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Exhibit 10.68
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STOCK PURCHASE AGREEMENT
among
HEART INSTITUTE ACQUISITION CORPORATION,
a Florida corporation
("Purchaser"),
RAYTEL MEDICAL CORPORATION,
a Delaware corporation
("Raytel"),
CARDIOVASCULAR VENTURES, INC.,
a Delaware corporation and a wholly-owned subsidiary of Raytel
("CVI"),
and
THE HEART INSTITUTE OF PORT ST. LUCIE, INC.,
a Florida corporation and a wholly-owned subsidiary of CVI
Dated as of March 9, 2001
(Effective as of January 1, 2001)
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS........................................................... 1
1.1 "Affiliated Group"............................................... 1
1.2 "Allocation Schedule"............................................ 1
1.3 "Bank Consent"................................................... 1
1.4 "Balance Sheet Date"............................................. 1
1.5 "Best Efforts"................................................... 1
1.6 "Claim Notice"................................................... 2
1.7 "Closing"........................................................ 2
1.8 "Closing Balance Sheet".......................................... 2
1.9 "Closing Date"................................................... 2
1.10 "COBRA".......................................................... 2
1.11 "Code"........................................................... 2
1.12 "CVI"............................................................ 2
1.13 "Disagreement"................................................... 2
1.14 "Effective Date"................................................. 2
1.15 "Employee Liabilities"........................................... 2
1.16 "Encumbrance".................................................... 2
1.17 "ERISA".......................................................... 2
1.18 "Excluded Representations"....................................... 2
1.19 "GAAP"........................................................... 2
1.20 "Governmental Authority"......................................... 2
1.21 "HFHI"........................................................... 2
1.22 "HFHI Business".................................................. 2
1.23 "HFHI Capital Leases"............................................ 2
1.24 "HFHI Equipment Leases".......................................... 3
1.25 "HFHI Real Property Leases"...................................... 3
1.26 "HFHI Schedule".................................................. 3
1.27 "Indemnity Claim"................................................ 3
1.28 "Lawsuit"........................................................ 3
1.29 "Material Adverse Effect"........................................ 3
1.30 "Material HFHI Contracts"........................................ 3
1.31 "Permitted Encumbrances"......................................... 3
1.32 "Person"......................................................... 3
1.33 "Plans".......................................................... 3
1.34 "Presiding Arbitrator"........................................... 3
1.35 "Prior Employees"................................................ 3
1.36 "Purchase Price"................................................. 3
1.37 "Purchase Price Schedule"........................................ 3
1.38 "Purchaser"...................................................... 3
1.39 "Purchaser Group"................................................ 3
1.40 "Raytel"......................................................... 3
1.41 "Raytel Equipment Leases"........................................ 3
1.42 "Raytel Group"................................................... 3
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TABLE OF CONTENTS
(continued)
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1.43 "Raytel Leased Equipment"........................................ 3
1.44 "Retained Liabilities"........................................... 4
1.45 "Section 338(h)(10) Elections" and "Section 338(h)(10) Election
Forms".......................................................... 4
1.46 "Security Agreement"............................................. 4
1.47 "Shares"......................................................... 4
1.48 "Tax" or "Taxes"................................................. 4
1.49 "Tax Returns".................................................... 4
1.50 "Transfer Taxes"................................................. 4
1.51 "Xxxxxxxxxx"..................................................... 4
1.52 "Xxxxxxxxxx Certificate"......................................... 4
ARTICLE II PURCHASE AND SALE OF SHARES.......................................... 4
2.1 Sale of the Shares............................................... 4
2.2 Purchase Price................................................... 4
2.3 Retained Liabilities; Intercompany Accounts...................... 5
2.4 Raytel Leased Equipment.......................................... 5
2.5 Indemnification with Respect to Certain Litigation-Related
Obligations and Expenses......................................... 5
2.6 Section 338(h)(10) Election; Purchase Price Allocation; Transfer
Taxes............................................................ 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF RAYTEL, CVI AND HFHI.............. 7
3.1 Organization and Good Standing................................... 7
3.2 Capitalization................................................... 7
3.3 Subsidiaries..................................................... 7
3.4 Authority........................................................ 7
3.5 Authorization.................................................... 8
3.6 No Breach or Violation........................................... 8
3.7 Title to Properties.............................................. 8
3.8 Equipment and Other Tangible Assets.............................. 8
3.9 Real Property.................................................... 9
3.10 Contracts, Commitments and Relationships......................... 9
3.11 Compliance with Law.............................................. 9
3.12 Litigation and Claims............................................ 9
3.13 Consents......................................................... 10
3.14 Employee Benefit Matters......................................... 10
3.15 Taxes............................................................ 11
3.16 Insurance........................................................ 12
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................... 12
4.1 Organization and Good Standing................................... 12
4.2 Authorization.................................................... 12
4.3 Litigation....................................................... 12
4.4 Consents......................................................... 12
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TABLE OF CONTENTS
(continued)
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4.5 Investment Representations....................................... 12
4.6 Financing........................................................ 13
ARTICLE V CONDUCT OF THE HFHI BUSINESS PRIOR TO CLOSING......................... 13
5.1 Conduct of HFHI Business......................................... 13
5.2 Restrictions on Activities....................................... 13
ARTICLE VI ADDITIONAL AGREEMENTS................................................ 14
6.1 Access and Information........................................... 14
6.2 Certain Defaults................................................. 14
6.3 Communication.................................................... 15
6.4 Consents and Approvals........................................... 15
6.5 Certain Information.............................................. 15
6.6 Employee Matters................................................. 15
6.7 Raytel's Names and Trademarks.................................... 16
6.8 Liability Insurance.............................................. 16
ARTICLE VII CONDITIONS PRECEDENT................................................ 16
7.1 Conditions to Each Party's Obligation to Effect the Transactions. 16
7.2 Conditions to Obligations of Raytel, CVI and HFHI................ 17
7.3 Conditions to Obligations of Purchaser........................... 17
ARTICLE VIII THE CLOSING........................................................ 18
8.1 The Closing...................................................... 18
8.2 Proceedings at the Closing....................................... 18
8.3 Deliveries by HFHI............................................... 18
8.4 Deliveries by Purchaser.......................................... 19
ARTICLE IX SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION................................................................. 19
9.1 Survival......................................................... 19
9.2 Indemnification by Raytel........................................ 19
9.3 Limitation of Raytel's Liability................................. 20
9.4 Indemnification by Purchaser..................................... 20
9.5 Limitation of Purchaser's Liability.............................. 21
9.6 Defense.......................................................... 21
9.7 Procedure and Dispute Resolution................................. 22
ARTICLE X ARBITRATION........................................................... 22
10.1 Scope............................................................ 22
10.2 Arbitrators...................................................... 22
10.3 Applicable Rules and Procedure................................... 23
ARTICLE XI TERMINATION AND ABANDONMENT.......................................... 24
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TABLE OF CONTENTS
(continued)
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11.1 Termination by Raytel............................................ 24
11.2 Termination by Purchaser......................................... 24
11.3 Mutual Consent................................................... 25
11.4 Effect of Termination............................................ 25
ARTICLE XII PAYMENT OF EXPENSES................................................. 25
12.1 Expenses......................................................... 25
12.2 Brokers.......................................................... 25
ARTICLE XIII GENERAL PROVISIONS................................................. 25
13.1 Notices.......................................................... 25
13.2 Interpretation................................................... 26
13.3 Assignment....................................................... 26
13.4 Headings......................................................... 27
13.5 Counterparts..................................................... 27
13.6 Waiver........................................................... 27
13.7 Entire Agreement................................................. 27
13.8 Good Faith....................................................... 27
13.9 Applicable Law................................................... 27
13.10 Severability..................................................... 27
EXHIBITS
A. Closing Balance Sheet
B. Purchase Price Schedule
C. Form of Security Agreement
D. Form of Xxxxxxxxxx Certificate
E. Schedule of Raytel Leased Equipment
F. Allocation Schedule
G. Form of Assignment
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is entered into as of the 9th day of
March, 2001, to be effective as of January 1, 2001, by and among Heart Institute
Acquisition Corporation, a Florida corporation ("Purchaser"), Raytel Medical
Corporation, a Delaware corporation ("Raytel"), Cardiovascular Ventures, Inc., a
Delaware corporation and a wholly-owned subsidiary of Raytel ("CVI"), and The
Heart Institute of Port St. Lucie, Inc., a Florida corporation and a
wholly-owned subsidiary of CVI, doing business as Heart & Family Health
Institute of Port St. Lucie ("HFHI").
RECITALS
A. HFHI is engaged in the ownership and operation of a medical clinic
located in Port St. Lucie, Florida (the "HFHI Business");
B. Purchaser is a newly-organized corporation and certain members,
officers and managers of the sole shareholder of Purchaser, including Xxxxx
Xxxxxxxxxx ("Xxxxxxxxxx"), currently are officers and management-level employees
of Raytel and/or HFHI, as a result of which Purchaser is in possession of
substantial information concerning the operations and financial condition of the
HFHI Business; and
C. CVI desires to sell to Purchaser, and Purchaser desires to purchase
from CVI, all of the outstanding capital stock of HFHI upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth or referenced below:
1.1 "Affiliated Group" shall mean any affiliated group within the
meaning of Section 1504(a) of the Code or any similar group defined under a
similar provision of state, local or foreign law.
1.2 "Allocation Schedule" shall have the meaning specified in Section
2.6(b).
1.3 "Bank Consent" shall have the meaning specified in Section 3.13.
1.4 "Balance Sheet Date" shall mean December 31, 2000.
1.5 "Best Efforts" shall mean commercially reasonable good faith efforts
but shall in no event require the commencement of litigation against any third
party or the payment of any fees or any other consideration to any third party.
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1.6 "Claim Notice" shall have the meaning specified in Section 9.7(a).
1.7 "Closing" shall mean the closing of the transactions contemplated by
this Agreement.
1.8 "Closing Balance Sheet" shall mean the unaudited balance sheet of
HFHI as of December 31, 2000, prepared in accordance with GAAP, with the
exception of the exclusion of footnotes required under GAAP, a copy of which is
attached hereto as Exhibit A.
1.9 "Closing Date" shall mean March 9, 2001 or such other date as the
parties shall mutually agree upon in writing.
1.10 "COBRA" shall have the meaning specified in section 3.14(c).
1.11 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.12 "CVI" shall have the meaning specified in the first paragraph of
this Agreement.
1.13 "Disagreement" shall have the meaning specified in Section 10.1.
1.14 "Effective Date" shall mean January 1, 2001.
1.15 "Employee Liabilities" shall mean the accrued salaries, accrued
vacation, and accrued incentive compensation, as shown on the Closing Balance
Sheet.
1.16 "Encumbrance" shall mean any lien, security interest, adverse
claim, charge, restriction or limitation on transfer, mortgage, pledge,
hypothecation, easement or conditional sale or other title retention agreement.
1.17 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.18 "Excluded Representations" shall have the meaning specified in
Section 9.1.
1.19 "GAAP" shall mean generally accepted accounting principles, applied
consistently with prior periods.
1.20 "Governmental Authority" shall mean any government or governmental
or regulatory body thereof, or political subdivision thereof, whether federal,
state, local or foreign, or any agency, instrumentality or authority thereof, or
any court or arbitrator (public or private).
1.21 "HFHI" shall have the meaning specified in the first paragraph of
this Agreement.
1.22 "HFHI Business" shall have the meaning specified in Recital A.
1.23 "HFHI Capital Leases" shall mean the HFHI Equipment Leases
identified as Capital Leases on the HFHI Schedule.
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1.24 "HFHI Equipment Leases" shall have the meaning specified in Section
3.8(b).
1.25 "HFHI Real Property Leases" shall have the meaning specified in
Section 3.9.
1.26 "HFHI Schedule" shall have the meaning specified in the first
paragraph of Article III.
1.27 "Indemnity Claim" shall have the meaning specified in Section
9.7(a).
1.28 "Lawsuit" shall have the meaning specified in Section 2.5(a).
1.29 "Material Adverse Effect" shall mean a material adverse effect on
the HFHI Business, or a material adverse effect on the ability of Purchaser to
conduct the HFHI Business, in substantially the manner it is presently
conducted, following the Closing.
1.30 "Material HFHI Contracts" shall have the meaning specified in
Section 3.10(a).
1.31 "Permitted Encumbrances" shall mean liens for current taxes which
are not past due and other Encumbrances described in the HFHI Schedule or any
other Schedule hereto.
1.32 "Person" shall mean an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity (or any department, agency or political
subdivision thereof).
1.33 "Plans" shall have the meaning specified in Section 3.14(b).
1.34 "Presiding Arbitrator" shall have the meaning specified in Section
10.2.
1.35 "Prior Employees" shall have the meaning specified in Section
6.8(a).
1.36 "Purchase Price" shall mean a cash amount equal to $8,826,234,
consisting of $9,000,000, net of the adjustments shown on the Purchase Price
Schedule.
1.37 "Purchase Price Schedule" shall mean the Schedule attached hereto
as Exhibit B.
1.38 "Purchaser" shall have the meaning specified in the first paragraph
of this Agreement.
1.39 "Purchaser Group" shall have the meaning specified in Section 9.2.
1.40 "Raytel" shall have the meaning specified in the first paragraph of
this Agreement.
1.41 "Raytel Equipment Leases" shall have the meaning specified in
Section 2.4.
1.42 "Raytel Group" shall have the meaning specified in Section 2.5(a).
1.43 "Raytel Leased Equipment" shall have the meaning specified in
Section 2.4.
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1.44 "Retained Liabilities" shall have the meaning specified in Section
2.3.
1.45 "Section 338(h)(10) Elections" and "Section 338(h)(10) Election
Forms" shall have the meaning specified in Section 2.6(a).
1.46 "Security Agreement" shall mean the Security Agreement in the form
of Exhibit C hereto.
1.47 "Shares" shall have the meaning specified in Section 2.1.
1.48 "Tax" or "Taxes" shall mean all taxes, charges, fees, imposts,
levies or other assessments, including, without limitation, all net income,
franchise, profits, gross receipts, capital, sales, use, ad valorem, value
added, transfer, transfer gains, inventory, capital stock, license, withholding,
payroll, employment, social security, unemployment, excise, severance, stamp,
occupation, real or personal property, and estimated taxes, water, rent and
sewer service charges, customs duties, fees, assessments and charges of any kind
whatsoever, together with any interest and any penalties, fines, additions to
tax or additional amounts thereon, imposed by any taxing authority (federal,
state, local or foreign) and shall include any transferee liability in respect
of Taxes.
1.49 "Tax Returns" shall have the meaning specified in Section 3.15.
1.50 "Transfer Taxes" means all sales taxes, use taxes, conveyance
taxes, transfer taxes, filing fees, recording fees, reporting fees and other
similar duties, taxes and fees, if any, imposed upon, or resulting from, the
transfer of the Shares hereunder, except federal, state or local income or
similar taxes based upon or measured by revenue, income, profit or gain from the
transfer of the Shares or by operating activities related to the HFHI Business
through the Closing Date.
1.51 "Xxxxxxxxxx" shall have the meaning specified in Recital B.
1.52 "Xxxxxxxxxx Certificate" shall mean the Certificate in the form of
Exhibit D hereto.
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1 Sale of the Shares. On the terms and subject to the conditions set
forth in this Agreement, CVI hereby agrees to sell, assign and transfer to
Purchaser, and Purchaser hereby agrees to purchase from CVI, on the Closing
Date, 1,700 shares of Common Stock, $1.00 par value per share, of HFHI,
constituting all of the issued and outstanding shares of capital stock of HFHI
(the "Shares"), free and clear of any and all Encumbrances.
2.2 Purchase Price. In consideration of the sale of the Shares,
Purchaser shall pay to CVI at the Closing in U.S. dollars, the Purchase Price.
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2.3 Retained Liabilities; Intercompany Accounts. At the Closing, CVI
shall assume from HFHI, and CVI and Raytel jointly agree to thereafter pay,
perform and discharge, in the ordinary course of business, all of the
liabilities of HFHI shown on the Closing Balance Sheet, with the exception of
the Employee Liabilities and all liabilities and obligations under the HFHI
Equipment Leases, which HFHI shall continue to be solely liable to pay, perform
and discharge. At the Closing, all intercompany payables between HFHI, on the
one hand, and Raytel or any other subsidiary of Raytel, on the other hand, shall
be canceled.
2.4 Raytel Leased Equipment. HFHI currently utilizes certain equipment
leased by Raytel from third parties (the "Raytel Leased Equipment"). Exhibit E
hereto sets forth a listing of all of the Raytel Leased Equipment, the lessor
thereof and the effective date of the lease with respect thereto (collectively,
the "Raytel Equipment Leases"), true and correct copies of which have been
provided to Purchaser. Prior to the Closing, Raytel will prepay all remaining
lease obligations under the Raytel Equipment Leases, acquire title to all of the
Raytel Leased Equipment and transfer title thereto to HFHI, free and clear of
any Encumbrances.
2.5 Indemnification with Respect to Certain Litigation-Related
Obligations and Expenses.
(a) In connection with the sale of the Shares, Purchaser and HFHI
hereby agree, jointly and severally, to indemnify, defend and hold harmless
Raytel, its officers, directors, employees and agents, all parents and
subsidiaries of Raytel, and the respective officers, directors, employees and
agents of such entities (all such persons and entities being collectively
referred to as the "Raytel Group") from and against any and all losses, damages,
costs and expenses (including reasonable attorneys' fees and expenses) accruing
from and after December 31, 2000 and arising out of that certain litigation
entitled Heart Institute of Port St. Lucie, Inc. vs. Xxxxxxx Xxxxxxxx, and
related cross actions, currently pending in the Circuit Court of the Nineteenth
Judicial District in and for St. Lucie County, Florida (the "Lawsuit").
Purchaser shall be entitled to control the defense of the Lawsuit; provided,
however, that Raytel shall have the right to approve counsel retained with
respect to such defense on behalf of members of the Raytel Group (which consent
shall not unreasonably be withheld) other than counsel currently representing
HFHI in the Lawsuit (which counsel Raytel hereby approves) and the right to
participate in the defense of the Lawsuit at its own expense. Until Raytel has
been dismissed from the Lawsuit with prejudice, neither Purchaser nor HFHI shall
enter into any settlement of the Lawsuit without the prior written consent of
Raytel unless the terms of such settlement provide for a full and unconditional
general release of all members of the Raytel Group. Purchaser and HFHI shall
receive full cooperation from Raytel and CVI and access to all relevant records
of Raytel and/or other members of the Raytel Group.
(b) As security for the performance of its obligations pursuant to
Section 2.5(a), Purchaser and HFHI shall grant to Raytel, effective as of the
Closing Date, a subordinated security interest in and to all accounts receivable
of HFHI, pursuant to the Security Agreement. The obligations of Purchaser and
HFHI pursuant to Section 2.5(a), as well as the security interest granted under
the Security Agreement, shall be subordinated to the senior indebtedness of
Purchaser and HFHI to Northern Trust Bank of Florida, N.A. under bank loan
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documents, copies of which have been provided to Raytel, or any modifications,
extensions or enlargements of such indebtedness. Raytel agrees to execute and
deliver all agreements as may be required by such lender to evidence such
subordination, including, but not limited to, subordination and/or intercreditor
agreements.
2.6 Section 338(h)(10) Election; Purchase Price Allocation; Transfer
Taxes.
(a) Election. Purchaser and CVI shall join in an election to have
the provisions of Section 338(h)(10) of the Code, and similar provisions of
state law ("Section 338(h)(10) Elections") apply to the acquisition of the
Shares. Purchaser shall be responsible for, and control, the preparation and
filing of such forms or documents as are required by applicable law for
effective Section 338(h)(10) Elections, including, but not limited to IRS Form
8023 (the "Section 338(h)(10) Election Forms") and shall provide copies of all
such forms and documents to CVI. CVI shall execute such Section 338(h)(10)
Election Forms as may be reasonably requested by Purchaser.
(b) Allocation. CVI and Purchaser agree to allocate the Purchase
Price among the assets deemed purchased by reason of the Section 338(h)(10)
Elections in the manner set forth in Exhibit F hereto (the "Allocation
Schedule"). CVI and Purchaser agree to report and file all returns, documents,
statements and other forms that are required to be submitted to any federal,
state, county or other local taxing authority, in all respects and for all
purposes, consistent with such Allocation Schedule, and to use their Best
Efforts to sustain such allocation if there is any subsequent tax audit or tax
dispute with respect thereto.
(c) Purchase Price Allocation. CVI shall be responsible for and
shall pay any income, franchise or similar Taxes arising as a result of any
Section 338(h)(10) Election. Notwithstanding the preceding sentence, (i)
Purchaser shall pay any Transfer Taxes arising as a result of the sale of the
Shares and the transactions contemplated hereby; and (ii) Purchaser shall be
responsible for and shall pay any income, franchise or similar Taxes imposed by
any state or local taxing authority as a result of any Section 338(g) election
(or any comparable election under state law) if such state or local taxing
authority does not allow or respect a Section 338(h)(10) Election (or any
comparable or resulting election under state law) with respect to the purchase
and sale of the Shares.
(d) Straddle Period Taxes. CVI shall pay all Taxes that may be due
after the Balance Sheet Date that are allocable to the period prior to and
including the Balance Sheet Date. In order to appropriately apportion any of
these Taxes relating to a period that includes (but that would not, but for this
section, close on) the Balance Sheet Date, the parties will, to the extent
permitted by applicable law, elect with the relevant taxing authorities to treat
for all purposes the Balance Sheet Date as the last day of a taxable period of
HFHI, and such period shall be treated as a "Short Period" and a "Pre-Closing
Period" for purposes of this Agreement. In cases where applicable law does not
permit HFHI to treat the Balance Sheet Date as the last day of a Short Period,
then for purposes of this Agreement, the portion of such Taxes that is
attributable to the operations of HFHI for such Interim Period (as defined
below) shall be (i) in the case of Taxes that are not based on income or gross
receipts, the total amount of such Taxes for the period in
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question multiplied by a fraction, the numerator of which is the number of days
in the Interim Period, and the denominator of which is the total number of days
in the entire period in question and (ii) in the case of Taxes that are based on
income or gross receipts, the Taxes that would be due with respect to the
Interim Period, if such Interim Period were a Short Period. "Interim Period"
means with respect to any Taxes imposed on Target on a periodic basis for which
the Balance Sheet Date is not the last day of a Short Period, the period of time
beginning on the first day of the actual taxable period that includes (but does
not end on) the Balance Sheet Date and ending on and including the Balance Sheet
Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF RAYTEL, CVI AND HFHI
Subject to and except for the information which is set forth in a list
of exceptions identified by the specific section of this Article to which such
information pertains and contained in a schedule delivered to Purchaser prior to
the execution of this Agreement (the "HFHI Schedule"), and except, in each case,
for matters which are known by Xxxxxxxxxx in his present capacity as an officer
or director of Raytel, CVI or HFHI or, with the exercise of reasonable care in
one or more of such capacities, would have been known by him, Raytel, CVI and
HFHI jointly and severally represent to Purchaser that:
3.1 Organization and Good Standing. Each of Raytel, CVI and HFHI is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation.
3.2 Capitalization. The authorized capital stock of HFHI consists of
7,500 shares of Common Stock, $1.00 par value per share, 1,700 of which are
issued and outstanding as of the date hereof. All of the outstanding shares of
Common Stock of HFHI have been validly issued, are fully paid and non-assessable
and are owned, of record and beneficially, by CVI, free and clear of any
Encumbrances or restrictions (other than restrictions on transfer under
applicable federal and state securities laws). No shares of capital stock are
held by HFHI as treasury stock. There is no existing option, warrant or other
agreement of any kind to which Raytel, CVI or HFHI is a party requiring, and
there are no convertible securities of HFHI outstanding which upon conversion
would require, (i) the issuance by HFHI of any additional shares of capital
stock of HFHI or other securities convertible into shares of capital stock or
any equity security of HFHI of any kind or (ii) the sale or transfer of any of
the Shares by CVI, other than as contemplated by this Agreement. Upon delivery
to Purchaser at the Closing of a certificate or certificates representing the
Shares, accompanied by stock powers duly endorsed in blank, a certificate or
good and valid title to the Shares will pass to Purchaser, free and clear of all
Encumbrances of any kind, other than those arising from acts of Purchaser and
restrictions on transfer under applicable federal and state securities laws.
3.3 Subsidiaries. HFHI does not own any equity interest, directly or
indirectly, in any corporation, partnership, joint venture or other entity.
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3.4 Authority. HFHI has all necessary power and authority to own or
lease its properties and to carry on its business as now being conducted, and
possesses all licenses, permits and authorizations necessary to the conduct of
such businesses where the failure to possess any such license, permit or
authorization would be reasonably likely to have a Material Adverse Effect;
provided, however, that no representation is made with respect to the licensing
or qualification of medical professionals or professional corporations
performing services related to the HFHI Business under contracts or arrangements
with Raytel, CVI or HFHI. HFHI is duly qualified to do business and in good
standing in each state or jurisdiction wherein the nature of the business
conducted or the character of the property owned or leased by it requires such
qualification and where the failure to be so qualified would be reasonably
likely to have a Material Adverse Effect.
3.5 Authorization. Raytel, CVI and HFHI have full corporate power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. Raytel, CVI and HFHI have taken all corporate
action required by law, their Certificates of Incorporation and Bylaws or
otherwise to authorize the execution and delivery of this Agreement and the
consummation by them of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by Raytel, CVI and HFHI and constitutes the
legal, valid and binding obligations of Raytel, CVI and HFHI, enforceable in
accordance with its terms, except as enforceability may be limited by (i)
applicable bankruptcy, insolvency, moratorium, reorganization and other similar
laws affecting creditors' rights generally, and (ii) general principles of
equity, regardless of whether asserted in a proceeding in equity or at law.
3.6 No Breach or Violation. The execution, delivery and performance of
this Agreement by Raytel, CVI and HFHI, and the consummation by them of the
transactions contemplated hereby, will not result in or constitute a material
default, breach or violation or an event that, with notice or lapse of time or
both would be a material default, breach or violation of the charter documents
of Raytel, CVI or HFHI or any material agreement, instrument or arrangement
which would prevent the consummation of the transactions contemplated hereby or
thereby or by which any of the assets of HFHI are bound.
3.7 Title to Properties. HFHI has good and marketable title to all of
its property and assets shown as owned on the Closing Balance Sheet (except for
assets disposed of in the ordinary course of business since the Balance Sheet
Date), and, at the Closing, will have good and marketable title to the Raytel
Leased Equipment, free and clear of any Encumbrances, except for Permitted
Encumbrances.
3.8 Equipment and Other Tangible Assets.
(a) The HFHI Schedule includes complete and accurate lists
describing and specifying the location of all of the equipment and other
tangible personal property owned or used in the HFHI Business and having an
original cost in excess of $100,000.
(b) The HFHI Schedule includes a complete and accurate list of each
lease under which HFHI is the lessor, sublessor, lessee or sublessee of any
personal property (including any master lease in cases where HFHI is sublessee
or sublessor) (the "HFHI
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Equipment Leases"), describing such lease and the type and location of the
property which is the subject thereof.
3.9 Real Property. RIH does not own any real property in fee simple. The
HFHI Schedule includes a complete and accurate list of each lease under which
HFHI is the lessor, sublessor, lessee or sublessee of any real property
(including any master lease in cases where HFHI is sublessee or sublessor) (the
"HFHI Real Property Leases"), describing such lease and the location of the
property which is the subject thereof.
3.10 Contracts, Commitments and Relationships.
(a) The HFHI Schedule includes a complete and accurate list,
including a brief description, of: (i) all loans, mortgages, deeds of trust,
promissory notes, conditional sales agreements or security agreements, (ii) all
material agreements between HFHI and any consultants, employees or service
providers, (iii) all sales agency, sales representation, licensing or
distributorship agreements, and (iv) any other written agreement, contract,
guaranty, indemnity, power of attorney, license, indebtedness, liability or
other obligation, including agreements with suppliers and purchase orders
involving a commitment in excess of $50,000, known to Raytel or CVI to which
HFHI is a party or by which HFHI or any of its properties or assets are bound
(collectively, the "Material HFHI Contracts"). Except for the HFHI Equipment
Leases, the HFHI Real Property Leases and the Material HFHI Contracts, to the
knowledge of Raytel and CVI, HFHI is not a party to or otherwise bound by the
terms of any contract, agreement, obligation or proposal (whether written or
oral) in any material way affecting the HFHI Business.
(b) To the best knowledge of Raytel and CVI, all of the Material
HFHI Contracts are in full force and effect, neither HFHI nor any other party is
in default under any HFHI Equipment Lease, HFHI Real Property Lease or Material
HFHI Contract, and there are no existing disputes or claims of default relating
thereto, or any facts or conditions known to Raytel or CVI which, if continued,
will result in a default or a claim of default thereunder, except for such
defaults, disputes, or claims which would not be reasonably likely to have a
Material Adverse Effect.
3.11 Compliance with Law. HFHI possesses all regulatory consents,
authorizations, approvals, licenses and permits required by Governmental
Authorities in connection with the conduct of the HFHI Business as presently
conducted, where the failure to possess any such consent, authorization,
approval, license or permit would be reasonably likely to have a Material
Adverse Effect; provided, however, that no representation is made with respect
to the licensing or qualification of medical professionals or professional
corporations performing services related to the HFHI Business under contracts or
arrangements with Raytel or HFHI. Neither Raytel, CVI nor HFHI has received any:
(i) notification of any asserted failure by HFHI to comply with any laws,
regulations or other requirements of Governmental Authorities, the failure to
comply with which would be reasonably likely to have a Material Adverse Effect;
or (ii) complaint, inquiry or request for information (whether written or oral)
from any Governmental Authority relating thereto.
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3.12 Litigation and Claims. The HFHI Schedule contains a description of
all claims, actions, suits, investigations or proceedings pending or, to the
knowledge of Raytel or CVI, threatened against or affecting HFHI or the HFHI
Business, at law or in equity, or before or by any Governmental Authority which
is reasonably likely to have a Material Adverse Effect. There is no action,
suit, proceeding or, to the best knowledge of Raytel or CVI, formal governmental
inquiry or investigation pending against Raytel, CVI or HFHI which seeks to
restrain or prohibit or otherwise challenges the consummation, legality or
validity of the transactions contemplated hereby.
3.13 Consents. Except for the consent of Fleet National Bank and BNP
Paribas, as required under Raytel's credit agreement (the "Bank Consent"), no
consent, approval or authorization of any Government Authority or other third
person is required on the part of Raytel, CVI or HFHI in connection with the
execution and delivery of this Agreement or the consummation of any of the
transactions contemplated hereby.
3.14 Employee Benefit Matters.
(a) None of Raytel, CVI or HFHI maintains or makes contributions to,
and none of Raytel, CVI or HFHI has at any time in the past two years maintained
or made contributions to, any employee benefit plan which is subject to the
minimum funding standards of ERISA or subject to the terms of the Multi-employer
Pension Plan Amendment Act of 1980, which covers or covered the employees of
HFHI.
(b) To the best knowledge of Raytel and CVI, the HFHI Schedule sets
forth any commitment arising under severance, holiday, vacation or other bonus
plans (including, but not limited to, "employee benefit plans," as defined in
Section 3(3) of ERISA) maintained for any employees of HFHI or with respect to
which HFHI has liability with respect to any such employees, or has an
obligation to make contributions on behalf of such employees (collectively, the
"Plans").
(c) As of December 31, 2000, notice of the availability of
continuation health care coverage under the provisions of Section 4980B of the
Code or Sections 601 through 608 of ERISA ("COBRA") had been provided to all
employees of HFHI on leave of absence entitled thereto, and all persons electing
such coverage are being (or have been, if applicable) provided such coverage.
(d) To the best knowledge of Raytel and CVI, as of December 31,
2000, no Plan has engaged in any "prohibited transaction" as defined in Section
4975 of the Code, or has incurred any "accumulated funding deficiency" as
defined in Section 302 of ERISA, nor has any reportable event as defined in
Section 4043(b) of ERISA occurred with respect to any such Plan.
(e) With respect to each Plan, as of December 31, 2000, all required
filings, including all filings required to be made with the United States
Department of Labor and Internal Revenue Service, have been or will be timely
filed, and the present value of all accrued benefits under each such Plan does
not, as of the Balance Sheet Date, exceed the value of the respective net assets
of each such Plan applicable to such benefits.
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(f) As of December 31, 2000, each of the Plans intended to qualify
under Section 401 of the Code satisfies the requirements of such Section and has
received a favorable determination letter from the internal Revenue Service.
(g) No employees of HFHI are represented by any labor union or
similar organization.
3.15 Taxes.
(a) HFHI has made and is current with respect to all reports,
returns and other filings (herein sometimes collectively referred to as "Tax
Returns") required to be furnished from time to time to all federal, state,
local or other governmental authorities of any nature (including, without
limitation, all real and/or personal property, sales, franchise and withholding
taxes and other Tax Returns). All such Tax Returns so furnished were true,
correct and complete in all material respects. All amounts reflected as due and
payable on the Tax Returns have been paid on or before their due date (including
extensions).
(b) HFHI is not currently the beneficiary of any extension of time
within which to file any Tax Return. Neither Raytel, CVI nor HFHI has received
any written claim by a taxing authority in a jurisdiction where HFHI does not
file Tax Returns that HFHI is or may be subject to taxation by that
jurisdiction. There are no liens on any of the assets of HFHI that arose in
connection with any failure (or alleged failure) to pay any Tax, except for
liens for Taxes not yet due.
(c) HFHI (or Raytel or CVI on behalf of HFHI) has withheld and paid
all Taxes required to have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor, stockholder or
other third party of HFHI.
(d) There is no dispute or claim concerning any Tax liability of
HFHI that has been claimed or raised in writing by any taxing authority. No Tax
Returns for taxable periods ended on or after January 1, 1996 have been audited
or are the subject of audit or in respect of which any written or unwritten
notice of any audit or examination has been received by Raytel or CVI.
(e) HFHI is not a party to any Tax allocation or sharing agreement.
Except for the Affiliated Group of which Raytel is the common parent, HFHI (i)
has not been a member of an Affiliated Group filing a consolidated federal
income Tax Return and (ii) has no liability for the Taxes of any Person under
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local
or foreign law), as a transferee or successor, by contract or otherwise.
(f) The unpaid Taxes of HFHI did not, as of December 31, 2000,
exceed the reserves for Tax liability (excluding any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth
on the face of the Closing Balance Sheet.
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(g) Raytel and HFHI filed a consolidated federal income Tax Return
for the tax year immediately preceding the current tax year. Raytel is eligible
to make the Section 338(h)(10) Election.
3.16 Insurance. The HFHI Schedule sets forth a complete and correct list
of all insurance policies (including, without limitation, fire, liability,
product liability, workers' compensation and vehicular) presently in effect that
relate to HFHI or its properties, including the amounts of such insurance and
annual premiums with respect thereto, all of which have been in full force and
effect from and after the date(s) set forth on the HFHI Schedule.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents to Raytel, CVI and HFHI that:
4.1 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida.
4.2 Authorization. Purchaser has full corporate power and authority to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. Purchaser has taken all corporate action required by law,
its Certificate of Incorporation and Bylaws or otherwise to authorize the
execution and delivery of this Agreement and the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Purchaser and constitutes the valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except as enforceability
may be limited by (i) applicable bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting creditors' rights generally, and
(ii) general principles of equity, regardless of whether asserted in a
proceeding in equity or at law.
4.3 Litigation. There is no action, suit, proceeding or, to the best
knowledge of Purchaser, formal governmental inquiry or investigation pending
against Purchaser which seeks to restrain or prohibit or otherwise challenges
the consummation, legality or validity of the transactions contemplated hereby.
4.4 Consents. No consent, approval or authorization of any Governmental
Authority or other third party is required on the part of Purchaser in
connection with the execution and delivery of this Agreement or the consummation
of any of the transactions contemplated hereby.
4.5 Investment Representations.
(a) Purchaser possesses such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
its investment hereunder. Purchaser is acquiring the Shares for its own account,
for investment purposes only and not with a view to the distribution thereof.
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(b) Purchaser acknowledges that, by virtue of the position of
certain of its officers and directors as officers and directors of Raytel, CVI
and/or HFHI, Purchaser is knowledgeable concerning the business and affairs of
HFHI, and that it has received from Raytel and CVI all additional information
concerning HFHI and the HFHI Business that it has deemed necessary for its
evaluation of the transaction contemplated by this Agreement. Purchaser is not
aware of any facts or circumstances that would render any of the representations
and warranties of Raytel, CVI and HFHI set forth in Article III hereof
inaccurate or incomplete in any material respect.
(c) Purchaser acknowledges that the Shares have not been registered
under the Securities Act of 1933, as amended, or any state securities or "Blue
Sky" laws.
4.6 Financing. Purchaser has, or has access to, and at the Closing will
have, sufficient funds and financing to pay the Purchase Price in full.
ARTICLE V
CONDUCT OF THE HFHI BUSINESS PRIOR TO CLOSING
5.1 Conduct of HFHI Business. During the period from the date of this
Agreement to the Closing Date, Raytel, CVI and HFHI shall use their respective
Best Efforts to maintain and preserve intact: (i) the business organization,
rights and privileges pertinent to the HFHI Business; and (ii) the relationships
of HFHI with its suppliers, customers and others with whom it deals, all in
accordance with their ordinary and usual course of business.
5.2 Restrictions on Activities. Prior to the Closing Date, HFHI will not
without the prior written consent of Purchaser (which consent shall not be
unreasonably withheld) or except as specifically contemplated by this Agreement:
(a) amend its Certificate of Incorporation or Bylaws;
(b) authorize for issuance, issue, deliver or sell any additional
capital stock or securities convertible into such capital stock, or issue or
grant any rights, warrants, options or other commitments for the issuance of
such capital stock;
(c) split, combine or reclassify any capital stock or declare, set
aside or pay any distribution (whether in cash or property) to its shareholders
or partners in respect of their capital interest (other than distributions by a
Subsidiary in the ordinary course of business consistent with prior practice);
(d) dispose of or acquire any material properties or assets except
in the ordinary course of business consistent with prior practice, nor make any
single capital expenditure, lease or commitment in excess of $50,000 additions
to property, plant, equipment or intangible capital assets or make aggregate
capital expenditures, leases or commitments for such purposes in excess of
$50,000.
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(e) engage in any activities or transactions that are outside the
ordinary course of the HFHI Business in substantially the manner as heretofore
conducted;
(f) incur any indebtedness for borrowed money;
(g) waive or terminate any material right;
(h) mortgage, pledge or subject to lien or to any other Encumbrance
(other than Permitted Encumbrances) any of its assets, tangible or intangible;
(i) discharge or satisfy any Encumbrance or pay any obligation or
liability, except current liabilities set forth on the Balance Sheet and current
liabilities incurred since the Balance Sheet Date in the ordinary course of
business;
(j) move or relocate any of its material operations from their
present locations; or
(k) agree, whether in writing or otherwise, to do any of the
foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Access and Information.
(a) Raytel, CVI and HFHI have previously afforded (and will continue
to afford) to Purchaser and to its accountants, counsel and other
representatives full access during normal business hours and upon reasonable
notice throughout the period prior to the Closing Date to all of the properties,
books, contracts and records of HFHI and has furnished (and will furnish) to
Purchaser all information concerning the business, properties and personnel of
HFHI as Purchaser has requested (or may reasonably request).
(b) Neither Raytel, CVI nor HFHI shall be obligated to disclose to
Purchaser any information which is subject to an obligation of confidentiality
which would be breached by such disclosure; provided, however, that no refusal
to make disclosure under this Section shall relieve the non-disclosing party of
any obligation arising under any other representations or warranties contained
herein or obligations hereunder.
(c) In the event that between the date hereof and the Closing Date,
any Governmental Authority shall commence any examination, review,
investigation, action, suit or proceeding against any party hereto with respect
to the transactions contemplated hereby, the party as to which such examination,
review, investigation, action, suit or proceeding is commenced shall give prompt
notice thereof to the other parties, shall keep the other parties informed as to
the status thereof, shall promptly provide the other parties with copies of all
documents related thereto and shall permit the other parties to observe and be
present at each meeting, conference or other proceeding and have access to and
be consulted in connection with
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any document filed or provided to such governmental authority in connection with
such examination, review, investigation, action, suit or proceeding.
6.2 Certain Defaults. Raytel will give prompt notice to Purchaser of (i)
any notice of default received by Raytel, CVI or HFHI subsequent to the date of
this Agreement and prior to the Closing Date under any material instrument or
material agreement to which HFHI is a party or by which HFHI or its properties
is bound, which default would, if not remedied, be reasonably likely have a
Material Adverse Effect, or (ii) any suit, action or proceeding instituted or,
to the knowledge of Raytel, threatened against or affecting HFHI, subsequent to
the date of this Agreement and prior to the Closing Date which, if adversely
determined, would be reasonably likely to have a Material Adverse Effect.
6.3 Communication. Between the date hereof and the Closing Date, neither
Raytel, CVI nor HFHI, on the one hand, nor Purchaser, on the other hand, will
furnish any written communication to the public generally, if the subject matter
thereof relates to the transactions contemplated by this Agreement without the
prior approval of the other as to the content thereof, which approval shall not
be unreasonably withheld; provided that the foregoing shall not be deemed to
prohibit any disclosure which, in the opinion of counsel to the disclosing
party, is required by any applicable law or by any competent governmental
authority.
6.4 Consents and Approvals. Raytel, CVI, HFHI and Purchaser shall use
their respective Best Efforts to obtain any and all consents from other parties
to contracts, leases and other instruments necessary or appropriate to allow the
consummation of the transactions contemplated by this Agreement and the
continuance of the HFHI Business by Purchaser following the Closing.
6.5 Certain Information. Between the date of this Agreement and the
Closing Date, Raytel shall furnish to Purchaser copies of monthly financial
information relating to the HFHI Business which Raytel customarily prepares for
the internal use of Raytel management.
6.6 Employee Matters.
(a) Purchaser shall have no obligation to offer continued employment
to any employee employed by HFHI as of the Closing Date (the "Prior Employees").
However, Purchaser and HFHI shall jointly and severally (i) be responsible for
the payment of all Employee Liabilities with respect to any terminated Prior
Employees and (ii) indemnify Raytel from all claims for Employee Liabilities or
other severance benefits made by Prior Employees terminated by HFHI following
the Closing Date.
(b) Effective as of the close of business on the Balance Sheet Date,
the Prior Employees shall cease to accrue benefits under Raytel's Plans.
Benefits of such Plans, accrued as of such time, shall be payable to such Prior
Employees in accordance with the terms of the applicable Plan or, if allowed,
may be transferred to any comparable plan maintained by Purchaser or HFHI for
the benefit of employees of HFHI. There shall be no transfer of any assets of
any Plan except to the extent permitted under such Plan and applicable laws and
regulations.
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(c) Effective as of the close of business on the Balance Sheet Date,
the Prior Employees shall cease to be covered on an ongoing basis by Raytel's
plans and policies which provide medical and dental coverage, life and accident
insurance, disability coverage and vacation and severance pay.
(d) Raytel shall retain responsibility for any health care
continuation notification and/or coverage required to be provided under COBRA to
employees and their dependents with respect to qualifying events occurring on or
prior to the Balance Sheet Date. Effective as of the close of business on the
Balance Sheet Date, HFHI assumes any and all liabilities relating to, or
resulting from COBRA (or any similar state statute) including notification
and/or coverage requirements attributable to current or former employees of HFHI
and any and all related Qualified Beneficiaries (as such term is defined under
COBRA) except with respect to such employees or Qualified Beneficiaries who are
receiving COBRA benefits under a Plan retained by Raytel as of the Closing Date.
6.7 Raytel's Names and Trademarks. Purchaser shall not, and from and
after the Closing shall ensure that the employees and representatives of
Purchaser and HFHI do not, themselves as Raytel or CVI, or as employees or
representatives of Raytel or CVI. The foregoing prohibitions shall apply,
without limitation, to the use of any stationery or identifying signs.
Notwithstanding the foregoing, for a period not to exceed 120 days following the
Closing Date, Purchaser shall not be required to remove the name "Raytel" or
"CVI" or any logo thereof, from existing supplies of printed materials as of the
Closing Date provided that such materials shall be conspicuously stamped or
marked with words to the effect that HFHI is no longer an affiliate of Raytel or
CVI.
6.8 Liability Insurance.
(a) For a period of not less than three years after the Closing
Date, Purchaser shall, at its expense, cause to be maintained in effect policies
of liability insurance covering Raytel, HFHI and the current employees of HFHI
with respect to claims arising from facts or events that occurred prior to the
Closing Date and having policy limits and other terms and conditions no less
favorable to such entities and persons than the policies maintained by HFHI as
of the date of this Agreement.
(b) For a period of not less than three years after the Closing
Date, Raytel shall, at its expense, cause to be maintained in effect policies of
liability insurance covering Xxxxxxxxxx with respect to claims arising from
facts or events that occurred prior to the Closing Date and relating to his
service as an officer or director of Raytel and having policy limits and other
terms and conditions no less favorable to Xxxxxxxxxx than the policies
maintained by Raytel for the benefit of its officers and directors, generally,
for so long as such policies are maintained for any of its other officers and
directors.
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ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation to Effect the Transactions.
The respective obligations of each party to effect the transactions contemplated
hereby shall be, at the election of such party, subject to the satisfaction at
or prior to the Closing of the following conditions:
(a) No order shall have been entered, and not vacated, by a court or
Governmental Authority of competent jurisdiction, in any action or proceeding
which enjoins, restrains or prohibits consummation of the transactions
contemplated hereby.
(b) There shall be no litigation pending or threatened by any third
party in which (i) an injunction is or may be sought against the transactions
contemplated hereby, or (ii) relief is or may be sought against any party hereto
as a result of this Agreement and in which, in the good faith judgment of the
Board of Directors of either Raytel or Purchaser (relying on the advice of their
respective legal counsel), such third party has the probability of prevailing
and where such relief would have a material adverse effect upon such party.
7.2 Conditions to Obligations of Raytel, CVI and HFHI. The obligations
of Raytel, CVI and HFHI to effect the transactions contemplated hereby are, at
the option of Raytel, subject to the satisfaction at or prior to the Closing of
the following additional conditions:
(a) All of the representations and warranties made by Purchaser in
this Agreement shall be true in all material respects as of the Closing Date
with the same force and effect as if such representations and warranties had
been made as of the Closing Date, except for changes contemplated by this
Agreement, and, unless the Closing shall take place on the date this Agreement
is executed, Purchaser shall have delivered to Raytel a certificate to such
effect dated the Closing Date and signed by its president or any vice president.
(b) All of the terms, covenants and conditions of this Agreement to
be complied with and performed by Purchaser at or before the Closing Date shall
have been duly complied with and performed, and, unless the Closing shall take
place on the date this Agreement is executed, Purchaser shall have delivered to
Raytel a certificate to such effect dated the Closing Date and signed by its
president or any vice president.
(c) The Bank Consent and all other authorizations, consents and
approvals of all Governmental Authorities and other third parties required to be
obtained in order to permit consummation of the transactions contemplated by
this Agreement shall have been obtained and delivered to Raytel.
(d) Xxxxxxxxxx shall have executed and delivered to Raytel the
Xxxxxxxxxx Certificate.
(e) Xxxxxxxxxx shall have tendered his resignation as an officer,
director and employee of Raytel, CVI, and/or any of Raytel's other subsidiaries
or affiliates (other than HFHI).
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(f) Xxxxxxxxxx shall have transferred all of his right, title and
interest in and to Advanced Magnetic Resonance Imaging, Inc., a New York
professional corporation, to a licensed physician or physicians designated by
Raytel, pursuant to an Assignment in the form of Exhibit G hereto.
7.3 Conditions to Obligations of Purchaser. The obligations of Purchaser
to effect the transactions contemplated hereby are, at the option of Purchaser,
subject to the satisfaction at or prior to the Closing of the following
additional conditions:
(a) All of the representations and warranties made by Raytel, CVI
and HFHI in this Agreement shall be true in all material respects as of the
Closing Date with the same force and effect as if such representations and
warranties had been made as of the Closing Date, except for changes contemplated
by this Agreement, and, unless the Closing shall take place on the date this
Agreement is executed, Raytel, CVI and HFHI shall have delivered to Purchaser a
certificate to such effect dated the Closing Date and signed by their respective
president or any vice president.
(b) All of the terms, covenants and conditions of this Agreement to
be complied with and performed by Raytel, CVI and HFHI at or before the Closing
Date shall have been duly complied with and performed, and, unless the Closing
shall take place on the date this Agreement is executed, Raytel, CVI and HFHI
shall have delivered to Purchaser a certificate to such effect dated the Closing
Date and signed by their respective president or any vice president.
(c) All authorizations, consents and approvals of all Governmental
Authorities required to be obtained in order to permit consummation of the
transactions contemplated by this Agreement shall have been obtained and
delivered to Purchaser.
(d) Purchaser shall have received evidence satisfactory to it that
Fleet National Bank and BNP Paribas have fully released and discharged HFHI of
any obligations under their credit facility with Raytel that is the subject of
the Bank Consent, including a release of all security interests on any assets of
HFHI.
ARTICLE VIII
THE CLOSING
8.1 The Closing. The Closing shall take place at the offices of HFHI,
1700 Southeast Hillmoor Drive, Port St. Lucie, Florida, or at such other place
as Raytel and Purchaser shall agree, on the Closing Date.
8.2 Proceedings at the Closing. All proceedings to be taken and all
documents to be executed and delivered by Raytel, CVI and HFHI in connection
with the consummation of the transactions contemplated hereby shall be
reasonably satisfactory in form and substance to Purchaser and its counsel. All
proceedings to be taken and all documents and instruments to be executed and
delivered by Purchaser in connection with the consummation of the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
Raytel and its counsel. All proceedings to be taken and all documents and
instruments to be executed and
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delivered by all parties at the Closing shall be deemed to have been taken and
executed simultaneously, and no proceedings shall be deemed taken nor any
documents executed or delivered until all have been taken, executed and
delivered.
8.3 Deliveries by HFHI. At the Closing, Raytel and CVI shall deliver, or
shall cause to be delivered, to Purchaser the following:
(a) Certificates representing the Shares, which certificates shall
be duly endorsed in blank or, in lieu thereof, shall have affixed thereto stock
powers duly executed in blank, and in proper form for transfer;
(b) Certificates signed by duly authorized officers of Raytel, CVI
and HFHI, as referred to in Sections 7.3(a) and (b), if applicable;
(c) The resignations of all officers, directors and employees of
HFHI, as requested by Purchaser;
(d) The stock book, stock ledger and minute books of HFHI;
(e) Evidence satisfactory to Purchaser that Purchaser's designees
shall be the only authorized signatories with respect to HFHI's various
accounts, credit lines and safe deposit boxes; and
(f) All other documents and instruments required by this Agreement
to be delivered by or on behalf of Raytel, CVI or HFHI at or prior to the
Closing.
8.4 Deliveries by Purchaser. At the Closing, Purchaser shall deliver to
Raytel the following:
(a) A wire transfer of funds in the aggregate amount of the Purchase
Price, as provided in Section 2.2;
(b) Certificates signed by a duly authorized officer of Purchaser,
as referred to in Sections 7.2(a) and (b);
(c) The Security Agreement, executed on behalf of Purchaser and
HFHI; and
(d) All other documents and instruments required by this Agreement
to be delivered by or on behalf of Purchaser at or prior to the Closing.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND COVENANTS; INDEMNIFICATION
9.1 Survival. The representations and warranties of the parties
contained in this Agreement or in any certificate or instrument delivered
pursuant hereto shall survive the Closing hereunder for a period of one year
following the Closing Date; provided, however, that (i) the
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representations and warranties contained in Section 3.15 (Taxes) shall survive
until the applicable period of limitations for audits by applicable Governmental
Authorities shall have expired, and (ii) no time limitation, other than the
applicable statute(s) of limitation shall be applicable with respect to claims
for fraud against any party or the representations or warranties contained in
Section 3.2 (Capitalization), 3.3 (Subsidiaries) and 4.5 (Investment
Representations). The representations and warranties contained in Sections 3.2,
3.3, 3.15 and 4.5 are collectively referred to as the "Excluded
Representations." Subsequent to the Closing, the provisions of this Article IX
shall be the sole remedy for the breach of any representations or warranties
contained in this Agreement.
9.2 Indemnification by Raytel. Subject to the provisions and limitations
herein contained, Raytel hereby agrees to indemnify, defend and hold harmless
Purchaser, its officers directors, employees and attorneys, all parents,
subsidiaries and affiliates of Purchaser, and the respective officers,
directors, employees and attorneys of such entities (all such persons and
entities being collectively referred to as the "Purchaser Group") from and
against any and all losses, damages, costs and expenses (including reasonable
legal fees and expenses) which any member of the Purchaser Group may at any time
sustain or incur which are occasioned by, caused by or arise out of: (i) any
inaccuracy in or breach of any of the representations, warranties or covenants
made by Raytel, CVI or HFHI in this Agreement; or (ii) any breach by Raytel of
its obligations under this Article IX.
9.3 Limitation of Raytel's Liability. The liability of Raytel under
Section 9.2 shall be limited as follows:
(a) No claim shall be made for indemnification under Section 9.2
until the aggregate amount of all such claims exceeds $50,000, after which the
full amount of such claims (including the initial $50,000) may be asserted.
(b) No member of the Purchaser Group shall be entitled to recover
under Section 9.2 with respect to:
(i) the breach of any representation or warranty unless such
claim has been asserted by written notice, specifying the details of such
breach, delivered to Raytel on or prior to the expiration of the survival period
specified in Section 1.9;
(ii) the breach of any representation or warranty, if before the
Closing any executive officer or director of Purchaser had actual knowledge or,
with the exercise of reasonable care in their capacity as officers or management
employees of Raytel or HFHI prior to the Closing, would have had knowledge of
the fact or facts which cause such breach; or
(iii) any claim, to the extent the claim has been satisfied by
proceeds of insurance (Purchaser hereby agreeing to use its best efforts to
collect the maximum amount of insurance proceeds to which it is entitled).
(c) The amount of any recovery to which a member of the Purchaser
Group may be entitled pursuant to Section 9.2 shall be net of (i.e., after
deducting) any federal, state
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and/or local income tax benefits or insurance proceeds inuring to such person as
a result of the set of facts which entitle such person to recover from Raytel
pursuant to Section 9.2.
(d) Raytel will not be liable under the indemnification provisions
of Section 9.2 to the extent that any loss, claim, liability or expense results
from an indemnified party's bad faith or gross negligence.
(e) Nothing contained in this Article IX shall limit the liability
of Raytel for breaches of covenants of Raytel hereunder to be performed after
the Closing.
9.4 Indemnification by Purchaser. Subject to the provisions and
limitations herein contained, Purchaser hereby agrees to indemnify, defend and
hold harmless Raytel and each other member of the Raytel Group from and against
any and all losses, damages, costs and expenses (including reasonable attorneys'
fees and expenses) which any member of the Raytel Group may at any time sustain
or incur which are occasioned by, caused by or arise out of: (i) any inaccuracy
in or breach of any of the representations, warranties or covenants made by
Purchaser in this Agreement; (ii) any inaccuracy in the Xxxxxxxxxx Certificate;
or (iii) any breach by Purchaser of its obligations under this Article IX.
9.5 Limitation of Purchaser's Liability.
(a) No claim shall be made for indemnification under Section 9.4
until the aggregate amount of all such claims exceeds $50,000, after which the
full amount of such claims (including the initial $50,000) may be asserted.
(b) No member of the Raytel Group shall be entitled to recover under
Section 9.4 with respect to:
(i) the breach of any representation or warranty unless such
claim has been asserted by written notice, specifying the details of such
breach, delivered to Purchaser on or prior to the expiration of the survival
period specified in Section 1.9;
(ii) the breach of any representation or warranty, or of any
covenant to be performed prior to the Closing, if before the Closing an
executive officer of Raytel had actual knowledge of the fact or facts which
caused such breach; or
(iii) any claim, to the extent the claim has been satisfied by
proceeds of insurance (Raytel hereby agreeing to use its best efforts to collect
the maximum amount of insurance proceeds to which it is entitled).
(c) The amount of any recovery to which a member of the Raytel Group
may be entitled pursuant to Section 9.4 shall be net of (i.e., after deducting)
any federal, state and/or local income tax benefits or insurance proceeds
inuring to such person as a result of the set of facts which entitle such person
to recover from Purchaser pursuant to Section 9.4.
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(d) Purchaser will not be liable under the indemnification
provisions of Section 9.4 to the extent that any loss, claim, liability or
expense results from an indemnified party's bad faith or gross negligence.
(e) Nothing contained in this Article IX shall limit the liability
of Purchaser for breaches of covenants of Purchaser hereunder to be performed
after the Closing.
9.6 Defense. In the event that a claim for indemnification hereunder is
based upon a claim by a third party asserted against the indemnified party, the
indemnifying party or parties shall be entitled to control the defense thereof
and to settle any such action on such terms as it or they shall see fit so long
as the party entitled to indemnification shall be released from any liability by
reason of such settlement; provided, however, that the party entitled to
indemnification shall have the right to approve counsel retained with respect to
such defense (which consent shall not unreasonably be withheld) and the right to
participate in the defense of such action at its own expense. The party or
parties required to provide indemnification hereunder shall receive full
cooperation and access to all relevant and non-privileged records of the party
or parties entitled to indemnification.
9.7 Procedure and Dispute Resolution.
(a) If an indemnified party shall have a claim of indemnification
pursuant to this Article IX (an "Indemnity Claim"), it will promptly give
written notice thereof (the "Claim Notice") to the indemnifying party or
parties, including therein a brief description of the facts upon which such
claim is based and the amount thereof, to the extent that it can be ascertained.
(b) In the event that the indemnifying party or parties dispute the
validity or amount of any Indemnity Claim, prior to taking any other action, the
matter shall be referred to responsible executives of the affected parties for
consideration and resolution. If the parties have not otherwise resolved the
dispute, they shall meet in person within 30 days after the delivery of the
Claim Notice and exercise their best efforts to settle the matter amicably.
(c) If any such dispute is not settled within 30 days from the
delivery of the Claim Notice, such dispute shall, at the demand of either party,
be referred to and decided by arbitration in accordance with the provisions of
Article X.
ARTICLE X
ARBITRATION
10.1 Scope. The parties hereto agree that any claim, controversy,
dispute or disagreement ("Disagreement") between or among any of the parties to
this Agreement arising out of or relating to this Agreement (including, without
limitation, any Indemnity Claim) shall be governed exclusively by the terms and
provisions of this Article X; provided, however, that the terms and provisions
of this Article X shall not preclude any party hereto from seeking, or a court
of competent jurisdiction from granting, a temporary restraining order,
temporary injunction or other equitable relief for any breach of (i) any
confidentiality covenant in this Agreement or the
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Confidentiality Agreement or (ii) any duty, obligation, covenant, representation
or warranty the breach of which may cause irreparable harm or damage.
10.2 Arbitrators. In the event any claim or claims for a Disagreement is
brought by any party to this Agreement, and the parties are unable to resolve
such Disagreement within 30 days after the delivery of the Claim Notice pursuant
to Section 9.7(a) (or other written notice, if the Disagreement does not relate
to an Indemnity Claim), Raytel and Purchaser shall each select one arbitrator,
and the two arbitrators so selected shall select a third arbitrator (the
"Presiding Arbitrator") who is experienced in the matter or action that is the
subject of such Disagreement and who then shall have sole and complete
jurisdiction over the arbitration. If such Disagreement involves healthcare
issues, the Presiding Arbitrator shall have such qualifications as would satisfy
the requirements of the National Health Lawyers Association Alternative Dispute
Resolution Service. Each of the arbitrators so chosen shall be impartial and
independent of all parties to this Agreement. If either of the parties fails to
select an arbitrator within 20 days after the end of such 30-day period, or if
the arbitrators chosen by the parties fail to select a third arbitrator within
20 days after their selection, any party may in writing request the judge of the
United States District Court for the District including New York, New York,
senior in term of service to appoint the Presiding Arbitrator.
10.3 Applicable Rules and Procedure.
(a) Each arbitration hearing relating to a Disagreement shall be
held at a place in New York, New York acceptable to the Presiding Arbitrator.
Each such arbitration shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association to the extent such
rules do not conflict with the terms hereof.
(i) The decision of the Presiding Arbitrator shall be reduced to
writing and shall be binding on the parties.
(ii) Judgment upon the award(s) rendered by the Presiding
Arbitrator may be entered and execution had in any court of competent
jurisdiction, or application may be made to such court for a judicial acceptance
of the award and an order of enforcement.
(iii) The charges and expenses of the arbitrators shall be
shared equally by the parties to the arbitration.
(b) The arbitration shall commence within 10 days after the
Presiding Arbitrator is selected in accordance with the provisions of this
Article X. In fulfilling his or her duties with respect to determining any
amount at issue in a Disagreement, the Presiding Arbitrator may consider such
matters as, in the opinion of the Presiding Arbitrator, is necessary or helpful
to make a proper valuation. The Presiding Arbitrator may consult with and engage
disinterested third parties to advise the Presiding Arbitrator. The Presiding
Arbitrator shall add an interest factor reflecting the time value of money to
the amount of any monetary award and shall not award any punitive or exemplary
damages.
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(c) If a Presiding Arbitrator selected hereunder should die, resign
or be unable to perform his or her duties hereunder, the two original
arbitrators selected by the parties or such senior judge (or such judge's
successor) shall select a replacement Presiding Arbitrator. The procedure set
forth in this Article X for selecting the Presiding Arbitrator shall be followed
from time to time as necessary.
(d) As to any determination of the amount at issue in a
Disagreement, or as to the resolution of any other claim, controversy or dispute
at issue in a Disagreement, no lawsuit based on such Disagreement shall be
instituted by any of the Raytel Parties or the Purchaser Parties, other than to
compel arbitration proceedings hereunder or to enforce the award of the
Presiding Arbitrator.
(e) All privileges under Delaware and federal law, including
attorney-client and work-product privileges, shall be preserved and protected to
the same extent that such privileges would be protected in a federal court
proceeding applying Delaware law. The rules of evidence under the Federal Rules
of Civil Procedure shall apply to all arbitration proceedings conducted pursuant
to this Article X.
(f) The parties shall have the right to conduct and enforce
pre-hearing discovery in accordance with the then current Federal Rules of Civil
Procedure, subject to the following limitations:
(i) Each party may serve no more than one set of
interrogatories; and
(ii) Each party may depose the other party's expert witnesses
who will be called to testify at the hearing, plus two fact witnesses without
regard to whether they will be called to testify (each party will be entitled to
a total of not more than 24 hours of depositions of the other party's
witnesses).
(g) Document discovery and other discovery shall be under the
control of and enforceable by the Presiding Arbitrator. Discovery disputes shall
be decided by the Presiding Arbitrator. The Presiding Arbitrator is empowered
to:
(i) issue subpoenas to compel pre-hearing document or deposition
discovery;
(ii) enforce the discovery rights and obligations of the
parties; and
(iii) otherwise to control scheduling and conduct the
proceedings.
Notwithstanding anything to the contrary herein, the Presiding Arbitrator shall
have the power and authority to, and to the fullest extent practicable shall,
abbreviate arbitration discovery in a manner which is fair to all parties in
order to expedite the conclusion of each arbitration proceeding.
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(h) The arbitration hearing shall be conducted so as to preserve its
privacy and to allow reasonable procedural due process. The parties hereto will
maintain the substance of any proceedings hereunder in confidence and the
arbitrators, prior to any proceedings hereunder, will sign an agreement whereby
the arbitrators agree to keep the substance of any proceedings hereunder in
confidence.
ARTICLE XI
TERMINATION AND ABANDONMENT
11.1 Termination by Raytel. This Agreement may be terminated at any time
prior to the Closing by action of the Board of Directors of Raytel upon written
notice to Purchaser, specifying the basis for such termination, if: (i)
Purchaser shall have breached in any material respect any of its covenants or
agreements contained in this Agreement or if any representation or warranty of
Purchaser contained in this Agreement shall have been materially inaccurate; or
(ii) the Closing shall not have occurred on or before March 31, 2001.
11.2 Termination by Purchaser. This Agreement may be terminated at any
time prior to the Closing by action of the Board of Directors of Purchaser upon
written notice to Raytel, specifying the basis for such termination, if: (i)
Raytel, CVI or HFHI shall have breached in any material respect any of their
respective covenants or agreements contained in this Agreement, or if any
representation or warranty of Raytel, CVI or HFHI contained in this Agreement
shall have been materially inaccurate; or (ii) the Closing shall not have
occurred on or before March 31, 2001.
11.3 Mutual Consent. This Agreement may be terminated at any time prior
to the Closing by mutual consent of Raytel and Purchaser.
11.4 Effect of Termination. Upon any permitted termination of this
Agreement pursuant to the provisions of this Article XI, the parties shall be
relieved of all further obligations under this Agreement, except for the
provisions of Article XII regarding the payment of expenses and the obligations
of the parties under the Confidentiality Agreements.
ARTICLE XII
PAYMENT OF EXPENSES
12.1 Expenses. The parties hereto shall each pay their own legal,
accounting and financial advisory fees and other out-of-pocket expenses incurred
incident to the preparation and carrying out of this Agreement and the
transactions herein contemplated, whether or not the sale of the Shares
hereunder is consummated; provided, however, that if the sale of the Shares
hereunder is consummated, Purchaser shall reimburse Raytel in the amount of
$50,000 for out-of-product expenses incurred by Raytel in connection with the
transactions contemplated hereby, such amount to be payable at the Closing. For
purposes of this Section 12.1, all expenses of HFHI shall be deemed to be
expenses of Raytel and/or CVI, and shall be borne by Raytel and/or CVI and not
by HFHI. Purchaser represents and warrants to Raytel that no costs or expenses
related to the organization of Purchaser or the negotiation of this Agreement or
any of the transactions contemplated hereby on behalf of Purchaser or its direct
or indirect shareholders
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(including fees and expenses of attorneys or other advisors) have been charged
to or paid by HFHI.
12.2 Brokers. Raytel, CVI and HFHI represent to Purchaser that they have
dealt with no broker or finder in connection with any of the transactions
contemplated by this Agreement, other than U.S. Bankcorp Xxxxx Xxxxxxx, whose
fees and expenses shall be borne by Raytel. Purchaser represents to Raytel that
it has dealt with no broker or finder in connection with any of the transactions
contemplated by this Agreement, other than Xxxxxxx Xxxxx Financial Group, whose
fees and expenses shall be borne by Purchaser. Each party represents that,
insofar as it knows, no other broker, finder or other person is entitled to any
commission or fee in connection with any such transaction. Each party agrees to
indemnify and hold the other parties harmless against any loss, liability,
damage, cost or expense incurred by reason of any commission or finder's fee
alleged to be payable because of any act, omission or statement of the
indemnifying party.
ARTICLE XIII
GENERAL PROVISIONS
13.1 Notices. No notice or other communication shall be deemed given
unless sent in the manner, and to the persons, specified in this Section 13.1.
All notices and other communications hereunder will be in writing and will be
deemed given (a) upon receipt if delivered personally (unless subject to clause
(b)) or if mailed by registered or certified mail, (b) on the day after dispatch
if sent by overnight courier or (c) upon dispatch if transmitted by telex,
telecopy or other means of facsimile transmission (and confirmed by a copy
delivered in accordance with clause (a) or (b)), addressed to the parties at the
following addresses:
To Raytel, CVI or HFHI: Raytel Medical Corporation
0000 Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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To Purchaser: Heart Institute Acquisition Corporation
c/o The Heart and Family Institute of Port St. Lucie
0000 Xxxxxxxxx Xxxxxxxx Xxxxx
Xxxx Xx. Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other addresses or other persons as may be designated in writing by a
party, by notice given as aforesaid.
13.2 Interpretation. When a reference is made in this Agreement to an
Article or a Section, such reference shall be to an Article or a Section of this
Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement they shall be
deemed to be followed by the words "without limitation." The phrase "made
available" in this Agreement shall mean that the information referred to has
been made available if requested by the party to whom such information is to be
made available. The phrases "the date of this Agreement," "the date hereof," and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to January 1, 2001.
13.3 Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
13.4 Headings. The headings of the several sections of this Agreement
are inserted for the convenience of reference only and are not intended to
affect the meaning or interpretation of this Agreement.
13.5 Counterparts. This Agreement may be executed in one or more
counterparts, and when so executed each counterpart shall be deemed to be an
original, and said counterparts together shall constitute one and the same
instrument.
13.6 Waiver. Raytel, CVI and HFHI, on the one hand, and Purchaser, on
the other hand, may, by written notice to the other: (i) waive any of the
conditions to its obligations hereunder or extend the time for the performance
of any of the obligations or actions of the other; (ii) waive any inaccuracies
in the representations of the other contained in this Agreement or in any
documents delivered pursuant to this Agreement; (iii) waive compliance with any
of the
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covenants of the other contained in this Agreement; or (iv) waive or modify
performance of any of the obligations of the other. No action taken pursuant to
this Agreement, including without limitation any investigation by or on behalf
of either party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representation, warranty, condition or agreement
contained herein. Waiver of the breach of any one or more provisions of this
Agreement shall not be deemed or construed to be a waiver of other breaches or
subsequent breaches of the same provisions.
13.7 Entire Agreement. This Agreement, the Schedules and Exhibits hereto
and the Confidentiality Agreement constitute the entire agreement between the
parties pertaining to the subject matter contained herein and supersede all
prior and contemporaneous negotiations, agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by the party sought to be
bound.
13.8 Good Faith. Each of the parties hereto agrees that it shall act in
good faith in an attempt to cause all the conditions precedent to its respective
obligations to be satisfied and the transactions contemplated hereby to be
consummated.
13.9 Applicable Law. This Agreement shall be governed by the laws of the
State of Delaware.
13.10 Severability. Should any provision of this Agreement be determined
to be invalid, it shall be severed from this Agreement and the remaining
provisions of the Agreement shall remain in full force and effect.
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Witness the due execution of this Agreement by the parties hereto as of
the date first set forth above.
HEART INSTITUTE ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Title: President
------------------------------------
RAYTEL MEDICAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: Chief Executive Officer
------------------------------------
THE HEART INSTITUTE OF PORT ST. LUCIE, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
------------------------------------
CARDIOVASCULAR VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: Chief Executive Officer
------------------------------------
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