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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ENDOCARE, INC.,
a Delaware corporation
ADVANCED MEDICAL PROCEDURES, INC.,
a Delaware corporation
ADVANCED MEDICAL PROCEDURES, LLC,
a Florida limited liability company
XXXX X. XXXX, M.D.
XXXXXX X. XXXXXX
and
XXXXX XXXXXXXX
Dated June 30, 1999
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TABLE OF CONTENTS
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ARTICLE I THE MERGER.........................................................................5
1.1 Merger; Effective Time of the Merger..........................................5
1.2 Closing.......................................................................5
1.3 Effect of the Merger..........................................................5
1.4 Effect on AMP Interests.......................................................6
1.5 Conversion of AMP Interests...................................................6
1.6 Fractional Shares.............................................................6
1.7 Dissenters' Rights............................................................6
1.8 Delivery of the Shares........................................................7
1.9 Exemption from Registration...................................................7
1.10 Restricted Securities.........................................................7
1.11 Further Limitations on Disposition............................................8
1.12 Legends.......................................................................8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF AMP AND THE INDIVIDUAL PARTIES..................8
2.1 Corporate Existence...........................................................8
2.2 Capitalization................................................................9
2.3 Financial Statements..........................................................9
2.4 Properties....................................................................9
2.5 Trademarks and Proprietary Rights.............................................9
2.6 Inventories..................................................................10
2.7 Accounts Receivable..........................................................10
2.8 Liabilities and Indebtedness.................................................10
2.9 Litigation...................................................................10
2.10 Taxes........................................................................10
2.11 No Breach....................................................................11
2.12 Subsidiaries.................................................................11
2.13 Employees Contracts and Benefits.............................................11
2.14 Insurance....................................................................11
2.15 Contracts....................................................................12
2.16 Subsequent Transactions......................................................12
2.17 Charter Documents............................................................13
2.18 Directors, Officers and Employees............................................13
2.19 Powers of Attorney; Bank Accounts............................................13
2.20 Good and Marketable Title....................................................13
2.21 Compliance with Law..........................................................13
2.22 Validity and Effect of Agreements............................................13
2.23 Representations Complete.....................................................14
2.24 Authorization................................................................14
2.25 Pooling of Interests.........................................................14
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF ENDOCARE......................................14
3.1 Incorporation................................................................14
3.2 Endocare Shares Fully Paid and Non-Assessable................................14
3.3 Corporate Power and Authority................................................14
3.4 Consents and Approvals.......................................................15
ARTICLE IV COVENANTS OF THE SIGNING INDIVIDUALS.............................................15
4.1 Maintenance of Business......................................................15
4.2 Absence of Certain Changes...................................................15
4.3 Necessary Consents...........................................................16
4.4 Access to Information........................................................16
4.5 Certain Defaults; Litigation.................................................16
4.6 Professional Fees............................................................17
4.7 Other Negotiations...........................................................17
4.8 Best Efforts.................................................................17
ARTICLE V COVENANTS OF ENDOCARE.............................................................17
5.1 Necessary Consents...........................................................17
5.2 Best Efforts.................................................................17
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF ENDOCARE..................................18
6.1 Representations True.........................................................18
6.2 Covenants Performed..........................................................18
6.3 Opinion of Counsel for AMP...................................................18
6.4 No Violations; No Actions....................................................18
6.5 No Material Adverse Change...................................................18
6.6 Proceedings and Documents....................................................18
ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF AMP AND THE SIGNING INDIVIDUALS..........19
7.1 Representations True.........................................................19
7.2 Covenants Performed..........................................................19
7.3 No Actions...................................................................19
7.4 Opinion of Counsel for Endocare..............................................19
ARTICLE VIII THE CLOSING....................................................................20
8.1 The Closing..................................................................20
8.2 AMP Deliveries...............................................................20
8.3 Endocare Deliveries..........................................................20
8.4 Merger Filings...............................................................20
ARTICLE IX OBLIGATIONS OF THE INDIVIDUAL PARTIES AND ENDOCARE AFTER CLOSING.................20
9.1 Indemnification..............................................................20
ARTICLE X GENERAL PROVISIONS................................................................21
10.1 Survival.....................................................................21
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10.2 Further Assurances...........................................................21
10.3 No Broker or Finder..........................................................21
10.4 Each Party to Bear Own Costs.................................................21
10.5 Headings.....................................................................21
10.6 Entire Agreement; Waivers....................................................21
10.7 Third Parties................................................................22
10.8 Successors and Assigns.......................................................22
10.9 Notices......................................................................22
10.10 Attorneys' Fees..............................................................23
10.11 Governing Law................................................................23
10.12 Counterparts.................................................................23
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of June 30, 1999, by and among ENDOCARE, INC., a Delaware
corporation ("Endocare"), ADVANCED MEDICAL PROCEDURES, INC., a Delaware
corporation ("Acquisition Sub"), ADVANCED MEDICAL PROCEDURES, LLC, a Florida
limited liability company ("AMP"), XXXX X. XXXX, M.D. ("Onik"), XXXXXX X. XXXXXX
("Xxxxxx"), and XXXXX X. XXXXXXXX ("Xxxxxxxx"). Xxxx, Xxxxxx and Xxxxxxxx are
collectively referred to as the "Individual Parties," and each is referred to as
a "Individual Party."
WHEREAS, Endocare and AMP each desires that Endocare acquire AMP
by way of a merger in which AMP will merge with and into Acquisition Sub, a
wholly-owned subsidiary of Endocare, and in the merger all of the units of
membership interest of AMP shall be converted into stock of Endocare.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual
covenants hereinafter set forth and other good and valuable consideration had
and received, the parties hereto, on the basis of, and in reliance upon, the
representations, warrants, covenants, obligations and agreements set forth in
this Agreement, and upon the terms and subject to the conditions contained
herein, hereby agree as follows:
ARTICLE I
THE MERGER
1.1 Merger; Effective Time of the Merger.
(a) Subject to the terms and conditions of this Agreement,
AMP will be merged with and into Acquisition Sub (the "Merger") in accordance
with the Delaware General Corporation Law ("DGCL") and the Florida Limited
Liability Company Act ("Florida Law").
(b) Subject to the provisions of this Agreement, on the
Closing Date (as defined in Section 1.2 hereto), (i) a certificate of merger
mutually acceptable to the parties (the "Certificate of Merger") shall be filed
with the Delaware Secretary of State in accordance with the DGCL, and (ii)
articles of merger mutually acceptable to the parties (the "Articles of Merger")
shall be filed with the Florida Secretary of State in accordance with Florida
Law. The Merger shall become effective upon confirmation of such filing in
Delaware (the date of confirmation of such filing being hereinafter referred to
as the "Effective Date" and the time of confirmation of such filing being
hereinafter referred to as the "Effective Time").
1.2 Closing. The closing of the Merger (the "Closing") will take
place on the date hereof, which is referred to as the "Closing Date."
1.3 Effect of the Merger. Subject to the terms and conditions of
this Agreement and the Agreement of Merger, at the Effective Time (i) the
separate existence of AMP shall cease and AMP shall be merged with and into
Acquisition Sub (Acquisition Sub after the Merger is sometimes referred to
herein as the "Surviving Corporation"), (ii) all of the rights
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and obligations of AMP existing immediately prior to the Effective Time shall,
without the need for any further action, become the rights and obligations of
the Surviving Corporation, (iii) the Articles of Incorporation of Acquisition
Sub ("Articles") shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended in accordance with applicable law, and the
name of the Surviving Corporation shall be as specified therein, (iv) the Bylaws
of Acquisition Sub shall be the Bylaws of the Surviving Corporation until
thereafter amended in accordance therewith, (v) the directors and officers of
Acquisition Sub shall be the directors and officers of the Surviving Corporation
and (vi) the Merger shall have all the effects provided by the DGCL and Florida
Law.
1.4 Effect on AMP Interests. At the Effective Time, and subject
to the limitations set forth below, all of the issued and outstanding units of
membership interest of AMP ("Units"), including all options, warrants or other
rights of any kind to acquire Units or securities convertible into Units
(collectively, "AMP Interests"), shall be cancelled and cease to be outstanding
and shall be converted into the right to receive shares of common stock of
Endocare ("Endocare Shares"), as more particularly set forth in Section 1.5. The
rights, preferences and privileges of the Endocare Shares are set forth in the
Restated Articles of Incorporation of Endocare on file in the office of the
Secretary of State of Delaware (the "Restated Articles").
1.5 Conversion of AMP Interests. Each AMP Interest issued and
outstanding immediately prior to the Effective Time (as set forth in Section
2.2) shall be cancelled and extinguished and shall be converted into 0.3413753
Endocare Shares (for a total of 260,000 Endocare Shares for all AMP Interests).
1.6 Fractional Shares. No fractional Endocare Shares shall be
issued, but in lieu thereof each holder of AMP Interests (each, a "Member") who
would otherwise be entitled to receive a fraction of an Endocare Share shall
receive from Endocare a cash payment (without interest) in lieu of such
fractional share equal to the value of the fractional Endocare Share to which
such Member would be entitled, based on the closing price of an Endocare share
on the business day prior to the payment..
1.7 Dissenters' Rights. Any AMP Interests held by persons who
shall become entitled to exercise dissenters' rights in accordance with Section
608.4384 the Florida Law ("Dissenting Interests") shall not be converted into
the right to receive Endocare Shares but shall instead be converted into the
right to receive such consideration as may be determined to be due with respect
to such Dissenting Interests pursuant to Florida Law. AMP agrees that, except
with the prior written consent of Endocare, or as required under Florida Law, it
will not voluntarily make any payment with respect to, or settle or offer to
settle, any such purchase demand. Each holder of Dissenting Interests (a
"Dissenting Member") who, pursuant to the provisions of Florida Law, becomes
entitled to payment of the fair value for AMP Interests shall receive payment
therefor (but only after the value therefor shall have been agreed upon or
finally determined pursuant to such provisions). Endocare and Acquisition Sub
agree that they, and not the Individual Parties, shall be solely responsible and
liable for any and all obligations in connection with Dissenting Interests
(provided that this shall not be interpreted as relieving the Individual Parties
from any liability for the breach of the representation and warranty in Section
2.24 hereof). If after the Effective Time any Dissenting Interests shall lose
their status as
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Dissenting Interests, Endocare shall issue and deliver, upon surrender by such
Member of its AMP Interests, the number of Endocare Shares to which such Member
would otherwise be entitled under this Article I.
1.8 Delivery of the Shares.
(a) Exchange Procedures. All certificates representing AMP
Interests (the "Certificates"), outstanding immediately prior to the Effective
Date, shall be converted into Endocare Shares pursuant to Section 1.5 hereof and
the Certificate of Merger. At the Effective Time, the record holder of each
Certificate shall be entitled to receive in exchange therefor the number of
Endocare Shares to which such holder is entitled pursuant to Section 1.5 hereof.
Each Certificate shall be deemed at any time after the Effective Time to
represent solely the right to receive upon surrender thereof the number of
Endocare Shares as provided by this Article I and the provisions of the DGCL and
Florida Law. Endocare shall deliver certificates representing the Endocare
Shares to each Member within thirty (30) days of the date such Member surrenders
his or her original stock certificate or certificates representing all of the
AMP Interests he or she owns, but the Members shall be deemed the lawful holders
of the Endocare Shares to which they are entitled in the Merger as of the
Effective Time regardless of whether they have received certificates
representing the Endocare Shares.
(b) No Further Ownership Rights in AMP Interests. All
Endocare Shares delivered shall be deemed to have been delivered and conferred
in full satisfaction of all rights pertaining to such shares of AMP Interests.
1.9 Exemption from Registration. The Endocare Shares to be issued
in connection with the transactions contemplated by this Agreement will be
issued in a transaction exempt from registration under the Securities Act of
1933, as amended (the "Securities Act"), by reason of Section 4(2) thereof.
Endocare's reliance on such exemption is predicated, in part, on the
representations made by the Members to Endocare, in the Stock Recipient
Questionnaires executed by them, that each Member is an "accredited investor"
under the Securities Act.
1.10 Restricted Securities. The Endocare Shares are characterized
as "restricted securities" under the federal securities laws inasmuch as they
are being acquired from Endocare in a transaction not involving a public
offering and that under such laws and applicable regulations such securities may
be resold without registration under the Securities Act only in certain limited
circumstances. In this connection, resale of the Endocare Shares will be limited
by SEC Rule 144 ("Rule 144").
1.11 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, no Member may dispose of all or
any portion of the Endocare Shares provided the transferee has acknowledged the
provisions of and agreed in writing for the benefit of Endocare to be bound by
this Section, and:
(i) there is then in effect a Registration Statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such Registration Statement; or
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(ii) counsel to Endocare shall have furnished Endocare or
its transfer agent with an opinion that such disposition will not require
registration of such shares under the Securities Act, and the Member shall
furnish counsel to Endocare a Form 144 or such other documents and information
as are reasonably necessary for counsel to Endocare to render such opinion.
1.12 Legends. It is understood that the certificates evidencing
the Endocare Shares may bear the following legend:
(i) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 145
OF SUCH ACT."
(ii) Any legend required by applicable state law.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF AMP AND THE INDIVIDUAL PARTIES
Except as set forth on the Schedule of Exceptions attached hereto
as Schedule A, AMP and each of the Individual Parties jointly and severally
represents and warrants that:
2.1 Corporate Existence. AMP is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Florida, is qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the failure so to qualify would have a
material adverse effect on the conduct of its business or the ownership of its
properties, and has full corporate power to carry on its business as now being
conducted and to own and operate the property and assets now owned and operated
by it, and has no facilities or employees permanently located outside the State
of Florida. The jurisdictions in which AMP is qualified to do business as a
foreign corporation and is in good standing are: NONE.
2.2 Capitalization. All of the Membership Interests are
represented by share certificates. The total number of outstanding Membership
Interests is 761,625. The Members and the Membership Interests owned by each are
as set forth on Schedule 2.2. There are no options, warrants or other agreements
or commitments obligating AMP to issue any additional Membership Interests or
any securities convertible into or exchangeable for Membership Interests AMP.
2.3 Financial Statements. The balance sheet and related
statements of income and of AMP at and for its fiscal year ended December 31,
1998 and the balance sheet and related
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statements of income of AMP at and for the five-month period ended May 31, 1999
are attached hereto as Schedule 2.3. The internal records and data from which
such balance sheets and statements of income were prepared do not contain any
information which is false or misleading in any material respect. Such balance
sheets and statements of income fairly present AMP's financial position and the
results of AMP's operations for the periods and dates reflected therein and have
been prepared in accordance with generally accepted accounting principles
consistently applied. Such balance sheets and statements of income are
hereinafter collectively referred to as the "Financial Statements." Since May
31, 1999, there has not been any material adverse change in the financial
condition of AMP or results of operations of AMP as reflected on the Financial
Statements. AMP has no liabilities, whether absolute, accrued, contingent or
otherwise, other than (a) liabilities disclosed in this Agreement or in exhibits
or schedules hereto; (b) liabilities adequately provided for in the May 31, 1999
balance sheet (the "May 31 Balance Sheet"), and (c) liabilities not exceeding
$5,000 in the aggregate incurred in the ordinary course of business since May
31, 1999. Notwithstanding the foregoing, AMP's Members' equity is and will be on
the Closing Date not less than the amount of its Members' equity as shown in the
May 31 Balance Sheet.
AMP has, and shall have at the Closing Date, good and marketable
title to the assets reflected on the May 31 Balance Sheet, except for (a) liens
and encumbrances reflected in said balance sheet, and (b) liens for real and
personal property taxes not delinquent.
2.4 Properties. AMP does not own or hold title to any real
property. There is set forth in Schedule 2.4 hereto a list of all leases or
rental contracts involving obligations of $1,000 or more to which AMP is a
party. AMP has good and marketable title to all properties and assets acquired
by it after May 31, 1999 and such properties and assets are subject to no liens,
mortgages, pledges, encumbrances or charges of any kind.
2.5 Trademarks and Proprietary Rights. To the best of the
Individual Party's knowledge, the business of AMP is being carried on without
conflict with registered patents, licenses, trademarks, copyrights and trade
names or other proprietary rights of others, and AMP has not been informed of
any claim alleging violation by AMP of any trade secret or secrets of others,
nor has AMP intentionally misappropriated the trade secrets of any other person.
AMP has not assigned any rights in, or granted any security interest in, any of
its trade secrets, trademarks or copyrights and no current or previous key
employees or consultants of AMP have any rights in any inventions, software
programs or designs or other proprietary concepts, whether or not patentable or
copyrightable, which relate in any material respect to the current business of
AMP.
2.6 Inventories. AMP's inventory consists, and at the time of
Closing will consist, solely of inventory of the kind and quality regularly and
currently used in its business and such inventory was on the date shown, and
will be at the time of Closing, of a quality and quantity usable and saleable at
AMP's normal prices.
2.7 Accounts Receivable. Schedule 2.7 hereto contains a complete
list of the accounts and notes receivable of AMP as of the date shown. Such
accounts and notes receivable arose in the normal course of business and the
Member has no reason to believe that such
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accounts and notes are not, and at the time of Closing will not be, collectible
substantially consistent with AMP's historical collection experience.
2.8 Liabilities and Indebtedness.
(a) Schedule 2.8 hereto contains a complete list of each and
every agreement or other instrument under or pursuant to which AMP has
outstanding indebtedness for borrowed money. AMP has furnished Endocare with
true and correct copies of each such agreement and instrument, including all
amendments with respect thereto through the date of this Agreement.
(b) AMP is not in default in any material respect under any
of its contracts, agreements or evidences of indebtedness, and no party to any
contract or agreement with AMP which is material to the conduct of its business
is in default in any material respect under any such contract or agreement.
2.9 Litigation. No litigation or proceeding is pending or, to the
best of the Member's knowledge, threatened by or against AMP before any court or
any government agency, or any private mediator, arbitrator, insurance board or
otherwise.
2.10 Taxes. AMP has (i) duly and timely filed or caused to be
filed all federal, state and local tax returns (including, without limitation,
consolidated and/or combined tax returns) required to be filed by it prior to
the date of this Agreement which relate to AMP or with respect to which AMP is
liable or otherwise in any way subject, and (ii) paid or fully accrued for all
taxes shown to be due and payable on such returns (which taxes are all the taxes
due and payable under such returns or pursuant to any assessment received by
AMP, except any taxes which AMP is contesting in good faith and by appropriate
proceedings that are disclosed in Schedule A). No deficiency in payment of taxes
for any period has been asserted in writing by any taxing body which remains
unsettled at the date of this Agreement.
2.11 No Breach. The consummation of the transactions contemplated
by this Agreement will not result in or constitute any of the following: (a) a
default or an event that, with notice and/or lapse of time, would be a default,
breach or violation of the Articles of Organization, Operating Agreement or
Bylaws (if any) of AMP or of any lease, license, promissory note, conditional
sales contract, commitment, indenture, mortgage, deed of trust, or other
agreement, instrument or arrangement to which AMP or the Members is a party or
by which AMP or its property is bound; (b) an event that would permit any party
to terminate any agreement or to accelerate the maturity of any indebtedness or
other obligation of AMP; or (c) the creation or imposition of any lien, charge,
or encumbrance on the Membership Interests or any of the Properties of AMP.
2.12 Subsidiaries. AMP has no subsidiaries and does not own any
capital stock or equity interest in any other entity.
2.13 Employees Contracts and Benefits. Except as disclosed in the
May 31 Balance Sheet, AMP does not have and at the time of Closing will not
have, any obligations, contingent or otherwise, under any employment or
consulting agreement, collective bargaining agreement or other contract with a
labor union or under any executive or employee compensation
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plan or agreement, including, without limitation, any pension, retirement,
profit sharing, stock purchase, stock option, bonus or savings plan or
agreement. To the best of the Individual Party's knowledge (which will be deemed
to include any claim made to AMP of any of the following), (a) AMP does not
have, and will not have, committed any unfair labor practices under federal or
state labor laws prior to the Closing Date, (b) there are no pending arbitration
matters or grievance procedures against AMP, (c) there is no pending or
threatened labor dispute, strike or work stoppage affecting AMP's operations,
(d) AMP does not have any employee benefit plans, (e) AMP does not currently
maintain (in an ongoing or frozen condition), nor has it incurred any liability
under Title IV of the Employee Retirement Income Security Act, as amended
("ERISA"), with respect to, any defined benefit pension plan, and (f) AMP has
never incurred any obligation to contribute to a "multiemployer plan," as
defined in ERISA.
2.14 Insurance. There is set forth in Schedule 2.14 hereto a list
of all policies of insurance which AMP owns or has in full force and effect,
showing the amount of coverage and expiration date of each policy. All such
insurance will be maintained in full force and effect without reducing the
coverage thereof up to and including the Closing Date.
2.15 Contracts. There is set forth in Schedule 2.15 hereto a list
of all outstanding contracts to which AMP is a party. Schedule 2.15 identifies
all contracts of AMP with officers, directors, Members or any person, firm or
corporation affiliated with such persons.
2.16 Subsequent Transactions. Since May 31, 1999 and up to and
through the Closing Date, AMP has not:
(a) incurred any obligation or liability (fixed or
contingent), except normal trade or business obligations incurred in the
ordinary course of business and not in excess of $5,000 in the aggregate;
(b) mortgaged, pledged or subjected to any lien, security
interest or other encumbrance any of its assets or properties (other than
mechanic's, materialman's and similar statutory liens arising by operation of
law, and liens for current real and personal property taxes incurred but not yet
due and payable);
(c) transferred, leased or otherwise disposed of any of its
assets or properties, except transfers in the ordinary course of business and
not in excess of $5,000 in the aggregate in value, or, except in the ordinary
course of business and not in excess of $5,000 in the aggregate in expense,
acquired any assets or properties;
(d) cancelled or compromised any debt or claim, except in
the ordinary course of business and not in excess of $5,000 in the aggregate;
(e) waived or released any rights of material value;
(f) transferred or granted any rights under any concessions,
leases, licenses, agreements, patents, inventions, trademarks, trade names,
service marks or copyrights or with respect to any know-how;
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(g) made or granted any wage or salary increase above that
set forth in Schedule 2.18 hereto applicable to any group or classification of
employees generally, entered into any employment contract with, or made any loan
to, or entered into any material transaction of any other nature with, any
officer or employees of AMP;
(h) entered into any transaction, contract or commitment
which provides for a period of performance which extends beyond twelve (12)
months from the date hereof or involves payment of or receipt after the date
hereof of amounts in excess of $5,000, except (i) contracts listed on Schedule
2.8 hereto and (ii) this Agreement and the transactions contemplated hereby;
(i) suffered any casualty loss or damage to any of its
properties (not fully covered by insurance); or
(j) declared, set aside, or paid a dividend or other
distribution in respect of the Membership Interests of AMP or any direct or
indirect redemption, purchase, or other acquisition by AMP of any of its
Membership Interests.
2.17 Charter Documents. AMP has made available to Endocare for
its examination (a) copies of the Articles of Organization, Operating Agreement
and Bylaws (if any) of AMP, (b) the minute books of AMP containing all
proceedings, consents, actions and meetings of the Members and managers of AMP,
(c) the books of AMP setting forth all transfers of Membership Interests, (d)
and all other documents relating to the organization of AMP.
2.18 Directors, Officers and Employees. Schedule 2.18 hereto sets
forth the names of each Member, manager and each employee of AMP, stating the
rate of compensation payable to each.
2.19 Powers of Attorney; Bank Accounts. Schedule 2.19 hereto
lists (a) the names and addresses of all persons holding a power of attorney on
behalf of AMP and (b) the names and addresses of all banks or other financial
institutions in which AMP has an account, deposit, or safe-deposit box, with the
names of all persons authorized to draw on these accounts or deposits or to have
access to these boxes.
2.20 Good and Marketable Title. The Individual Party has full
right, power, and authority to sell, transfer and deliver all the Membership
Interests owned by him as provided in this Agreement, and to his knowledge, each
Member has full right, power, and authority to sell, transfer and deliver all
the Membership Interests owned by him or her as provided in this Agreement.
2.21 Compliance with Law. AMP is not in default with respect to
any order of any court, governmental authority or arbitration board or tribunal
to which AMP is a party or is subject and AMP is not in violation of any laws,
ordinances, governmental rules or regulations to which it is subject. AMP has
obtained or applied for all licenses, permits and other authorizations and has
taken all action required by applicable law or governmental regulation necessary
for conduct of its business as now conducted. All such licenses, permits and
other authorizations are listed on Schedule 2.21.
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2.22 Validity and Effect of Agreements. This Agreement
constitutes, and all agreements and documents contemplated hereby when executed
and delivered pursuant hereto will constitute, the valid and legally binding
obligations of AMP and the Members enforceable in accordance with their terms,
subject as to enforcement to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles. No authorization, consent or approval of, or filing
with, any public body or authority is necessary for the execution by AMP and the
Individual Parties of this Agreement and the consummation of the transactions
contemplated by this Agreement.
2.23 Representations Complete. None of the representations and
warranties made by AMP or the Individual Parties herein, nor any statement made
in any schedule or certificate furnished pursuant to this Agreement, contains or
will contain any untrue statement of a material fact, or omit to state any
material fact required to be stated therein, or necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
2.24 Authorization. All corporate action on the part of AMP and
its managers and Members necessary for the authorization, execution, delivery
and performance of this Agreement and the Certificate of Merger by AMP, and the
performance of AMP's obligations hereunder has been duly and validly taken or
will be taken prior to the Closing Date.
2.25 Pooling of Interests. To the knowledge of the Individual
Party and AMP, based solely on consultation with AMP's independent auditors,
neither AMP, nor its managers or Members, has taken or agreed to take any action
which would preclude Endocare's ability to account for the Merger as a pooling
of interests.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ENDOCARE
Endocare represents and warrants to AMP and the Individual
Parties that:
3.1 Incorporation. Each of Endocare and Acquisition Sub has been
duly incorporated and is validly existing and in good standing under the laws of
the State of Delaware.
3.2 Endocare Shares Fully Paid and Non-Assessable. The Endocare
Shares deliverable pursuant hereto, when issued and delivered as herein
provided, will be validly issued and outstanding shares of Endocare Common
Stock, fully paid and non-assessable.
3.3 Corporate Power and Authority. Each of Endocare and
Acquisition Sub has full corporate power and authority to enter into, deliver,
perform its obligations under and carry out this Agreement. This Agreement
constitutes, and all agreements and documents contemplated hereby when executed
and delivered pursuant hereto will constitute, the valid and legally binding
obligations of Endocare an Acquisition Sub enforceable in accordance with their
terms, subject as to enforcement to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
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3.4 Consents and Approvals. Each consent, approval,
authorization, order, registration or qualification of or with any court or any
regulatory authority or any other governmental body which is required for the
consummation by Endocare and Acquisition Sub of the transactions contemplated by
this Agreement has been obtained or will be obtained prior to or upon the
Closing Date.
ARTICLE IV
COVENANTS OF AMP AND THE SIGNING INDIVIDUALS
4.1 Maintenance of Business. From the date hereof until the
Closing, AMP shall, and the Individual Parties shall cause AMP to, use its best
efforts to carry on and preserve the business, goodwill and the relationships of
AMP with customers, suppliers, officers, employees, agents and others in
substantially the same manner as they have prior to the date hereof. Subject to
any directions from Endocare, AMP shall, and the Individual Parties shall cause
AMP to, use its best efforts to keep and maintain the existing favorable
business relationship with each of such customers, suppliers and officers,
employees and agents.
4.2 Absence of Certain Changes. From the date hereof until the
closing, except as expressly permitted or contemplated hereby, AMP shall not,
and the Individual Parties shall cause AMP to not, without Endocare's prior
express written consent:
(a) incur any additional indebtedness for money borrowed, or
guarantee any indebtedness or obligation of any other party;
(b) set aside or pay any dividend or distribute assets to, or
repurchase any of its stock from, any of its Members;
(c) issue any capital stock or securities convertible into
capital stock or grant or issue any options, warrants or rights to subscribe for
its capital stock or securities convertible into its capital stock;
(d) enter into, amend or terminate any employment agreement
or arrangement;
(e) increase the compensation payable or to become payable to
any of its officers, employees or agents, or adopt or amend any employee benefit
plan or arrangement;
(f) acquire or dispose of any properties or assets used in
its business except as provided in Section 2.16(c) hereof;
(g) permit any change in its business or the manner in which
its books and records are maintained;
(h) create or suffer to be imposed any lien, mortgage,
security interest or other charge on or against its properties or assets, other
than those permitted under Section 2.16(b) hereof;
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(i) enter into, amend or terminate any lease of real or
personal property;
(j) amend its Articles of Organization, Operating Agreement
or Bylaws (if any); or
(k) incur any obligations or engage in any activities or
transactions in either case outside the ordinary course of its business as
conducted at the date hereof.
4.3 Necessary Consents. Prior to the Closing, the Individual
Parties and AMP will use their best efforts to obtain such written consents and
take such other actions as may be necessary or appropriate to allow the
consummation of the transactions contemplated hereby and to allow the
continuation of AMP's business after the Closing as conducted at the date
hereof. All such necessary consents are listed on Schedule 4.3.
4.4 Access to Information. AMP shall, and the Individual Parties
shall cause AMP to give Endocare and its accountants, legal counsel and other
representatives full access, during normal business hours throughout the period
prior to the Closing, to all of the properties, books, contracts, commitments
and records relating to the business, assets and liabilities of AMP, and will
furnish Endocare, its accountants, legal counsel and other representatives
during such period all such information concerning its affairs as Endocare may
reasonably request; provided, however, that any furnishing of such information
pursuant hereto or any investigation by Endocare shall not affect Endocare's
right to rely on the representations, warranties and covenants made by the
Members in this Agreement.
4.5 Certain Defaults; Litigation. AMP and the Individual Parties
will give prompt notice to Endocare of:
(a) any notice of default received by AMP subsequent to the
date of this Agreement and prior to the Closing under any instrument or
agreement to which AMP is a party or by which it is bound, which default could,
if not remedied, result in any material adverse change in the financial
condition, business or prospects of AMP or which would render incorrect any
representation made herein, and
(b) any suit, action, proceeding or investigation instituted
or threatened against or affecting AMP subsequent to the date of this Agreement
and prior to the Closing which, if adversely determined, could result in any
material adverse change in the financial condition, business or prospects of AMP
or which would render incorrect any representation made herein.
4.6 Professional Fees. AMP will not pay or incur any liability
for outside professional services relating to the transactions contemplated by
this Agreement. Any liability for such professional services performed on behalf
of AMP or the Members shall be the sole responsibility of, and be paid by, the
Individual Parties.
4.7 Other Negotiations. From the date hereof until the
termination of this Agreement, the Individual Parties, AMP and AMP's officers,
managers and employees will not initiate discussions or negotiate, or authorize
any person or entity to discuss or negotiate on its or
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their behalf, with any other party, or entertain or consider any inquiries or
proposals received from any other party, concerning the possible disposition of
AMP's business, assets or membership interests. AMP and the Individual Parties
will promptly inform Endocare of any such inquiries or proposals received by AMP
or any of the Individual Parties and will reject such proposals or inquiries.
4.8 Best Efforts. The Individual Parties will use their best
efforts to cause all conditions to Closing to be satisfied.
ARTICLE V
COVENANTS OF ENDOCARE
5.1 Necessary Consents. Prior to the Closing, Endocare will use
its best efforts to obtain such consents and take such other actions as may be
necessary or appropriate to allow the consummation of the transactions
contemplated hereby.
5.2 Best Efforts. Endocare will use its best efforts to cause all
conditions to the Closing to be satisfied.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF ENDOCARE
The obligation of Endocare to consummate the transactions
contemplated by this Agreement is subject to the satisfaction, at or before the
Closing, of all the following conditions, unless waived in writing by Endocare:
6.1 Representations True. All representations and warranties by
AMP and the Individual Parties in this Agreement or the schedules and exhibits
hereto, or in any written statement that shall be delivered to Endocare by AMP
and the Individual Parties under this Agreement, shall be true on and as of the
Closing Date. AMP and the Individual Parties hereby certify that all such
representations and warranties are true as of the Closing Date.
6.2 Covenants Performed. AMP and the Individual Parties shall
have performed, satisfied, and complied with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by AMP
and the Individual Parties on or before the Closing Date. AMP and the Individual
Parties hereby certify that they have so performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by AMP and the Individual Parties on or before the
Closing Date.
6.3 Opinion of Counsel. Endocare shall have received an opinion
from Gardner, Wilkes, Shaheen & Xxxxxxxxx, dated the Closing Date, reasonably
acceptable to Endocare.
6.4 No Violations; No Actions. Consummation of the transactions
contemplated by this Agreement shall not violate any order, decree or judgment
of any court or
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governmental body having competent jurisdiction and no action or proceeding
shall have been instituted by any person or entity or threatened by any
governmental agency which, in either such case, in the good faith judgment of
Endocare's Board of Directors (acting upon advice of its outside counsel) has a
reasonable probability of resulting in an order, judgment or decree restraining,
prohibiting or rendering unlawful the consummation of the transactions
contemplated by this Agreement.
6.5 No Material Adverse Change. During the period from May 31,
1999 to the Closing, there shall not have been any material adverse change in
the condition (financial or other), liabilities, business or prospects of AMP.
6.6 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be in form and
substance reasonably satisfactory to Endocare and its counsel, and Endocare
shall have received all such counterpart originals or certified or other copies
of such documents as it may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF AMP AND THE SIGNING INDIVIDUALS
The obligations of AMP and the Individual Parties to consummate
the transactions contemplated by this Agreement are subject to the satisfaction,
at or before the Closing, of all the following conditions, unless waived in
writing by AMP and the Individual Parties:
7.1 Representations True. All representations and warranties by
Endocare contained in this Agreement or in any written statement delivered by
Endocare under this Agreement shall be true on and as of the Closing Date.
Endocare hereby certifies that all such representations and warranties are true
as of the Closing Date.
7.2 Covenants Performed. Endocare shall have performed and
complied with all covenants and agreements, and satisfied all conditions that it
is required by this Agreement to perform, comply with or satisfy on or before or
the Closing Date. Endocare hereby certifies that it has so performed, satisfied,
and complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by Endocare on or before the Closing
Date.
7.3 No Actions. Consummation of the transactions contemplated by
this Agreement shall not violate any order, decree or judgment of any court or
governmental body having competent jurisdiction and no action or proceeding
shall have been instituted by any person or entity or threatened by any
governmental agency which, in either such case, in the good faith judgment of
the Individual Parties (acting upon advice of their respective outside counsel)
has a reasonable probability of resulting in an order, judgment or decree
restraining, prohibiting or rendering unlawful the consummation of the
transactions contemplated by this Agreement.
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7.4 Opinion of Counsel for Endocare. The Individual Parties shall
have received an opinion from Xxxxxxx, Phleger & Xxxxxxxx, LLP, dated the
Closing Date, reasonably acceptable to the Individual Parties.
ARTICLE VIII
THE CLOSING
8.1 The Closing. Subject to the conditions set forth herein, the
purchase and sale of the Membership Interests hereunder (the "Closing") shall
take place at the offices of Xxxxxxx, Phleger & Xxxxxxxx, Irvine, California, on
June 30, 1999, or at such other time, date and place as Endocare, AMP and the
Individual Parties may agree (the "Closing Date").
8.2 AMP Deliveries. At the Closing, there shall be delivered to
Endocare, in form and substance satisfactory to Endocare and its counsel, the
item or items required to be delivered in Article VI.
8.3 Endocare Deliveries. At the Closing, there shall be delivered
to AMP the item or items required to be delivered in Article VII.
8.4 Merger Filings. At the Closing Endocare shall cause to be
filed with the Secretary of State of Delaware the Certificate of Merger and as
promptly thereafter as practicable Endocare and AMP shall jointly cause to be
filed the Articles of Merger with the Florida Secretary of State.
ARTICLE IX
OBLIGATIONS OF THE INDIVIDUAL PARTIES AND ENDOCARE AFTER CLOSING
9.1 Indemnification. In addition to any other remedies available
to Endocare under applicable law, the Individual Parties shall, pursuant to the
terms of this Agreement, jointly and severally indemnify, defend, and hold
harmless Endocare against and in respect of any and all claims, demands, losses,
recoveries, and deficiencies, including interest, penalties, and reasonable
attorneys' fees (collectively referred to as "Losses") that Endocare shall incur
or suffer subsequent to the Closing and which arise out of (i) the
incorrectness, untruth, or breach of any warranty, representation or agreement
made in this Agreement or in the schedules or exhibits hereto by the Individual
Parties, (ii) the operation of AMP prior to the Closing; and (iii) any and all
taxes, assessments and governmental charges, and penalties and interest with
respect thereto, which may be assessed against the Surviving Corporation of
Endocare in respect of any fiscal year of AMP ended prior to the Closing.
Endocare will give prompt notice to the Individual Parties of any action or suit
against the Surviving Corporation or Endocare which, if successfully prosecuted,
would result in any indemnification obligation under this Section 9.1. Nothing
herein shall limit in any way any legal or equitable remedies which Endocare may
otherwise have in the event of any breach by the Individual Parties of any
warranty, representation or agreement made in this Agreement by the Individual
Parties. The Individual Parties shall have no obligations under this Section 9.1
for Losses, except for Losses with respect to which
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Endocare shall have made a written claim to the Individual Parties prior to the
first (1st) anniversary of the Closing Date.
ARTICLE X
GENERAL PROVISIONS
10.1 Survival. The representations and warranties made by the
parties hereto in this Agreement, and their respective obligations to be
performed under the terms hereof at, prior to or after the Closing hereunder,
shall not expire with, or be terminated or extinguished by, such Closing,
notwithstanding any investigation of the facts constituting the basis of the
representations and warranties of any party by any other party hereto.
10.2 Further Assurances. At the request of any of the parties
hereto, and without further consideration, the other parties agree to execute
such documents and instruments and to do such further acts as may be necessary
or desirable to effectuate the transactions contemplated hereby.
10.3 No Broker or Finder. Each of the parties represents and
warrants that it has dealt with no broker or finder in connection with any of
the transactions contemplated by this Agreement, and, insofar as it knows, no
broker or other person is entitled to any conversion or finder's fee, in
connection with these transactions. The Individual Parties and Endocare further
agree to indemnify and hold harmless the other against any loss, liability,
damage, cost, claim, or expense incurred by reason of any brokerage commission
or finder's fee alleged to be payable because of any act, omission, or statement
of the indemnifying party.
10.4 Each Party to Bear Own Costs. Each of the parties shall pay
all costs and expenses incurred or to be incurred by him or it in negotiating
and preparing this Agreement and in closing and carrying out the transactions
contemplated by this Agreement.
10.5 Headings. The subject headings of the Articles and Sections
of this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
10.6 Entire Agreement; Waivers. This Agreement and the exhibits
and schedules hereto constitute the entire agreement between the parties
pertaining to the contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless execute din writing by all parties. No waiver
of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
10.7 Third Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person to any
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party to this Agreement, now shall any provision give any third persons any
right of subrogation or action over against any party to this Agreement.
10.8 Successors and Assigns. This Agreement shall be binding on,
and shall inure to the benefit of, the parties to it and their respective heirs,
legal representatives, successors, and assigns.
10.9 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, on the date of transmission if transmitted by
facsimile (with confirmation of receipt) or on the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed as follows:
To AMP or the Individual Advanced Medical Procedures LLC
Parties at: 000X Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
With a copy to: Xxxxxxx Xxxxxxx
Gardner, Wilkes, Shaheen & Xxxxxxxxx
2650 SunTrust Financial Center
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
To Endocare at: Endocare, Inc.
0 Xxxxxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
With a copy to: Xxxxxxx, Phleger & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
Any party may change his or its address for purposes of this paragraph by giving
notice of the new address to each of the other parties in the manner set forth
above.
10.10 Attorneys' Fees. In the event that any legal proceeding is
brought to enforce or interpret any of the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees whether
or not the action or proceeding proceeds to final judgment.
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10.11 Governing Law. The terms of this Agreement shall be
governed by the laws of the State of California applicable to agreements entered
into, to be wholly performed in and among residents exclusively of, California.
10.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ADVANCED MEDICAL PROCEDURES, INC. INDIVIDUAL PARTIES
By: /s/ Xxxx X. Xxxxx /s/ Xxxx Xxxx
--------------------------------- -----------------------------------
Xxxx X. Xxxxx Xxxx Xxxx, M.D.
Chief Executive Officer
/s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx
ENDOCARE, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
ADVANCED MEDICAL PROCEDURES, L.L.C.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: President
-----------------------------
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