1
Exhibit 3
STOCK PURCHASE AGREEMENT
==============================================================================
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of
November 17, 1998, is by and between The Presbyterian Foundation for
Philadelphia, Inc., a Pennsylvania non-profit corporation ("SELLER"), and
Match, Inc., a Texas corporation ("PURCHASER").
RECITALS:
WHEREAS, Seller beneficially owns five hundred thirty-three
thousand three hundred thirty-three shares of Series A Senior Convertible
Preferred Stock (the "PREFERRED STOCK") of Iatros Health Network, Inc.
("IATROS"), which were issued to Seller pursuant to the terms and conditions of
that certain Securities Purchase Agreement dated as of July 25, 1994, by and
between Seller and Iatros, a copy of which is attached hereto as Exhibit A; and
WHEREAS, Seller desires to sell, and Purchaser desire to
purchase, all of the Preferred Stock (which, for purposes of this Agreement,
shall be referred to collectively as the "SHARES") in accordance with the terms
and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual
promises, covenants and conditions herein contained and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
SALE AND TRANSFER OF SHARES; CLOSING
1.1 Shares. Subject to the terms and conditions of this
Agreement, Seller will sell and transfer the Shares to Purchaser, and Purchaser
will purchase the Shares from Seller.
1.2 Purchase Price. The purchase price (the "PURCHASE
PRICE") for the Shares will be One Million Dollars ($1,000,000.00).
PAGE 12 OF 29
2
1.3 Closing. The purchase and sale (the "CLOSING")
provided for in this Agreement shall take place upon the execution and delivery
of this Agreement by the parties.
1.4 Deliveries. At Closing:
(a) Seller shall execute the Stock Pledge
Agreement in the form of Exhibit B hereto (the "Stock Pledge Agreement"), under
which Seller will agree to hold the Shares and deliver to Purchaser
certificates representing the Shares, duly endorsed (or accompanied by duly
executed stock powers), for transfer to Purchaser upon payment by Purchaser of
the Note (as hereinafter defined).
(b) Purchaser shall deliver to Seller:
(i) Two Hundred Thousand Dollars
($200,000.00) by bank cashier's or certified check payable to the order of, or
by wire transfer to accounts specified by, Seller;
(ii) a non-recourse promissory note
payable to Seller in the principal amount of Eight Hundred Thousand Dollars
($800,000.00) in the form of Exhibit C hereto (the "Note"); and
(iii) a copy of the Stock Pledge Agreement
executed by Purchaser.
1.5 Further Assurances. Seller shall, from time to time
after the date hereof, as and when required by Purchaser, or by Purchaser's
successors or assigns, execute and deliver on behalf of Purchaser such stock
powers and other instruments, and there shall be taken or caused to be taken
all such further and other action, as shall be appropriate, advisable or
necessary, in order to vest, perfect or confirm, of record or otherwise, in
Purchaser all right and title to, and possession of, the Shares and to
otherwise carry out the purposes of this Agreement, subject, however, to the
terms of the Stock Pledge Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 Organization and Good Standing; Authority; No
Conflict. Seller is a corporation duly organized, validly existing and in good
standing under the
PAGE 13 OF 29
3
laws of the State of Pennsylvania. Seller has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Seller and constitutes the legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
2.2 Agreement Not in Breach of Other Instruments. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not violate or
result in a breach of any of the terms or provisions of, or constitute a
default (or any event which, with notice or the passage of time, or both, would
constitute a default) under, or conflict with or result in the termination of,
or accelerate the performance required by, (i) any agreement, indenture or
other instrument to which Seller is a party or by which it is bound, (ii) the
Certificate of Incorporation, Bylaws or similar organizational documents of
Seller, (iii) any judgment, decree, order or award of any court, governmental
body or arbitrator by which Seller is bound, or (iv) any law, rule or
regulation applicable to Seller.
2.3 No Legal Bar. Seller is not prohibited by any order,
writ, injunction or decree of any body of competent jurisdiction from
consummating the transactions contemplated by this Agreement and all other
agreements referenced herein, and no action or proceeding is pending against
Seller which questions the validity of this Agreement or any such other
agreements, any of the transactions contemplated hereby or thereby or any
action which has been taken by any of the parties in connection herewith or
therewith or in connection with any of the transactions contemplated hereby or
thereby.
2.4 Title; Possession. Seller has good and marketable
title to the Shares being transferred hereby and there are no security
interests, liens or other encumbrances whatsoever with respect thereto. Seller
has possession of the certificates representing the Shares being transferred
hereby.
2.5 No Brokerage Fees. Seller has not dealt with, nor is
obligated to make any payment to, any finder, broker, investment banker or
financial advisor in connection with any of the transactions contemplated by
this Agreement or the negotiations looking toward the consummation of such
transactions, other than
PAGE 14 OF 29
4
brokerage fees, if any, which may be payable by Seller to X.X. Xxxx & Co.,
Inc., for which Seller shall solely responsible.
2.6 Dividends in Arrears. Iatros has not made any
payment of dividends to Purchaser or any of its affiliates on the Shares since
the issuance thereof, and neither Purchaser nor any affiliate of Purchaser has
taken any action to appoint any members to the Iatros Board of Directors.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, SELLER IS NOT MAKING ANY REPRESENTATIONS
OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SHARES OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.1 Organization and Good Standing; Authority; No
Conflict. Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas. Purchaser has all
requisite corporate power and authority to enter into this Agreement, the Note
and the Stock Pledge Agreement (the "Transaction Documents") and to consummate
the transactions contemplated hereby. The Transaction Documents have been duly
authorized, executed and delivered by Purchaser and constitute the legal, valid
and binding obligations of Purchaser, enforceable against Purchaser in
accordance with their terms.
3.2 Transaction Documents Not in Breach of Other
Instruments. The execution and delivery of the Transaction Documents, the
consummation of the transactions contemplated hereby and the fulfillment of the
terms hereof will not violate or result in a breach of any of the terms or
provisions of, or constitute a default (or any event which, with notice or the
passage of time, or both, would constitute a default) under, or conflict with
or result in the termination of, or accelerate the performance required by, (i)
any agreement, indenture or other instrument to which Purchaser is a party or
by which it is bound, (ii) the Certificate of Incorporation, Bylaws or similar
organizational documents of Purchaser, (iii) any judgment, decree, order or
award of any court, governmental body or arbitrator by which Purchaser is
bound, or (iv) any law, rule or regulation applicable to Purchaser.
PAGE 15 OF 29
5
3.3 No Legal Bar. Purchaser is not prohibited by any
order, writ, injunction or decree of any body of competent jurisdiction from
consummating the transactions contemplated by the Transaction Documents and all
other agreements referenced herein, and no action or proceeding is pending
against Purchaser which questions the validity of the Transaction Documents or
any such other agreements, any of the transactions contemplated hereby or
thereby or any action which has been taken by any of the parties in connection
herewith or therewith or in connection with any of the transactions
contemplated hereby or thereby.
3.4 No Brokerage Fees. Purchaser has not dealt with, nor
is obligated to make any payment to, any finder, broker, investment banker or
financial advisor in connection with any of the transactions contemplated by
this Agreement or the negotiations looking toward the consummation of such
transactions.
3.5 Shareholder, Director and Officer. Xxxxxx X. Xxxx
owns all of the issued and outstanding shares of Purchaser, and is the sole
director and officer of Purchaser.
3.6 Purchaser's Investigation and Experience. Purchaser
acknowledges that Seller is making no representations or warranties whatsoever
with respect to the value of the Shares or the rights provided by the Shares to
a holder thereof. Purchaser has undertaken any and all investigation with
respect to Iatros and the Shares which Purchaser deems necessary or desirable
with respect to the transactions contemplated by the Transaction Documents and
is relying solely on its own investigation as to the value of the Shares and
the risks of ownership thereof. Purchaser and its shareholder have substantial
experience in investments comparable to an investment in the Shares, have the
resources necessary and appropriate to assume the risks of an investment in the
Shares and to protect their interests therein, and have been advised by legal
counsel with respect to the transactions contemplated by the Transaction
Documents.
3.7 Investment Intent. Purchaser is acquiring the Shares
for its own account and not on behalf of any other person. Purchaser is
acquiring the Shares for investment and not with a view to distribution or with
the intent to divide its participation with others by reselling or otherwise
distributing the Shares. Purchaser understands that the Shares are being sold
hereunder without
PAGE 16 OF 29
6
registration under the Securities Act of 1933, as amended (the "1933 Act"), and
any applicable state securities laws, by reason of their issuance in a
transaction exempt from the registration requirements of the 1933 Act and such
state laws, and that they must be held indefinitely unless they are
subsequently registered under the 1933 Act and such state laws, or such
subsequent disposition thereof is exempt from registration. Purchaser is an
"accredited investor" within the meaning of Rule 501, promulgated under the
1933 Act.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification by Seller. Seller hereby agrees to
indemnify and hold Purchaser harmless from and against any claim, liability,
obligation, loss or other damage (including, without limitation, reasonable
attorneys' fees and expenses) asserted against, imposed upon or incurred by
Purchaser arising out of any inaccuracy in or breach of any of Seller's
representations and warranties set forth in Article 2 of this Agreement.
4.2 Indemnification by Purchaser. Purchaser hereby
agrees to indemnify and hold Seller harmless from and against any claim,
liability, obligation, loss or other damage (including, without limitation,
reasonable attorneys' fees and expenses) asserted against, imposed upon or
incurred by Seller arising out of any inaccuracy in or breach of any of
Purchaser's representations and warranties set forth in Article 3 of this
Agreement.
4.3 Claims Process. As soon as is reasonably practicable
after Purchaser or Seller becomes aware of any claim that it has which is
covered under this Article 4, Purchaser or Seller, as the case may be
("Indemnified Party") shall notify the other party ("Indemnifying Party") in
writing, which notice shall describe the claim in reasonable detail, and shall
indicate the amount (estimated, if necessary to the extent feasible) of the
claim. In the event of a third party claim which is subject to indemnification
under this Article 4, the Indemnifying Party shall promptly defend such claim
by counsel of its own choosing, subject to the approval of the Indemnified
Party, which approval shall not unreasonably be withheld, and the Indemnified
Party shall cooperate with the Indemnifying Party in the defense of such claim
including the settlement of the matter on the basis stipulated by the
Indemnifying Party (with the Indemnifying Party being responsible for all costs
and expenses of such settlement). Any such settlement
PAGE 17 OF 29
7
shall include a complete and unconditional release of the Indemnified Party from
the claim.
4.4 Survival; Claims. The representations and warranties
set forth in Articles 2 and 3 above, and the indemnification rights set forth
in this Article 4, shall survive for a period of one (1) year after the date
hereof. No party shall have any liability for any breach of any representation
or warranty set forth herein unless the other party shall have given it written
notice of such breach promptly upon becoming aware of same and prior to the
first anniversary of the date of this Agreement. Such notice shall identify
the applicable Section of this Agreement, the alleged breach and the amounts
for which the indemnitor is alleged to be liable in detail. The indemnitor
shall be entitled to assume the defense of any third-party claim, provided that
it admits in writing its obligation to indemnify the indemnitee for such claim.
ARTICLE V
MISCELLANEOUS
5.1 Expenses. Each party hereto shall bear and pay all
costs and expenses incurred by it in connection with the transactions
contemplated by this Agreement including, without limitation, fees, costs and
expenses of its own financial consultants, accountants and counsel.
5.2 Attorneys' Fees. In the event any party brings an
action to enforce this Agreement, the prevailing party or parties in such
action shall be entitled to recover reasonable costs incurred in connection
therewith, including reasonable attorneys' fees. Reasonable attorneys' fees
shall include reasonable charges allocated for internal counsel.
5.3 Entire Agreement. This Agreement (including all
Exhibits hereto) supersedes any and all other agreements, oral or written,
between the parties hereto with respect to the subject matter hereof, and
contains the entire agreement between such parties with respect to the
transactions contemplated hereby. No party to this Agreement shall be entitled
to rely on any representation, warranty or agreement not set forth in this
Agreement.
PAGE 18 OF 29
8
5.4 Amendments. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of all of the
parties hereto.
5.5 Successors; Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted transferees and
assignees. Neither this Agreement nor any interest herein may directly or
indirectly be transferred or assigned by any party, in whole or in part,
without the written consent of the other parties, which consent shall not be
unreasonably withheld.
5.6 Notices. Any notice, demand or request required or
permitted to be given under the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given on the earlier of (a) the
date actually received by the party in question, by whatever means and however
addressed, or (b) the date sent by telecopy, or on the date of personal
delivery, if delivered by hand, or on the date signed for if sent, prepaid, by
Federal Express or similar nationally-recognized overnight delivery service, to
the following addresses, or to such other addresses as either party may
request, in the case of Seller, by notifying Purchaser, and in the case of
Purchaser, by notifying Seller:
If to Purchaser: Match, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to: Xxxx Xxxxx Xxxx & XxXxxx, LLP
0000 X Xxxxxx, X.X.
Xxxxx 0000 - Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller: The Presbyterian Foundation
for Philadelphia, Inc.
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
PAGE 19 OF 29
9
With copies to: Xxxxxx, Xxxxx & Xxxxxxx, LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
5.7 Waiver. No waiver hereunder shall be valid unless
set forth in writing.
5.8 Severability. In the event that any term or
provision of this Agreement or any application thereof shall be held by a
tribunal of competent jurisdiction to be unlawful or unenforceable, the
remainder of this Agreement and any other application of such term or provision
shall continue in full force and effect and the parties shall endeavor to
replace the unlawful or unenforceable provision with one that is lawful and
enforceable and which gives the fullest effect to the intent of the parties as
expressed herein.
5.9 No Third Party Beneficiary. This Agreement is for
the benefit of, and may be enforced only by, Seller and Purchaser, and their
respective successors and permitted transferees and assignees, and is not for
the benefit of, and may not be enforced by, any third party.
5.10 Applicable Law. This Agreement shall be governed by
and construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania, without regard to the conflicts of laws provisions thereof.
5.11 Construction. The titles and headings to sections
herein are inserted for convenience of reference only, and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement. The
parties acknowledge that each party and its counsel have reviewed and revised
this Agreement and that consequently any rule of construction to the effect
that any ambiguities are to be resolved against the drafting party is not
applicable in the interpretation of this Agreement or any exhibits or schedules
hereto.
5.12 Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement.
PAGE 20 OF 29
10
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date and year first above written.
THE PRESBYTERIAN
FOUNDATION FOR
PHILADELPHIA, INC.
By: /s/ XXXX XXXX
---------------------------
Name: Xxxx Xxxx
Its: Executive Vice President
MATCH, INC.
By: /s/ XXXXXX X. XXXX
---------------------------
Name: Xxxxxx X. Xxxx
Its: President
PAGE 21 OF 29
