AHN PARTNERS, L.P.
ADMISSION AGREEMENT
ADMISSION AGREEMENT, dated as of April __, 1996, by and between ACCESS
HEALTH, INC., a Delaware corporation (the "Subscriber"), and AHN PARTNERS, L.P.,
a Delaware limited partnership (the "Company") of which AMERICA'S HEALTH
NETWORK, L.L.C., a Delaware limited liability company (the "General Partner"),
is the sole general partner.
1. AGREEMENT TO SUBSCRIBE.
(a) The Subscriber hereby subscribes for and agrees to purchase,
[X] as a Class A Partner, or
[_] as a Class B Partner,
(i) the interest in the Company (the "First Closing Partnership
Interest") set forth opposite the name of the Subscriber on the
signature page to this Admission Agreement (expressed in terms of a
percentage representing the Post Recoupment Percentage Interest (as
defined in the Partnership Agreement [as defined below] to be owned by
the Subscriber subject to the terms and conditions of the Partnership
Agreement), and the Company hereby agrees to issue and sell such
Percentage Interests to the Subscriber, on the terms set forth herein,
for the purchase price (the "First Closing Purchase Price") equal to
the dollar amount set forth as such opposite the name of the
Subscriber on the signature page to this Admission Agreement; and
(ii) the interest in the Company (the "Second Closing
Partnership Interest"), if any, set forth opposite the name of the
Subscriber on the signature page to this Admission Agreement (also
expressed in terms of a percentage representing the Post Recoupment
Percentage Interest to be owned by the Subscriber subject to the terms
and conditions of the Partnership Agreement), and the Company hereby
agrees to issue and sell the Second Closing Partnership Interest to
the Subscriber, on the terms set forth herein, for the purchase price
(the "Second Closing Purchase Price") equal to the dollar amount set
forth as such opposite the name of the Subscriber on the signature
page to this Admission Agreement.
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The Subscriber acknowledges that the First Closing Partnership Interest shall be
subject to dilution from the sale of the Second Closing Partnership Interest to
the Subscriber, if any, and from sales of interests in the Company to other
subscribers contemporaneously with the Second Closing (as defined in Section
1(c)).
(b) The First Closing Partnership Interest and the Second Closing
Partnership Interest are collectively referred to in this Agreement as the
"Partnership Interest." The First Closing Purchase Price shall be payable to
the following account, which shall be a separate, segregated account (the
"Escrow Account") maintained by Xxxxx & Company Incorporated in its capacity as
escrow agent (the "Escrow Agent"):
To: Chemical Bank
ABA# 000000000
Account Name: XXXXX & COMPANY INCORPORATED
A/C No.: 000-000-000
The Subscriber agrees and acknowledges that Xxxxx shall have full discretion to
invest the funds in Dreyfus Treasury Prime Cash Management (the "Fund"), which
is a money market fund investing in securities issued and guaranteed as to
principal and interest by the U.S. Government, including U.S. Treasury
Securities.
If and to the extent that (i) on or prior to the date hereof PJHP (as defined in
the Partnership Agreement) or any Affiliate (as defined in the Partnership
Agreement) of PJHP (collectively, "PJHP") delivers to the Company a fully
executed Admission Agreement in the form of this Agreement (other than with
respect to the information set forth on Schedule A hereto), pursuant to which
PJHP has agreed to subscribe for a First Closing Partnership Interest of
[ ]% for a First Closing Purchase Price of $[ ] and a Second Closing
Partnership Interest of [ ]% for a Second Closing Purchase Price of $[ ] (in
each subject to the receipt of consent from its board of directors) and (ii) on
or prior to May 15, 1996 PJHP pays the First Closing Purchase Price for its
First Closing Partnership Interest by cancelling all of obligations for borrowed
money due PJHP from the Company and the balance of such price by cash, then the
First Closing Purchase Price paid by the Subscriber into the Escrow Account and
any Affiliate will be paid to the Company. In all other cases, the Company will
cause the First Closing Purchase Price paid by the Subscriber to be returned to
the Subscriber promptly after May 15, 1996, together with all interest earned
therein at the rate paid by the Fund to an account to be designated in writing
by the Subscriber, in which case all transactions occurring at the First Closing
shall automatically be fully rescinded and shall be of no further force or
effect with respect to either the Company or the Subscriber. The Second Closing
Purchase Price shall be payable by wire transfer of immediately available funds
to the following bank account of the Company:
To: SunTrust Bank, Central Florida, N.A.
[ ] Confidential Treatment Requested
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000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
000-000-0000
ABA# 000000000
For Benefit of:
AHN Partners, L.P.
0000 Xxxxxxxxx Xxxxxxx Xxxxx X-00X
Xxxxxxx, XX 00000-0000
Account No: 0215-252-137-195
(c) The Escrow Agent's obligations and duties in connection herewith
are confined to those specifically stated in this Agreement. The Escrow Agent
shall not be in any manner liable or responsible for the sufficiency,
correctness, genuineness or validity of any instruments deposited with it or
with reference to the form of execution thereof, or the identity, authority or
rights of any person executing or depositing same. The Escrow Agent shall not
be liable for any loss which may occur, except for its own gross negligence or
willful misconduct. The Company and the Subscriber hereby agree to jointly
indemnify the Escrow Agent for, and to hold it harmless against any loss,
liability or expense arising out of or in connection with this Agreement and
carrying out its duties hereunder, including the costs and expenses of defending
itself against any claim of liability, except in those cases where the Escrow
Agent has been guilty of gross negligence or willful misconduct. Anything in
this agreement to the contrary notwithstanding, in no event shall the Escrow
Agent be liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Escrow
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(d) The closing of the purchase and the sale of the First Closing
Partnership Interest (the "First Closing") and the closing of the purchase and
the sale of the Second Closing Partnership Interest (the "Second Closing," and,
together with the First Closing, the "Closings") shall take place at the offices
of Xxxxxxxxxx & Xxxxx, a Professional Corporation, at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, counsel for the Company, or at such other place as may be agreed
upon by the Company, the Subscriber and each of the other persons (the "Other
Subscribers") whose names are set forth on Schedule A-1 to the Partnership
Agreement as persons who will become Class A Partners of the Company. The First
Closing shall take place on April 16, 1996, or other date or other time, as may
be agreed upon by the Company, the Subscriber and each of the Other Subscribers.
The Second Closing shall be held on January 6, 1997, or other date or other
time, as may be agreed upon by the Company, the Subscriber and each of the Other
Subscribers.
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2. ADOPTION OF THE PARTNERSHIP AGREEMENT.
The Subscriber hereby intends that its signature hereon shall
constitute an irrevocable subscription to the Company for the Partnership
Interest as well as the specific acceptance and adoption of each and every
provision of that certain Amended and Restated Limited Partnership Agreement,
dated as of April 3, 1996 (the "Partnership Agreement"), which Partnership
Agreement is incorporated herein and made a part hereof by reference, and hereby
agrees to be bound and governed by the provisions of the Partnership Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a material
inducement to the Subscriber to enter into and perform its obligations under
this Agreement, the Company hereby represents and warrants that, except as
disclosed in the Disclosure Schedule dated as of the date of this Agreement and
attached to this Agreement (the "Disclosure Schedule"):
(a) ORGANIZATION, STANDING, ETC. The Company is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite partnership power and authority
to own and operate its properties and to carry on its business and to enter into
this Agreement and issue the Partnership Interests. The Company has delivered
to the Subscriber a complete and correct copy of the Partnership Agreement. The
Company has no direct or indirect ownership interest (by way of stock ownership
or otherwise) in any other firm, corporation, association or business
enterprise.
(b) QUALIFICATION TO DO BUSINESS. The Company is duly qualified or
licensed and in good standing as a foreign corporation duly authorized to do
business in each jurisdiction wherein the ownership of its property or the
conduct of its business requires such qualification or license and where the
failure to be so qualified or licensed might have a material adverse effect on
the Company. The Company has all requisite power and authority to own and
operate its properties, to lease the properties it leases and to conduct its
business in the manner and in the jurisdictions where now conducted.
(c) CAPITALIZATION.
(i) After giving effect to the issuance of the all partnership
interests contemplated by the Partnership Agreement, the respective Post
Recoupment Percentage Interests of the Partners will be as set forth in Schedule
A-2 to the Partnership Agreement.
(ii) Except as set forth in Schedule A-2 to the Partnership
Agreement, the Company has neither granted or issued, nor agreed to grant or
issue, any option, warrant or other commitment to issue or to acquire any
partnership interest.
(d) FINANCIAL STATEMENTS. Incorporated as part of the Disclosure
Schedule is the unaudited consolidated balance sheet of the Company as of March
31, 1996 (the "Balance
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Sheet"). The Balance Sheet (i) was compiled from the books and records of the
Company regularly maintained by management and used to prepare the financial
statements of the Company prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied with prior periods; and (ii)
present fairly the financial position of the Company at March 31, 1996 in
accordance with GAAP.
(e) ABSENCE OF UNDISCLOSED LIABILITIES. Except for liabilities which
are set forth in the Balance Sheet which have arisen in the ordinary course of
business in amounts usual and normal, both individually and in the aggregate,
for the Company (none of which are liabilities for breach of contract, breach of
warranty, torts, infringements, claims or lawsuits), the Company has no material
obligations or liabilities (whether accrued, absolute, contingent, unliquidated,
or otherwise, whether due or to become due) arising out of actions, inactions or
transactions entered into or any state of facts existing at or prior to the date
hereof, including without limitation any liabilities for federal state or local
taxes arising from the dissolution of America's Health Network, Inc.
(f) NO VIOLATION. The performance by the Company and the General
Partner of their respective obligations hereunder and the consummation of the
transactions contemplated hereby will not (i) violate, conflict with or result
in a breach of any provision of the Partnership Agreement; (ii) violate, or be
in conflict with, or constitute a default (with or without due notice or lapse
of time or both) under, or permit the termination of, or cause the acceleration
of the maturity of any debt or obligation of the Company under, require the
consent of any other party to, constitute a breach of, create a loss of a
material benefit under, or result in the creation or imposition of any lien upon
any property or assets of the Company or the General Partner under, any
mortgage, indenture, lease, agreement or other instrument to which the Company
or the General Partner is a party or by which the Company or the General Partner
or the assets thereof, may be bound; (iii) violate any statute or law or violate
any judgment, decree, order, regulation or rule of any court or governmental
authority to which the Company or the General Partner is subject; or (iv)
violate any contract, agreement or commitment to which the Company or the
General Partner is bound.
(g) NO MATERIAL ADVERSE CHANGE. Since December 31, 1995, neither the
business, operations, property nor affairs of the Company have been materially
adversely affected by any occurrence or development, whether or not insured
against, and the Company has no knowledge of any threatened occurrence or
development which would, individually or in the aggregate, materially adversely
affect its properties or assets, its business, operations or affairs.
(h) VALIDITY OF THIS AGREEMENT. The execution, delivery and
performance by the Company of this Agreement, and the consummation of the
transactions contemplated
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hereby have been duly authorized and approved by all necessary corporate
actions. The execution and delivery of this Agreement will not violate any
provision of law and will not conflict with, or result in a breach of any of the
terms of, or constitute a default under any agreement, instrument or other
restriction to which the Company is a party or by which it is bound.
(i) CONSENTS. No consent, approval or authorization of or
designation, declaration or filing with any other person, including without
limitation any governmental authority, on the part of the Company is required in
connection with the valid execution, delivery or performance of this Agreement
or the consummation of any transaction contemplated hereby.
(j) TITLE TO PROPERTIES; ENCUMBRANCES. The Company has good and
marketable title to all of its properties and assets (tangible and intangible),
subject to no Liens (as defined below) other than the following:
(i) the Company's leases of its office and production
facilities;
(ii) the Company's license of intangible rights from IVI
Publishing, Inc. pursuant to the License Agreement, dated May 25, 1995 and other
license agreements entered into in the ordinary course of its business;
(iii) deposits under worker's compensation, unemployment insurance
and similar laws or secure statutory obligations; and
(iv) Liens created in conjunction with equipment leases to secure
the lease obligation created thereby.
As used herein, "Liens" shall mean any mortgage, pledge, security interest,
conditional sale or other title retention agreement, encumbrance, lien,
easement, claim, right, covenant, restriction, right of way, warrant, option or
charge of any kind.
(k) CONTRACTS AND COMMITMENTS. The Disclosure Schedule contains a
complete list (stated without duplication) of all contracts and commitments of
the Company which are material to the operations, business or financial
condition of the Company (the "Material Contracts") and which will be
enforceable against the Company after the Effective Date (other than agreements
with physician/hosts paid at an annual rate of $100,000 or less). The Material
Contracts are valid and binding and in full force and effect and there does not
exist any default by the Company, or, to the Company's best knowledge, by any
other party thereto, or event which with notice or lapse of time or both would
constitute a default by the Company, or, to
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the Company's best knowledge, by any other party thereto, under a Material
Contract which default would allow the termination thereof.
(l) LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the Company, threatened in any
court or before any governmental agency or instrumentality against or affecting
the Company or the business, operations, financial condition or properties or
assets of the Company, or which would prevent the carrying out of this Agreement
of the Partnership Agreement, or any of the transactions contemplated hereby or
thereby, or declare the same unlawful or cause the rescission hereof. The
Company has not been charged with, nor to its knowledge, is it threatened with
or under an investigation with respect to, any charge concerning any violation
of any provision of any federal, state or local law, regulation, ordinance,
order or administrative ruling, nor is the Company in default with respect to
any order, writ, injunction or decree of any court, governmental agency or
instrumentality.
(m) SECURITIES LAWS. The sale of the Securities, as provided in this
Agreement, is exempt from the registration and prospectus delivery requirement
of the Securities Act of 1933, as amended (the "Securities Act"), and is
registered or qualified (or is exempt from registration or qualification) under
the registration or qualification requirements of all applicable state
securities laws. Neither the Company nor anyone acting on its behalf will take
any action hereafter that would cause the loss of such exemption.
(n) DISCLOSURE. None of this Agreement, the Disclosure Schedule, the
Memorandum and the Forecast (Memorandum and Forecast being defined in Section
4.1) nor any certificate or other instrument referred to herein or otherwise
furnished to the Subscriber by the Company contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which they were made, not misleading. There is no fact known to the Company
relating to the business, affairs, operations, condition or prospects of the
Company which materially adversely affects the same and which has not been
disclosed to the Subscriber by the Company.
4. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER.
The Subscriber acknowledges that the Partnership Interest is offered
pursuant to an exemption from registration under the Securities Act. In
connection therewith the Subscriber makes the following representations,
warranties and acknowledgements, realizing that they are being relied upon by
the Company for purposes of determining the Subscriber's suitability as an
investor in the Company and compliance by the Company with applicable Federal
and state securities laws and regulations:
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(a) The Subscriber has read the Confidential Private Placement
Memorandum entitled "America's Health Network, G.P." and dated August 1995,
together with the supplement thereto dated March 18, 1996 (as so amended, the
"Memorandum") and the Forecast Financial Statements of AHN Partners, L.P.
(together with assumptions) dated March 29, 1996 (the "Forecast"). The
Subscriber has such knowledge and expertise in financial and business matters
that the Subscriber is capable of evaluating the merits and risks of an
investment in the Partnership Interest and the Subscriber is able to bear the
economic risk of investment in the Company Interest and the complete loss of the
Subscriber's investment.
(b) The Subscriber has received and read or reviewed and is familiar
with the Partnership Agreement and such other documents which relate to its
subscription for the Partnership Interest, and the Subscriber confirms that all
documents, agreements, records and books pertaining to the investment in the
Company and requested by the Subscriber have been made available or delivered to
the Subscriber.
(c) The Subscriber has obtained, to the extent the Subscriber has
deemed necessary, the Subscriber's own personal professional advice with respect
to the risks inherent in investment in the Partnership Interest, the suitability
of such investment in light of the Subscriber's financial condition and
investment needs, and legal, tax and accounting matters.
(d) In connection with the Subscriber's acquisition of the
Partnership Interest, the Subscriber has been afforded the opportunity to ask
questions of and receive answers from representatives of the General Partner and
from persons authorized to act on the Company's behalf concerning (i) the terms
and conditions of this investment, and (ii) the Company and its operations. In
addition, the Subscriber has been afforded the opportunity to obtain any
additional information which the Company possesses or could acquire without
unreasonable effort or expense which the Subscriber requires in order to verify
the accuracy of the information provided by the Company.
(e) The Subscriber understands that future operating results of the
Company are subject to events over which the Company will have only partial or
no control and to various uncertainties inherent in the Company's activities.
No representation has been made or could be made as to the amount of future
profits or losses of the Company.
(f) The Subscriber has adequate means of providing for its current
needs and possible business contingencies, has no need for liquidity of
investment in the Partnership Interest and has no reason to anticipate any
change in business circumstances, financial or otherwise, which may cause or
require any sale or distribution of the Partnership Interest.
(g) The Subscriber understands that investment in the Company is an
illiquid investment. In particular, the Subscriber recognizes that:
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(i) The Subscriber must bear the economic risk of investment in
the Partnership Interest for an indefinite period of time, since the Partnership
Interest has not been registered under the Securities Act, and, therefore,
cannot be sold unless either it is subsequently registered under the Securities
Act or an exemption from such registration is available and a favorable opinion
of counsel for the Partnership to that effect is obtained (if requested by the
General Partner);
(ii) The Subscriber will not have the right to require
registration of the Partnership Interest under the Securities Act and will not
be entitled to the benefits of Rule 144 thereunder, and
(iii) No established market for the Partnership Interest will
exist and it is extremely unlikely that any public market for the Partnership
Interest will develop.
(h) The Subscriber represents that the Partnership Interest is being
purchased by it or for its own account, for purposes of investment and not for
the account of any other person and not for distribution, assignment or resale
to others, and no other person has a direct or beneficial interest in the
Partnership Interest. The Subscriber understands and acknowledges that the
Partnership Interest has not been registered under the Securities Act or under
state laws.
(i) The Subscriber, if a corporation, partnership, trust or other
entity, is authorized and otherwise duly qualified to purchase and hold the
Partnership Interest and to enter into this Admission Agreement.
(j) All information which the Subscriber has provided to the Company
concerning the Subscriber's financial position and knowledge of financial and
business matters, or, in the case of a corporation, partnership, trust or other
entity, concerning the knowledge of financial and business matters of the
person(s) making the investment decision on behalf of such entity, is correct
and complete as of the date set forth on the signature page hereof, and if there
should be any adverse change in such information prior to his, her, or its
subscription being accepted, he, she, or it will immediately provide the Company
with such information.
(k) The Subscriber acknowledges and is aware that the Company has no
financial operating history; this is the Company's first venture; and the
Partnership Interest involves a high degree of risk of loss by the Subscriber of
its entire investment in the Company.
(l) The Subscriber is an "accredited investor" as defined in Rule 501
under the Securities Act, inasmuch as the Subscriber is:
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(Please initial all applicable descriptions)
____ An entity with total assets at the time of purchase in excess of
$5,000,000, which was not formed for the purpose of investing in
the Company and which is one or more of the following:
_______ corporation;
_______ partnership;
_______ limited liability company; or
_______ a tax-exempt organization as described in
Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
____ A personal (non-business) trust with total assets in excess of
$5,000,000, which was not formed for the purpose of investing in
the Company and whose decision to invest in the Company has been
directed by a person who has such knowledge and experience in
financial and business matters that he is capable of evaluating
the merits and risks of the investment.
____ Licensed, or subject to supervision, by U.S. Federal or state
examining authorities as a "bank," "savings and loan
association," "insurance company" or "small business investment
company" (as such terms are used and defined in 17 CFR Section
230.501(a)).
____ Registered with the U.S. Securities and Exchange Commission (the
"Commission") as a broker or dealer or an investment company, or
has elected to be treated or qualifies as a "business development
company" (within the meaning of Section 2(a)(48) of the
Investment Company Act of 1940 or Section 202(a)(22) of the
Investment Advisers Act of 1940).
____ Any other entity in which all of the equity owners are persons
described above.
5. CONDITIONS OF THE SUBSCRIBER'S OBLIGATIONS.
(a) CONDITIONS TO BE MET AT THE FIRST CLOSING. The Subscriber's
obligations to purchase the First Closing Partnership Interest and pay the First
Closing Purchase Price therefor are subject to the fulfillment to its reasonable
satisfaction of the following conditions:
(i) The representations and warranties of the Company made in
writing by or on behalf of the Company in connection with the transactions
contemplated hereby shall be true and correct at and as of the date of the First
Closing (the "First Closing Date").
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(ii) Each of the other persons (the "Other Subscribers") whose
names are set forth on Schedule A to the Partnership Agreement as persons who
will become Class A Partners of the Company (other than PJHP) has entered into a
Subscription Agreement with the Company substantially in the form of this
Agreement and each of the Other Partners (other than PJHP) has paid the First
Closing Purchase Price pursuant to the terms and conditions of such Subscription
Agreement. PJHP has entered into a Subscription Agreement with the Company
substantially in the form of this Agreement, except that its obligations shall
be subject to the receipt of consent from its board of directors to the
transactions contemplated thereby and which agreement shall terminate if such
consent shall not have been received by May 15, 1996.
(iii) The Subscriber and the Company shall have entered into that
certain joint venture agreement, substantially in the form of Schedule II
annexed hereto.
(iv) The Subscriber and PJHP have entered into the Partnership
Interest Option Agreement pursuant to which PJHP has granted the Subscriber the
right to require a 4.00% Post Recoupment Percentage Interest from PJHP on thge
terms and conditions set forth therein.
(v) The Subscriber shall have received a certificate executed by
the President of the Company, dated as of the Closing Date, certifying that the
conditions specified in clauses (i) through (ii) of this Section 5(a) have been
fulfilled.
(vi) All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be satisfactory in substance and form to the
Subscriber, and Subscriber shall have received all such counterpart originals or
certified or other copies of the Partnership Agreement and this Agreement as the
Subscriber may reasonably request.
(b) CONDITIONS TO BE MET AT THE SECOND CLOSING. The Subscriber's
obligations to purchase the Second Closing Partnership Interest and pay the
Second Closing Purchase Price therefor are subject to the fulfillment to its
reasonable satisfaction of the following conditions:
(i) The representations and warranties of the Company made in
writing by or on behalf of the Company in connection with the transactions
contemplated hereby shall be true and correct at and as of the date of the
Second Closing (the "Second Closing Date").
(ii) (A) As of December 31, 1996, the Company's television
programming service (the "Network") shall be available for regular viewing by at
least [ ]% of the number of full-time equivalent subscribers ("FTE's")
projected by the Company's
[ ] Confidential treatment requested
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business plan dated March 29, 1996 (the "Business Plan") at the end of the third
quarter of Year 1 (at least [ ] FTE's, based on a target of [ ] FTE's); or,
(B) Determined on a daily average basis, the Network shall
have been available for regular viewing by at least [ ]% of the Average FTE's
(as defined below) projected by the Business Plan during the first three
quarters of Year 1 (at least [ ] Average FTE's, based on a target of [ ]
Average FTE's). "Average FTE's" shall be determined by cumulating the number of
FTE's according to the date on which the systems are to be added to the Network
(pursuant to information provided by carriage affiliates as of March 13, 1996)
multiplied by the number of days until the last day of the third quarter of Year
1, divided by 270 days.
The Company shall base its calculations on numbers of FTE's reported to the
Company by its affiliates pursuant to their respective carriage agreements.
(iii) (A) As at December 31, 1996, the Company's actual Gross
Product Revenue (as defined below) shall be at least [ ]% of the Gross Product
Revenue projected in the Business Plan cumulatively for the first three quarters
of Year 1 (at least $[ ], based on a target of $[ ] Gross Product Revenue); or
(B) during the first nine months of operation, the Company's
Gross Product Revenue shall be at least [ ]% of the Gross Product Revenue that
would have been projected (using the formula set forth below) if the Average
FTE's during the first three quarters of Year 1 had been projected to be less
than the Average FTE's projected by the Business Plan, but in no event less than
[ ]% of the projection contained in the Business Plan. In the case of (B),
projected cumulative Gross Product Revenue shall be computed by using the
following formula: Average FTE's during the first three quarters of Year [ ]
Rating x [ ]% Buy Rate x $[ ] Average Order Size.
As used herein, "Gross Product Revenue" shall mean Gross Revenues (net of
product returns), less Advertising/Syndication Revenue and Licensing Revenue, as
determined from the Company's unaudited quarterly financial statements for the
periods in question. Assumptions for Rating, Buy Rate and Average Order Size
shall be those assumptions in the Business Plan.
(iv) Aggregate Fixed Expenses (as defined below) and Capital
Expenditures actually incurred by the Company during the nine months ending
December 31, 1996 shall not exceed [ ]% of the aggregate amount budgeted
therefor in the Annual Business Plan. As used herein, "Fixed Expenses" shall
refer to all expense items in the "Supplementary Five Year Expense Detail by
Department" included in the Company's Forecast Financial Statements dated March
29, 1996 (other than those expenses that vary as a function of the Company's
revenue volume or marketing efforts); and the operative amounts thereof for
[ ] Confidential Treatment Requested
12
purposes of comparison shall be the sum of the line item amounts budgeted for
Q1-Year 1, Q2-Year 1 and Q3-Year 1.
(v) The Company shall have delivered to the Subscriber a
certificate at least 10 Business Days prior to the Second Closing to the effect
that the Company has received oral or written confirmations from its carriage
affiliates and others that operate and distribute systems that make the Channel
available to subscribers to the effect that the Channel will be available to not
fewer than [ ] FTE Subscribers (as defined in Section 3.5(b) of the Partnership
Agreement) at March 31, 1997, when aggregated with those FTE Subscribers that
have the Channel available as of December 31, 1996; and Access shall, in good
faith, be satisfied with such certificate.
(vi) PJHP has performed each of the obligations to be performed
by it at the Second Closing.
(vii) The Subscriber shall have received a certificate executed
by the President of the Company, dated as of the Closing Date, certifying that
the conditions specified in clauses (i) through (v) of this Section 5(b) have
been fulfilled.
(viii) All corporate and other proceedings in connection with
the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory in substance and
form to the Subscriber.
(c) Any failure on the part of any Subscriber to pay any portion of
the First Closing Purchase Price or the Second Closing Purchase Price when due
shall render the Subscriber a "Delinquent Partner" under Section 4.2 of the
Partnership Agreement and shall enable the Company and its Partners to employ
the rights and remedies set forth therein, without limiting such additional
rights or remedies as the Company or its Partners may have at law or in equity.
6. SUBSCRIBER'S INDEMNIFICATION.
(a) The Subscriber acknowledges that the Company will rely upon the
representations, warranties and agreements of the Subscriber set forth in
Section 4, each of which shall survive after the date of the Subscriber's
execution and delivery of this Agreement. The Subscriber agrees to hold
harmless and indemnify the Company and the General Partner and its officers,
directors and stockholders and any other person who may be deemed to control the
General Partner from and against all liabilities, damages, losses, costs and
expenses (including reasonable attorneys' fees) which it may incur by reason of
the failure of the Subscriber to fulfill any of the terms or conditions of this
Admission Agreement, or by reason
[ ] Confidential Treatment Requested
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of any inaccuracy or breach of the representations and warranties and agreements
made by the Subscriber in Section 4 or in connection with the Partnership
Interest in any manner whatsoever.
(b) The Company acknowledges that the Subscriber will rely upon the
representations, warranties and agreements of the Company set forth in Section
3, each of which shall survive after the date of the Subscriber's execution and
delivery of this Agreement. The Company agrees to hold harmless and indemnify
the Subscriber from and against all liabilities, damages, losses, costs and
expenses (including reasonable attorneys' fees) which it may incur by reason of
the failure of the Company to fulfill any of the terms or conditions of this
Admission Agreement, or by reason of any inaccuracy or breach of the
representations and warranties and agreements made by the Company in Section 3
or in connection with the Partnership Interest in any manner whatsoever.
7. MISCELLANEOUS.
(a) The Subscriber agrees that this Admission Agreement shall be
binding upon the Subscriber's permitted successors and assigns. Notwithstanding
the foregoing, the Subscriber may not assign this Admission Agreement without
the prior written consent of the Company.
(b) Notwithstanding any of the representations, war ranties,
acknowledgements or agreements made herein by the Subscriber, the Subscriber
does not thereby or in any other manner waive any rights granted to the
Subscriber under United States or other applicable securities laws.
(c) This Admission Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by such parties.
(d) This Admission Agreement shall be enforced, governed and
construed (both as to validity and performance) in all respects in accordance
with the laws of the State of Delaware applicable to agreements made and to be
performed wholly in the State of Delaware.
(e) Within five days after receipt of a written request from the
Company, the Subscriber will provide such information, to execute and deliver
such documents and to take, or forbear from taking, such actions as reasonably
may be necessary to comply with any and all laws and ordinances to which the
Company is subject.
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(f) All notices sent hereunder shall be in writing. If sent to the
Company, such notices shall be addressed to the Company at its address in the
Partnership Agreement. If sent to the Subscriber, such notices shall be
addressed to the Subscriber at the address (including telecopier number) set
forth below opposite its name.
(g) The Subscriber and the Company agree that any legal suit, action
or proceeding arising out of or relating to this Agreement may be instituted in
a state, city or federal court in the State of New York; PROVIDED, that the
Company may bring suit in the courts of any country or place where the
Subscriber or any of its assets may be found and, by execution and delivery of
this Agreement, the Subscriber irrevocably submits to such jurisdiction. To the
extent permitted by law, the Subscriber irrevocably waives trial by jury and any
objection which it may now or hereafter have to the venue of any suit, action or
proceeding, arising out of or relating to the Partnership Agreement or this
Agreement brought in the State of New York and to the extent permitted by law
hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in the State of New York has been brought in an inconvenient
forum. If any agent appointed by the Subscriber refuses to accept service, the
Subscriber agrees that service upon it by certified mail return receipt
requested sent to the address specified by the Subscriber below shall constitute
sufficient notice. Nothing herein shall affect the right to serve process in
any other manner permitted by law or shall limit the right of the Company to
bring proceeding against the Subscriber in the courts of any other jurisdiction.
(h) If the Subscriber defaults in the performance of any of its
obligations under this Agreement, the Company shall have all rights and remedies
provided at law and equity. All costs and expenses of collection, including
attorneys' fees, shall be added to and become part of the obligations of the
Subscriber under this Agreement.
(i) This Admission Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each party hereto has caused this Admission Agreement
to be duly executed on the date indicated beneath its name.
AHN PARTNERS, L.P., a Delaware
limited partnership
By: America's Health Network, LLC,
General Partner
By:
-----------------------------
Name:
Title: Manager
ACCESS HEALTH, INC.
By:
-----------------------------
Name:
Title:
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Name and Address of Subscriber:
Access Health, Inc.
00000 Xxxxx Xxxx Xxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
First Closing Partnership
Interest (expressed as
Post Recoupment Percentage
Interest): [ ] Purchase Price: $5,000,000
Second Closing Partnership
Interest (expressed as
Post Recoupment Percentage
Interest): [ ] Purchase Price: $5,000,000
[ ] Confidential Treatment Requested
17
DISCLOSURE SCHEDULE
Material Contracts of the Company are as follows:
1. Letter Agreement, dated as of May 25, 1995, between America's Health
Network, Inc. ("AHN, Inc.") and IVI Publishing, Inc.
2. Agreement, dated as of June 8, 1995, between AHN, Inc. and Mayo
Foundation for Medical Education and Research.
3. Business Center Lease, dated June 30, 1995, between AHN, Inc. and
Universal City Florida Partners ("Universal City").
4. Consulting Agreement, dated as of July 1, 1995, between AHN, Inc. and
The Providence Journal Broadcasting Corp.
5. Sublease Agreement, dated as of August 1, 1995, between AHN, Inc. and
Providence Journal Satellite Services, Inc.
6. Telemarketing and Fulfillment Services Agreement, executed on June 20,
1995 and June 28, 1995, between AHN, Inc. and National Call Center,
Inc.
7. Fiber Optics Service Agreement, dated February 29, 1996, between AHN,
Inc. and Triumph Communications, Inc. ("Triumph").
The Company is seeking the consent of Xxxxxx Communications Galaxy, Inc.
("Xxxxxx") to the assignment of the Sublease Agreement pursuant to which AHN
Inc. subleased a transmission signal from Providence Journal Satellite Services,
Inc.
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