable with
respect to Xxxxxxxxx'x performance of each such contract has been assigned to
GHT and, with respect to future performances by Xxxxxxxxx, the accounts
receivable therefrom shall be assigned to Newco pursuant to Xxxxxxxxx'x
Individual Employment with Newco.
4.11 COMPLIANCE WITH LAWS. Except as described in Exhibit 4.11, to the
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best of Xxxxxxxxx'x knowledge, GHT is in compliance with the laws, regulations,
rules and decrees of all governmental authorities whatsoever relating to the
conduct of its business, including, without limitation, the Fair Labor Standards
Act.
4.12 LITIGATION. Except as described in Exhibit 4.12 hereof, there is no
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litigation, action, suit, proceeding or governmental investigation pending or
(to the best of Xxxxxxxxx'x or GHT's knowledge) threatened against GHT or
affecting GHT or the Business or any of its assets, at law or in equity or
before any federal, state, municipal, local or other governmental authority, or
before any arbitrator, nor does Xxxxxxxxx nor GHT know of any reasonable basis
for any such litigation, action, suit, proceeding or investigation. Neither
Xxxxxxxxx nor GHT is subject to any order, writ or decree of any court or other
governmental authority.
4.13 EMPLOYEE BENEFITS.
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4.13.1 Except as identified on Exhibit 4.13.1, GHT is not a party to
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any collective bargaining or labor agreement or to any written employment
agreement, profit sharing, deferred compensation, bonus, stock option, stock
purchase, pension, retainer, consulting, retirement, welfare, or incentive plan
or policy or increases in the rate of remuneration entered into with or for the
benefit of present or former employees, whether or not unionized, of GHT or any
other like agreement, plan or policy.
4.13.2 All GHT plans, funds, programs, agreements, arrangements,
commitments or policies (collectively, the "Plans")
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which: (i) are or have ever been maintained or participated in by GHT and which
are currently in effect or as to which GHT has any ongoing liability or
obligation whatsoever; and (ii) constitute (A) "pension plans" (as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) or (B) "welfare plans" (as defined in ERISA Section 3(1)) are
identified on Exhibit 4.13.2. GHT has provided copies of all Plans to AACA.
--------------
4.13.3 Except as set forth on Exhibit 4.13.3, GHT has never
--------------
maintained, sponsored, contributed to or been required to contribute to a
defined benefit plan (within the meaning of Code Section 414(j)) and is not, and
has never been, a member of a controlled group of corporations (within the
meaning of Code Section 414(b)), a group of trades or businesses under common
control (within the meaning of Code Section 414(c)) or an affiliated service
group (within the meaning of Code Section 414 (m)).
4.13.4 WITH RESPECT TO EACH PLAN:
(i) Such Plan is, and at all times has been, operated and
administered substantially in compliance with the requirements of all applicable
statutes, orders or governmental rules or regulations currently in effect
including, without limitation, ERISA and the Code.
(ii) No prohibited transaction (as defined in ERISA Section 406 or
Code Section 4975) has occurred in connection with which GHT or any fiduciary of
such Plan is or could be subject to a civil penalty pursuant to ERISA Section
502, a tax imposed by Code Section 4975 or liability for a breach of fiduciary
responsibility under ERISA.
(iii) No action, suit, grievance, arbitration or other manner of
litigation or claim with respect to such Plan or its assets (other than routine
claims for benefits made in the ordinary course of administration of such Plan)
is pending or, to the knowledge of GHT or Xxxxxxxxx, threatened against or with
respect to such Plan, GHT or any fiduciary (as defined in ERISA Section 3(21))
of such Plan. To the knowledge of GHT and Xxxxxxxxx, there is no basis for any
such claim.
(iv) If such Plan provides medical benefits to any present or
former employee of GHT, such Plan has been operated in compliance with ERISA
Sections 601 through 609 and either Code Section 162(i)(2) and (k) and the
regulations promulgated thereunder (prior to 1989) or Code Section 4980B and the
regulations promulgated thereunder (after 1988).
(v) There has been no failure to file on a timely basis any
report or return required to be filed by law with respect
-14-
to such Plan. All disclosures required by law to be made to participants in
such Plan have been made on a timely basis.
(vi) No representation or communication with respect to
participation, eligibility for benefits, vesting, benefit accrual or coverage
under such Plan has been made by GHT or any trustee, fiduciary, officer,
director, employee or other agent of GHT to any of its employees or their
beneficiaries which (A) is not in accordance with the terms of such Plan and (B)
could have material adverse economic consequences to GHT or such Plan.
(vii) Such Plan has been operated in accordance with such
provisions, if any, of the Code as may be applicable to obtain the federal
income tax consequences intended for such Plan.
4.13.5 Each Plan which is a "pension plan" (as defined in ERISA
Section 3(2)) and its related trust, if any, are qualified under Code Section
401(a) and exempt from tax under Code Section 501(a) and have been determined by
the Internal Revenue Service to be so qualified. Nothing has occurred since the
most recent such determination which has or could adversely affect the qualified
status of such Plan or the tax exempt status of its related trust.
4.14 LIABILITIES. All liabilities and obligations of GHT direct,
-----------
indirect or contingent, are either listed in the GHT Financial Statements or on
Exhibit 4.14 attached hereto.
------------
4.15 INSURANCE. All insurance maintained by GHT is listed and described
---------
on Exhibit 4.15 attached hereto. Except as identified on Exhibit 4.15, GHT has
------------ ------------
not in the past three years made any claims with respect to its insurance
coverage.
4.16 ABSENCE OF CERTAIN CHANGES. Except as described in Exhibit 4.16,
-------------------------- ------------
since October 31, 1995, GHT has not:
(i) incurred or suffered any obligations or liabilities (absolute or
contingent) except current liabilities incurred in the ordinary
course of business;
(ii) issued any stock or other corporate securities or granted any option
or right with respect to the acquisition of any of its corporate
securities;
(iii) declared or made (or become obligated for) any payment or
distribution or dividend to shareholders or purchased or redeemed
(or became obligated to purchase or redeem) any shares of its
capital stock;
-15-
(iv) mortgaged, pledged or subjected (whether or not voluntarily) to any
Encumbrance, any of its assets, other than Encumbrances incidental
to the conduct of its business or the ownership of its property and
assets which were not incurred in connection with the borrowing of
money, or the obtaining of advances or credit, and which do not in
the aggregate impair the use or value thereof in the operation of
its business;
(v) sold, assigned or transferred or agreed to sell, assign or transfer
any of its tangible assets or canceled any debts or claims, except
in each case in the ordinary course of business;
(vi) sold, assigned, or transferred or agreed to sell, assign or transfer
any trade names, or other intangible assets, or permitted existing
rights with respect thereto to lapse;
(vii) suffered any extraordinary loss or knowingly waived or permitted to
lapse any right of substantial value;
(viii) made any capital expenditures, or otherwise entered into any
executory transactions or commitments to make any capital
expenditures, in excess of $5,000 per item or $25,000 in the
aggregate;
(ix) failed to comply in any material respect with any applicable local,
state or federal law, rule or regulation; or
(x) suffered any event or condition of any character, materially and
adversely affecting its business, properties or prospects.
4.17 EMPLOYEES. Attached as Exhibit 4.17 is a listing of all current GHT
--------- ------------
employees and former GHT employees who are eligible to continue to receive
benefits by virtue of their former employment by GHT (including, as applicable,
their rates of pay, accrued sick leave, vacation and other benefits).
4.18 AUTHORITY. GHT has the corporate power to execute and deliver this
---------
Agreement and consummate the Merger and the other transactions contemplated
hereby and has taken (or by the Closing Date will have taken) all action
required by law, its Articles of Incorporation, bylaws or otherwise to authorize
such execution and delivery and the consummation of the Merger and the other
transactions contemplated hereby.
-16-
4.19 LICENSES. Exhibit 4.19 contains a copy of all governmental or other
-------- ------------
licenses held by GHT relating to the operation of its business. Except for the
licenses of GHT and Xxxxxxxxx listed in Exhibit 4.19, there are no other
------------
licenses or permits required for GHT and Xxxxxxxxx to operate the Business.
Except as disclosed in Exhibit 4.19, all such licenses are in full force and
------------
effect, and there have not been (and there currently are not) any material
default or deficiencies thereunder by any party; and no event has occurred which
(whether with or without notice, lapse of time, or the happening or occurrence
of any other event) would constitute a material default or deficiency
thereunder. Neither Xxxxxxxxx nor GHT is aware of any proceeding or
investigation by any governmental agency (including, without limitation, the
Health Care Financing Administration or any Ethics Board) relating to the
Business. Except as disclosed in Exhibit 4.19, neither Xxxxxxxxx nor GHT has
------------
been the subject of a malpractice suit. To the knowledge of GHT there is not
now, nor has there ever been, any investigation or proceeding by any
governmental agency or licensing board to restrict, suspend or revoke any
license of GHT.
4.20 NO FINDERS OR BROKERS. Neither Xxxxxxxxx nor GHT, nor any officer
---------------------
or director thereof, has engaged any finder or broker in connection with the
transactions contemplated hereunder. Xxxxxxxxx will indemnify and hold AACA
harmless against claims (and attorneys' fees and expenses in the defense
thereof) of any person, firm or corporation for finder's fees, broker's fees,
brokerage commissions, sales commissions or the like alleged in connection with
the transactions contemplated hereunder due to acts of Xxxxxxxxx or GHT.
4.21 DISCLOSURE. No representation or warranty by Xxxxxxxxx or GHT in
----------
this Agreement and no statement pertaining to GHT or Xxxxxxxxx in this Agreement
or any document, Exhibit or certificate furnished or to be furnished to AACA
pursuant hereto will contain any materially untrue statement or omits or will
omit to state a relevant fact necessary in order to make the statements
contained herein or therein not misleading. There are no facts known to
Xxxxxxxxx or GHT not described herein which would adversely affect the future
operations of GHT.
4.22 VALIDITY OF AGREEMENTS. Upon execution and delivery by all parties,
----------------------
this Agreement, the Articles of Merger, and all other agreements to be executed
by Xxxxxxxxx or GHT in connection herewith, will constitute the valid and
binding obligation of Xxxxxxxxx and GHT, as the case may be, and be binding
against them and enforceable in accordance with their respective terms (except
as enforceability may be restricted, limited, or delayed by bankruptcy,
insolvency, moratorium or similar laws affecting or
-17-
relating to the enforcement of creditors' rights in general and except as the
enforceability is subject to general principles of equity, regardless of whether
enforceability is considered in a proceeding at law or in equity).
4.23 TITLE TO ASSETS. Except as described in Exhibits 4.14 and 4.16
--------------- ------------- ----
hereto, GHT holds good and marketable title to its assets, free and clear of
restrictions on or conditions to transfer or assignment, and free and clear of
Encumbrances.
4.24 TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD-PARTY APPROVAL.
------------------------------------------------------------
Except as set forth on Exhibit 4.24, the execution and delivery of this
------------
Agreement by Xxxxxxxxx and GHT, and the consummation of the contemplated
transactions, (i) will not result in the creation or imposition of any
Encumbrance on any of the assets of GHT and (ii) will not require the
authorization, consent, or approval of any third party, including any
governmental subdivision or regulatory agency.
4.25 ACCOUNTS RECEIVABLE. The accounts receivable of GHT (the "Accounts
-------------------
Receivable") as of the Effective Time of the Merger, to the extent uncollected
as of the Effective Time of the Merger, will be validly existing and represent
monies due for goods sold and delivered or services performed subject to
customary discounts or other adjustments by third parties. An aged listing of
the Accounts Receivable of GHT as of the Closing Date shall be delivered to AACA
on or before the Closing Date in connection with the Interim Balance Sheet and
the schedule calculating the Closing Date Adjustment as provided in Section
2.5(c) hereof.
4.26 SECURITIES LAWS.
---------------
4.26.1 RECEIPT OF INFORMATION. Since the commencement of
----------------------
negotiations, Xxxxxxxxx has had access to and Xxxxxxxxx has received: (i) a copy
of VIVRA's Prospectus dated February 9, 1995; (ii) a copy of VIVRA's 1994 Annual
Report to Stockholders; (iii) a copy of VIVRA's Annual Report on Form 10-K for
the fiscal year ended November 30, 1994; (iv) a copy of VIVRA's Quarterly
Reports on Form 10-Q for the quarters ended February 28, May 31 and August 30,
1995; (v) a copy of VIVRA's Proxy Statement for VIVRA's Annual Meeting; (vi) a
copy of the Prospectus Supplements to VIVRA's Prospectus dated February 9, 1995;
(vii) a copy of VIVRA's Form 8-K dated August 16, 1995 and December 21, 1995;
and (viii) such other information as Xxxxxxxxx has reasonably requested.
4.26.2 INVESTMENT EXPERIENCE. Xxxxxxxxx represents that he is
---------------------
experienced in evaluating and investing in securities and acknowledges that
Xxxxxxxxx is able to fend for himself, can bear the economic risk of such
investment, and has such knowledge
-18-
and experience in financial and business matters that Xxxxxxxxx is capable of
evaluating the merits and risks of the investment in VIVRA stock.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF AACA.
--------------------------------------
AACA represents, warrants, covenants and agrees to and with Xxxxxxxxx and
GHT, as follows.
5.1 ORGANIZATION AND STANDING OF AACA. AACA is a corporation duly
---------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to conduct its business as
now being conducted, and is duly qualified to do business, in each jurisdiction
in which the nature of the property owned or leased or the nature of the
businesses conducted, specifically including the State of Tennessee, so require.
5.2 AUTHORITY. AACA has corporate power to execute and deliver this
---------
Agreement and consummate the transactions contemplated hereby and has taken (or
by the Closing Date will have taken) all action required by law, its Certificate
of Incorporation, its bylaws or otherwise to authorize such execution and
delivery and the consummation of the transactions contemplated hereby.
5.3 NO FINDERS OR BROKERS. Neither AACA nor any officer or director
---------------------
thereof has engaged any finder or broker in connection with the transactions
contemplated hereunder. AACA will indemnify and hold Xxxxxxxxx harmless against
claims (and attorneys' fees and expenses in the defense thereof) of any person,
firm or corporation for finder's fees, broker's fees, brokerage commissions,
sales commissions or the like alleged in connection with the transactions
contemplated hereunder due to acts of AACA.
5.4 VALIDITY OF AGREEMENTS. Upon execution and delivery by all parties
----------------------
hereto, this Agreement, and all other agreements to be executed by AACA in
connection herewith will constitute the valid and binding obligation of AACA and
be binding against AACA and enforceable in accordance with their respective
terms (except as enforceability may be restricted, limited, or delayed by
bankruptcy, insolvency, moratorium or similar laws affecting or relating to the
enforcement of creditors' rights in general and except as the enforceability is
subject to general principles of equity, regardless of whether enforceability is
considered in a proceeding at law or in equity).
5.5 REQUIRED GOVERNMENTAL APPROVALS. AACA is in compliance in all
-------------------------------
material respects with the laws, rules, regulations and decrees of all
governmental authorities whatsoever relating to the
-19-
conduct of its businesses, and to the best of its knowledge no approval or
consent of any governmental authority or agency will be required at Closing for
AACA to consummate the transactions contemplated hereby.
5.6 LITIGATION. There is no litigation, action, suit, proceeding or
----------
governmental investigation pending or (to the best of AACA's knowledge)
threatened against AACA or affecting AACA or any of its businesses or any of its
assets, nor does AACA know of any reasonable basis for such litigation, action,
suit, proceeding or investigation. AACA is not subject to any order, writ or
decree of any court or governmental authority or agency.
5.7 VIVRA COMMON STOCK. The issuance of the VIVRA Common Stock pursuant
------------------
to the Merger hereunder has been duly authorized by all necessary corporate
action and upon consummation of the Closing will be duly and validly issued and
fully paid and nonassessable, registered pursuant to VIVRA's currently effective
registration statement dated March 15, 1995, and freely tradeable subject to the
limitations set forth in Section 2.6.
5.8 CERTIFICATE OF INCORPORATION AND BYLAWS OF AACA. A true, correct
-----------------------------------------------
and complete copy of the Certificate of Incorporation of AACA is attached hereto
as Exhibit 5.8. AACA has provided a copy of its Bylaws to GHT and to Xxxxxxxxx.
-----------
5.9 DISCLOSURE. No representation or warranty by AACA in this Agreement
----------
and no statement pertaining to AACA in this Agreement or any document, Exhibit
or certificate furnished or to be furnished to Xxxxxxxxx or GHT pursuant hereto
will contain any material untrue statement or omits or will omit to state a
relevant fact necessary in order to make the statements contained herein or
therein not misleading.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF VIVRA.
---------------------------------------
VIVRA joins in this Agreement solely for the purpose of making the
following representations and warranties regarding VIVRA and the VIVRA Common
Stock. VIVRA hereby represents, warrants, covenants and agrees to and with GHT
and Xxxxxxxxx as follows:
6.1 ORGANIZATION AND STANDING OF VIVRA. VIVRA is a corporation duly
----------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full corporate power and authority to conduct its business as
now being conducted, and is duly qualified to do business, in each jurisdiction
in which the nature of the property owned or leased or the nature of the
businesses conducted so require.
-20-
6.2 AUTHORITY. VIVRA has corporate power to execute and deliver this
---------
Agreement and consummate the transactions contemplated hereby and has taken (or
by the Closing Date will have taken) all action required by law, its Certificate
of Incorporation, bylaws or otherwise to authorize such execution and delivery
and the consummation of the transactions contemplated hereby.
6.3 VALIDITY OF AGREEMENTS. Upon execution and delivery by all parties
----------------------
hereto, this Agreement, and all other agreements to be executed by VIVRA in
connection herewith to the extent that they relate to VIVRA, will constitute the
valid and binding obligation of VIVRA and be binding against VIVRA and
enforceable in accordance with their respective terms (except as enforceability
may be restricted, limited, or delayed by bankruptcy, insolvency, moratorium or
similar laws affecting or relating to the enforcement of creditors' rights in
general and except as the enforceability is subject to general principles of
equity, regardless of whether enforceability is considered in a proceeding at
law or in equity).
6.4 LITIGATION. There is no material suit, action, proceeding or
----------
investigation against or involving VIVRA or any of the properties or rights,
pending or, to the knowledge of VIVRA, threatened. There is no material
judgment, decree, injunction, rule or order of any governmental entity
outstanding against VIVRA. VIVRA is not in violation of any term of any
judgment, decree, injunction or order outstanding against it.
6.5 FINANCIAL STATEMENTS. VIVRA's audited consolidated financial
--------------------
statements including a balance sheet, income statement and statement of cash
flow, for the year ended November 30, 1994, and VIVRA's unaudited consolidated
financial statements, including a balance sheet, income statement and statement
of cash flow, for the period ended November 30, 1995, which have been previously
delivered to GHT and Xxxxxxxxx, fairly present, subject to normal year-end
adjustments with respect to the unaudited interim financial statements, in
conformity with generally accepted accounting principles applied on a consistent
basis, the consolidated financial position of VIVRA and its consolidated
subsidiaries as of the date thereof and their consolidated results of operation
and cash flows for the period then ended.
6.6 VIVRA COMMON STOCK. All of the shares of VIVRA Common Stock issued
------------------
under the provisions of this Agreement are duly authorized, fully paid and
nonassessable, are registered pursuant to VIVRA's currently effective
registration statement dated March 15, 1995, and are freely tradeable subject to
the limitations set forth in Section 2.6.
-21-
6.7 NO UNTRUE STATEMENTS. No representation or warranty by VIVRA
--------------------
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein not misleading or
necessary in order to provide GHT and Xxxxxxxxx with complete and accurate
information as to VIVRA and the VIVRA Common Stock. [Except as described in the
5.4 Registration Statement and other materials delivered by VIVRA under cover
dated December 13, 1995, and December 30, 1995, there are no facts known to
VIVRA which would materially and adversely affect the VIVRA Common Stock.
-22-
SECTION 7. COVENANTS OF AACA.
-----------------
7.1 BEST EFFORTS TO SECURE CONSENTS AND APPROVALS. AACA will take all
---------------------------------------------
necessary corporate and other action and will use its best efforts to obtain all
consents and approvals required of AACA to carry out the transactions
contemplated by this Agreement and to satisfy the conditions precedent specified
herein.
7.2 HANDLING OF DOCUMENTS. Until the Closing, AACA shall keep
---------------------
confidential all information provided by GHT or Xxxxxxxxx pursuant to this
Agreement which is not in the public domain, and shall exercise the same care in
handling such information as it would exercise with similar information of its
own. If the Closing does not occur, AACA shall return all such documentation
and keep the same confidential.
7.3 EMPLOYMENT. AACA will offer employment to all of GHT's employees,
----------
except Xxxxxxxxx, but these employees shall, upon acceptance of employment with
AACA, be "employees terminable at will" and subject to all employment policies
of AACA. Subsequent to the date of this Agreement, no termination bonuses or
severance pay is owed to or will be paid to any GHT employees terminated as a
result of the merger of GHT into AACA.
7.4 COMPENSATION. AACA reserves the right in the future to raise
------------
salaries of GHT's former employees consistent with the policies and standards
governing AACA employees generally. AACA will credit each former GHT employee
hired by AACA with his or her service anniversary with GHT for purposes of
determining vacation, sick leave and holidays and other fringe benefits provided
by AACA to its employees. To the extent permitted by ERISA, former GHT
employees shall be entitled to participate in all health, disability, retirement
and other benefit plans of AACA in accordance with the terms of such plans;
provided, however, that with respect to such health plans, AACA shall ensure
that such employees are eligible for coverage at the Effective Time, are not
subject to a "waiting period" as a result of the Merger, and are not subject to
exclusion for pre-existing conditions unless they have been subject to such an
exclusion under their current coverage.
SECTION 8. COVENANTS OF XXXXXXXXX AND GHT.
------------------------------
8.1 ACCESS AND INFORMATION. Xxxxxxxxx and GHT shall give to AACA and
----------------------
AACA's lenders, underwriters, investors and representatives reasonable access
during normal business hours to their respective premises, books, accounts and
records and all other relevant documents and will make available, and use their
respective best efforts to cause their respective independent
-23-
accountants to make available, copies of all such documents and information with
respect to the business and properties of GHT as representatives of AACA may
from time to time request, including, without limitation, the working papers
used to prepare the Financial Statements, all in such manner as not unduly to
disrupt their normal business activities. The foregoing shall be subject to
federal and state laws regarding the privacy of medical records.
8.2 CONDUCT OF BUSINESS. If there shall be a lapse of time between the
-------------------
date hereof and the Effective Time, except as otherwise approved by AACA, GHT
shall conduct its business only in the ordinary course consistent with past
practice and in such a manner that representations and warranties contained in
Section 4 shall be true and correct at and as of the Closing (except for changes
contemplated, permitted or required by this Agreement) and so that the
conditions to be satisfied by GHT and Xxxxxxxxx at the Closing shall have been
satisfied. GHT shall, consistent with conducting its business in accordance
with reasonable business judgment, preserve its business intact; use its best
efforts to keep available to GHT the services of its present employees (except
those dismissed by GHT or those who voluntarily discontinue their employment);
and preserve for AACA the goodwill of the suppliers, patients and others having
business relations with GHT.
8.3 BEST EFFORTS TO SECURE CONSENTS AND APPROVALS. Xxxxxxxxx and GHT
---------------------------------------------
shall take the necessary corporate or other action and shall each use its or
their, as the case may be, best efforts to secure before the Closing all
necessary consents, approvals and amendments of agreements required of Xxxxxxxxx
and GHT to carry out the transactions contemplated by this Agreement and to
satisfy the conditions precedent specified herein. Xxxxxxxxx will use his best
efforts to have all GHT Physician Contracts of such GHT Physician continue in
effect with respect to such GHT Physician as an employee of Newco following the
Effective Time.
SECTION 9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF XXXXXXXXX AND GHT.
-------------------------------------------------------------
All obligations of Xxxxxxxxx and GHT which are to be discharged under this
Agreement at the Closing are subject to the performance, at or prior to the
Closing, of all covenants and agreements contained herein which are to be
performed by AACA at or prior to the Closing and to the fulfillment at, or prior
to, the Closing, of each of the following conditions (unless expressly waived in
writing by Xxxxxxxxx at any time at or prior to the Closing).
-24-
9.1 REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
-----------------------------------
warranties made by AACA and VIVRA contained in Sections 5 and 6, respectively,
of this Agreement shall be true as of the date of this Agreement, and shall be
true at and as of the date of Closing in all material respects; AACA shall have
performed and complied with in all material respects all covenants and
conditions required by this Agreement to be performed or complied with by AACA
prior to or at the Closing; and Xxxxxxxxx shall have been furnished with a
certificate of the President or any Vice President of AACA and of VIVRA dated as
of the Closing, certifying to the truth of such representations and warranties
as of the Closing and to the fulfillment of such covenants and conditions.
9.2 AUTHORITY. All action required to be taken by or on the part of
---------
AACA or VIVRA to authorize the execution, delivery and performance of this
Agreement by AACA and the consummation of the transactions contemplated hereby
shall have been duly and validly taken by the Board of Directors of AACA and of
VIVRA.
9.3 NO OBSTRUCTIVE PROCEEDING. No action or proceedings shall have been
-------------------------
instituted against, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting against Xxxxxxxxx which
seek to, or would, render it unlawful as of the Closing to effect the
transactions contemplated hereby, and no such action shall seek damages in a
material amount by reason of the transactions contemplated hereby. Also, no
substantive legal objection to the transactions contemplated by this Agreement
shall have been received from or threatened by any governmental department or
agency.
9.4 NO MATERIAL ADVERSE CHANGE. As of the date of this Agreement,
--------------------------
there shall have been no material adverse changes in the business or assets of
AACA.
9.5 MASTER MERGER AGREEMENT. All of the conditions precedent to the
-----------------------
obligations of the parties set forth in the Master Merger Agreement shall have
been met or waived, as the case maybe, by all parties to the Master Merger
Agreement except as otherwise specifically provided therein.
SECTION 10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF AACA.
-----------------------------------------------
All obligations of AACA which are to be discharged under this Agreement at
the Closing are subject to the performance, at or prior to the Closing, of all
covenants and agreements contained herein which are to be performed by Xxxxxxxxx
and GHT at or prior to the Closing and to the fulfillment at or prior to the
Closing of each of the following conditions (unless expressly waived in writing
by AACA at any time at or prior to the Closing):
-25-
10.1 REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
-----------------------------------
warranties of Xxxxxxxxx and GHT contained in Section 4 of this Agreement shall
be true as of the date of this Agreement, and shall be true at and as of the
date of Closing in all material respects; Xxxxxxxxx and GHT shall have performed
or complied with in all material respects all covenants and conditions required
by this Agreement to be performed or complied with by Xxxxxxxxx and GHT prior to
or at the Closing; and AACA shall be furnished with a certificate of Xxxxxxxxx,
dated the Closing, certifying to the truth of such representations and
warranties as of the time of the Closing and to the fulfillment of such
covenants and conditions.
10.2 NO OBSTRUCTIVE PROCEEDING. No action or proceedings shall have been
-------------------------
instituted against, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting against AACA or its
affiliates which seeks to, or would, render it unlawful as of the Closing to
effect the Merger in accordance with the terms hereof, and no such action shall
seek damages in a material amount by reason of the transactions contemplated
hereby. Also, no substantive legal objection to the transactions contemplated
by this Agreement shall have been received from or threatened by any
governmental department or agency.
10.3 CONSENTS AND APPROVALS. Each of the parties to any GHT Contract
----------------------
under which the Merger contemplated hereby would constitute or result in a
default or acceleration of obligations shall have given such consent as may be
necessary to permit the consummation of the Merger contemplated hereby without
constituting or resulting in a default or acceleration under such agreement, and
any consents required from any public or regulatory agency or organization
having jurisdiction shall have been given.
10.4 NO ADVERSE CHANGE. As of the date of this Agreement, no event
-----------------
shall have occurred or have been threatened which has or would have a material
and adverse effect upon GHT; and GHT shall not have sustained any loss or damage
to its assets or property, whether or not insured, or union activity that
affects materially and adversely its ability to conduct its business.
10.5 RELEASE OF ENCUMBRANCES. All Encumbrances shall have been released
-----------------------
at or prior to the Closing.
10.6 LICENSES. AACA shall not have learned that there is any material
--------
impediment beyond its control to its ability to obtain all business licenses to
operate the Business. Xxxxxxxxx shall not have learned that there is any
material impediment beyond his
-26-
control to their ability to transfer his licenses to practice medicine to, and
to practice medicine through, Newco.
10.7 POOLING. AACA shall be satisfied that the business combination to
-------
be effected by the Merger may be accounted for as a pooling of interests under
generally accepted accounting principles and all applicable SEC rules and
regulations.
10.8 MASTER MERGER AGREEMENT. All of the conditions precedent to the
-----------------------
obligations of the parties set forth in the Master Merger Agreement shall have
been met or waived by all parties to the Master Merger Agreement except as
otherwise specifically provided therein.
SECTION 11. TERMINATION.
-----------
AACA on the one hand, or GHT and Xxxxxxxxx on the other hand, may by giving
written notice to the other at any time on or prior to the Closing Date (unless
extended by mutual agreement of the parties) terminate this Agreement if (a) a
material default shall be made by the other in the observance of or in the due
and timely performance of the covenants and agreements herein contained, which
default cannot be cured on or prior to the Closing, or (b) if, as of the
Closing, the conditions precedent to the performance of the obligations of the
one, including those specified in the Master Merger Agreement, shall not have
been fulfilled and shall not have been waived by such party.
SECTION 12. INDEMNIFICATION.
---------------
12.1 INDEMNITY BY XXXXXXXXX. Xxxxxxxxx shall indemnify, defend and hold
----------------------
harmless AACA and each affiliate of AACA from and against the following, any one
of which shall be deemed to be an "AACA indemnifiable loss" under this
Agreement:
(a) all Undisclosed Liabilities;
(b) any and all losses, damages, costs or deficiencies resulting from
any and all misrepresentations or breaches of warranty or failures
to perform agreements or undertakings by Xxxxxxxxx or GHT contained
in or made pursuant to this Agreement or in other agreements
executed by Xxxxxxxxx or GHT in connection with this Agreement; and
(c) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses (including, without
limitation, attorneys' fees,
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interest, penalties and amounts paid in settlement of any such claim) incident
to any of the foregoing.
12.2 UNDISCLOSED LIABILITIES. For purposes of Section 12.1 hereof, the
-----------------------
term "Undisclosed Liabilities" shall mean:
(i) any liability for any sales tax (or any interest or penalties with
respect thereto) payable as a result of the consummation of the
transactions contemplated hereby that is not reflected in Exhibit
-------
4.14;
----
(ii) except as stated in Exhibit 4.14 hereto, any liability under any
------------
employee benefit or welfare plan or regarding withholding taxes owed
to or with respect to any employee or independent contractor of GHT
accruing prior to the date of Closing;
(iii) liabilities and obligations of Xxxxxxxxx or GHT for any breach or
violation, as of the date of Closing, of any GHT Physician Contracts
or GHT Contracts;
(iv) liabilities and obligations of Xxxxxxxxx or GHT for environmental or
ecological matters or conditions existing at or before the Closing,
including those relating to the use, transport, disposal, handling
or storage of hazardous or toxic materials, pollutants,
contaminants, petroleum products, or waste (including, without
limitation, medical waste);
(v) any liability or obligation of Xxxxxxxxx or GHT accruing at or
before the date of Closing for violations of law;
(vi) any liability of Xxxxxxxxx or GHT with respect to a breach of this
Agreement;
(vii) any liability or obligation to Medicare, Medicaid, Blue Cross/Blue
Shield (or any other third party payor) as a result of recapture of
amounts paid by any such payor to Xxxxxxxxx or GHT or any
overpayments made by such payor to Xxxxxxxxx or GHT or any
disallowance of any claim of Xxxxxxxxx or Seller;
(viii) any tort liability, products liability or malpractice liability of
Xxxxxxxxx or GHT accruing at or before the date of Closing;
(ix) liabilities and obligations of Xxxxxxxxx or GHT incurred in
connection with the preparation of this
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Agreement and the consummation of transaction contemplated hereby, including,
without limitation, legal and accounting fees; and
(x) any liability of GHT which is not reflected in the GHT Financial
Statements referred to in Section 4.7 hereof or in Exhibit 4.14
------------
hereto (other than liabilities arising in the ordinary course of
business prior to the Effective Time of the Merger under the GHT
Contracts).
12.3 [Intentionally Deleted]
12.4 PAYMENT FOR AACA INDEMNIFIABLE LOSSES. Xxxxxxxxx shall pay to AACA
-------------------------------------
or any affiliate of AACA, as the case may be, all amounts owed to AACA pursuant
to Section 12.1 within thirty (30) days after written demand therefor. In the
event that any third person, including, without limitation, any governmental
taxing authority, shall assert any claim or action against AACA or an affiliate
of AACA which, if successful, might result in an AACA indemnifiable loss, AACA
shall notify the Xxxxxxxxx, in writing, of such claim or action, and at
Xxxxxxxxx'x option, they may, at their sole expense, assume control over the
defense of such claim or action, but in any event AACA (and its affiliate, as
the case may be) shall have the right to participate in the defense of any such
claim or action. If, after notice thereof, Xxxxxxxxx shall not assume the
defense of, or if after so assuming such defense they shall fail to continue to
defend, any such claim or action, AACA (and its affiliate, as the case may be)
may defend any such claim or action and AACA (and its affiliate, as the case may
be) may then settle or compromise such claim or action on terms it deems
reasonable. Xxxxxxxxx shall promptly satisfy and pay any final judgment
rendered with respect to any such claim or action or any compromise or
settlement thereof and shall pay the reasonable expenses, legal or otherwise of
AACA (and its affiliate, as the case may be) in the defense of any such claim or
action. If Xxxxxxxxx does not pay any such AACA indemnifiable loss pursuant to
any such judgment, settlement or compromise within thirty (30) days after
written demand, AACA may pay the same and set off the amount paid against any
payments due Xxxxxxxxx. If AACA (or an affiliate of AACA) suffers an AACA
indemnifiable loss directly (not as a result of a third party claim or action),
AACA will first recover such AACA indemnifiable loss pursuant to the terms of
the Escrow Agreement, then, if the remaining Escrowed Shares are insufficient to
cover the AACA indemnifiable loss or if the Escrow Agreement has expired, AACA
may set off the amount of the same against payments due Xxxxxxxxx or demand
payment therefor from Xxxxxxxxx. For purposes hereof, an "affiliate" of AACA
shall mean any person or entity directly or indirectly controlling, controlled
by, or under common control with AACA.
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12.5 INDEMNITY BY AACA. AACA shall indemnify, defend and hold harmless
-----------------
Xxxxxxxxx from and against the following, any one of which shall be defined to
be a "Xxxxxxxxx indemnifiable loss" under this Agreement:
(a) any and all losses, damages, costs or deficiencies resulting
from any and all misrepresentations or breaches of warranty or failures to
perform agreements or undertakings by AACA contained in or made pursuant to this
Agreement or in other agreements executed by AACA in connection with this
Agreement;
(b) any and all losses, damages, costs or deficiencies incurred by
Xxxxxxxxx arising from any failure by AACA to satisfy any obligation under the
GHT Contracts to be performed by AACA by their stated terms after the Closing
Date; and
(c) any and all actions, suits, proceedings, claims, demands
assessments, judgments, costs and expenses (including, without limitation,
attorneys' fees, interest, penalties and amounts paid in settlement of any such
claim) relating to any of the foregoing.
12.6 PAYMENT FOR XXXXXXXXX INDEMNIFIABLE LOSSES. AACA shall pay
------------------------------------------
Xxxxxxxxx all amounts owed to him pursuant to Section 12.5 within thirty (30)
days after written demand therefor. In the event that any third person shall
assert any claim or action against Xxxxxxxxx which, if successful, might result
in a claim for a Xxxxxxxxx indemnifiable loss, Xxxxxxxxx shall notify AACA in
writing of such claim or action, and at AACA's option, AACA may, at its sole
expense, assume control over the defense of such claim or action, but in any
event Xxxxxxxxx shall have the right to participate in the defense of any such
claim or action. If after notice thereof, AACA shall not assume the defense of,
or if after so assuming it fails to continue to defend, any such claim or
action, Xxxxxxxxx may defend any such claim or action and Xxxxxxxxx may then
settle or compromise such claim or action on terms they deem reasonable. AACA
shall promptly satisfy any final judgment rendered with respect to any such
claim or action or any compromise or settlement thereof and shall pay the
reasonable expenses, legal or otherwise, of Xxxxxxxxx in the defense of any such
claim or action.
If Xxxxxxxxx suffers a Xxxxxxxxx indemnifiable loss directly (not as a
result of a third party claim or action), Xxxxxxxxx may set off the amount of
the same against payments due AACA or demand payment therefor from AACA.
12.7 REMEDIES CUMULATIVE. The remedies provided herein shall be
-------------------
cumulative and shall not preclude any party from asserting
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any other rights or seeking any other remedies to which such party is entitled
by law.
12.8 SURVIVAL. The representations and warranties of the parties set
--------
forth in this Agreement shall expire three (3) years after the Effective Time
except that the representations and warranties of Xxxxxxxxx as to tax and ERISA
matters shall survive for seven (7) years after the Effective Time and except
that there shall be no limitation as to the survival of the representations and
warranties of the parties contained in Sections 4.3, 4.4, 4.18. 4.22, 5.2, 5.4,
6.2, and 6.3.
SECTION 13. MISCELLANEOUS.
-------------
13.1 EXPENSES. All expenses of the preparation of this Agreement and of
--------
the other agreements and transactions contemplated hereby, including, without
limitation, counsel fees, accounting fees, investment advisor's fees and
disbursements, shall be borne by Xxxxxxxxx in the case of GHT or Xxxxxxxxx and
by AACA in the case of AACA.
13.2 NOTICES. All notices, demands and other communications hereunder
-------
shall be written and shall be deemed to have been duly given if delivered in
person or mailed by Federal Express (or other national air courier service),
charges prepaid, to the address set forth below:
To AACA or VIVRA: Asthma & Allergy CareAmerica, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, President
with a copy to: Xxxx X. Xxxxxx, Xx., Esq.
Parker, Hudson, Rainer & Xxxxx
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
To GHT or Xxxxxxxxx ___________________________________
___________________________________
___________________________________
___________________________________
with a copy to: Xxxxx Xxxxxxxx, Esq.
The Bogatin Law Firm
000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
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or to such other address as AACA or Xxxxxxxxx may designate by notice to the
other. Notices delivered in person shall be deemed delivered on the date of
delivery and notices sent via air courier service, as aforesaid, shall be deemed
delivered on the date of delivery as indicated by the records of the courier
service. Rejection or other refusal to accept or inability to deliver because
of a changed address of which no notice was given shall be deemed to be a
receipt of the notice, request or other communication. Any notice, request or
other communication required or permitted to be given by any party may be given
by such party's legal counsel.
13.3 ENTIRE AGREEMENT. This Agreement and the Exhibits, and the other
----------------
agreements and schedules and documents delivered pursuant hereto constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersede all prior and contemporaneous agreements, understandings,
letters of intent negotiations and discussions, whether written or oral, of the
parties, and there are no representations, warranties or other agreements
between the parties in connection with the subject matter hereof, except as
specifically set forth herein. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the parties to be bound
thereby.
13.4 GOVERNING LAW. The validity and construction of this Agreement
-------------
shall be governed by the laws of the State of Tennessee, except insofar as this
Agreement may specify that the laws of Delaware may apply to the Merger. With
respect to tax reporting, the parties agree and intend that the Merger will be
treated for United States income tax purposes as a tax-free reorganization
described in the Internal Revenue Code of 1986, as amended (the "Code"), Section
368, and all of the parties shall report the Merger in accordance with the
relevant tax regulations. With respect to accounting treatment, any increase or
decrease in tax required by Section 481 of the Code to place the accounts of PAG
on the accrual method of accounting shall be taken into account by AACA and
VIVRA and not by PAG or the PAG Physicians.
13.5 ARBITRATION.
-----------
13.5.1 The parties will attempt through good faith negotiations to
resolve their disputes regarding this Agreement. The term "disputes" includes,
without limitation, any disagreements between the parties concerning the
existence, formation, interpretation and implementation of this Agreement. If
the parties are to resolve their disputes by negotiation, either party may
commence arbitration by sending a written notice of arbitration to the other
party. The notice will state the dispute with particularity.
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13.5.2 There shall be three arbitrators. If the parties fail to
select mutually acceptable arbitrators within ten (10) days after the notice of
arbitration, a tribunal of arbitrators (one selected by GHT, one selected by
AACA, and one who shall be appointed by the first two arbitrators), who shall be
located in the State of Tennessee, shall be appointed as soon as possible on the
request of either party. If any party fails to select an arbitrator within ten
(10) days after demand, such arbitrator shall be appointed by the American
Arbitration Association. The fee payable to the arbitrators shall be based upon
the then current fee schedule of the American Arbitration Association.
13.5.3 The parties shall have reasonable rights of discovery.
13.5.4 Except as set forth in this Section, the tribunal shall
conduct the arbitration according to the Commercial Arbitration Rules of the
American Arbitration Association. Arbitration shall take place in the State of
Tennessee unless the parties otherwise agree. The tribunal shall base the
decision on the express language of this Agreement. Within ten (10) days after
the tribunal is appointed, or as soon thereafter as shall be reasonably
practicable, the tribunal will conduct a hearing on the dispute. Each party may
make written submissions to the tribunal, and each party shall have a reasonable
opportunity for rebuttal, but no longer than ten (10) days. As soon as
reasonably practicable, but not later than ten (10 ) days after the hearing is
completed, the tribunal shall arrive at a final decision, which shall be reduced
to writing, signed by the tribunal and mailed to each party and its legal
counsel.
13.5.5 All decisions of the tribunal shall be final, and binding on
all parties, and (except as provided below) shall constitute the only method of
resolving disputes. Judgment may be entered upon the decision in accordance
with applicable law in any court having jurisdiction.
13.5.6 This arbitration section and all decisions of the tribunal
shall be specifically enforceable in a court of law, or in the arbitral
tribunal.
13.5.7 This arbitration section and all decisions of the arbitrator
shall be specifically enforceable in a court of law, or in the arbitral
tribunal.
13.6 SECTION AND EXHIBIT HEADINGS. The Section and Exhibit headings are
----------------------------
for reference only and shall not limit or control the meaning of any provisions
of this Agreement.
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13.7 WAIVER. No delay or omission on the part of any party hereto in
------
exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement.
13.8 NATURE AND SURVIVAL OF REPRESENTATIONS. All statements contained in
--------------------------------------
any certificate delivered by or on behalf of a party to this Agreement in
connection with the transactions contemplated hereby shall be deemed to be
representations and warranties made by such party hereunder. The covenants,
representations and warranties made by the parties each to the other in this
Agreement or pursuant hereto shall survive the Effective Time as set forth in
Section 12.8 of this Agreement.
13.9 EXHIBITS. All Exhibits, schedules and documents referred to in, or
--------
attached to, this Agreement are integral parts of this Agreement as if fully set
forth herein and all statements appearing therein shall be deemed to be
representations. All items disclosed hereunder shall be deemed disclosed only
in connection with the specific representation to which they are explicitly
referenced.
13.10 AMENDMENTS. This Agreement may be amended, but only in writing,
----------
signed by the parties hereto.
13.11 COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall comprise one and the same instrument. Any signature page to this
Agreement may be witnessed by a telecopy or other facsimile of any original
signature page and any signature page of any counterpart hereof may be appended
to any other counterpart hereof to form a completely executed counterpart
hereof.
13.12 ATTORNEYS' FEES. In the event that a suit, action, arbitration, or
---------------
other proceeding of any nature whatsoever, including, without limitation, any
proceeding under the U.S. Bankruptcy Code and involving issues peculiar to
federal bankruptcy law, any action seeking a declaration of rights or any action
for rescission, is instituted to interpret or enforce this Agreement or any
provision of this Agreement, the prevailing party shall be entitled to recover
from the losing party the prevailing party's reasonable attorneys', paralegals',
accountants', and other experts' professional fees and all other fees, costs,
and expenses actually incurred and reasonably necessary in connection therewith,
as determined by the judge or arbitrator at trial or other proceeding, or on any
appeal or review, in addition to all other amounts provided by law.
13.13 RULES OF CONSTRUCTION. All references herein to the singular shall
---------------------
include the plural, and vice versa, and all references herein to the neuter
shall include the masculine or
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feminine, as the case may be, and vice versa. When general words or terms are
used herein followed by the word "including" (or another form of the word
"include") and words of particular and specific meaning, the general words shall
be construed in their widest extent, and shall not be limited to persons or
things of the same general kind or class as those specifically mentioned in the
words of particular and specific meaning. All parties have participated in the
drafting of this Agreement. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of a party by reason of such party
having or being deemed to have drafted, structured or dictated such provisions.
13.14 TIME. Time is of the essence of this Agreement.
----
13.15 FURTHER ASSURANCES. Following the Closing, Xxxxxxxxx and AACA will,
------------------
at the request of the other, execute and deliver such other instruments or
assignment, transfer and conveyance and take such other actions as a party may
reasonably request to more effectively effect the Merger and other transactions
contemplated by this Agreement. To the extent that GHT's rights under any GHT
Contract, by virtue of the Merger, require the consent of another person which
consent has not been obtained prior to, or concurrent with, the execution
hereof, Xxxxxxxxx will cooperate with AACA in any reasonable arrangement that is
designed to provide for AACA the benefit of such asset, but Xxxxxxxxx will not
be obligated to replace such asset with one of equal value or otherwise assume
additional material liability not contemplated in this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ASTHMA & ALLERGY CAREAMERICA, INC.,
a Delaware corporation ("AACA")
By:
--------------------------------
Title:
--------------------------
VIVRA INCORPORATED, a Delaware
corporation ("VIVRA")
By:
--------------------------------
Title:
--------------------------
XXXXXX X. XXXXXXXXX, III, M.D., P.C.,
a Tennessee professional corporation ("GHT")
By:
--------------------------------
Title:
--------------------------
XXXXXX X. XXXXXXXXX, III
_____________________________________
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