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EXHIBIT 2.18
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") effective January 1,
1998, by and among XXXXXX X. SHACK, O.D., P.A., a New Jersey professional
association, XXXXXXX X. XXXXXXX, O.D. AND XXXXXX X. SHACK, O.D., P.A. a New
Jersey professional association (together the "Seller"), and VISION TWENTY-ONE,
INC., a Florida corporation ("Vision 21").
WITNESSETH:
WHEREAS, Xxxxxxx X. Xxxxxxx, O.D. and Xxxxxx X. Shack, O.D. (the
"Optometrists") are licensed to practice optometry in the State of New Jersey,
and currently conduct an optometry practice (the "Practice") through the Seller,
which maintains nineteen (19) offices (the "Offices") throughout the state of
New Jersey;
WHEREAS, Vision 21 provides business management services and facilities
for eye care professionals and related businesses; and
WHEREAS, Seller desires to sell, assign and transfer all of its
Non-Optometric Assets (as defined herein) to the extent permitted by law to
Vision 21, and Vision 21 desires to purchase, assume and acquire such
Non-Optometric Assets and assume certain liabilities of the Seller in exchange
for the consideration provided herein.
NOW, THEREFORE, in consideration of the respective covenants,
representations, warranties and agreements herein contained, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I - PURCHASE AND SALE
1.1. Purchase and Sale of Non-Optometric Assets. Subject to the
terms and conditions herein set forth, and in reliance upon the representations
and warranties set forth herein, Seller agrees to sell, convey, assign, transfer
and deliver to Vision 21, and Vision 21 agrees to purchase, assume, accept and
acquire, all of Seller's right, title and interest in and to all of the
Non-Optometric Assets of Seller relating to the Practice to the extent permitted
by applicable law (other than the Optometric Assets specified in Section 1.2
hereof and the Excluded Assets specified in Section 1.3 hereof) as set forth on
SCHEDULE 1.1, of every kind, character and description, whether tangible, real,
personal, or mixed, and wheresoever located, (collectively, "Non-Optometric
Assets"), and including without limitation the following:
(a) all machinery, equipment, tools, furniture,
furnishings, goods, and other tangible personal property;
(b) all accounts receivable;
(c) all supplies (but not the optometric or optical
supplies described as "Optometric Assets" in Section 1.2 hereof);
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(d) all inventory;
(e) [Reserved];
(f) eyeglasses, contact and other lenses and other eye
wear;
(g) all prepaid items, notes and unbilled costs and fees;
(h) to the extent permitted by applicable law, any and
all rights under any written or oral contract, agreement, plan, instrument,
registration, license, certificate of occupancy, other permit or approval of any
nature, or other document, commitment, arrangement, undertaking, practice or
authorization, except where professionally related, or except as set forth in
Section 1.2;
(i) all rights under any patents, trademarks, service
marks, trade names or copyrights, whether registered or unregistered, and any
applications therefor;
(j) all data bases used in the Practice or under
development;
(k) all rights arising out of occurrences before or after
the Closing, including without limitation, all representations, warranties,
covenants and guaranties made or provided by third parties to or for the benefit
of Seller with respect to any of the Non-Optometric Assets;
(l) all books and records of Seller, including, without
limitation, all credit records, payroll records, computer records, computer
programs, contracts, agreements, operating manuals, schedules of Non-Optometric
Assets, correspondence, books of account, files, papers, books and all other
public and confidential business records, whether such records are in hard copy
form or are electronically or magnetically stored;
(m) all information, files, records, data, plans,
contracts and recorded knowledge, including supplier lists and employee records
related to the foregoing and the operation of the Practice; and
(n) xxxxx cash from each Office in the amount of $50.00
per Office.
1.2. No Sale of Optometric Assets. Seller shall not sell, convey,
assign, transfer and deliver to Vision 21, and Vision 21 shall not be obligated
to purchase, assume, accept and acquire (or make any payments or otherwise
discharge any liability or obligation of Seller or Optometrists with respect to)
any of Seller's assets described in this Section (the "Optometric Assets") or
the Excluded Assets specified in Section 1.3 hereof, which Optometric Assets
shall include without limitation the following:
(a) patient lists, including names, addresses and
telephone numbers;
(b) optometric records;
(c) all rights in employment contracts with Optometrists,
if any, employed by Seller;
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(d) drugs (which shall not be deemed to include contact
lenses), pharmaceuticals, and controlled substances, products and items;
(e) third party payor contracts (except for rights to
purchased accounts receivable);
(f) licenses, certificates of need, Medicare/Medicaid
certifications and other governmental authorizations necessary to provide
optometric services and to be paid therefor by applicable third party payors;
and
(g) any other asset that legally cannot be owned by a
party that is not optometrist-owned.
1.3. Excluded Assets. Notwithstanding the foregoing, neither the
Optometric Assets nor the Non-Optometric Assets shall include any of the
following (collectively, the "Excluded Assets") which shall be retained by
Seller and not transferred to Vision 21:
(a) life insurance policies covering the life of
Optometrists or any employee of Seller;
(b) personal effects listed on SCHEDULE 1.3; and
(c) cash and cash equivalents in banks, certificates of
deposit, commercial paper and securities owned by Seller (but excluding cash
held in registers or xxxxx cash drawers on the Closing Date which shall be
transferred to Vision 21), which shall not be reduced by the amount of April
rent paid or payable under Real Property Leases (as defined herein).
1.4. The Purchase Price. Vision 21 agrees that, subject to the
terms and conditions of this Agreement, and in full consideration for the
aforesaid sale, transfer, conveyance, assignment and delivery of the
Non-Optometric Assets of Seller to Vision 21, and the acceptance by Vision 21 of
such Non-Optometric Assets and the assumption by Vision 21 of those liabilities
listed on SCHEDULE 1.6 hereto, Vision 21 shall pay to Seller at the Closing
consideration having a value of Eight Million Five Hundred Eighty Thousand
Dollars ($8,580,000) (the "Purchase Price"), subject to the adjustment set forth
in Section 1.7, to be delivered to Seller as follows:
(a) Cash. Vision 21 shall deliver the sum of Five Million
Nine Hundred Ninety Two Thousand Dollars ($5,992,000) to the Seller by wire
transfer of immediately available funds to such account or accounts as shall be
designated by the Seller.
(b) Common Stock. Vision 21 shall deliver 231,620 shares
of Vision 21 common stock to the Seller.
(c) Contingent Shares. Vision 21 shall deliver 19,398
shares of Vision 21 common stock (the "Contingent Shares"), which represents
$200,000 in value based upon the average closing price of Vision 21 common stock
as listed on Nasdaq for the five business day period from March 9, 1998 through
March 13, 1998 (the "Valuation Price") to Xxxxxxxxx, Xxxxxx
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& Xxxxxxx (the "Escrow Agent") to be held in escrow in accordance with the terms
hereof and of the Contingent Shares Escrow Agreement (as defined herein). The
Contingent Shares are forfeitable by the Seller on a dollar for dollar basis to
the extent that EBITDA as shown on the audited financial statements of the
Seller for the twelve month period ending at the first anniversary of the
Closing Date (as defined herein), is less than $1,900,000. If EBITDA for such
twelve month period is less than $1,900,000 then $1.00 worth of the Contingent
Shares, based on the Valuation Price, shall be forfeited for every $1.00 that
actual EBITDA is below $1,900,000. The Contingent Shares shall also serve as
protection of up to $200,000 on a dollar for dollar basis against any decline in
the market value of Vision 21 common stock based upon the five day average
closing price of Vision 21 common stock on Nasdaq for the five day period
preceding that date which is twelve months after the Closing Date, from the
Valuation Price. In the event there has been a decrease in such average price on
such dates from the Valuation Price, such decrease shall be offset on a dollar
for dollar basis against any deductions to Seller for not meeting the target
EBITDA. EBITDA shall be determined and calculated utilizing the accounting
practices of Vision 21 in its audited financial statements prepared in
accordance with generally accepted accounting principles ("GAAP") and will not
be diminished by any costs or charges related to the transactions contemplated
by this Agreement. In no event shall the Seller be entitled to receive shares of
common stock in excess of the number of shares of common stock delivered to the
Escrow Agent. In the event the Seller believes that Vision 21 has not calculated
the number of Contingent Shares in accordance with this Section 1.4, the Seller
shall, within thirty (30) days of receipt of the Contingent Shares from escrow,
so object to Vision 21 in writing, setting forth a specific description of the
nature of the objection and the number of Contingent Shares the Seller believe
should have been paid to them. If no objection is received by Vision 21 on or
before the last day of such thirty (30) day period, then the number of
Contingent Shares calculated by Vision 21 shall be final. If an objection has
been made and Vision 21 and Seller are unable to resolve all of their
disagreements with respect thereto within thirty (30) days following delivery of
Seller's objection, the parties may submit the objection to arbitration, or
avail themselves of any and all other remedies available at law or in equity.
Vision 21 shall provide to the Seller and their accountants full access to all
relevant books, records and work papers utilized in calculating the number of
Contingent Shares to be delivered to the Seller from escrow.
1.5. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Non-Optometric Assets and between the respective Offices as
set forth on SCHEDULE 1.5 annexed hereto and made a part hereof. Each of Seller
and Vision 21 hereby covenants and agrees that he or it will not take a position
that is in any way inconsistent with the terms of this Section 1.5 on any income
tax return, before any governmental agency charged with the collection of any
income tax or in any judicial proceeding.
1.6. Assumption of Certain Obligations and Liabilities. From and
after the Closing Date, Vision 21 shall assume and agree to pay or perform,
promptly as they become due, only those obligations and liabilities of Seller
expressly set forth on SCHEDULE 1.6 (the "Assumed Obligations"). Except for the
Assumed Obligations, Vision 21 shall not assume or be deemed to have assumed and
shall not be responsible for any other obligation or liability of Seller, direct
or indirect, known or unknown, absolute or contingent, including without
limitation (i) any and all obligations regarding any foreign, Federal, state or
local income, sales, use, franchise or other tax liabilities, (ii) any and all
obligations or liabilities relating to any fees or expenses of Seller's or
Optometrists' counsel, accountants or other experts incident to the negotiation
and preparation of
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any of the documents contemplated herein and consummation of the Closing, (iii)
any and all liabilities relating to or arising from the provision of
professional medical or optometric services (or failure to provide professional
medical or optometric services) prior to the Closing Date; (iv) any and all
liability for violations of the Civil Rights Act of 1964, as amended, otherwise
known as Title VII by Seller and/or Optometrists for employee, discrimination or
other claims thereunder; and (v) any and all accrued expenses of Optometrists
including but not limited to or liabilities owed to or on behalf of employees of
Seller including but not limited to salaries, benefits, and payroll, taxes, and
income and franchise taxes of Seller, however, excluding accrued 1997 bonuses.
1.7. Purchase Price Adjustments.
(a) Net Worth Adjustment. The Purchase Price shall be
subject to adjustment on a dollar for dollar basis to the extent that upon audit
by Vision 21's designated auditor, the actual net worth (as defined herein) on
the Closing Date of Seller and The Complete Optical Laboratory, Ltd., Corp., a
New Jersey corporation owned by the Optometrists (the "Lab"), on a consolidated
basis, differs by more than five percent (5%) from the amount of net worth
reflected on the Seller's balance sheet at December 31, 1997 and the balance
sheet of the Lab at October 31, 1997, on a consolidated basis. For purposes
hereof "net worth" is defined as (i) the assets as determined in accordance with
GAAP less (ii) the liabilities as determined in accordance with GAAP. The
adjustment shall be settled, promptly after determination thereof, at the sole
option of Seller, either in cash or such number of shares of Vision 21 common
stock held in escrow in accordance with Section 1.4(c), equal to the difference
in net worth divided by the Valuation Price.
(b) Purchase Price Adjustment Procedure. Within
forty-five (45) days following the Closing Date, Vision 21 shall present to
Seller a consolidated balance sheet for Seller and the Lab as at the Closing
Date prepared in accordance with GAAP ("the Closing Date Balance Sheet") and its
proposed Purchase Price adjustment (the "Proposed Purchase Price Adjustment")
calculated in accordance with Section 1.7(a) hereof. Seller shall, within thirty
(30) days after the delivery by Vision 21 of the Closing Date Balance Sheet and
the Proposed Purchase Price Adjustment, complete its review thereof. In the
event that Seller believes that the Closing Date Balance Sheet and/or the
Proposed Purchase Price Adjustment has not been prepared on the basis set forth
in Section 1.7(a) or otherwise contests any item set forth therein, Seller
shall, on or before the last day of such 30-day period, so object to Vision 21
in writing, setting forth a specific description of the nature of the objection
and the corresponding adjustments the Seller believes should be made. If no
objection is received by Vision 21 on or before the last day of such 30-day
period, then the Closing Date Balance Sheet and the Proposed Purchase Price
Adjustment delivered by Vision 21 shall be final. If an objection has been made
and Vision 21 and Seller are unable to resolve all of their disagreements with
respect to the proposed adjustments within thirty (30) days following the
delivery of Seller's objection, the parties may submit such dispute to
arbitration. Vision 21 shall provide to Seller and its accountants full access
to all relevant books, records and work papers utilized in preparing the Closing
Date Balance Sheet the Proposed Purchase Price Adjustment. The determination of
the arbitrator shall be final and binding on the parties.
1.8 The Cash Refund. In addition to the Purchase Price, Seller
shall receive at the Closing, all cash and cash equivalents owned by the Seller
as reflected on its books as of the Closing Date without reduction for April
rent paid or payable under Real Property Leases plus approximately $290,000.
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1.9 Integration Fee. Seller shall pay from March cash to Vision 21
at Closing, an integration fee of One Hundred Twenty Thousand Dollars ($120,000)
in cash to compensate it for the expenses of integrating the Non-Optometric
Assets and the Practice into the Vision 21 network (the "Integration Fee").
1.10 Limited Reservation of Name Rights. The parties agree that so
long as the parties maintain the Business Management Agreement of even date,
that Seller shall have the right to continue the use of its tradename on a
non-exclusive basis. However, such limited right to use such name shall
terminate immediately upon the termination of the Business Management Agreement.
ARTICLE II - CLOSING, ITEMS TO BE DELIVERED,
THIRD PARTY CONSENTS AND FURTHER ASSURANCES
2.1. Closing. The closing (the "Closing") of the transaction
contemplated in this Agreement shall occur as of March 31, 1998 (the "Closing
Date") at the office of Xxxxxxxxx, Xxxxxx & Xxxxxxx, located at Xxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000, or at such other location or date as
the parties hereto shall mutually agree. Notwithstanding the foregoing language
to the contrary, the effective date of Closing shall be deemed January 1, 1998
(the "Effective Date").
2.2. Deliveries of the Seller and Vision 21 at the Closing.
(a) Seller shall deliver and cause Optometrist where
applicable to deliver to Vision 21 the following at or prior to the Closing,
except as otherwise contemplated herein:
(i) such bills of sale with warranties as to
title, assignments, endorsements and other good and sufficient instruments and
documents of conveyance and transfer as shall be necessary and effective to
transfer and assign to and vest in Vision 21 all of Seller's right, title and
interest in and to the Non-Optometric Assets, including without limitation (A)
good and valid title in and to all of the Non-Optometric Assets owned by Seller,
(B) good and valid leasehold interests in and to all of the Non-Optometric
Assets leased by Seller as lessee (except for that related to Real Property
Leases described below), and (C) all of Seller's rights under all agreements,
contracts, commitments, instruments and other documents included in the
Non-Optometric Assets to which Seller is a party or by which it has rights on
the Closing Date; the aforedescribed instruments shall include, without
limitation, the Xxxx of Sale (the "Xxxx of Sale") in the form annexed hereto and
made a part hereof as EXHIBIT 2.2(A)(I);
(ii) original instruments of consent or waiver
duly executed by third parties with respect to any contracts, agreements, leases
or other rights or obligations being transferred to Vision 21 hereunder and
requiring a consent or waiver therefor;
(iii) duly executed UCC-3 termination statements
evidencing the release of any and all liens upon any of the Non-Optometric
Assets held by any person or entity;
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(iv) a duly executed Business Management
Agreement in the form of EXHIBIT 2.2(A)(IV) by and between Seller and Vision 21
(the "Business Management Agreement");
(v) a copy of resolutions of the Board of
Directors of Seller authorizing the execution, delivery and performance of this
Agreement and all related documents and agreements and the consummation of the
transactions contemplated in this Agreement;
(vi) duly executed employment agreements in the
form annexed hereto and made part hereof as EXHIBIT 2.2(A)(VI)(1) AND EXHIBIT
2.2(A)(VI)(2) between Seller and Optometrists (the "Employment Agreements");
(vii) within a reasonable period of time after
Closing, assignments in such form as is appropriate based upon the terms
contemplated in this Agreement, as executed by Seller and Vision 21, of the Real
Property Leases, as defined and contemplated by paragraph 3.1(q) pursuant to the
timing indicated therein (the "Lease Assignments");
(viii) a duly executed Contingent Shares Escrow
Agreement in the form of EXHIBIT 2.2(A)(VIII) by and between Seller and Vision
21 (the "Contingent Shares Escrow Agreement");
(ix) duly executed employment agreements between
Vision 21 and the Optometrists in the form of EXHIBIT 2.2(A)(IX) (the "Practice
Employment Agreements");
(x) the Integration Fee; and
(xi) such other certificates and documents as
Vision 21 or its counsel may reasonably request.
Simultaneously with delivery of the items set forth in subsection (a) of this
Section 2.2, Seller shall take all such steps as may be required to put Vision
21 in actual possession and operating control of the Non-Optometric Assets.
(b) Vision 21 shall deliver to Seller the following at or
prior to the Closing:
(i) the Purchase Price;
(ii) the Xxxx of Sale;
(iii) the Business Management Agreement;
(iv) a copy of the resolutions of the Board of
Directors of Vision 21 authorizing the execution, delivery and performance of
this Agreement and all related documents and agreements and the consummation of
the transactions contemplated in this Agreement;
(v) the Cash Refund; and
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(vi) such other certificates and documents as
Seller or its counsel may reasonably request.
2.3. Further Assurances. Seller, from time to time after the
Closing and at the request of Vision 21, will execute, acknowledge and deliver
to Vision 21 such other instruments of conveyance and transfer and will take
such other actions as Vision 21 may reasonably require in order to vest more
effectively in Vision 21, or to put Vision 21 more fully in possession of, any
of the Non-Optometric Assets. Each of the parties hereto will cooperate with the
other and execute and deliver to the other parties hereto such other instruments
and documents and take such other actions as may be reasonably requested from
time to time by any other party hereto as necessary to carry out, evidence and
confirm the intended purposes of this Agreement.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Seller. Seller hereby
represents and warrants to Vision 21 that the following are true and correct
through the date hereof, and shall be true and correct as of the date hereof,
except as set forth in the Disclosure Schedule delivered to Vision 21 by Seller
(the "Disclosure Schedule"). "To the best of Seller's knowledge" (or words of
similar import) shall mean the actual knowledge of Xxxxxxx X. Xxxxxxx and/or
Xxxxxx X. Shack without additional investigation.
(a) Organization. Seller is a professional association
duly organized, validly existing and in good standing under the laws of the
State of New Jersey, with all requisite corporate power and authority to carry
on the business in which it is engaged, to own the properties it owns, to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. Seller is not duly qualified and licensed to do business in
any other jurisdiction. Seller does not have any assets, employees or offices in
any state other than the State of New Jersey.
(b) Legal Power and Enforceable Obligations. To the best
of Seller's knowledge, Seller has the power, authority and legal right to own,
lease and operate the Non-Optometric Assets, to conduct the Practice as
currently conducted, and to execute, deliver and perform this Agreement. This
Agreement and all the other documents and instruments required to be delivered
by Seller and/or Optometrists in accordance with the provisions hereof have
been, or upon their execution and delivery will have been, duly executed and
delivered on behalf of Seller and Optometrists and constitute, or will
constitute, the legal, valid and binding obligation of Seller and Optometrists,
enforceable against Seller and Optometrists in accordance with their respective
terms.
(c) No Violation. The execution, delivery and performance
of this Agreement by Seller and Optometrists do not and will not violate,
conflict with or result in the breach of any term, condition or provision of, or
require the consent of any other person under (i) to the best of Seller's
knowledge, any existing law, ordinance, or governmental rule or regulation to
which Seller or Optometrists is subject, (ii) any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which is applicable to either Seller or
Optometrists, (iii) Seller's Articles or Certificate of Incorporation or Bylaws,
or (iv) any mortgage, indenture, agreement, contract, commitment, lease, plan or
other instrument, document or understanding, oral or written, to which either
Seller or Optometrists is a party, by which either
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Seller or Optometrists may have rights, or by which any of the Non-Optometric
Assets may be bound or affected, or give any party with rights thereunder the
right to terminate, modify, accelerate or otherwise change the existing rights
or obligations of Seller or Optometrists thereunder. To the best of Seller's
knowledge, no authorization, approval or consent of, and no filing with, any
governmental or regulatory official, body or authority is required in connection
with the execution, delivery or performance of this Agreement by Seller or
Optometrists or the sale to Vision 21 of the Non-Optometric Assets other than
the notice of sale, transfer, assignment in bulk required to be filed with the
New Jersey Division of Taxation prior to Closing.
(d) No Third Party Options. There are no existing
agreements with, options or commitments to or rights of any person to acquire
any of the Non-Optometric Assets or any interest therein.
(e) Condition of Tangible Non-Optometric Assets. All
buildings, structures, facilities, equipment and other material items of
tangible property and assets included in the Non-Optometric Assets are in good
operating condition and repair, subject to normal wear and maintenance, are
usable in the regular and ordinary course of business and, to the best of
Seller's knowledge, conform to all applicable laws, ordinances, codes, rules and
regulations relating to their construction, use and operation.
(f) Title to Non-Optometric Assets; Required Approvals.
Seller has and shall transfer to Vision 21 at the Closing good, valid and
marketable title to all of the Non-Optometric Assets being sold and transferred
hereunder, free and clear of all mortgages, liens, pledges, security interests,
charges, claims, restrictions and other encumbrances and defects of title of any
nature whatsoever, except disclosed in the Disclosure Schedule. Except as
disclosed in the Disclosure Schedule, no consent, approval, waiver or
authorization is required to be obtained by Seller from any third party with
respect to the assignment to Vision 21 of any contract, agreement, lease, or
other right or obligation of Seller other than pursuant to those leases the
failure of which to obtain would not, individually or in the aggregate, have a
material adverse effect upon the conduct of the Practice. Seller shall use its
best efforts to obtain all such consents, approvals, waivers and authorizations
with respect to those items disclosed in the Disclosure Schedule before and
after the Closing.
(g) Taxes. Seller has filed all tax returns and forms
required to be filed with respect to the Practice, and has paid in full all
taxes, estimated taxes, interest, penalties, assessments and deficiencies which
have become due with respect to the Practice, or will do so prior to the Closing
Date. Such returns and forms are true and correct in all material respects, and
Seller is not required to pay any other tax except as shown on such returns.
Seller has not received any notice that any tax deficiency or delinquency has
been asserted against Seller. Seller is not a party to any pending action or
proceeding and, to the best of Seller's knowledge, there is no action or
proceeding threatened by any government or authority against Seller for the
assessment or collection of any tax and no resolved claim for assessment or
collection of any tax has been asserted against Seller. To the best of Seller's
knowledge, the Optometrists are not a "foreign person" as described in Section
1445 of the Internal Revenue Code of 1986, as amended. There is no pending
proceeding to reduce the assessed valuation of any portion of the Non-Optometric
Assets. Seller has delivered to Vision 21 a true and complete copy of its
federal and state tax returns for the years ended December 31, 1995, 1996 and
1997, which tax returns are or shall be accompanied by all notes and schedules
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filed therewith. Such tax returns fairly present the financial position of
Seller for the periods covered thereby. All monies required to be withheld by
the Seller and paid to governmental agencies for all income, social security,
unemployment, insurance, sales, excise, use, payroll and other taxes have been
collected or withheld and paid to the respective governmental agencies.
(h) Absence of Changes. Since January 1, 1998 Seller has
not:
(i) incurred any liabilities, other than
liabilities incurred in the ordinary course of business consistent with past
practice, or discharged or satisfied any lien or encumbrance, or paid any
liabilities, other than in the ordinary course of business consistent with past
practice, or failed to pay or discharge when due any liabilities of which the
failure to pay or discharge has caused or will cause any material damage or risk
of material loss to Seller or any of its Non-Optometric Assets or properties;
(ii) sold, encumbered, assigned or transferred
any of its Non-Optometric Assets or properties;
(iii) except in the ordinary course of business,
created, incurred, assumed or guaranteed any indebtedness for money borrowed, or
mortgaged, pledged or subjected any of the Non-Optometric Assets to any
mortgage, lien, pledge, security interest, conditional sales contract or other
encumbrance of any nature whatsoever;
(iv) made or suffered any amendment or
termination of any material agreement, contract, commitment, lease or plan to
which it is a party or by which it is bound, or canceled, modified or waived any
substantial debts or claims held by it or waived any rights of substantial
value, whether or not in the ordinary course of business;
(v) suffered any damage, destruction or loss,
whether or not covered by insurance, materially and adversely affecting the
Practice and its related operations, assets, properties, net worth or
obligations (financial or otherwise) or suffered any repeated, recurring or
prolonged shortage, cessation or interruption of supplies or utility or other
services required to conduct the Practice;
(vi) suffered any material adverse change in the
Practice and its related operations, assets , properties, net worth or
obligations (financial or otherwise);
(vii) received notice or had knowledge of any
actual or threatened labor trouble, strike or other occurrence, event or
condition of any similar character which has had or might have an adverse effect
on the Practice or its related operations, assets, properties, net worth or
obligations (financial or otherwise);
(viii) increased or decreased the salaries or other
compensation of, or made any advance (excluding advances for ordinary and
necessary business expenses) or loan to, any of its employees or made any
increase in, or any addition to, other benefits to which any of its employees
may be entitled other than in the ordinary course of business consistent with
past practice;
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(ix) changed any of the accounting principles
followed by it or the methods of applying such principles; or
(x) entered into any transaction other than in
the ordinary course of business consistent with past practice.
(i) Financial Statements; Consistent Treatment of
Expenses. Seller has delivered to Vision 21 (i) the reviewed balance sheets at
December 31, 1995 and 1996 and the related statements of income, retained
earnings and cash flows of Xxxxxxx X. Xxxxxxx, O.D. and Xxxxxx X. Shack, O.D.,
P.A. for the fiscal years then ended; (ii) the compiled balance sheets at
December 31, 1995 and 1996 and the related compiled statements of income,
retained earnings and cash flows of Xxxxxx X. Shack, O.D., P.A. for the fiscal
years then ended; and (iii) Seller's internally prepared balance sheet at
December 31, 1997 and the related statement of income for the fiscal year then
ended (collectively, the "Financial Statements"). The Financial Statements
fairly present the financial condition, results of operation, liabilities and
expenses of Seller as at the respective dates and for the periods indicated, and
in a manner consistent with past practices. Seller has, in presenting
information concerning Seller's expenses to Vision 21 for the purpose of
determining the Seller's value, separated out those expenses which shall be
borne by Seller following the acquisition contemplated in this Agreement in a
manner which is consistent with the treatment of expenses which shall be the
responsibility of Seller pursuant to the Business Management Agreement. To the
best of Seller's knowledge, since December 31, 1997 the Seller has not suffered
any material adverse change to its financial position or profitability.
(j) Compliance with Law; Authorizations. To the best of
Seller's knowledge, Seller has complied in all material respects with, and is
not in any material violation of, any law, ordinance or governmental or
regulatory rules or regulations, whether federal, state, local or foreign, to
which Seller and the Practice and its related operations, assets or properties
are subject (collectively, the "Regulations"). Seller owns, holds, possesses or
lawfully uses in the operation of the Practice all franchises, licenses,
permits, easements, rights, applications, filings, registrations and other
authorizations (collectively, the "Authorizations") which are material for
Seller to conduct the Practice as currently conducted or for the ownership and
use of the Non-Optometric Assets owned or used by Seller in the conduct of the
Practice, free and clear of all liens, charges, restrictions and encumbrances
and in compliance with all Regulations. Seller is not in default, nor has Seller
received any notice of any claim of default, with respect to any such
Authorization. All such Authorizations are renewable by their terms or in the
ordinary course of business without the need to comply with any special
qualification procedures or to pay any amounts other than routine filing fees.
None of such Authorizations will be adversely affected by the consummation of
the transactions contemplated hereby.
(k) Litigation. No litigation, including any arbitration,
investigation or other proceeding of or before any court, arbitrator or
governmental or regulatory official, body or authority is pending or, to the
best knowledge of Seller, threatened against Seller or Optometrists or relates
to the Non-Optometric Assets or the transactions contemplated by this Agreement,
nor does Seller know of any reasonably likely basis for any such litigation,
arbitration, investigation or proceeding, the result of which could materially
adversely affect Seller, Optometrists, the Non-Optometric Assets or the
transactions contemplated hereby or thereby. Neither Seller nor Optometrists is
a party to or subject to the provisions of any judgment, order, writ,
injunction,
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decree or award of any court, arbitrator or governmental or regulatory official,
body or authority which may adversely affect Seller, Optometrists, the
Non-Optometric Assets or the transactions contemplated hereby.
(l) Labor Matters. Seller has not suffered any strike,
slowdown, picketing or work stoppage by any union or other group of employees
affecting the Practice. Seller is not a party to any collective bargaining
agreement, no such agreement determines the terms and conditions of employment
of any employee of Seller, no collective bargaining agent has been certified as
a representative of any of the employees of Seller, and no representation
campaign or election is now in progress with respect to any of the employees of
Seller. Seller has complied and is in compliance in all material respects with
all laws and regulations relating to the employment of labor, including, without
limitation, provisions relating to wages, hours, collective bargaining,
occupational safety and health, equal employment opportunity and the withholding
of income taxes and social security contributions. The consummation of the
transactions contemplated hereby will not cause Vision 21 to incur or suffer any
liability relating to, or obligation to pay, any severance, termination or other
payment to any person or entity and any such claim made against Vision 21 for
reason of any termination or separation of any employee on or before Closing, or
otherwise resulting from the sale of the Non-Optometric Assets pursuant to this
Agreement, shall be the sole responsibility of Seller. No employee of Seller has
any contractual right to continued employment by Seller following the
consummation of the sale of the Non-Optometric Assets pursuant to this Agreement
and Vision 21 shall be free to offer employment to such employees of Seller as
Vision 21 may determine and on such terms and conditions as Vision 21 may
determine. Set forth in the Disclosure Schedule is an accurate and complete list
of all employees employed by Seller in the Practice showing as to each the
nature of the employee's job, date of hire, the annual compensation, all
accruals of vacation (by hours), and any other benefits due to employees other
than pursuant to the Seller's general plans and policies adopted in the ordinary
course of business or pursuant to union contracts and other matters which may be
reasonably required by Vision 21. Set forth in the Disclosure Schedule is an
accurate and complete list of the independent contractor optometrists reflecting
the same information for such optometrists as contained in the Disclosure
Schedule. Seller has not been notified nor is Seller aware of any professional
who has a present intent to terminate his or her affiliation with Seller or
modify his or her relationship with the Seller. Seller shall use its best
efforts to continue all current relationships with any of its professionals.
(m) Employee Benefit Plans. Seller neither sponsors nor
maintains any employee benefit plans except as described in the Disclosure
Schedule. The Seller is not a contributing employer under any multiemployer plan
(as such term is defined in Section 3(37) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) nor has it withdrawn from
participation in any such plan after 1979. The Seller has not entered into any
agreement to provide, nor does it otherwise have any obligation to provide, any
individual and/or his designated beneficiary with any optometric, life insurance
or other fringe benefits, following his retirement or other termination of
employment, other than pension benefits payable pursuant to its employee pension
benefit plans (as such term is defined in Section 3(2) of ERISA) described in
the Disclosure Schedule. Any employee benefit plans (as such term is defined in
Section 3(3) of ERISA) maintained or sponsored by Seller for the benefit of
Seller's employees and described in the Disclosure Schedule are in compliance in
all material respects with the applicable provisions of ERISA and the
regulations promulgated thereunder as presently applied, and have so complied
during all prior periods during which such provisions were applicable. Seller
has complied in all
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material respects with the provisions of ERISA applicable to it as employer,
plan sponsor, plan administrator or fiduciary of any such employee benefit plans
with respect to any such employee benefit plans maintained by Seller or to which
Seller was obligated to contribute funds (or any other plan or individual
arrangement which may not be subject to ERISA). Seller has (i) made all
contributions required of it by law (including, without limitation, ERISA) or
contract; and (ii) is and has been in compliance with the material terms and
provisions of all such employee benefit plans. Seller has no accrued but unpaid
obligations with respect to any of such employee benefit plans except as set
forth in the Financial Statements.
(n) Necessary Non-Optometric Assets. The Non-Optometric
Assets include all rights and property necessary to the conduct of the Practice
in the manner it is presently conducted by Seller and no property excluded from
the Non-Optometric Assets hereof constitutes property or rights material to the
Practice.
(o) Availability of Documents; Compliance with Due
Diligence Requests. Seller has made available to Vision 21 copies of all
material documents including, without limitation, all agreements, contracts,
commitments, insurance policies, leases, plans, instruments, undertakings,
authorizations, permits, licenses, trademarks, trade names, service marks and
applications therefor listed in this Agreement or in the Schedules to this
Agreement. Such copies are true and complete and include all amendments,
supplements and modifications thereto or waivers currently in effect thereunder.
Prior to the Closing Date, the Seller shall have provided true and correct
copies to Vision 21 or answered truthfully in writing all items described in
Vision 21's written due diligence list which has been provided to the Seller by
Vision 21 prior to the date first above written.
(p) Conditions Affecting Seller. To the best of Seller's
knowledge, there is no fact, development or threatened development with respect
to the markets, products, services, clients, patients, facilities, personnel,
vendors, suppliers, operations, Non-Optometric Assets or prospects of the
Practice which are known to Seller which would materially adversely affect the
Practice or the operations, net worth or obligations (financial or otherwise) of
Seller considered as a whole, other than as may affect as a whole the economy or
the practice of optometry generally. Seller has used its best efforts to keep
available for Vision 21 the services of the employees, agents, patients,
contractors and suppliers of Seller, active in the conduct of the Practice. To
the best of Seller's knowledge, no loss of any employee, agent, patient,
contractor or supplier or other advantageous arrangement will result because of
the consummation of the transactions contemplated hereby.
(q) Real Property. All real property (including, without
limitation, all interests in and rights to real property) and improvements
located thereon which are owned or leased by Seller (or Optometrists) and used
in connection with the Practice or included in the Non-Optometric Assets (the
"Real Property") are listed in the Disclosure Schedule. To the best of Seller's
knowledge, the use and operation of the Real Property is in compliance in all
material respects with all applicable building code, environmental, zoning and
land use laws, and other applicable local, state and federal laws and
regulations, including, without limitation, those laws and regulations relating
to the generation, transportation, storage and disposal of medical waste. To the
best of Seller's knowledge, no portion of the Real Property is the subject of,
or affected by, any condemnation or eminent domain proceeding or any covenant or
other restriction preventing or limiting Seller's right to convey right, title
and interest in the Real Property or to use the Real
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Property for the various purposes for which the Real Property is currently being
used. Each lease with respect to the Real Property (the "Real Property Leases")
described on the Disclosure Schedule is in full force and effect and has not
been assigned, modified, supplemented or amended. Neither Seller nor the
landlord under any Real Property Lease is in material default of the terms of
any such lease and, to Seller's knowledge, no circumstances or state of facts
currently exist which, with the giving of notice or the passage of time or both
would permit the landlord under any Real Property Lease to terminate such lease.
Seller (and Optometrists, where applicable), shall, after Closing, upon the
request of Vision 21, assign its rights under any Real Property Lease specified
by Vision 21, and will along with Vision 21, use its best efforts to secure all
required consents from the respective landlords to such assignments. To this
end, Seller and Optometrists, where applicable, agrees after Closing, upon
request of Vision 21, to deliver to Vision 21, Lease Assignments executed by
Seller with regard to such Real Property Leases which Vision 21 may request.
Vision 21 shall use its best efforts to obtain the release of any personal
guarantees of such Real Property Leases made by the Optometrists; provided,
however, such efforts shall not include any payments by Vision 21 of material
amounts to the landlords thereunder although such best efforts shall be limited
in those instances as may be agreed to by the Parties. To the best of Seller's
knowledge, no circumstances or state of facts currently exist, which would
indicate that any landlord under any Real Property Lease will be unwilling to
render such consent. After Closing, Seller shall comply with all lease terms and
shall renew all leases as they become subject to renewal unless Vision 21
requests otherwise.
(r) Medicare and Medicaid Programs. Optometrists and each
professional employee of the Seller are qualified for participation in the
Medicare and Medicaid programs and the Seller is party to provider agreements
for such programs which are in full force and effect with no events of default
having occurred thereunder. Seller, Optometrists and each professional employee
of the Seller have timely filed all claims or other reports required to be filed
prior to the Closing Date with respect to the purchase of services by
third-party payors ("Payors"), including but not limited to Medicare and
Medicaid programs. All such claims or reports are complete and accurate in all
material respects. Seller has paid or has properly recorded on the Financial
Statements all actually known and undisputed refunds, discounts or adjustments
which have become due pursuant to such claims, and Seller does not have any
material liability to any Payor with respect thereto, except as has been
reserved for in the Seller's Financial Statements or set forth on the Disclosure
Schedule. There are no pending appeals, overpayment determinations, adjustments,
challenges, audits, litigation, or notices of intent to reopen Medicare and/or
Medicaid claims determinations or other reports required to be filed by Seller,
Optometrists or a professional employee of Seller in order to be paid by a Payor
for services rendered. None of the Seller, Optometrists or any professional
employee of Seller has been convicted of, or pled guilty or nolo contendere to,
patient abuse or neglect, or any other Medicare or Medicaid program-related
offense. None of the Seller, Optometrists or any professional employee of the
Seller has committed any offense which may serve as the basis for suspension or
exclusion from the Medicare and Medicaid programs, including but not limited to,
defrauding a government program, loss of a license to provide health services,
and failure to provide quality care.
(s) Fraud and Abuse. None of the Seller, Optometrists or
to the best of Seller's knowledge any optometrist, employee or contractors of
the Seller has engaged in any activities which are prohibited under 42 U.S.C.
xx.xx. 1320-7, 7a or 7b or 42 U.S.C. ss.1395nn (subject to the exceptions set
forth in such legislation), or the regulations promulgated thereunder or
pursuant to
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similar state or local statutes or regulations, or which are prohibited by rules
of professional conduct, including but not limited to the following:
(i) knowingly and willfully making or causing to
be made a false statement or representation of a material fact in any
application for any benefit or payment;
(ii) knowingly and willfully making or causing to
be made a false statement or representation of a material fact for use in
determining rights to any benefit or payment;
(iii) failure to disclose knowledge by a Medicare
or Medicaid claimant of the occurrence of any event affecting the initial or
continued right to any benefit or payment on the claimant's behalf or on behalf
of another, with intent to fraudulently secure such benefit or payment;
(iv) knowingly and willfully offering, paying,
soliciting or receiving any remuneration (including any kickback, bribe, or
rebate), directly or indirectly, in cash or in kind (1) in return for referring
an individual to a person for the furnishing or arranging for the furnishing of
any item or service for which payment may be made in whole or in part by
Medicare or Medicaid, or (2) in return for purchasing, leasing, or ordering, or
arranging for or recommending purchasing, leasing, or ordering any good,
facility, service, or item for which payment may be made in whole or in part by
Medicare or Medicaid; and
(v) referring a patient for designated health
services (as defined in 42 U.S.C. ss.1395nn) or providing designated health
services to a patient upon a referral from an entity or person with which Seller
or an immediate family member has a financial relationship, and to which no
exception under 42 U.S.C. ss.1395nn applies.
(t) Ownership of Competitors. Seller does not own,
directly or indirectly, any of the capital stock of any other corporation or any
equity, profit sharing, participation or other interest in any corporation,
partnership, joint venture or other entity that is engaged in a business that is
a competitor of Vision 21 or the Seller.
(u) Reserved.
(v) Commitments. Except as disclosed on the Disclosure
Schedule, or as otherwise disclosed pursuant to this Agreement, neither Seller
nor Optometrists (with respect to the Practice) is a party to nor bound by, nor
are the Non-Optometric Assets bound by, whether or not in writing, any of the
following (collectively, "Commitments"):
(i) partnership or joint venture agreement;
(ii) guaranty or suretyship, indemnification or
contribution agreement or performance bond;
(iii) debt instrument, loan agreement or other
obligation relating to indebtedness for borrowed money or money lent or to be
lent to another;
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(iv) contract to purchase real property;
(v) agreement relating to any material matter or
transaction in which an interest is held by a person or entity that is an
affiliate of Seller;
(vi) agreement for the acquisition of services,
supplies, equipment, inventory, fixtures or other property, or agreements with
public relations or advertising agencies, accountants or attorneys (other than
in the ordinary course of business or in connection with this Agreement and the
transactions contemplated hereby) involving more than $200,000 in the aggregate;
(vii) powers of attorney;
(viii) contracts containing non-competition
covenants (except for the Paramus lease);
(ix) agreements with Payors and contracts to
provide optometric or health care services; or
(x) any other agreement or commitment not made
in the ordinary course of business or that is material to the business,
operations, condition (financial or otherwise) or results of operations of
Seller.
Except as disclosed in the Disclosure Schedule, and to the best knowledge of
Seller, there are no existing or asserted defaults, events of default or events,
occurrences, acts or omissions that, with the giving of notice or lapse of time
or both, would constitute defaults by Seller or Optometrists or, to the best
knowledge of Seller, any other party to a material Commitment, and no penalties
have been incurred nor are amendments pending, with respect to the material
Commitments. The Commitments are in full force and effect and are valid and
enforceable obligations of Seller and Optometrists, and to the best knowledge of
Seller, are valid and enforceable obligations of the other parties thereto, in
accordance with their respective terms, and no defenses, off-sets or
counterclaims have been asserted or, to the best knowledge of Seller, may be
made by any party thereto (other than Seller and Optometrists), nor has Seller
or Optometrists waived any rights thereunder. Except as disclosed in the
Disclosure Schedule, no consents or approvals are required under the terms of
any agreement disclosed in the Disclosure Schedule in connection with the
transactions contemplated herein, including, without limitation, the transfer of
any such agreement pursuant to this Agreement. Except as disclosed in the
Disclosure Schedule, neither Seller nor Optometrists has received notice of any
plan or intention of any other party to any Commitment to exercise any right to
cancel or terminate any Commitment, and Seller knows of no fact that would
justify the exercise of such a right. Seller agrees that, after the Closing, it
shall not engage in any act or omission that would constitute a default by
Seller with respect to partnership agreements with which it is a party. In
addition, with regard to any partnerships that either Seller or Optometrists has
entered into in connection with any of the Offices, Seller agrees that it will
not withdraw as partner or amend such partnership agreements. Seller represents
that all corporate overhead expenses that have been allocated to the respective
Offices are fair as of the Closing Date and have been consistently applied.
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(w) Insurance. Seller, Optometrists and each professional
employee of Seller carries property, liability, malpractice and such other types
of insurance pursuant to the insurance policies listed and briefly described in
the Disclosure Schedule (the "Insurance Policies"). The Insurance Policies are
all of the insurance policies of the Seller, Optometrists and each professional
employee of Seller relating to the business of Seller and the Non-Optometric
Assets. All of the Insurance Policies are issued by insurers of recognized
responsibility, and, to the best knowledge of the Seller, are valid and
enforceable policies, except as may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally or the
availability of equitable remedies. To the best of Seller's knowledge, except as
disclosed in the Disclosure Schedule, no consent or approval is required for,
and no other impediment or restriction exists that will prohibit or limit the
transfer of any such Insurance Policies included within the Non-Optometric
Assets in accordance with the terms of this Agreement. All Insurance Policies
shall be maintained in force without interruption up to and including the
Closing Date. Neither Seller nor Optometrists has received any notice or other
communication from any issuer of any Insurance Policy canceling such policy,
materially increasing any deductibles or retained amounts thereunder, and to the
actual knowledge of Seller, no such cancellation or increase of deductibles,
retainages or premiums is threatened.
(x) Accounts Receivable/Payable. To the best of Seller's
knowledge, the accounts receivable of Seller relating to the Practice reflected
on the Seller's Financial Statements (the "Accounts Receivable"), to the extent
uncollected on the date hereof, are, and the accounts receivable of Seller
relating to the ownership and operation of the Practice to be reflected on the
books of Seller on the Closing Date will be, valid and existing, and represent
amounts due for goods sold and delivered or services performed. Except as set
forth in the Allowance Account in the Financial Statements, there are not, and
on the date of Closing there will not be, any refunds, discounts, set-offs,
defenses, counterclaims or other adjustments payable or assessable with respect
to the Accounts Receivable. Seller has collected Accounts Receivable only in the
ordinary course and has not changed collection procedures or methods nor
accelerated the pace of such collection efforts in anticipation of the
transactions contemplated in this Agreement. Seller has paid accounts payable in
the ordinary course and has not changed payment procedures or methods nor
delayed the timing of such payments in anticipation of the transactions
contemplated in this Agreement.
(y) Completeness of Disclosure. Neither this Agreement,
nor any Schedule, Exhibit, list, certificate or other instrument or document
furnished by Seller or Optometrists to Vision 21 pursuant to this Agreement,
contains any untrue statement of a material fact or omits to state any material
fact required to be stated herein or therein or necessary to make the statements
and information contained herein or therein not misleading. Neither Seller nor
Optometrists has failed to disclose to Vision 21 any event, condition or fact
which Seller knows, or has reasonable grounds to know, may materially adversely
affect the Non-Optometric Assets or the operations, net worth or obligations
(financial or otherwise) of the Practice.
3.2. Representations and Warranties of Vision 21. Vision 21 hereby
represents and warrants to Seller and Optometrists that the following are true
and correct as of the date hereof and shall be true and correct through the
Closing Date as if made on that date. "To the best of Vision 21's knowledge" (or
words of similar import) shall mean the actual knowledge of Xxxxxxxx X. Xxxxxxxx
and/or Xxxxxxx X. Xxxxx without additional investigation.
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(a) Corporate Existence. Vision 21 is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, with all requisite corporate power and authority to carry on the
business in which it is engaged and to own the properties it owns in any states
in which it conducts business.
(b) Corporate Power and Authorization. Vision 21 has the
power, authority and legal right to execute, deliver and perform this Agreement,
and this Agreement constitutes the legal, valid and binding obligation of Vision
21 enforceable against Vision 21 in accordance with its terms.
(c) Validity of Contemplated Transactions. The execution,
delivery and performance of this Agreement by Vision 21 do not and will not
violate, conflict with or result in the breach of any term, condition or
provision of, or require the consent of any other party under (i) to the best of
Vision 21's knowledge, any existing law, ordinance, or governmental rule or
regulation to which Vision 21 is subject, (ii) any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which is applicable to Vision 21, (iii)
the Articles of Incorporation or By-Laws of Vision 21, or (iv) any mortgage,
indenture, agreement, contract, commitment, lease, plan or other instrument,
document or understanding, oral or written, to which Vision 21 is a party or by
which Vision 21 is otherwise bound. To the best of Vision 21's knowledge, no
authorization, approval or consent of, and no registration or filing with, any
governmental or regulatory official, body or authority is required in connection
with the execution, delivery and performance of this Agreement by Vision 21.
(d) Completeness of Disclosure. Neither this Agreement
nor any other instrument or document furnished by Vision 21 to Seller or
Optometrists pursuant to this Agreement, contains any untrue statement of a
material fact or omits to state any material fact required to be stated herein
or therein or necessary to make the statements and information contained herein
or therein not misleading.
(e) Employment of Seller's Employees. Vision 21 does not
currently intend to change the existing composition or employment terms of any
of the non-professional personnel which have employment arrangements with Seller
on the effective date of this Agreement (except as is necessary for Vision 21 to
employ such individuals pursuant to the Business Management Agreement). Vision
21 reserves the right, however, to change the number, composition or employment
terms of such non-professional personnel in the future.
(f) Compliance with Law; Authorizations. To the best of
Vision 21's knowledge, Vision 21 has complied in all material respects with, and
is not in any material violation of, any law, ordinance or governmental or
regulatory rules or regulations, whether federal, state, local or foreign, to
which Vision 21 and its related operations, or properties are subject
(collectively, the "Regulations"). Vision 21 owns, holds, possesses or lawfully
uses in the operation of its business all franchises, licenses, permits,
easements, rights, applications, filings, registrations and other authorizations
(collectively, the "Authorizations") which are material for Vision 21 to conduct
its business as currently conducted and is in material compliance with all
Regulations. Vision 21 is not in default, nor has Vision 21 received any notice
of any claim of default, with respect to any such Authorization. All such
Authorizations are renewable by their terms or in the ordinary course of
business without the need to comply with any special qualification procedures or
to pay any
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amounts other than routine filing fees. None of such Authorizations will be
adversely affected by the consummation of the transactions contemplated hereby.
(g) SEC Documents. Vision 21 has furnished the Seller
with a true and complete copy of each report and registration statement filed by
it with the (the "SEC Documents") since its initial public offering, which are
all the documents that it was required to file with the SEC since such date. To
the best of Vision 21's knowledge, as of their respective dates, the SEC
Documents did not contain any untrue statements of material facts or omit to
state material facts required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As of their respective dates, the SEC Documents complied in all
material respects with the applicable requirements of the Securities Act and the
Exchange Act and the rules and regulations promulgated under such statutes. The
financial statements contained in the SEC Documents, together with the notes
thereto, have been prepared in accordance with GAAP, reflect all liabilities of
Vision 21 required to be stated therein and present fairly the financial
condition of Vision 21 at such date and the results of operations and cash flows
of Purchaser for the period then ended. To the best of Vision 21's knowledge,
the SEC Documents do not contain any untrue statements of material facts or omit
to state any material facts required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading as of the date hereof except for such facts as are
disclosed herein and except for the transactions contemplated hereby. Vision 21
has not suffered any material adverse change in its assets, properties or
operations since the date of the most recent SEC Document.
(h) UAW Contract. At the Closing, Vision 21 will assume
all obligations of Seller under the collective bargaining agreement with the
United Auto Workers and will comply with the terms thereof.
ARTICLE IV - SECURITIES LAW MATTERS
4.1. Investment Representations and Covenants of Seller.
(a) Seller understands that the common stock of Vision 21
(the "Securities") which may comprise the Purchase Price will not be registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws on the grounds that the issuance of the Securities is
exempt from registration pursuant to Section 4(2) of the Securities Act and
under applicable state securities laws, and that the reliance of Vision 21 on
such exemptions is predicated in part on the Seller's representations,
warranties, covenants and acknowledgments set forth in this Section.
(b) Seller represents and warrants that Seller and
Optometrists are "accredited investors" or "sophisticated investors" as defined
under the Securities Act and state "Blue Sky" laws, or that Seller and
Optometrists have utilized, to the extent necessary to be deemed sophisticated
investors under the Securities Act and State "Blue Sky" laws, the assistance of
a professional advisor.
(c) Seller represents and warrants that the Securities to
be acquired by Seller upon consummation of the transactions described in this
Agreement will be acquired by Seller for
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Seller's own account, not as a nominee or agent, and without a view to resale or
other distribution within the meaning of the Securities Act and the rules and
regulations thereunder, except as contemplated in this Agreement, and that
Seller will not distribute any of the Securities in violation of the Securities
Act. All Securities shall bear a restrictive legend in substantially the
following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY ONLY BE SOLD OR OTHERWISE
TRANSFERRED IF THE HOLDER HEREOF COMPLIES WITH THE ACT AND APPLICABLE
SECURITIES LAWS."
In addition, the Securities shall bear any legend required by the
securities or "Blue Sky" laws of any state where Optometrists resides as well as
any other legend deemed appropriate by Vision 21 or its counsel.
(d) Seller represents and warrants that the city and
state set forth below Optometrists' name in the Disclosure Schedule is where
Optometrists' principal residences are located.
(e) Seller (i) acknowledges that the Securities issued to
Seller at the Closing must be held indefinitely by Seller unless subsequently
registered under the Securities Act or an exemption from registration is
available, (ii) is aware that any routine sales of Securities made pursuant to
Rule 144 under the Securities Act may be made only in limited amounts and in
accordance with the terms and conditions of that Rule and that in such cases
where the Rule is not applicable, compliance with some other registration
exemption will be required, and (iii) is aware that Rule 144 is not currently
available for use by Seller for resale of any of the Securities to be acquired
by Seller upon consummation of the transactions described in this Agreement.
(f) Seller represents and warrants to Vision 21 that
Seller and Optometrists, either alone or together with the assistance of
Seller's and Optometrists' own professional advisor, have such knowledge and
experience in financial and business matters such that Seller and Optometrists
are capable of evaluating the merits and risks of Seller's investment in any of
the Securities to be acquired by Seller upon consummation of the transactions
described in this Agreement.
(g) Seller confirms that Seller and Optometrists have had
the opportunity to ask questions of and receive answers from Vision 21
concerning the terms and conditions of Seller's investment in the Securities,
and the Seller and Optometrists have received to Seller's and Optometrists'
satisfaction, such additional information, in addition to that set forth herein,
about Vision 21's operations and the terms and conditions of the offering as
Seller and Optometrists have requested.
(h) In order to ensure compliance with the provisions of
paragraph (c) hereof, Seller agrees that after the Closing, Seller will not sell
or otherwise transfer or dispose of Securities or any interest therein (unless
such shares have been registered under the Securities Act) without
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first complying with either of the following conditions, the expenses and costs
of satisfaction of which shall be fully borne and paid for by Seller:
(i) Vision 21 shall have received a written
legal opinion from Seller's legal counsel, which opinion and counsel shall be
satisfactory to Vision 21 in the exercise of its reasonable judgment, or a copy
of a "no-action" or interpretive letter of the Securities and Exchange
Commission specifying the nature and circumstances of the proposed transfer and
indicating that the proposed transfer will not be in violation of any of the
registration provisions of the Securities Act and the rules and regulations
promulgated thereunder; or
(ii) Vision 21 shall have received an opinion
from its own counsel to the effect that the proposed transfer will not be in
violation of any of the registration provisions of the Securities Act and the
rules and regulations promulgated thereunder.
Seller also agrees that the certificates or instruments representing the
Securities to be issued to Seller pursuant to this Agreement may contain a
restrictive legend noting the restrictions on transfer described in this Section
and required by federal and applicable state securities laws, and that
appropriate "stop-transfer" instructions will be given to Vision 21's transfer
agent, if any, provided that this Section 4.1(h) shall no longer be applicable
to any Securities following their transfer pursuant to a registration statement
effective under the Securities Act or in compliance with Rule 144 or if the
opinion of counsel referred to above is to the further effect that transfer
restrictions and the legend referred to herein are no longer required in order
to establish compliance with any provisions of the Securities Act.
4.2 Rule 144. Vision 21 covenants that it will file the reports
required to be filed by it under the Securities and Exchange Act of 1934 and the
rules and regulations promulgated thereunder to the extent required from time to
time to enable Seller to sell the shares of Vision 21 Common Stock issued
hereunder without registration under the Securities Act, within the limitations
of the exemption provided by Rule 144 under the Securities Act, as may be
amended by time.
ARTICLE V - INDEMNIFICATION AND REMEDIES
5.1. Indemnification Obligation of Seller. From and after the
Closing, Seller will reimburse, indemnify and hold harmless Vision 21, and its
successors and assigns (an "Indemnified Buyer Party") against and in respect of:
(a) any and all damages, losses, deficiencies,
liabilities, costs and expenses incurred or suffered by any Indemnified Buyer
Party that result from, relate to or arise out of any misrepresentation, breach
of warranty or nonfulfillment of any agreement or covenant on the part of Seller
under this Agreement or from any material misrepresentation in or omission from
any certificate, schedule, exhibit, statement, document or instrument furnished
to Vision 21 pursuant hereto or in connection with the negotiation, execution or
performance hereof; and
(b) any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines, judgments, costs and other
expenses (including, without limitation, legal
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fees and expenses and court costs) incident to any of the foregoing or to the
enforcement of this Section 5.1.
5.2. Indemnification Obligation Of Vision 21. From and after the
Closing, Vision 21 will reimburse, indemnify and hold harmless Seller,
Optometrists and their respective successors and assigns (an "Indemnified Seller
Party") against and in respect of:
(a) any and all damages, losses, deficiencies,
liabilities, costs and expenses incurred or suffered by any Indemnified Seller
Party that result from, relate to or arise out of any misrepresentation, breach
of warranty or non-fulfillment of any agreement or covenant on the part of
Vision 21 under this Agreement or from any misrepresentation in or omission from
any certificate, schedule, exhibit, statement, document or instrument furnished
to Seller pursuant hereto or in connection with the negotiation, execution or
performance hereof;
(b) any and all damages, losses, deficiencies,
liabilities, costs and expenses incurred or suffered by any Indemnified Seller
party or Optometrist third party guarantor that result from, relate to or arise
out of the assumption by and/or assignment to Vision 21 of the Real Property
Leases as contemplated in Section 3.1(q), including legal fees relative to
obtaining those assignments accruing from the date hereof forward;
(c) any and all damages, losses, deficiencies,
liabilities, costs and expenses incurred or suffered by any Indemnified Seller
Party that result from, relate to or arise out of any partnerships described in
the Disclosure Schedule hereto that the Seller has entered into in connection
with the Offices in which the principal event giving rise thereto occurred
subsequent to the Closing Date, except those damages, losses, deficiencies,
liabilities, costs and expenses relating to or arising from taxes, fraud or
medical related claims including legal fees relative to Seller's involvement in
connection with Vision 21's efforts to modify or terminate such partnerships;
(d) any and all damages, losses, deficiencies,
liabilities, costs and expenses incurred or suffered by any Indemnified Seller
Party that result from, relate to or arise out of any Indemnified Seller Party's
efforts to defend the termination of this Asset Purchase Agreement by Vision 21
as contemplated under Section 5.7(ii) or by a third party as contemplated under
Section 5.7(iii); and
(e) any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines, judgments, costs and other
expenses (including, without limitation, any legal fees and expenses) incident
to any of the foregoing or to the enforcement of this Section 5.2.
5.3. Procedure for Indemnification Claims. If at any time a claim
shall be made or threatened, or an action or proceeding shall be commenced or
threatened, against a party hereto (the "Aggrieved Party") which could result in
liability of the other party (the "Indemnifying Party") under its
indemnification obligations hereunder, the Aggrieved Party shall give to the
Indemnifying Party prompt notice of such claim, action or proceeding. Such
notice shall state the basis for the claim, action or proceeding and the amount
thereof (to the extent such amount is determinable at the time when such notice
is given) and shall permit the Indemnifying Party to assume the defense of any
such claim, action or proceeding (including any action or proceeding resulting
from any such claim). Failure by the Indemnifying Party to notify the Aggrieved
Party of its election to defend any
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such claim, action or proceeding within a reasonable time shall be deemed a
waiver by the Indemnifying Party of its right to defend such claim, action or
proceeding; provided, however, that the Indemnifying Party shall not be deemed
to have waived its right to contest and defend against any claim of the
Aggrieved Party for indemnification hereunder based upon or arising out of such
claim, action or proceeding.
If the Indemnifying Party assumes the defense of any such claim, action
or proceeding, the obligation of the Indemnifying Party as to such claim, action
or proceeding shall be limited to taking all steps necessary in the defense or
settlement thereof and, to the extent the Indemnifying Party is liable for
indemnification hereunder, to holding the Aggrieved Party harmless from and
against any and all losses, damages and liabilities caused by or arising out of
any settlement approved by the Indemnifying Party or any judgment or award
rendered in connection with such claim, action or proceeding. The Aggrieved
Party agrees to cooperate and make available to the Indemnifying Party all books
and records and such officers, employees and agents as are reasonably necessary
and useful in connection with the defense. The Aggrieved Party may participate,
at its expense, in the defense of such claim, action or proceeding provided that
the Indemnifying Party shall direct and control the defense of such claim,
action or proceeding; provided, however, if in the reasonable opinion of the
Aggrieved Party any such claim, action or proceeding involves an issue or matter
which, if adversely determined, would have a materially adverse effect on the
Aggrieved Party, then the Aggrieved Party shall have the right to control the
defense or settlement of any such claim, action or proceeding and its reasonable
costs and expenses shall be included as a part of the indemnification obligation
of the Indemnifying Party. The Indemnifying Party shall not, with respect to any
such claim, action or proceeding, consent to the entry of any judgment or award,
or enter into any settlement, except with the prior written consent of the
Aggrieved Party, which consent shall not be unreasonably withheld; provided,
however, in the case of any such judgment, award or settlement for money, it
shall be a condition thereto that the Indemnifying Party shall acknowledge its
obligation to indemnify the Aggrieved Party pursuant to this Article V; and
provided, further, that any such judgment, award or settlement include, as an
unconditional term thereof, the release of the Aggrieved Party from all
liability by the third party claimant or plaintiff.
5.4. Payment. In the event that Seller or the Optometrists has an
indemnification obligation to Vision 21 hereunder, subject to Vision 21's
approval as set forth below, the Seller and/or Optometrists may satisfy such
obligation by transferring to Vision 21 such number of shares of Vision 21
common stock ("Vision 21 Securities") owned by the Seller and/or Optometrists
having an aggregate fair market value (based on the last reported sale price of
the Vision 21 Securities on a principal national securities exchange or other
exchange on which the Vision 21 Securities are then listed or the last quoted
ask price on any over-the-counter market through which the Vision 21 Securities
are then quoted on the last trading day immediately preceding the day on which
Seller or the Optometrists transfers shares of the Vision 21 Securities to
Vision 21 hereunder) equal to the indemnification obligation, which Vision 21
Securities shall be transferred to Vision 21 free and clear of all adverse
claims, security interests, liens, claims, proxies, options, stockholders'
agreements and encumbrances.
5.5. Other Rights and Remedies Not Affected. The indemnification
rights of the parties under this Article V are independent of and in addition to
such rights and remedies as the parties may have at law or in equity or
otherwise for any misrepresentation, breach of warranty or failure to fulfill
any agreement or covenant hereunder on the part of any party hereto, including,
without
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limitation the right to seek an injunction against a violation of any of
the terms hereof or in aid of the exercise of any power granted hereby or by
law, the right to seek specific performance, recision or restitution, none of
which rights or remedies shall be affected or diminished hereby. All rights,
powers, options or remedies afforded to the parties either hereunder or by law
shall be cumulative and not alternative and the exercise of a party's right,
power, option or remedy shall not bar other rights, powers, options or remedies
allowed herein or by law. The indemnification obligations hereunder shall
survive the consummation of the transactions described herein and are subject to
set-off against any other amounts owing between the parties hereunder. Should
either party employ an attorney or attorneys to enforce any of the provisions
hereof, or to protect its interest in any matter arising hereunder, or to
recover damages for the breach hereof, the party prevailing shall be entitled to
recover from the other party all reasonable costs, charges and expenses,
including attorney's fees, the value of time charged by paralegals and/or other
staff members operating under the supervision of an attorney, and other legal
costs, expended or incurred in connection therewith, before, during and
subsequent to any litigation, including arbitration and appellate proceedings,
bankruptcy or similar debtor/creditor proceedings, and proceedings to enforce
any indemnity agreement herein contained.
5.6. Indemnification Limitation. Neither Seller nor Optometrists
shall be required to indemnify Vision 21 pursuant to Section 5.1 unless the
aggregate amount of damages or losses incurred by Vision 21 pursuant to this
Agreement shall exceed $150,000, after which the Seller and Optometrists shall
be obligated to indemnify Vision 21 from the first dollar, except that the
Seller's and Optometrists' total monetary obligations to indemnify Vision 21
pursuant to Section 5.1 shall be capped at the Purchase Price hereunder, unless
the liability relates to fraud in which case Seller's and Optometrists'
liability shall be unlimited.
5.7. Health Care Regulatory - Termination Limitations. If this
Asset Purchase Agreement is held to be unlawful or unenforceable due to health
care regulatory matters (and/or if efforts are made to achieve such a result)
then (i) if the Seller or Optometrist sought to have this Asset Purchase
Agreement held unlawful or unenforceable, the Seller shall disgorge to Vision 21
the Purchase Price, (ii) if Vision 21 sought to have this Asset Purchase
Agreement held unlawful or unenforceable, the Seller may keep the Purchase Price
despite the termination of this Asset Purchase Agreement, and (iii) if a third
party sought to have this Asset Purchase Agreement held unlawful or
unenforceable, the Seller may keep the Purchase Price despite the termination of
this Asset Purchase Agreement. In such instance of (ii) or (iii) above, Seller
shall take all such steps to cause the immediate sale and transfer of all assets
of Seller (which may be sold by State law) to Vision 21 for the total purchase
price of $10,000 cash to be paid at the time of transfer, which shall occur
immediately upon delivery of a check for $10,000 by Vision 21. Such sale and
transfer will be pursuant to such documentation as reasonably requested by
Vision 21.
5.8 Tax Benefits; Insurance Proceeds. The total amount of any
indemnity payments owed by one party to another party to this Agreement shall be
reduced by any correlative tax benefit received by the party to be indemnified
or the net proceeds received by the party to be indemnified with respect to
recovery from third parties or insurance proceeds and such correlative insurance
benefit shall be net of the insurance premium, if any, that becomes due as a
result of such claim.
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ARTICLE VI- POST CLOSING MATTERS
6.1. Survival of Representations and Warranties. All
representations, warranties, agreements and obligations made by the parties in
this Agreement or in any certificate, schedule, document or instrument furnished
hereunder or in connection with the negotiation, execution and performance of
this Agreement shall survive the Closing and continue for a period of one year
from the Closing Date, except for those representations, warranties, agreements
and obligations made by the Seller in Section 3.1(f), (g) and (k), or which were
fraudulently made by the Seller, which such representations, warranties, and
agreements and obligations shall continue for the period of the applicable
statute of limitations. Notwithstanding any investigation or audit conducted
before or after the Closing Date or the decision of any party to complete the
Closing, each party shall be entitled to rely upon the representations and
warranties set forth herein and therein and each such representation and
warranty shall be deemed to be material.
6.2. Maintenance of Books and Records. Each of Seller, Optometrists
and Vision 21 shall preserve until the fifth anniversary of the Closing Date all
records possessed or to be possessed by such party relating to any of the
Non-Optometric Assets, liabilities or business of the Practice prior to the
Closing Date. After the Closing Date, Seller and Optometrists shall provide
Vision 21 with access, upon prior reasonable written request specifying the need
therefor, during regular business hours, to (a) Seller and the employees of
Seller and (b) the books of account and records of Seller, and Vision 21 and its
representatives shall have the right to make copies of such books and records.
6.3. Discharge of Business Obligations. From and after the Closing
Date, Seller shall pay and discharge, in accordance with past practice but not
less than on a timely basis, all obligations and liabilities incurred prior to
the Closing Date in respect of the Practice which are not assumed by Vision 21
pursuant to Section 1.6.
6.4. Payments Received. Seller, Optometrists and Vision 21 each
agree that after the Closing they will hold and will promptly transfer and
deliver to the other, from time to time as and when received by them, any cash,
checks with appropriate endorsements (using their best efforts not to convert
such checks into cash) or other property that they may receive on or after the
Closing Date which properly belongs to the other party, and will account to the
other for all such receipts. From and after the Closing, Vision 21 shall have
the right and authority to endorse without recourse the name of Seller on any
check or any other evidences of indebtedness received by Vision 21 on account of
the Practice and the Non-Optometric Assets transferred to Vision 21 hereunder.
6.5. Audit. Vision 21 may cause an audit of the Financial
Statements to be conducted by Ernst & Young LLP or such other auditor of Vision
21's selection, the cost of which shall be borne by Vision 21 if the Closing
takes place. Except as otherwise provided in this Section, all items prepared by
Ernst & Young LLP in connection with the audit (the "Prepared Audit Materials")
shall be for use solely by Vision 21. The Prepared Audit Materials shall not be
deemed to include those items that customarily remain the property of the
auditors such as their working papers and internal memos. Seller and
Optometrists agree to fully cooperate with any such audit and provide any
documentation reasonably requested by the auditor in order to complete such
audit.
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6.6. Non-Compete. Numerous covenants not to compete are contained
in various documents to be executed hereunder. Seller and each Optometrist
acknowledges and agrees that any future violation thereof shall be deemed to be
of material significance to Vision 21 and that Vision 21 would not have entered
into this Agreement without the commitment it is receiving thereunder.
6.7. Seller and Optometrists Confidentiality Covenant. From the
date hereof, the Seller and Optometrists shall not, directly or indirectly, use
for any purpose, other than in connection with the performance of the Seller's
duties under the Business Management Agreement with Vision 21 and the
performance of Optometrist's duties under the Employment Agreements, or disclose
to any third party, any information of Vision 21 (whether written or oral),
including any business management or economic studies, patient lists,
proprietary forms, proprietary business or management methods, marketing data,
fee schedules, or trade secrets of Vision 21. Notwithstanding the foregoing, the
Seller and Optometrists may disclose information that the Seller or Optometrists
can establish (a) is or becomes generally available to and known by the public
or optometric community (other than as a result of an unpermitted disclosure
directly or indirectly by Seller or Optometrists or their respective Affiliates,
advisors, or representatives); (b) is or becomes available to the Seller or
Optometrists on a nonconfidential basis from a source other than Vision 21 or
its Affiliates, advisors or representatives, provided that such source is not
and was not bound by a confidentiality agreement with or other obligation of
secrecy to Vision 21 or its Affiliates, advisors or representatives of which the
Seller or Optometrists has knowledge; or (c) has already been or is hereafter
independently acquired or developed by the Seller or Optometrists without
violating any confidentiality agreement with or other obligation of secrecy to
Vision 21, or its Affiliates, advisors or representatives. Without limiting the
other possible remedies to Vision 21 for the breach of this covenant, Seller and
Optometrists agree that injunctive or other equitable relief shall be available
to enforce this covenant, such relief to be without the necessity of posting a
bond, cash or otherwise. The Seller and Optometrists further agree that if any
restriction contained in this Section 6.7 is held by any court to be
unenforceable or unreasonable, a lesser restriction shall be enforced in its
place and the remaining restrictions contained herein shall be enforced
independently of each other.
6.8 Additional Actions and Documents. From and after the Closing
Date, Seller and Optometrists will take or cause to be taken such further
actions, and execute, deliver and file such further documents and instruments as
Vision 21 may request from time to time to evidence the transfer of the
Non-Optometric Assets to Vision 21 and to fully effectuate the purposes and
terms of this Agreement.
ARTICLE VII - MISCELLANEOUS
7.1. Taxes. Seller shall pay all state and local sales, documentary
and other transfer taxes, if any, due under New Jersey law as a result of the
purchase, sale or transfer of the Non-Optometric Assets in accordance therewith
whether imposed by law on Seller, Optometrists or Vision 21, and Seller shall
indemnify, reimburse and hold harmless Vision 21 in respect of the liability for
payment of or failure to pay any such taxes or the filing of or failure to file
any reports required in connection therewith. Vision 21 shall pay all state and
local sales, documentary and other transfer taxes, if any, due under Florida law
as a result of the purchase, sale or transfer of the Non-Optometric Assets in
accordance therewith whether imposed by law on Seller, Optometrists or Vision
21, and Vision 21 shall indemnify, reimburse and hold harmless Seller in respect
of the
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liability for payment of or failure to pay any such taxes or the filing of or
failure to file any reports required in connection therewith.
7.2. Expenses. Except as otherwise provided in this Agreement, each
party hereto shall pay its own expenses incidental to the preparation of this
Agreement, the carrying out of the provisions hereof and the consummation of the
transactions contemplated hereby.
7.3. Contents of Agreement. This Agreement and the other agreements
contemplated hereby set forth the entire understanding of the parties hereto
with respect to the subject matter hereof. This Agreement shall not be amended
or modified, and no provision hereof shall be waived, except by written
instrument duly executed by each of the parties hereto. Any and all previous
agreements and understandings between or among the parties regarding the subject
matter hereof, whether written or oral, are superseded by this Agreement.
7.4. Assignment and Binding Effect. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
parties; provided, however, Vision 21 shall have the right to assign this
agreement to any of its subsidiaries or affiliates; provided, further that it
shall notify the Seller in writing of any such assignment. Subject to the
foregoing, all of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the permitted successors
and assigns of the parties.
7.5. Waiver. No delay or failure on the part of either party in
exercising any right hereunder, and no partial or single exercise hereof, will
constitute a waiver of such right or of any other right hereunder.
7.6. Notices. Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given only if delivered personally or sent by
overnight, registered or certified mail, postage prepaid, as follows:
IF TO VISION 21, TO:
Vision Twenty-One, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Chief Financial Officer
WITH A COPY TO:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxxxx, Loop & Xxxxxxxx, LLP
Suite 2800, Xxxxxxx Plaza
000 Xxxx Xxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
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IF TO SELLER OR OPTOMETRISTS, TO:
Xxxxxx X. Shack, O.D., P.A.
Xxxxxxx X. Xxxxxxx, O.D. and Xxxxxx X. Shack, O.D., P.A.
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Shack, O.D.
WITH A COPY TO:
H. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxx, a professional corporation
Suite 000
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as of
the date of delivery, in the case of personal delivery, or the delivery or
refusal date, as specified on the return receipt, in the case of overnight,
registered or certified mail.
7.7. Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of New Jersey.
7.8. No Benefit to Others. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the parties hereto and, in the case of Article V hereof, the other indemnified
parties, and their heirs, executors, administrators, legal representatives,
successors and assigns, and they shall not be construed as conferring any rights
on any other persons.
7.9. Headings, Gender and "Person". All section headings contained
in this Agreement are for convenience of reference only, do not form a part of
this Agreement and shall not affect in any way the meaning or interpretation of
this Agreement. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires. Any reference to a "person" herein shall include an
individual, firm, corporation, partnership, trust, governmental authority or
body, association, unincorporated organization or any other entity.
7.10. Schedules and Exhibits. All Schedules and Exhibits referred to
herein are intended to be and hereby are specifically made a part of this
Agreement.
7.11. Severability. Any provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or
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unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts when taken together shall constitute but
one and the same instrument.
7.13. Rules of Construction. The rules of construction which require
the terms of an agreement to be construed most strictly against the drafter of
such an agreement are hereby waived and relinquished by each party.
7.14. Brokerage. Each of the parties hereto represents and warrants
to the others that no broker is entitled to any commission or similar fee in
connection with the making and carrying out of this Agreement.
7.15. Confidentiality of Agreement. The parties agree not to make
any public announcement with regard to the transactions contemplated by this
Agreement without the prior written consent of the other party until after the
Closing Date.
7.16. Remedies Not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement or any document contemplated by this
Agreement is intended to be exclusive of any other remedy so conferred, and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise. The election of one or more remedies hereunder by any
party hereto shall not constitute a waiver of the right to pursue other
available remedies hereunder.
7.17. Announcements and Press Releases. Any press releases or any
other public announcements by any party hereto concerning this Agreement or the
transactions contemplated hereunder shall be approved in advance by the other
parties hereto; provided, however, that Vision 21 may make such disclosures as
are required under federal and state securities laws in the opinion of counsel
to Vision 21 upon prior notice to the Seller.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of March 31, 1998.
"SELLER"
XXXXXX X. SHACK ,O.D., P.A.
By: /s/ Xxxxxx X. Shack
------------------------------------
Xxxxxx X. Shack, O.D.,
as its President
XXXXXXX X. XXXXXXX, O.D.
AND XXXXXX X. SHACK , O.D., P.A.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, O.D.,
as its President
"VISION 21"
VISION TWENTY-ONE, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx, as its Chief
Financial Officer
The Optometrists hereby execute this Agreement only with respect to
their respective representations, warranties, covenants and obligations
contained in Sections 2.2(a)(vi), 2.2(a)(ix), 2.3, 3.1(b), 3.1(c), 3.1(g),
3.1(u), 6.2, 6.4, 6.5, 6.6, 6.7, 6.8 and 7.2 through 7.17, each of which is
subject to Sections 5.6 and 6.1.
"OPTOMETRISTS"
/s/ Xxxxxx X. Shack
---------------------------------
Xxxxxx X. Shack, O.D.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx, O.D.
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