EXHIBIT 10.2
68
ACQUISITION AGREEMENT
THIS AGREEMENT is made as of this ____ day of ________________, 1998,
by and between UNITED WISCONSIN SERVICES, INC., a Wisconsin corporation
("UWSI"), and XXXXXXXX XXXXXXX ("Xx. Xxxxxxx"), sole shareholder of Intercare
Network, Inc., a Wisconsin corporation (the "Company").
RECITAL
Subject to the satisfaction of the terms and conditions set forth
herein, UWSI desires to purchase from Xx. Xxxxxxx, and Xx. Xxxxxxx desires to
sell to UWSI, 1,000 shares of $1.00 par value common stock of the Company (the
"Company Shares").
AGREEMENTS
In consideration of the recital and the mutual agreements contained
herein, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE COMPANY SHARES
1.1 PURCHASE AND SALE OF THE COMPANY SHARES. Subject to the
satisfaction of the terms and conditions of Articles V and VI hereof, Xx.
Xxxxxxx shall transfer and deliver to UWSI, and UWSI shall purchase and accept
from Xx. Xxxxxxx, the Company Shares.
1.2 PURCHASE PRICE; METHOD OF PAYMENT. In exchange for the Company
Shares, upon satisfaction of the terms and conditions of Article VI hereof, UWSI
shall pay to Xx. Xxxxxxx a purchase price ("Purchase Price") of One Million
Dollars ($1,000,000).
1.3 POST-CLOSING ADJUSTMENTS.
(a) As soon as practicable, but not later than 45 days after the
Closing, (as defined in Article II) UWSI's designated accountant shall prepare a
balance sheet (the "Proposed Closing Balance Sheet") of the Company as of
69
December 31, 1997. The Proposed Closing Balance Sheet shall be prepared in
accordance with generally accepted accounting principles, consistently applied.
UWSI's accountants shall permit Xx. Xxxxxxx to review all
accounting records and all work papers and computations used by them in the
preparation of the Proposed Closing Balance Sheet. If Xx. Xxxxxxx does not give
notice of dispute to UWSI within fifteen (15) days of receiving the Proposed
Closing Balance Sheet, the Proposed Closing Balance Sheet shall become the
"Closing Balance Sheet." If Xx. Xxxxxxx gives notice of dispute to UWSI within
such fifteen day period, Xx. Xxxxxxx and UWSI shall negotiate in good faith to
resolve the dispute. If, after 5 days from the date notice of a dispute is
given hereunder, Xx. Xxxxxxx and UWSI cannot agree on the resolution of the
dispute, the parties shall designate an independent public accounting firm
acceptable to both UWSI and Xx. Xxxxxxx to resolve the dispute, whose decision
as to the Closing Balance Sheet shall be conclusive and binding upon Xx. Xxxxxxx
and UWSI in the absence of manifest error. The expenses pertaining to any
dispute resolution hereunder shall be shared equally by Xx. Xxxxxxx and UWSI.
(b) If the Closing Balance Sheet results in a net book value
("Book Value") of less than Eighty Thousand, Eight Hundred Fifteen Dollars
($80,815), the Purchase Price shall be reduced by the difference between $80,815
and the Book Value (such reduction being referred to herein as the "Seller's
Adjustment Amount"). If such adjustment is required, Xx. Xxxxxxx shall pay to
UWSI the Seller's Adjustment Amount within five days of Xx. Xxxxxxx' acceptance
of the Closing Balance Sheet or, if applicable, within one (1) day after receipt
of a determination in resolution of any dispute over the Book Value as provided
for above. If the Closing Balance Sheet results in a Book Value of more than
$80,815, the Purchase Price shall be increased by the difference between $80,815
and the Book Value (such increase being referred to herein as the "Buyer's
Adjustment Amount"). If such adjustment is required, UWSI shall pay to Xx.
Xxxxxxx the Buyer's Adjustment Amount within five (5) days of acceptance of the
Closing Balance Sheet or, if applicable, within one (1) day after receipt of a
determination in resolution of any dispute over the Book Value as provided for
above. If any part of the Buyer's Adjustment Amount or Seller's Adjustment
Amount remains unpaid after such one-day period, interest shall accrue on the
unpaid amount at the annual rate that is equal to the lesser of 18% or the
maximum rate provided by law.
(c) If, after thirty (30) days from the date of resolution of the
dispute referenced in this section 1.3 above, any part of the Buyer's Adjustment
Amount or Seller's Adjustment Amount remains unpaid, the party to whom such
70
money is owed shall be entitled to receive from the other party such amount as a
court may determine to be reasonable attorneys' fees for services rendered to
enforce collection of such adjustment amount.
ARTICLE II
CLOSING
The closing (the "Closing") of the transactions contemplated by this
Agreement shall be consummated upon (1) the execution of this Agreement, and
(2) the satisfaction of the terms and conditions of Articles V and VI hereof.
The date on which the Closing occurs which shall be no later than August 13,
1998, is referred to in this Agreement as the Closing Date.
ARTICLE III
REPRESENTATIONS OF XX. XXXXXXX
To induce UWSI to enter into this Agreement, Xx. Xxxxxxx makes the
following representations and warranties, each of which shall be deemed to be
independently material and relied upon by UWSI, regardless of any investigation
made by or information known to UWSI.
3.1 SUBSIDIARIES. The Company owns no stock or other securities and
has no investment in any corporation, joint venture, partnership or other
business enterprise.
3.2 ORGANIZATION AND QUALIFICATION; POWER; AUTHORIZATION.
(a) ORGANIZATION AND QUALIFICATION. The Company is a business
corporation duly organized and validly existing under the laws of the State of
Wisconsin, has filed with the Wisconsin Department of Financial Institutions the
most recent annual report required to be filed by it, has not filed Articles of
Dissolution and has a perpetual period of existence. The Company has full
corporate power and authority to conduct its business as it is now being
conducted and is not required to be qualified to transact business as a foreign
corporation in any jurisdiction where the Company transacts business.
(b) POWER. Xx. Xxxxxxx has all requisite legal power to enter
into this Agreement and all other agreements contemplated hereunder, to sell
71
the Company Shares, to carry out and perform her obligations under this
Agreement and all other agreements contemplated hereunder and to consummate
all of the transactions contemplated hereby and thereby. This Agreement and
the agreements contemplated hereunder are legal, valid and binding
obligations of Xx. Xxxxxxx and are enforceable against Xx. Xxxxxxx in
accordance with their terms.
(c) AUTHORIZATION. There is no corporate action on the part of
the Company, its directors and shareholders necessary for the authorization,
execution, delivery and performance by Xx. Xxxxxxx of this Agreement and the
agreements contemplated hereby.
(d) S CORPORATION. The Company is an S Corporation, was an
S Corporation at its inception and has never changed its corporate form or
election of S Corporation during its entire existence.
3.3 CONFLICTING OBLIGATIONS; CONSENTS. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby will not: (a) conflict with or violate any provisions of the Articles of
Incorporation or By-Laws of the Company; (b) conflict with or violate any
provisions of, or result in the maturation or acceleration of, any obligations
under any material contract, agreement, instrument, document, lease, license,
permit, indenture or obligation, or any law, statute, ordinance, rule,
regulation, code, guideline, order, arbitration award, judgment or decree, to
which Xx. Xxxxxxx or the Company is subject or by which either is bound; or
(c) violate any material restriction or limitation, or result in the termination
or loss of any material right (or give any third party the right to cause such
termination or loss) of any kind affecting the Company. Except as set forth on
Schedule 3.3, no third-party consents, approvals or authorizations are necessary
for Xx. Xxxxxxx to consummate the transactions contemplated hereby.
3.4 CAPITALIZATION. The entire authorized capital stock of the
Company consists of 56,000 shares of common stock, $1.00 par value. After
giving effect to the consummation of the transactions contemplated by this
Agreement, the only shares of capital stock of the Company issued and
outstanding will be the Company Shares. When sold, transferred and delivered in
accordance with the terms of this Agreement, the Company Shares will be duly and
validly issued, fully paid, nonassessable, subject to the provisions of
section 180.0622(2)(b) of the Wisconsin Statutes, and free and clear of all
liens, charges, claims and other encumbrances. There are no outstanding
options, warrants, convertible securities or other rights to subscribe for or
acquire any
72
capital stock of the Company or securities convertible into capital stock of
the Company. All capital stock of the Company has been issued in compliance
with applicable federal and state securities laws.
3.5 ORGANIZATIONAL DOCUMENTS. The Articles of Incorporation, By-Laws
and other organizational documents and corporate minute books of the Company
have been delivered to UWSI and are true, correct and complete in all material
respects.
3.6 FINANCIAL STATEMENTS. Attached as Schedule 3.6 are complete
copies of the financial statements (including balance sheets and statement of
earnings, stockholders' equity and cash flow) of the Company for each of its
fiscal years through and including March 31, 1998 (collectively the "Financial
Statements"). The December balance sheet of the Company for the period ending
December 31, 1997 is referred to in this Agreement as the "12/97 Company Balance
Sheet." The Company's books and records of account accurately reflect in all
material respects all of the assets, liabilities, transactions and results of
operations of the Company and the Financial Statements have been prepared based
upon and in conformity therewith. Except as set forth on Schedule 3.6, the
Financial Statements have been prepared in accordance with generally accepted
accounting principles maintained and applied on a consistent basis throughout
the indicated periods, and fairly present the financial condition and results of
operation of the Company at the dates and for the relevant periods indicated.
3.7 ACCOUNTS RECEIVABLE. All accounts receivable of the Company (the
"Receivables") reflected on the March 31, 1998 financial statements arose in the
ordinary course of business and represent amounts payable by a buyer for goods
actually sold or services actually performed and are current and, to the
knowledge of Xx. Xxxxxxx, collectible at the aggregate recorded amounts thereof,
less the reserve for bad debts reflected on the March 31, 1998 financial
statements, and are not subject to any counterclaims or setoffs. To the
knowledge of Xx. Xxxxxxx, Receivables arising after the date of the March 31,
1998 financial statements have arisen in the ordinary course of business,
represent amounts payable by a buyer for goods actually sold or services
actually performed and are current and collectible at the aggregate recorded
amounts thereof, less a reserve for bad debts consistent with the reserve stated
on the March 31, 1998 financial statements.
3.8 REAL PROPERTY. The Company does not own any real properties.
Schedule 3.8 sets forth an accurate summary description of all real
73
properties leased or rented by the Company ("Company Leased Real Estate").
Except for Permitted Encumbrances (as defined below), the Company has good
and marketable leasehold title to all Company Leased Real Estate. "Permitted
Encumbrances" means municipal and zoning ordinances, recorded easements,
covenants and restrictions, provided the same do not prohibit or materially
interfere with the present use, or materially affect the present value, of
the Company Leased Real Estate, and general taxes levied on or after January
1, 1998 and not yet due or payable. Each parcel of the Company Leased Real
Estate is the subject of a written lease agreement.
3.9 PERSONAL PROPERTY. Except as set forth on Schedule 3.9, the
Company owns, free and clear of all security interests and other encumbrances,
good and marketable title to all property and assets used in its business (the
"Assets"). Except as also set forth on Schedule 3.9, the Assets are in good
working order and condition, reasonable wear and tear excepted.
3.10 INTELLECTUAL PROPERTY. Schedule 3.10 lists (or, in the case of
trade secrets and secret processes, generally describes) all of the (a) patents
and patent applications, (b) trademarks, trade names and applications therefor
and service marks, (c) copyrights and copyright registrations, (d) trade secrets
and secret processes and (e) other intellectual property rights used, employed
or intended to be used or employed by the Company (the "Company Intellectual
Property"). The Company owns (or has valid, unrestricted and enforceable rights
to use and license) all of the Company Intellectual Property, and the Company
Intellectual Property includes all intellectual property rights which are
necessary to conduct the business of the Company as presently conducted.
Schedule 3.10 lists, for each item of Company Intellectual Property which is
registered with any foreign, federal or state agency or office, the registration
number thereof, the date of registration and the agency or office where so
registered. Except as otherwise described on Schedule 3.10, the Company is the
sole owner of all right, title and interest in the Company Intellectual
Property. With respect to the Company Intellectual Property licensed by the
Company, the Company has valid, binding and enforceable rights to use and
license such Company Intellectual Property. The use and licensing of the
Company Intellectual Property do not infringe upon the rights of any third
party. No claim, suit or action is pending or, to the knowledge of Xx. Xxxxxxx,
threatened alleging that the Company is infringing upon the intellectual
property rights of others.
74
3.11 INSURANCE.
(a) GENERAL. Schedule 3.11 lists and contains a description of
each policy of insurance owned or held by the Company currently in effect
(including without limitation, policies for fire and casualty, liability,
worker's compensation, business interruption, umbrella coverage, products
liability, medical, disability and other forms of insurance) specifying the
insurer, amount of coverage, type of insurance, policy number, deductible limits
and any pending claim (the "Company Insurance"). The Company Insurance is in
full force and effect, all premiums with respect thereto covering all periods up
to and including the date hereof have been paid, and no notice of cancellation
or termination has been received by the Company with respect to any such policy.
The Company Insurance is sufficient for compliance with all requirements of law
and with all agreements to which the Company is a party.
(b) DENIALS OF COVERAGE. The Company has not been refused any
insurance with respect to the Assets or its operations and its coverage has not
been limited by any insurance carrier to which it has applied for or with which
it has carried insurance.
3.12 GOVERNMENTAL AUTHORIZATIONS. The Company possesses all
governmental, regulatory and administrative licenses, permits, approvals and
other authorizations as are necessary for the consummation of the transactions
contemplated hereby and the conduct of its business and operations. The Company
is in compliance with the terms and conditions of all such licenses, permits,
approvals and authorizations. Neither the execution of this Agreement or the
agreements contemplated hereby nor the consummation of the transactions
contemplated hereby or thereby will result in the revocation, or an adverse
change in the terms or conditions, of any such license, permit, approval or
authorization. Such licenses, permits, approvals and authorizations shall
continue in full force and effect in accordance with their present terms and
conditions notwithstanding the consummation of the transactions contemplated
hereby.
3.13 LITIGATION. Except as set forth on Schedule 3.13, there is no
litigation, claim, proceeding or investigation pending, or, to the knowledge of
Xx. Xxxxxxx, threatened against or relating to the Company, the Assets, its
business or the transactions contemplated hereby. Schedule 3.13 discloses, with
respect to each item described thereon, the name or title of the action (and
parties or potential parties thereto) and a description of the nature of the
action or claim. Except as so described, Xx. Xxxxxxx knows of no state of facts
or circumstances which reasonably could be expected to ripen into any
litigation, proceeding or
75
investigation or adversely affect the Assets or the Company's business or
prospects. Except as described on Schedule 3.13, there is no outstanding
order, decree or stipulation issued by any federal, state or local authority
to which the Company is a party or subject.
3.14 COMPLIANCE WITH LAW. The conduct of the business of the Company
does not violate, nor is the Company in default under, any law, rule,
regulation, code, guideline, order, arbitration award, judgment, decree,
restriction or condition.
3.15 ENVIRONMENTAL CONCERNS. The Company is and has been in
compliance with all applicable environmental, health, safety and noise
pollution laws, rules and regulations and with all laws, rules and
regulations regarding the generation, production, storage, treatment,
labeling, transportation or disposition of infectious, hazardous or other
wastes or toxic substances ("Environmental Laws"). The Company has timely
filed all reports and notices required to be filed by it, has obtained all
required approvals and permits and has generated and maintained all required
data, documentation and records required under the Environmental Laws. The
Company has not, nor has, to the knowledge of Xx. Xxxxxxx, any other person
or entity, caused or permitted hazardous substances to be stored, discharged
or released, deposited, treated, recycled, leaked, spilled or disposed of on,
under or at any real property occupied by the Company. The Company Leased
Real Estate contains no urea-formaldehyde, asbestos or asbestos by-products,
and there are no storage tanks, vessels or other facilities on, under or at
the Company Leased Real Estate which contain or previously contained
materials which, if known to be present, would require cleanup, removal or
other remedial action under the Environmental Laws.
3.16 CONTINGENT AND UNDISCLOSED LIABILITIES. The Company does not
have any debts, obligations or liabilities and it is not subject to the
imposition of any valid governmental or third-party claim arising from the
conduct of its business or the ownership or use of the Assets on or prior to
the date hereof, whether known or unknown, fixed or contingent, of any nature
whatsoever, except those: (a) reflected or reserved against on the 12/97
Company Balance Sheet, (b) disclosed on Schedule 3.16 or (c) liabilities
which have arisen in the ordinary course of business and consistent with past
practice from the date of the 12/97 Company Balance Sheet through the date
hereof and which are not, singly or in the aggregate, materially adverse to
the Company.
3.17 TAXES. The federal and state corporate tax returns of the
Company have not been audited. There is no tax audit or examination now
76
pending or, to the knowledge of Xx. Xxxxxxx, threatened with respect to the
Company. The Company has filed all federal, state and local tax reports and
returns required by any law, rule or regulation to be filed by it except for
extensions duly obtained, all taxes, duties and charges indicated due on the
basis of such reports and returns have been paid or adequate provision for
the payment thereof has been duly made and the assessment of any material
amount of additional taxes in excess of those paid and reported is not
reasonably expected. All taxes and assessments which the Company was or is
required by law to withhold or collect have been and are being withheld or
collected and have been paid over to the proper governmental authorities or,
if not yet due, are being held for such payment. All such taxes and
assessments which are not yet due will be paid as they become due.
3.18 PERFORMANCE OF CONTRACTS. The Company is not in material default
under, nor has breached any provision of, any oral or written contract,
agreement, instrument, document, lease, license, permit, indenture, insurance
policy or other obligation to which the Company is a party (the "Company
Contracts"), and there is no oral modification or past practice inconsistent in
any material respect with the written terms of any of the Company Contracts.
The Company has delivered to UWSI copies of all written Company Contracts and a
description of any oral Company Contracts is set forth on Schedule 3.18. All of
the Company Contracts are currently in full force and effect. To the knowledge
of Xx. Xxxxxxx, the other parties to the Company Contracts have complied with
their obligations thereunder and are not in breach thereof. The Company has
performed each term, condition and covenant of each Company Contract required to
be performed by it on or prior to the date hereof. Xx. Xxxxxxx or the Company
know of no state of facts which, with the giving of notice or the passing of
time or both, would give rise to any default under the Company Contracts.
3.19 CHANGES IN FINANCIAL POSITION. Since the date of the 12/97
Company Balance Sheet, the Company's business has been conducted in the ordinary
course thereof and consistent with past practice, and, except as described on
Schedule 3.19, there has not been:
(a) FINANCIAL CONDITIONS. Any material and adverse change in
the Assets or the business, condition (financial or otherwise) or prospects of
the Company;
(b) BUSINESS OR PROPERTY DAMAGE. Any material damage,
destruction or loss (whether or not covered by insurance) adversely affecting
the Assets or the business or prospects of the Company; or
77
(c) EXTRAORDINARY EVENTS. Any material transaction outside the
ordinary course of business of the Company.
3.20 EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule 3.20,
the Company does not have any union contract, collective bargaining agreement,
employment contract, deferred compensation agreement or bonus, incentive,
profit-sharing, pension, retirement or other employee benefit plan (as that term
is defined by the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) (collectively the "Plans") currently in force and effect, or any
informal understanding with respect to any of the foregoing. The Company does
not maintain and has not ever maintained or contributed to any funded employee
pension plan (as that term is defined in ERISA). All Plans which are subject to
ERISA comply with ERISA and have been administered (a) in strict compliance with
ERISA and the Internal Revenue Code of 1986, as amended (the "Code") as to
filing when due all materials required to be filed, and (b) in material
compliance with ERISA and the Code in all other respects. With respect to each
of the Plans, the Company does not have any material liability for any failure
to comply with ERISA or the Code or for any action or failure to act in
connection with the administration of the Plans. No Plan has engaged in any
prohibited transaction in violation of ERISA or any prohibited transaction
within the meaning of the Code. There are no material controversies or
employment related claim or allegation pending or, to the knowledge of the
Company or Xx. Xxxxxxx, currently threatened between the Company and its
employees.
3.21 BROKERAGE. The Company has not incurred, or made commitments
for, any brokerage, finder's or similar fee in connection with the transaction
contemplated by this Agreement.
3.22 RELATED PARTY TRANSACTIONS. Except as described on
Schedule 3.22, the Company: (a) has not had any financial transactions or
arrangements, other than payment of regular salary to any Related Party (as
defined below) who is an employee, with any Related Party during the last three
fiscal years and (b) has not had and will not have any present or future
obligation to enter into any transaction or arrangement with any Related Party.
For purposes hereof, the term "Related Party" shall mean: (i) any shareholder
of the Company or any partner or affiliate of such shareholder, (ii) any officer
or director of the Company, (iii) any spouse, in-law or lineal descendant of any
other Related Party, and (iv) any Person who, directly or indirectly, Controls
or is Controlled by or is under common Control with the Company. For purposes
of this Agreement, "Person" shall mean an individual, partnership, corporation,
trust, unincorporated
78
organization or other entity and "Control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
management and policies of a Person, whether through the ownership of voting
securities, by contract, by common management or otherwise. A Person having
a contract or other arrangement giving that Person Control is deemed to be in
Control despite any limitations placed by law on the validity of such
contract or arrangement. Except as described on Schedule 3.22, to the
knowledge of Xx. Xxxxxxx, no Related Party owns, directly or indirectly, or
is a director, shareholder, member, officer or employee of, or consultant to,
any business organization that is a competitor, supplier or customer having
business dealings with the Company, nor does any Related Party own any assets
or properties which are used in the business of the Company.
3.23 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties contained herein, and in all other documents,
certifications, materials and written statements or written information given to
UWSI by or on behalf of Xx. Xxxxxxx in connection herewith, do not include any
untrue statement of any material fact or fail to state any material fact known
to Xx. Xxxxxxx required to be stated herein or therein in order to make the
statements herein or therein, in light of the circumstances under which they are
made, not misleading.
ARTICLE IV
REPRESENTATIONS OF UWSI
To induce Xx. Xxxxxxx to enter into this Agreement, UWSI makes the
following representations and warranties, each of which shall be deemed to be
independently material and relied upon by Xx. Xxxxxxx, regardless of any
investigation made by or information known to the Company.
4.1 POWER; AUTHORIZATION.
(a) CORPORATE POWER. UWSI has all requisite legal and corporate
power to enter into this Agreement and all other agreements contemplated
hereunder, to carry out and perform its obligations under this Agreement and all
other agreements contemplated hereunder and to consummate all of the
transactions contemplated by this Agreement and all other agreements
contemplated hereunder.
79
(b) AUTHORIZATION. All corporate action on the part of UWSI and
its directors and shareholders necessary for the authorization, execution,
delivery and performance by UWSI of this Agreement and the agreements
contemplated hereby, and the consummation of the transactions contemplated
hereby and thereby, has been taken. This Agreement and the agreements
contemplated hereby to which UWSI is a party are legal, valid and binding
obligations of UWSI enforceable against UWSI in accordance with their terms.
4.2 CONFLICTING OBLIGATIONS; CONSENTS. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby will not, conflict with or violate any provisions of the Articles of
Incorporation or By-Laws of UWSI. No third-party consents, approvals or
authorizations are necessary for UWSI's execution and consummation of the
transactions contemplated hereby.
4.3 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties contained herein, and in all other documents,
certifications, materials and written statements or written information given to
Xx. Xxxxxxx by or on behalf of UWSI in connection herewith, do not include any
untrue statement of any material fact or fail to state any material fact known
to UWSI and required to be stated herein or therein in order to make the
statements herein or therein, in light of the circumstances under which they are
made, not misleading.
ARTICLE V
CONDITIONS TO XX. XXXXXXX'
OBLIGATION TO CLOSE
The obligation of Xx. Xxxxxxx to consummate the transactions
contemplated in this Agreement shall be subject to the satisfaction and
fulfillment of each of the following express conditions precedent at or prior to
Closing:
5.1 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties made by UWSI herein shall be true, correct and
complete.
5.2 LEASE AGREEMENT. UWSI shall guaranty a lease agreement between
Intercare Network, Inc. and the landlord to lease the property located at
80
285 Xxxxxxx Xxxxx Drive, Pewaukee, Wisconsin, on terms and conditions
acceptable to UWSI.
5.3 EXHIBITS. All Exhibits referenced in this Agreement shall be in
a form acceptable to Xx. Xxxxxxx, which acceptance shall not be unreasonably
withheld.
5.4 OTHER DOCUMENTS. UWSI shall have delivered to Xx. Xxxxxxx all
other documents and instruments necessary, in the reasonable opinion of counsel
to Xx. Xxxxxxx, to consummate the transactions contemplated hereunder.
ARTICLE VI
CONDITIONS TO UWSI'S OBLIGATION TO CLOSE
The obligation of UWSI to consummate the transactions contemplated in
this Agreement shall be subject to the satisfaction and fulfillment of each of
the following express conditions precedent at or prior to Closing:
6.1 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties made by Xx. Xxxxxxx herein shall be true, correct
and complete.
6.2 PROCEEDINGS AND INSTRUMENTS SATISFACTORY. All proceedings,
corporate or otherwise, to be taken by Xx. Xxxxxxx or the Company in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to UWSI.
6.3 CONSENTS, APPROVALS, CERTIFICATIONS AND LICENSES. All consents,
approvals, certifications and licenses required with respect to Xx. Xxxxxxx'
consummation of the transactions contemplated hereby shall have been received.
6.4 DELIVERY OF STOCK CERTIFICATES. Xx. Xxxxxxx shall have delivered
to UWSI a stock certificate representing the Company Shares, duly endorsed for
transfer to UWSI or in blank or accompanied by assignments separate from the
certificate.
6.5 DUE DILIGENCE. UWSI shall have conducted a due diligence
investigation and review of the Company, its operations and all matters
pertaining
81
thereto that UWSI deems relevant and the results of such investigation and
review shall be reasonably satisfactory to UWSI.
6.6 EMPLOYMENT AGREEMENT. Xx. Xxxxxxx shall have executed and
delivered to UWSI the Employment Agreement in the form attached hereto as
Exhibit A.
6.7 SCHEDULES AND EXHIBITS. All Schedules and Exhibits referenced in
this Agreement shall be in a form acceptable to UWSI, which acceptance shall not
be unreasonably withheld.
6.8 OTHER DOCUMENTS. Xx. Xxxxxxx shall have delivered to UWSI all
other documents and instruments, necessary in the reasonable opinion of counsel
to UWSI, to consummate the transactions contemplated hereunder.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by the parties in Articles III and IV of this Agreement
shall survive the Closing and shall continue for a period of three years
following the Closing except for those contained in sections 3.15 and 3.17,
which shall continue indefinitely.
7.2 INDEMNIFICATION COVENANTS. Subject to the provisions of this
Article VII, from and after the Closing:
(a) BY XX. XXXXXXX. Xx. Xxxxxxx shall indemnify UWSI and its
affiliates, and their respective shareholders, officers, directors, agents,
employees and consultants (collectively the "UWSI Indemnified Parties"), for and
defend and hold the UWSI Indemnified Parties harmless from, in connection with
and against any demands, suits, orders, proceedings, claims, actions, causes of
action, assessments, losses, response costs, damages, liabilities, fees, fines,
forfeitures, costs and expenses, including, without limitation, interest,
penalties and consultant, contractor, engineer and attorneys' fees (collectively
"Damages") sustained or incurred by the UWSI Indemnified Parties as a result of,
arising out of, related to, in connection with or incidental to (a) any breach,
inaccuracy or nonfulfillment of any representation, warranty or covenant of Xx.
Xxxxxxx contained in or made pursuant to this Agreement or in any Schedule,
Exhibit,
82
certificate or other document delivered by the Company or Xx. Xxxxxxx to UWSI
pursuant to this Agreement or (b) any debts, liabilities or obligations of
the Company, whether known or unknown, fixed or contingent, or otherwise,
related to ownership or occupancy of the property located at 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxx, prior to the Closing Date.
(b) BY UWSI. UWSI shall indemnify Xx. Xxxxxxx and her agents,
employees and consultants (collectively "Xx. Xxxxxxx Indemnified Parties"), for
and defend and hold Xx. Xxxxxxx Indemnified Parties harmless from and against
any Damages sustained or incurred by Xx. Xxxxxxx Indemnified Parties as a result
of, arising out of, relating to, in connection with or incidental to any breach,
inaccuracy or nonfulfillment of any representation, warranty or covenant of UWSI
contained in or made pursuant to this Agreement or in any Schedule, Exhibit,
certificate or other document delivered by UWSI to Xx. Xxxxxxx pursuant to this
Agreement.
(c) PROCEDURES. The party seeking indemnification (the
"Indemnified Party") shall give the party from whom indemnification is sought
(the "Indemnifying Party") written notice of any claim, demand, assessment,
action, suit or proceeding to which the indemnity set forth in this Agreement
applies. If the document evidencing such claim or demand is a court pleading,
the Indemnified Party shall give such notice within 10 days of receipt of such
pleading, and otherwise shall give such notice within 30 days of the date it
receives written notice of such claim. If the Indemnified Party's request for
indemnification arises from the claim of a third party, the written notice shall
permit the Indemnifying Party to assume the control of any such claim, or any
litigation resulting from such claim. Failure by the Indemnifying Party to
notify the Indemnified Party of its election to defend a complaint by a third
party within 5 days of notice shall be a waiver by the Indemnifying Party of its
right to respond to such complaint and, within 20 days after notice thereof,
shall be a waiver by the Indemnifying Party of its right to assume control of
the defense of such action. Notwithstanding the Indemnifying Party's assumption
of the defense of such third-party claim or demand, the Indemnified Party shall
have the right to participate in the defense of such third-party claim or demand
at its own expense. The Indemnified Party shall furnish the Indemnifying Party,
in reasonable detail, all information the Indemnified Party may have with
respect to any such third-party claim and shall make available to the
Indemnifying Party and its representatives all records and other similar
materials which are reasonably required in the defense of such third-party claim
and shall otherwise cooperate with and assist the Indemnifying Party in the
defense of such third-party claim. If the Indemnifying Party does not assume
control of the defense of any such third-party claim or
83
litigation resulting therefrom, the Indemnified Party may defend against such
claim or litigation in such manner as it may reasonably deem appropriate.
Notwithstanding any other provision of this Agreement, Xx. Xxxxxxx shall not
settle, compromise or otherwise dispose of any claim, demand, assessment,
action, suit or proceeding relating to any breach of any representation or
warranty contained in section 3.14 hereof without the prior written consent
of UWSI (which consent shall not be unreasonably withheld). Additionally
notwithstanding any other provision of this Agreement, UWSI shall not settle,
compromise or otherwise dispose of any claim, demand, assessment, action,
suit or proceeding relating to any breach of any representation or warranty
contained in section 3.14 hereof without the prior written consent of Xx.
Xxxxxxx (which consent shall not be unreasonably withheld).
7.3 CAP. The aggregate liability of Xx. Xxxxxxx to the UWSI
Indemnified Parties shall not exceed the Purchase Price, as adjusted (the
"Cap"); provided, however, that the Cap shall not apply to any Damages incurred
by the UWSI Indemnified Parties resulting from Xx. Xxxxxxx' breach of any
representation or warranty contained in sections 3.15 or 3.17 hereof.
7.4 BASKET. No indemnification hereunder shall be payable by Xx.
Xxxxxxx unless the aggregate Damages incurred by the UWSI Indemnified Parties
exceed $10,000 (the "Basket"), in which event the full amount of Damages
incurred by the UWSI Indemnified Parties shall be payable by Xx. Xxxxxxx
(subject to the Cap).
7.5 EXCLUSIONS. Damages shall not, in any event:
(i) include any reduction or adjustment necessitated as a result of
Post-Closing Adjustments as set forth in Section 1.3 herein;
(ii) be calculated based on a multiple of earnings or discounted cash flow
methodology; and
(iii) include any loss or expense to the extent the same has been resolved,
settled, or compromised by insurance proceeds paid to the party seeking
indemnification.
7.6 PAYMENT OF DAMAGES. If an Indemnified Party is entitled to
Damages hereunder, the Indemnifying Party shall pay such Damages to the
Indemnified Party (subject to the Cap and the Basket) within 90 days (the
"Payment Period") of the date the Indemnified Party becomes entitled to such
Damages. If the Indemnifying Party does not pay within the Payment Period, the
84
past-due payment shall bear interest at the lower of 18% per annum or the
maximum rate permitted by applicable law and the Indemnifying Party shall pay
all of the Indemnified Party's costs of collection, including, without
limitation, attorneys' fees.
7.7 ATTORNEYS' FEES. If, after the Closing, a party seeks arbitration or
institutes any judicial action or proceeding to recover Damages pursuant to this
Article VII or to otherwise enforce any provision of this Agreement, the party
in whose favor final judgment shall be entered shall be entitled to receive from
the other party such amount as the arbitrator or court may determine to be
reasonable attorneys' fees for the services rendered to the prevailing party in
any such arbitration, action or proceeding and such fees shall be included as
Damages.
ARTICLE VIII
COVENANTS OF UWSI
8.1 TAX RETURNS. UWSI shall not amend the Company's tax
returns prior to Closing. UWSI shall file 1998 tax returns which are not
inconsistent with the Proposed Closing Balance Sheet.
ARTICLE IX
MISCELLANEOUS
9.1 FURTHER ASSURANCES. Each party agrees that, from time to time
hereafter and upon request of any other party, it shall perform any further acts
and execute, acknowledge and deliver any additional documents as may be
reasonably necessary to carry out the provisions of this Agreement.
9.2 BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by and against the parties hereto and
their successors and permitted assigns. This Agreement may not be assigned by
either party without the prior written consent of the other party except that
UWSI may assign this Agreement to any new entity formed by UWSI.
9.3 GOVERNING LAW; CONSTRUCTION. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Wisconsin,
and without reference to any rules of construction regarding the party
responsible for the drafting hereof.
85
9.4 EXPENSES. All expenses and costs incurred in connection with
this Agreement or the transactions contemplated hereby shall be paid by the
party or parties incurring such expenses and costs.
9.5 NOTICES. All notices, demands and other communications required
or permitted to be given under this Agreement shall, for all purposes, be deemed
to be duly given as of the date when personally delivered to the recipient
thereof, or as of the date that is three business days after the date when
mailed by registered or certified mail, postage prepaid, addressed in each case
as follows, until some other address shall have been designated in a written
notice given in like manner:
If to UWSI: Xx. Xxxxx X. Xxxxxxxxx
United Wisconsin Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Van Dam, Esq.
United Wisconsin Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxxxxx, Esq.
Reinhart, Boerner, Van Deuren,
Xxxxxx & Rieselbach, s.c.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
If to Xx. Xxxxxxx:___________________________________
___________________________________
___________________________________
___________________________________
With a copy to: Xx. Xxxx X. Xxxxxxx
Xxxxxx, Xxxxxxxx & Xxxxxx, LLP
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
86
9.6 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9.7 HEADINGS. All section headings herein are inserted for
convenience only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
9.8 AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not be
modified, amended or supplemented except by mutual written agreement of UWSI and
Xx. Xxxxxxx. Either party may waive in writing any term or condition contained
in this Agreement and intended to be for its or their benefit; provided,
however, that no waiver by any party, whether by conduct or otherwise, in any
one or more instances, shall be deemed or construed as a further or continuing
waiver of any such term or condition. Each amendment, modification, supplement
or waiver shall be in writing signed by the party to be charged.
9.9 ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits
delivered herewith represent the entire agreement of the parties with respect to
the subject matter hereof and no provision or document of any kind shall be
included in or form a part of this Agreement unless signed and delivered to the
other party by the party to be charged.
9.10 PUBLICITY. The parties agree that no publicity announcements or
disclosures of any kind concerning the terms of this Agreement or concerning the
transactions contemplated hereby shall be made without the mutual consent of
UWSI and Xx. Xxxxxxx, except to the extent that disclosure is required by legal
process or to accountants, counsel, other professionals and to lenders on a need
to know basis.
9.11 KNOWLEDGE. As used herein, any reference to the "knowledge" of
any party shall include the knowledge of such party after making due inquiry
and, if such party fails to make such inquiry, shall include constructive
knowledge of such facts as would have been learned had such due inquiry been
made.
9.12 RECORDS. Following Closing, for a period of five (5) years, UWSI
will permit Xx. Xxxxxxx to have access to, and examine and make copies of, all
books and records of Xx. Xxxxxxx relating to the business or assets of the
Company, which books and records are retained by UWSI and which relate to
transactions or events occurring prior to Closing.
87
9.13 TAX RETURN AMENDMENTS. In the event Xx. Xxxxxxx wishes to amend
any of the Company's tax returns for years prior to 1997, UWSI shall cooperate
with Xx. Xxxxxxx' filing of such amendments as long as such amendments are
prepared solely at Xx. Xxxxxxx' cost and expense and will not create a corporate
tax obligation to UWSI or any of its affiliates.
88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
XXXXXXXX XXXXXXX
----------------------------------------
UNITED WISCONSIN SERVICES, INC.
BY
-------------------------------------
Its
---------------------------------
89
