ASSET PURCHASE AND SALE AGREEMENT
AGREEMENT made this 9th day of January, 1998, by and among IntegraMed
America, Inc., a Delaware corporation, having its principal place of business at
Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("INMD"), Fertility Centers of
Illinois, S.C., an Illinois medical corporation, with its principal place of
business at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("FCI"), Advocate
Medical Group, S.C., an Illinois medical corporation, with its principal place
of business at 0000 Xxxxxxxx, 0 Xxxxx, Xxxx Xxxxx, Xxxxxxxx 00000-0000 ( "AMG"),
and Advocate MSO, Inc., an Illinois corporation, with its principal place of
business at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("MSO"). (INMD and FCI
are sometimes collectively referred to herein as "Buyers" and AMG and MSO are
sometimes collectively referred to as "Sellers." INMD, FCI, AMG and MSO are
sometimes collectively referred to as "Parties" and individually as a "Party.")
RECITALS
INMD is engaged in the business of owning certain assets and providing
management and administrative services ("Management Services") to medical
practices specializing in the treatment of human infertility, encompassing the
provision of in vitro fertilization and other assisted reproductive services
("Infertility Services");
FCI is engaged in providing Infertility Services and has entered into
an agreement with INMD pursuant to which INMD provides Management Services to
FCI;
AMG is a multi-specialty medical group engaged in, among other things,
providing Infertility Services through the services of Xxxxxxxx X. Xxxxxx, M.D.
and Xxxx X. Xxxxxxxxx, M.D. ("Physicians")who have entered into employment
agreements with AMG containing covenants, including covenants not to compete.
The Infertility Services rendered by AMG through the Physicians are referred to
herein as the "Practice";
MSO is engaged in providing Management Services to AMG, including the
Practice;
Physicians desire to be employed by FCI, terminate their employment
with AMG and engage in the practice of medicine within 5 miles of their primary
site(s), as defined in their employment agreements with AMG. Effective with the
consummation of this Agreement, AMG will permit Physicians to terminate their
employment with AMG and affiliate with FCI in exchange for the consideration set
forth herein;
AMG desires to sell and FCI desires to purchase certain intangible
assets associated with the Practice, and MSO desires to sell and INMD desires to
purchase certain tangible assets from MSO utilized in conjunction with the
Practice.
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Now therefore, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF ASSETS
1.01 Assets of Practice
(a) Subject to the terms and conditions set forth in this
Agreement and based upon the representations, warranties and covenants made
herein, at the Closing (as herein defined), MSO shall sell, assign, convey and
transfer to INMD and INMD shall acquire from MSO the tangible assets and
property of the Practice, free and clear of all liens and encumbrances, as set
forth in Exhibit 1.01(a) ("Tangible Practice Assets").
(b) Subject to the terms and conditions set forth in this
Agreement and based upon the representations, warranties and covenants made
herein, at the Closing (as herein defined), AMG shall sell, assign, convey and
transfer to FCI and FCI shall acquire from AMG the intangible assets and
property of the Practice, free and clear of all liens and encumbrances, as set
forth in Exhibit 1.01(b) ("Intangible Practice Assets"). (The terms Tangible
Practice Assets and Intangible Practice Assets are sometimes hereinafter
referred to as Practice Assets.)
1.02 Excluded Assets
The term Tangible Practice Assets does not include, and MSO
reserves and does not sell or transfer to INMD any right, title to or interest
in, the assets listed in Exhibit 1.02 ( collectively, "Excluded Assets"), all of
which shall be removed from the Buffalo Grove, Illinois office of the Practice
on or before the Closing Date.
ARTICLE II
PURCHASE PRICE
2.01 Purchase Price.
(a) Upon and subject to the terms and conditions set forth
herein and in consideration for the sale of the Tangible Practice Assets, INMD
shall pay MSO on the Closing Date the net book value, determined in accordance
with GAAP, of such Tangible Practice Assets identified on Exhibit 1.01(a)(the
"Tangible Assets Price").
(b) Upon and subject to the terms and conditions set forth
herein and in consideration for the sale of the Intangible Practice Assets, FCI
shall pay AMG on the Closing Date $325,000 for the Intangible Practice Assets
(the "Intangible Assets Price").
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2.02 Manner of Payment
INMD and FCI shall pay the Tangible and Intangible Assets
Prices on the Closing Date in certified funds.
2.03 Closing Statement.
MSO shall deliver to INMD unaudited statements dated not more
than three (3) days prior to Closing Date ( the "Closing Statement"), which
shall set forth the dollar value as of the date of the Closing Statement of the
Tangible Practice Assets provided for in paragraph 2 of Exhibit 1.01(a).
2.04 Assumption of Liabilities
Subject to the conditions herein set forth, from and after the
Closing Date, INMD shall assume and shall pay, perform and discharge only those
liabilities set forth in Exhibit 2.04(collectively referred to as "Assumed
Liabilities"). INMD and FCI shall not assume, acquire or otherwise become
responsible or liable for any liabilities other than those specifically set
forth herein and enumerated in Exhibit 2.04.
ARTICLE III
CLOSING
The closing ( the "Closing") of the transactions contemplated by this
Agreement shall be held at 3:00 p.m. on January 9, 1998 ("Closing Date") at the
offices of Advocate Medical Group c/o Lutheran General Hospital, 0000 Xxxxxxxx,
0-Xxxxx, Xxxx Xxxxx , Xxxxxxxx 00000-0000 or such other date or at such other
time or location as to which the Parties may agree to in writing. The effective
time of the Closing shall be 12:00 midnight on the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AMG
AMG represents and warrants to FCI, for the purpose of inducing FCI to
enter into and consummate this Agreement, that:
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4.01 Organization and Power
(a) AMG is a duly formed and validly existing Illinois medical
corporation.
(b) AMG has full right, power and authority to enter into this
Agreement and to consummate the transactions herein contemplated and that all
action necessary to authorize the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein by AMG has been taken
or will be taken prior to the Closing Date.
(c) This Agreement constitutes the valid and binding
obligation of AMG fully enforceable against AMG in accordance with its terms.
4.02 Authority; No Conflicting Instruments
(a) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not, and with notice
or the lapse of time or both would not, except for contracts, liens or
encumbrances disclosed in Exhibits 1.01 (a) and 2.04, (i) result in the breach
of any of the terms or conditions of, or constitute any default under, the
Articles of Incorporation or By-Laws of AMG or under any mortgage, bond,
indenture, agreement, lease or other instrument or obligation to which AMG is a
party or by which any of its properties or assets may be bound, except for any
such breach which does not materially adversely affect AMG or its business; (ii)
violate any law or regulation relating to AMG; and (iii) violate any judgment,
award, order, writ, injunction or decree relating to AMG.
(b) No consent, approval or authorization of, or declaration
or filing with any federal, state, local or foreign governmental or regulatory
authority, or any other third party, is required in connection with the
execution and delivery of this Agreement by AMG or the performance by AMG of the
transactions contemplated by this Agreement.
4.03 Intangible Practice Assets
AMG has employment agreements with Physicians ("Employment
Agreements") pursuant to which Physicians are restricted during the initial term
of the Employment Agreements and any succeeding term, and for a period of
twenty-four (24) months following the expiration or termination of the
Employment Agreements for any reason, from engaging in the practice of medicine
within five (5) miles of the primary site(s) to which Physicians were assigned
by AMG without the prior written consent of AMG. In consideration of the
Intangible Assets Price, AMG will not enforce its rights to enforce the covenant
not to compete provision in the Physicians' respective Employment Agreements.
Attached hereto as Exhibit 4.03 are copies of the Employment Agreements.
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4.04 Insurance
AMG is insured under a medical malpractice policy and AMG will
remain responsible for any malpractice claim which relates to activities of the
Practice prior to the Closing Date, whenever they may arise.
4.05 Litigation
(a) To the best of AMG's knowledge and belief, there are no actions,
suits, claims or legal, administrative or arbitration proceedings or
investigations pending or, threatened against, involving or affecting AMG which
would affect the ability of AMG to consummate the transactions contemplated by
this Agreement. AMG has no notice or knowledge of any outstanding orders, writs,
injunctions or decrees of any court, governmental agency or arbitration tribunal
against, involving or affecting the Intangible Practice Assets. INMD and FCI
shall have no liability or obligation with respect to any matter which arose out
of AMG's operation of the Practice prior to the Closing Date.
(b) To the best of AMG's knowledge and belief, AMG has
received no notice of any violation of applicable law, order, regulation or
requirement that would adversely affect the Practice or the Intangible Practice
Assets. To the best of AMG's knowledge, the Practice located at 000 Xxxxx
Xxxxxxxxx Heights Road, Suite 195, Buffalo Grove, Illinois 60089 is not in
violation of any OSHA regulation.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MSO
MSO represents and warrants to INMD, for the purpose of inducing INMD
to enter into and consummate this Agreement, that:
5.01 Organization and Power
(a) MSO is a duly formed and validly existing Illinois
corporation.
(b) MSO has full right, power and authority to enter into this
Agreement and to consummate the transactions herein contemplated and all action
necessary to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein by MSO has been taken or
will be taken prior to the Closing Date.
(c) This Agreement constitutes the valid and binding
obligation of MSO fully enforceable against MSO in accordance with its terms.
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5.02 Authority; No Conflicting Instruments
(a) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not, and with notice
or the lapse of time or both would not, except for contracts, liens or
encumbrances disclosed in Exhibits 1.01 (a) and 2.04, (i) result in the breach
of any of the terms or conditions of, or constitute any default under, the
Articles of Incorporation or By-Laws of MSO or under any mortgage, bond,
indenture, agreement, lease or other instrument or obligation to which MSO is a
party or by which any of its properties or assets may be bound, except for any
such breach which does not materially adversely affect MSO or its business; (ii)
violate any law or regulation relating to MSO; and (iii) violate any judgment,
award, order, writ, injunction or decree relating to MSO.
(b) No consent, approval or authorization of, or declaration
or filing with any federal, state, local or foreign governmental or regulatory
authority, or any other third party, is required in connection with the
execution and delivery of this Agreement by MSO or the performance by MSO of the
transactions contemplated by this Agreement.
5.03 Tangible Practice Assets
MSO has good and marketable title to the Tangible Practice Assets which
are owned exclusively by MSO, free and clear of all liens, mortgages and
encumbrances of any kind or nature, except as set forth on Exhibit 1.01(a).
5.04 Financial Statements
With respect to the Practice whose financial results are
reflected as a cost center, attached hereto as Exhibit 4.04 are the Income
Statements for the year ended December 31, 1996 and the 11-month period ended
November 30, 1997 (collectively, the "Financial Statements"). MSO represents
that this is the information its management team utilizes to manage the
Practice. Notwithstanding Section 5.06(b) to the contrary, MSO makes no
representation with respect to this cost center information.
5.05 Litigation
(a) To the best of MSO's knowledge and belief, there are no
actions, suits, claims or legal, administrative or arbitration proceedings or
investigations pending or, threatened against, MSO which would affect MSO's
ability to consummate the transactions contemplated by this Agreement. MSO has
no notice or knowledge of any outstanding orders, writs, injunctions or decrees
of any court, governmental agency or arbitration tribunal against, involving or
affecting the Practice or the Tangible Practice Assets. INMD and FCI shall have
no liability or obligation with respect to any matter which arose out of MSO's
operation of the Practice prior to the Closing Date.
(b) To the best of MSO's knowledge and belief, MSO has
received no notice of any violation of applicable law, order, regulation or
requirement related to the Practice or the Tangible Practice Assets. To the best
of MSO's knowledge, the Practice located at 000 Xxxxx Xxxxxxxxx Heights Road,
Suite 195, Buffalo Grove, Illinois 60089 is not in violation of any OSHA
regulation.
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5.06 Contracts and Agreements
(a) With respect to the Practice, Exhibit 5.06(a) is a list as
of the date hereof of all the material contracts or agreements which will be
assigned to INMD and/or FCI, all of which are valid and existing, in full force
and effect, and binding upon the parties thereto in accordance with their terms.
Each Seller has paid in full or accrued all amounts due thereunder which are
currently due and as separately identified on Exhibit 5.06(a). Except as
otherwise disclosed, no approval or consent of any person or entity is needed in
order that the contracts and other agreements as listed continue in full force
and effect with respect to INMD and FCI from and after the Closing Date.
(b) All Exhibits, by or on behalf of AMG or MSO, in connection
with this Agreement and the transactions as contemplated hereby, are true and
complete. There is no fact which either AMG or MSO has not disclosed to either
FCI or INMD which adversely affects, or insofar as either AMG or MSO can
foresee, will adversely affect the Tangible or Intangible Practice Assets or the
ability of either AMG or MSO to perform their respective obligations under this
Agreement or any other agreement entered into in connection with this
transaction.
5.07 Insurance
MSO has maintained at all relevant times, with responsible and
financially solvent insurance companies, adequate insurance covering risks of
such types and in such amounts as are customary for other corporations of
similar size engaged in MSO's business.
5.08 Personnel
Exhibit 5.08 lists each current employee of MSO and AMG, both
full-time and part-time, who will be terminated by AMG or MSO, as appropriate,
and hired by FCI or INMD, as appropriate, on the Closing Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYERS
INMD and FCI, for the purpose of inducing Sellers to enter into and
consummate this Agreement, hereby represent and warrant to Sellers that:
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6.01 Organization, Power and Authority
(a) INMD is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has full power and
authority, corporate and otherwise, to carry on its business as now conducted
and to own or lease and to operate its properties and assets now owned or leased
and operated by it, to conduct the business of INMD and to consummate the
transactions contemplated hereby. FCI is an Illinois medical corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois and has full power and authority, corporate and otherwise, to carry on
its business as now conducted and to own or lease and to operate its properties
and assets now owned or leased and operated by it, to conduct the business of
FCI and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement
by Buyers has been duly authorized by all requisite corporate action, and no
further action or approval is required in order to constitute this Agreement as
a valid, binding and enforceable obligation of each Buyer, and this Agreement
constitutes the valid and binding obligation of each Buyer, enforceable against
each Buyer in accordance with its terms.
(c) The execution and delivery of this Agreement and the
consummation of the transactions as herein contemplated will not violate any
provisions of any applicable law or of the Certificate of Incorporation or
By-Laws of each Buyer, or any order, judgment or decree of any court or other
agency of government binding on each Buyer, or conflict with, result in a breach
of or constitute ( with due notice or lapse of time or both) a default under any
contractual obligation of each Buyer, result in or require the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of each Buyer's properties or assets , require any approval of or any consent of
any person under any contractual obligation of each Buyer or conflict with or
result in any breach or default under any of the terms, conditions or provisions
of any indenture, mortgage, deed of trust or other instrument to which each
Buyer is a party or by which it or its properties may be bound or affected.
ARTICLE VII
INDEMNIFICATION
7.01 Survival of Representations and Warranties
The representations and warranties contained in this Agreement
and in any instrument or certificate delivered pursuant to, or provided for in
this Agreement ("Representations and Warranties"), shall survive the
consummation of the transactions contemplated by this Agreement for a period of
one (1) year after the Closing Date; provided, however, that the expiration of
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the applicable period would not preclude either Party from indemnification by
the other relating to any third-party Claim ( as defined herein) occurring
within three (3) years of the Closing Date. Each party to this Agreement shall
be deemed to have relied upon each and every representation and warranty of the
other Party, regardless of any investigation made at any time by the Party
relying on such representation and warranty.
7.02 Indemnification
(a) After the Closing Date, AMG shall indemnify FCI against,
and defend and hold FCI harmless from, all demands, claims, actions or causes of
action, assessments, losses, damages, deficiencies, liabilities, costs and
expenses ( including interest, penalties and reasonable attorneys' fees and
disbursements) (excluding indirect, punitive and consequential damages)
(hereinafter collectively called "Claim") arising out of or in connection with
(i) any breach of the Representations and Warranties, covenants or agreements of
AMG contained in this Agreement or any agreement or instrument delivered by AMG
pursuant to this Agreement; and (ii) its intentional or negligent conduct
arising from the operations of the Practice prior to the Closing Date except as
expressly assumed by FCI pursuant hereto. Upon the assertion of any Claim
against FCI that may give rise to a liability of AMG hereunder, FCI shall notify
AMG of the existence of such Claim (which notice shall include a description
thereof) and FCI shall give AMG reasonable opportunity to defend and/or settle
such Claim at AMG's own expense and with counsel of its own selection, which
counsel shall be reasonably satisfactory to FCI; provided, however, that in the
case of any Claim, FCI shall have the right to participate in any administrative
or judicial proceedings with respect to such Claim, at its expense and with
counsel of its choice. If AMG shall, after fifteen (15)- days notice thereof by
FCI, fail to take adequate action to defend any Claim, FCI shall have the right
to undertake the defense, compromise or settlement of such Claim on behalf of,
for the account of, and at the risk of AMG. If the Claim is one that cannot by
its nature be solely defended by FCI, then AMG shall, at its expense, make
available all information and assistance as may reasonably be requested by FCI.
(b) After the Closing Date, MSO shall indemnify INMD against,
and defend and hold INMD harmless from any Claim arising out of or in connection
with (i) any breach of the Representations and Warranties, covenants or
agreements of MSO contained in this Agreement or any agreement or instrument
delivered by MSO pursuant to this Agreement; and (ii) its intentional or
negligent conduct arising from the operations of the Practice prior to the
Closing Date except as expressly assumed by INMD pursuant hereto. Upon the
assertion of any Claim against INMD that may give rise to a liability of MSO
hereunder, INMD shall notify MSO of the existence of such Claim (which notice
shall include a description thereof) and FCI shall give MSO reasonable
opportunity to defend and/or settle such Claim at MSO's own expense and with
counsel of its own selection, which counsel shall be reasonably satisfactory to
INMD; provided, however, that in the case of any Claim, INMD shall have the
right to participate in any administrative or judicial proceedings with respect
to such Claim, at its expense and with counsel of its choice. If MSO shall,
after fifteen (15)- days notice thereof by INMD, fail to take adequate action to
defend any Claim, INMD shall have the right to undertake the defense, compromise
9
or settlement of such Claim onbehalf of, for the account of, and at the risk of
MSO. If the Claim is one that cannot by its nature be solely defended by INMD,
then MSO shall, at its expense, make available all information and assistance as
may reasonably be requested by
INMD.
(c) After the Closing Date, FCI shall indemnify AMG against, and defend
and hold AMG harmless from any Claim arising out of or in connection with (i)
any breach of the Representations and Warranties, any covenant or agreement of
FCI contained in this Agreement or any agreement or instrument delivered by FCI
pursuant to this Agreement; and (ii) its intentional or negligent conduct
arising from the operations of the Practice after the Closing Date. Upon the
assertion of any Claim that may give rise to a liability of FCI hereunder, AMG
shall notify FCI of the existence of such claim (which notice shall include a
description thereof) and AMG shall give FCI reasonable opportunity to defend
and/or settle such Claim at FCI's own expense and with counsel of its own
selection, which counsel shall be satisfactory to AMG; provided, however, that
in the case of any Claim, AMG shall have the right to participate in any
administrative or judicial proceedings with respect to such Claim, at its
expense and with counsel of its choice. If FCI shall, after fifteen (15) days-
notice thereof by AMG, fail to defend any Claim, AMG shall have the right to
undertake the defense, compromise or settlement of such Claim on behalf of, for
the account of, and at the risk of FCI. If the Claim is one that can not by its
nature be solely defended by AMG, then FCI shall, at its sole expense, make
available all information and assistance as may be requested by AMG.
(d) After the Closing Date, INMD shall indemnify MSO against, and
defend and hold MSO harmless from any Claim arising out of or in connection with
(i) any breach of the Representations and Warranties, any covenant or agreement
of INMD contained in this Agreement or any agreement or instrument delivered by
INMD pursuant to this Agreement; and (ii) its intentional or negligent conduct
arising from the operations of the Practice after the Closing Date. Upon the
assertion of any Claim that may give rise to a liability of INMD hereunder, MSO
shall notify INMD of the existence of such claim (which notice shall include a
description thereof) and MSO shall give INMD reasonable opportunity to defend
and/or settle such Claim at INMD's own expense and with counsel of its own
selection, which counsel shall be satisfactory to MSO; provided, however, that
in the case of any Claim, MSO shall have the right to participate in any
administrative or judicial proceedings with respect to such Claim, at its
expense and with counsel of its choice. If INMD shall, after fifteen (15) days-
notice thereof by MSO, fail to defend any Claim, MSO shall have the right to
undertake the defense, compromise or settlement of such Claim on behalf of, for
the account of, and at the risk of INMD. If the Claim is one that can not by its
nature be solely defended by MSO, then INMD shall, at its sole expense, make
available all information and assistance as may be requested by MSO.
(e) The respective rights of the parties to be indemnified by the other
shall not in any way be limited by the existence or non-existence of insurance
coverage.
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ARTICLE VIII
CERTAIN COVENANTS
8.01 Conduct Prior to Closing Date
During the period from the date of this Agreement through the
Closing Date, AMG and MSO agree to conduct the Practice in as prudent a manner
as possible. In connection therewith, AMG and MSO shall use their best efforts
to (i) preserve, protect and maintain the Tangible Practice Assets (ii) use its
efforts to keep available the services of the Physicians and agents and to
preserve the goodwill of patients and others having business relationships with
the Practice; (iii) not sell, lease, or otherwise dispose of any of the Tangible
Practice Assets, except in the ordinary course of business, without INMD's
and/or FCI's written consent.
8.02 Conduct After Closing Date
(a) Sellers assume any and all liabilities for taxes and
deficiencies incurred by the Practice prior to the Closing Date. Buyers assume
any and all liabilities for taxes and deficiencies incurred by the Practice
located at 000 Xxxxx Xxxxxxxxx Heights Road, Suite 195, Buffalo, Grove Illinois
60089 after the Closing Date.
(b) AMG patient records and charts ("Patient Records")
relative to the Practice will be maintained at the Buffalo Grove, Illinois
office for 90 days following the Closing Date and FCI and INMD agree to maintain
the Patient Records in a secure manner and protect the privacy of such records.
After the expiration of the 90-day period, AMG will remove the Patient Records
at its sole costs and expense. After removal of the Patient Records by AMG, FCI
will be given access to the original Patient Records on an as-needed-basis, upon
reasonable notice to AMG.
[See attached page 11A for continuation of Section 8.02]
ARTICLE IX
CONDITION TO OBLIGATIONS
9.01 Conditions to Sellers' Obligations The obligations of Sellers
under this Agreement are subject to the satisfaction on or before the Closing
Date of the following conditions, any of which may be waived by a Seller by
proceeding with the Closing:
(a) The Representations and Warranties of Buyers set forth in
this Agreement shall be true on and as of the Closing Date with the same effect
as though made on such date. Buyers shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by Buyers prior to or on the Closing Date and Buyers shall have
delivered to Sellers a certificate, dated as of the Closing Date, to all such
effects;
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Section 8.2 Conduct After Closing Date
(c) FCI will arrange, at its cost, for the medical records relative to
the Practice at the Buffalo Grove, Illinois office to be photocopied within 90
days following the Closing Date and will serve as custodian of such records
during the 90-day period. FCI may use for its benefit copies of such medical
records upon receiving a valid signed patient authorization to use the same.
(d) AMG will arrange, at FCI's cost, for medical records located at the
Practice at Parkside or at other AMG sites before or after the initial 90-day
period to be photocopied and sent to FCI upon receipt of a valid signed patient
authorization.
(e) INMD and FCI agree that all patients and others who inquire about
Xxxx Xxxxx, M.D. by telephone shall be informed that he is practicing medicine
in Park Ridge, Illinois and provided the telephone number of 000.000.0000. In
addition, INMD and FCI shall refer all telephone calls, correspondence,
reimbursements and all other matters concerning AMG to its corporate offices
which are currently located at 0000 Xxxxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000 and,
when appropriate, telephone number 000.000.0000.
(f) AMG and MSO agree that all patients and others who inquire about
Xxxxxxxx X. Xxxxxx, M.D. and Xxxx X. Xxxxxxxxx, M.D. by telephone shall be
informed that they are practicing medicine in Buffalo Grove, Illinois and
provided the telephone number of 000.000.0000. In addition, AMG and MSO shall
refer all telephone calls, correspondence, reimbursements and other matters
concerning Xxxxxxxx X. Xxxxxx, M.D. and Xxxx X. Xxxxxxxxx, M.D. to their offices
at 000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxx 00000
and, when appropriate, telephone number 000.000.0000.
[THIS AREA INTENTIONALLY LEFT BLANK]
11A
(b) No suit, action or other proceeding shall be pending
before any court or other government agency in which it is sought to restrain or
prohibit performance of this Agreement or the consummation of the transactions
contemplated herein or in connection herewith to subject either Seller to
liability on the ground that it has breached any law or duty or otherwise acted
improperly, nor shall any such suit, action, or proceeding be threatened;
(c) Buyers shall have delivered in form satisfactory to
Sellers and which is consistent with this Agreement the documents identified
below:
1. The consideration required pursuant to Section 2.01 hereof.
2. An agreement of INMD assuming the liabilities, including
without limitation office and equipment leases, of MSO set forth on Exhibit 2.04
and taking assets subject to liens and encumbrances set forth on Exhibit
1.01(a).
9.02 Conditions to Buyers' Obligation The obligations of Buyers under
this Agreement are subject to the satisfaction on or before the Closing Date of
the following conditions, any of which may be waived by Buyers by proceeding
with the Closing:
(a) The Representations and Warranties of Sellers set forth in
this Agreement shall be true on and as of the Closing Date with the same effect
as though made on such date. Sellers shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by Sellers prior to or on the Closing Date and Sellers shall have
delivered to Buyers, a certificate, dated as the Closing Date, to all such
effects.
(b) No suit, action or other proceeding shall be pending
before any court or other government agency in which it is sought to restrain or
prohibit performance of this Agreement or the consummation of the transactions
contemplated herein or in connection herewith to subject either Buyer to
liability on the ground that it has breached any law or duty or otherwise acted
improperly, nor shall any such suit, action or proceeding be threatened;
(c) Sellers shall have delivered in form reasonably
satisfactory to Buyers and consistent with this Agreement the documents
identified below:
1. A Certificate of Good Standing of each Seller, dated not
earlier than thirty (30) days prior to the Closing Date, from the Secretary of
State of Illinois.
2. An assignment to INMD transferring to INMD all of the
right, title and interest of MSO and/or AMG in and to all telephone numbers
utilized by MSO and/or AMG in the operation of the Practice at Buffalo Grove,
Illinois.
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3. An assignment of all office and equipment leases listed on
Exhibits 5.06(a). INMD will provide to MSO an amount equal to any security
deposit held by the Lessor under such lease(s).
4. Such bills of sale and instruments of title as requested by
Buyers as shall convey to Buyers, respectively, the Tangible and Intangible
Practice Assets , free and clear of all liens.
5. An assignment to INMD and/or FCI of all executory
agreements of AMG and/or MSO set forth on or referred to in Exhibit 5.06(a)
including separate assignments of each agreement listed in Paragraph 5 of
Exhibits 1.01.
6. Good standing certificates for AMG and MSO dated not more
than 15 days prior to the Closing Date.
ARTICLE X
MISCELLANEOUS
10.01 Sellers represent and warrant to Buyers that Sellers
have not dealt with or retained any broker or finder or agreed to pay any
commission or fee to any broker or finder for or on account of this Agreement or
the transactions contemplated hereby. Buyers represent and warrant to Sellers
that they have not dealt with or retained any broker or finder for or on account
of this Agreement or the transactions contemplated hereby. Each party agrees to
indemnify the other against any loss, cost or expense, including attorneys'
fees, as a result of any claim for a fee or commission asserted by any broker or
finder with respect to this Agreement or the consummation thereof whose claim
arises through dealings with such broker or finder by the indemnifying party.
10.02 If at any time after the Closing Date any further
assignment, transfers or assurances in law are reasonably necessary or desirable
to carry out the provisions of this Agreement, the Parties to this Agreement
shall execute and deliver any and all assignments, transfers, and assurances in
law, and do all things, reasonably necessary or proper to such end and otherwise
to carry out the provisions and intent of this Agreement.
10.03 Any notice or other communication required by, or which
may be given pursuant to this Agreement shall be in writing and mailed,
certified mail, postage prepaid, return receipt requested, or overnight delivery
service, such as Fedex or Airborne Express, prepaid, and shall be deemed given
when received. Any such notice or communication shall be sent to the address set
forth below:
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If to INMD:
Xxxxxxx Xxxxx, President
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
With a copy to:
Xxxxxx X. Xxxxx, General Counsel
IntegraMed America, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
And if to FCI:
Xxxxx X. Xxxxxxx, M.D., President
Fertility Centers of Illinois, S.C.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
If to AMG:
Xxxxxx X. Xxxxxxxxx, M.D., President
Advocate Medical Group, S.C.
0000 Xxxxxxxx Xxxxxx, 0-Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxx, Esq., General Counsel
Advocate Medical Group, S.C.
0000 Xxxxxxxx Xxxxxx, 0-Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
If to MSO:
Chief Executive
Advocate MSO, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx Xxxxxxxxxx, Esq., General Counsel
Advocate MSO, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
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Any Party may change the persons and addressees to which
notices or other communications are to be sent to it by giving written notice of
any such change to the other Party hereto.
10.04 The headings contained in this Agreement are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
10.05 All Exhibits referred to in this Agreement are deemed
annexed hereto and made a part of this Agreement.
10.06 This Agreement, together with the Exhibits:
(a) Constitutes the entire agreement among the parties
to it with respect to the purchase and sale of the Tangible and Intangible
Practice Assets and supersedes all prior agreements and understandings;
(b) May not be modified or discharged, nor may any of
its terms be waived, except by an instrument in writing, signed by the Party or
Parties to be charged; and
(c) Shall bind and inure to the benefit of the Parties
and their respective successors and permitted assigns. Nothing expressed or
mentioned in this Agreement is intended, or will be construed, to give any
person, firm corporation or other entity, other than the Parties to this
Agreement and their respective successors and assigns, any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any of its
provisions.
10.07 This Agreement may not be assigned by any Party hereto
without the prior written consent of the other Party. No assignment or
delegation of any rights or obligations hereunder shall release the assignor
from any of its liabilities hereunder.
10.08 The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same. No waiver of any nature, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such condition or of any
breach of any other term, covenant, representation or warranty of this
Agreement.
10.09 This Agreement may be executed in any number of separate
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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10.10 This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, irrespective of the principal
place of business of the Parties hereto. Any and all claims, disputes, or
controversies arising under, out of, or in connection with this Agreement or any
breach thereof shall be brought in the Courts of the State of Illinois or the
United States District Court for the Northern District of Illinois, to whose
jurisdiction for such purposes the Parties irrevocably consent and submit.
IN WITNESS WHEREOF, the Parties have executed this Agreement
the date first above written by their respective duly authorized officers.
INTEGRAMED AMERICA, INC.
By:/s/Xxxxxx Xxxx
------------------------------
Xxxxxx X. Xxxx, Vice President
FERTILITY CENTERS OF ILLINOIS, S.C.
By:/s/Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx, M.D., President
ADVOCATE MEDICAL GROUP, S.C.
By:/s/Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, M.D., President
ADVOCATE MSO, INC.
By:
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EXHIBITS
1.01(a) Tangible Practice Assets
1.01(b) Intangible Practice Assets
1.02 Excluded Assets
2.04 Assumed Liabilities
4.03 Physician Employment Agreements
5.04 AMG Financial Statements
5.06(a) Contracts
5.08 Personnel
9.02(c)6 Good Standing Certificates for AMG and MSO
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