INTEREST PURCHASE AGREEMENT
AMONG
NOVA GENERAL PARTNER LIMITED
CALEDONIA INVESTMENTS plc
XXXXXXX BROTHERS AND COMPANY LIMITED
ATLANTIC MEDICAL ASSOCIATES, L.P.
and
THE LIMITED PARTNERS OF ATLANTIC MEDICAL CAPITAL, L.P.
Dated as of August 5, 2004
TABLE OF CONTENTS
PAGE
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I. PURCHASE AND SALE....................................................................................... 1
1.1 Purchase of Interests.......................................................................... 1
1.2 Closing ....................................................................................... 1
1.3 Purchase Price................................................................................. 4
1.4 Transfers...................................................................................... 8
1.5 Adstock Treatment.............................................................................. 9
II. REPRESENTATIONS AND WARRANTIES OF THE SELLERS........................................................... 9
2.1 Organization; Authority........................................................................ 9
2.2 Title to Interests............................................................................. 9
2.3 No Violation; Consents and Approvals........................................................... 9
2.4 Brokers ....................................................................................... 10
III. REPRESENTATIONS AND WARRANTIES OF BUYERS AND THE NEW GP................................................. 10
3.1 Organization; Authority........................................................................ 10
3.2 No Violation; Consents and Approvals........................................................... 10
3.3 Brokers ....................................................................................... 11
3.4 Sophisticated Purchaser........................................................................ 11
3.5 Unregistered Securities Acknowledgement........................................................ 11
3.6 Accredited Investor............................................................................ 11
IV. MISCELLANEOUS........................................................................................... 11
4.1 Further Assurances............................................................................. 11
4.2 Notices ....................................................................................... 11
4.3 Amendment, Modification and Waiver............................................................. 13
4.4 Entire Agreement............................................................................... 13
4.5 Severability................................................................................... 13
4.6 Binding Effect; Assignment..................................................................... 14
4.7 No Third-Party Beneficiaries................................................................... 14
4.8 Fees and Expenses.............................................................................. 14
4.9 Counterparts................................................................................... 14
4.10 Interpretation................................................................................. 14
4.11 Legal Suits.................................................................................... 14
4.12 Governing Law.................................................................................. 14
4.13 RELEASE ....................................................................................... 14
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INTEREST PURCHASE AGREEMENT, dated as of August 5, 2004 (this
"Agreement"), by and among the limited partners of Atlantic Medical Capital,
L.P. set forth on the signature pages hereof (the "LPs" and excluding Adstock
Limited, the "LP Sellers"), Atlantic Medical Associates, L.P. (the "GP" and,
together with the LP Sellers, the "Sellers"), Caledonia Investments plc ("PLC"),
Xxxxxxx Brothers and Company Limited ("JBL" and, together with the PLC, the
"Buyers") and Nova General Partner Limited (the "New GP").
WHEREAS, as of the date hereof, the GP owns all of the outstanding
general partnership interests (the "GP Interests") in the Atlantic Medical
Capital, L.P., a Delaware limited partnership (the "Company") and the LP Sellers
own all of the outstanding limited partnership interests, other than the
interests owned by Adstock Limited (the "LP Interests," and collectively with
the GP Interests, the "Interests") in the Company;
WHEREAS, subject to the terms and conditions of this Agreement, the
Buyers have agreed to purchase from the Sellers the Interests;
NOW, THEREFORE, in consideration of the foregoing and of the
representations, warranties, covenants and agreements hereinafter set forth, and
intending to be legally bound hereby, the parties hereto agree as follows:
I. PURCHASE AND SALE.
1.1 Purchase of Interests. Upon the terms of this Agreement, the
Buyers hereby purchase from the Sellers, and each Seller hereby sells to the
Buyers, effective as of the Closing Date (as defined below), all of such
Seller's right, title and interest in and to the Interests owned by it. As
between PLC and JBL, PLC shall acquire and pay for 50% of the Interests and JBL
shall acquire and pay for 50% of the Interests. The purchase price (the
"Purchase Price") for the Interests shall be as set forth in Section 1.3 hereof.
Effective as of the Closing on the Closing Date, (i) the New GP is hereby
admitted to the Company as the general partner thereof and (ii) the GP Interest
acquired by the Buyers is hereby converted to a limited partnership interest in
the Company.
1.2 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxx Xxxxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., local time, on the
date hereof or such other date as mutually agreed to by the parties (the
"Closing Date"). The consummation of the Closing with any Seller is subject to
consummation of the Closing by all Sellers. At the Closing, the following
(except as set forth below) must take place as a condition to such Closing:
(a) The Buyers will pay to the Sellers the portion of the Initial
Payment (as defined in Section 1.3(a) below) shown next to its name on Schedule
1.2(a) by wire transfer of immediately available funds to the account or
accounts designated for it on Exhibit 1.2(a). The portion of the Purchase Price
to be received by each Seller has been determined based on its capital
contributions to the Company, is referred to as the "Proceeds Percent" and is
set forth across from such Seller's name on Schedule 1.2(a). The portion of the
Purchase Price that would have been payable to Adstock Limited had it agreed to
sell its interest based on its capital contributions to the Company is also set
forth on Schedule 1.2(a). Notwithstanding the
foregoing, pursuant to the terms of the Promissory Note by Atlantic Medical
Investors, LLC ("AMI") in favor of the Company dated July 9, 1996 (as amended to
date, the "Note") and the Pledge Agreement by and between AMI and the Company
dated as of July 9, 1996 (as amended to date, the "Pledge Agreement") and the
agreement of the parties hereto, all amounts payable to AMI hereunder (the "AMI
Amount") shall be paid as follows: (i) the first $350,000 shall be paid to the
Company as a mandatory payment under the Note and (ii) the remainder shall be
paid directly to the Sellers and Adstock Limited pro rata based upon their
adjusted Proceeds Percent (excluding for this purpose the Proceeds Percent of
AMI) as set forth on Schedule 1.2(a) and shall be treated as a distribution by
the Company. Upon receipt of the AMI Amount by the Company, the Sellers and
Adstock Limited each of such parties hereby agrees that (i) the Note shall be
deemed to be paid in full, (ii) the lien on the interests created by the Pledge
Agreement shall be deemed released, (iii) the Pledge Agreement shall be
terminated and (iv) AMI shall have no further interest in the Company, except
for the right to receive the portion of the Purchase Price set forth in Sections
1.3(b) and (c) hereof, which AMI hereby assigns to the Sellers and Adstock
Limited based on their adjusted Proceeds Percent (excluding for this purpose the
Proceeds Percent of AMI) as set forth on Schedule 1.2(a). The Company shall have
45 days to disburse its portion of the AMI Amount to those persons listed on
Schedule 1.2(e) and to satisfy other accrued but unpaid liabilities of the
Company for periods on or before the Closing and the remainder of such amount
shall then be distributed by the Company to the Sellers (excluding AMI) and
Adstock Limited pro rata based upon their adjusted Proceeds Percent (excluding
for this purpose the Proceeds Percent of AMI) as set forth on Schedule 1.2(a).
(b) Each Buyer shall receive from the GP a good standing certificate
from the State of Delaware attesting to the good standing of the Company as of a
date no earlier than 10 days prior to the date hereof.
(c) The GP shall deliver a copy of each of the following documents
with respect to each company identified on Schedule A (each a "Portfolio
Company"), confirmed by an officer of each such Portfolio Company to be correct
as of a recent date: (i) all organizational documents (including, but not
limited to, Certificates/Articles of Incorporation and By-Laws, operating
agreements and other formation or constituent documents), (ii) a current equity
capitalization table (containing the series or classes of stock of such
Portfolio Company, the number of outstanding shares of each such series or class
of stock, the number of shares of common stock on an as converted basis and the
number of shares of each class or series outstanding on a fully diluted basis),
a statement of the outstanding options and warrants of such Portfolio Company
and the exercise price relating thereto and a statement of the Company's record
equity ownership in such Portfolio Company, (iii) a recent balance sheet, (iv)
all agreements that the Company and such Portfolio Company are parties to with
respect to such Portfolio Company which define the Company's rights and
obligations (including, but not limited to, all shareholder agreements, voting
arrangements, agreements affecting liquidity, and any agreements requiring
contributions of capital or creating liability on the part of the company) and
(v) in the case of Nursefinders Acquisition Corp. ("NAC"), the expected proceeds
to be received by the Company upon the consummation of the sale of NAC pursuant
to the sale agreement relating thereto dated as of June 7, 2004, together with a
statement of the amounts held in escrow or held back from the proceeds and the
portion of such amounts that the Company would receive if no claim were made
against the escrow or amounts held back from the
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proceeds. Notwithstanding the foregoing, the Buyers may waive the requirement to
receive the confirmations set forth above, or any portion thereof, in their sole
discretion.
(d) The GP shall deliver a certificate certifying that (i) the
interests listed on Schedule A hereto are all of the assets of the Company (or,
if any of such assets have been disposed of prior to the date hereof, a
statement and calculation of the net proceeds relating thereto and confirmation
that the Company has received and retained such amounts) and (ii) all taxes of
the Company from operations of the Company controlled by the GP for any periods
on or prior to the date hereof have been paid or provided for on Schedule
1.2(e). (It is expressly understood by the Sellers that the Company has been
negotiating to sell its investments in Match Healthcare Limited and NAC
(collectively, the "Sales") to third parties. The Sellers (i) acknowledge that,
except as expressly provided herein (including Section 1.3(e) hereof), if the
Closing is consummated, any sales proceeds from those investments or from any of
the Company's other investments will be totally for the benefit of the Buyers
and Adstock Limited, whether such investments are sold prior to or after the
Closing, and that the Sellers will receive consideration for their interests
solely from the Buyers as provided herein and (ii) agree that simultaneously
with the Closing, the Buyer and Adstock Limited shall receive a distribution
from the Company relating to such sales proceeds. Notwithstanding anything to
the contrary contained herein, the Buyers hereby agree that any expenses up to
$30,000 incurred by the Company relating to the Sales shall be deemed
liabilities of the Company for periods after the Closing and not reduce the
Purchase Price.
(e) The Buyers and the New GP shall confirm satisfaction of the
following conditions:
(i) Adstock Limited, the New GP and the Buyers shall have entered into an
amended and restated Agreement of Limited Partnership of the Company on
satisfactory terms and conditions (the "Amended and Restated Partnership
Agreement").
(ii) The GP shall have delivered (A) final invoices for services through
the Closing for all persons marked with an asterisk on Schedule 1.2(e) and (B)
invoices or good faith estimates of amounts owed for services through the
Closing for all other persons for which the General Partner has knowledge that
the Company has any liability or obligation for payment; such persons and the
amounts outstanding as of the date hereof are set forth on Schedule 1.2(e).
(f) The GP shall have provided or caused to be provided satisfactory
evidence of the termination, without further liability to the Company, of all
existing management agreements, employment agreements or other personnel or
consulting contracts with the Company in effect prior to the Closing Date.
(g) Notwithstanding anything to the contrary contained herein, in
the event Adstock Limited is unwilling to execute this Agreement on the terms
hereof or the Amended and Restated Partnership Agreement on terms satisfactory
to Buyers and the New GP in their sole discretion, then Buyers and the New GP
shall have the right to consummate the Closing without the signature of Adstock
Limited to this Agreement or the Amended and Restated Partnership Agreement. In
such event, Adstock Limited shall not be included as an LP under this Agreement.
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1.3 Purchase Price. The aggregate Purchase Price to be paid to the
Sellers shall be an amount equal to up to $11,600,000 plus the Nursefinders
Payment (defined below), less Adstock Limited's Proceeds Percent of such amount
(which based on a purchase price of $11,600,000 would be $359,324.16 plus the
amount they will receive with respect to the AMI Amount), payable as follows:
(a) $6,000,000 (the "Initial Payment") less Adstock Limited's
Proceeds Percent of such amount (which based on an Initial Payment of $6,000,000
would be $185,857.32 plus the amount they will receive with respect to the AMI
Amount), shall be payable by the Buyers to the Sellers at the Closing in
accordance with Section 1.2(a) hereof.
(b) (i) In the event the Trading Price (defined herein) of the
shares of Quovadx, Inc. ("Q") is greater than $2.00 per share for any Trading
Period (defined herein) during the First Test Period (defined herein), then
within five business days of the end of the First Test Period, the Buyers shall
pay to the Sellers an aggregate amount equal to (x) 50% of (i) the number of
shares of Q owned by the Company on the date hereof (excluding those indirectly
owned through AHR Seller Group, LLC) multiplied by (ii) the excess of (A) the
Trading Price of shares of Q during that Trading Period (the "Average Price")
over (B) $2.00 (the amount of such excess for any applicable Trading Period
being a "Gain") less (y)Adstock Limited's Proceeds Percent of such amount.
(ii) In the event that the Trading Price of Q is greater than $2.00 per
share for any Trading Period during the Second Test Period (defined below), then
within five business days of the end of the Second Test Period, the Buyers shall
pay to the Sellers an aggregate amount equal to (x) 50% of (i) the number of
shares of Q owned by the Company on the date hereof (excluding those indirectly
owned through AHR Seller Group, LLC) multiplied by (ii) excess, if any, of the
Gain for such Trading Period over any Gain with respect to the First Test Period
(provided that if there is no excess, no payment shall be made) less (y) less
Adstock Limited's Proceeds Percent of such amount.
(iii) In the event that the Trading Price of Q is greater than $2.00 per
share for any Trading Period during the Third Test Period (defined below), then
within five business days of the end of the Third Test Period, the Buyers shall
pay to the Sellers an aggregate amount equal to (x) 50% of (i) the number of
shares of Q owned by the Company on the date hereof (excluding those indirectly
owned through AHR Seller Group, LLC) multiplied by (ii) excess, if any, of the
Gain for such Trading Period over any Gain with respect to the First Test Period
and the Second Test Period (provided that if there is no excess, no payment
shall be made) less (y) less Adstock Limited's Proceeds Percent of such amount.
(iv) Notwithstanding the foregoing, if the Company sells any shares of Q
in a sale to a third party not covered by 1.3(c) below at a net price above
$2.00 prior to the end of the Third Test Period, the Buyers shall pay to
Sellers, within five business days of receiving the proceeds of such sale, an
aggregate amount equal to the excess of (i) 50% of the amount in excess of $2.00
per share received for all shares of Q sold in such transactions, less Adstock
Limited's Proceeds Percent of such amount over (ii) any payment made in respect
of such number of shares of Q as a result of a Gain during any prior Trading
Period; and thereafter any calculations under Sections 1.3(b)(i) and (ii) hereof
shall be made excluding the number of shares of Q so sold (rather than
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being based upon the number of shares of Q owned by the Company on the date
hereof). In the event of a sale of any shares of Q to an affiliate (as defined
under the Securities Act of 1933, as amended) not covered by 1.3(c), then the
Company shall be deemed to continue to own the shares of Q and the provisions of
Sections 1.3(b) and (c) hereof shall continue to apply as if the Company
continued to own such shares of Q.
(v) For purposes hereof, (A) the "Trading Price" shall mean the average
closing price of shares of Q, during the applicable Trading Period, in the event
the shares trade on any stock exchange, NASDAQ national market or NASDAQ small
cap and the average of the daily bid and ask prices of shares of Q that result
in actual trades, in the event the shares of Q trade on the OTC Bulletin Board
during the applicable Trading Period, (B) a "Trading Period" shall mean any 5
consecutive trading days, in the event the shares of Q trade on any exchange,
NASDAQ national market or NASDAQ small cap and 10 consecutive trading days in
which the average daily volume of trades exceeds 12,500 shares of Q, in the
event the Q shares trade on the OTC Bulletin Board, (C) the "First Test Period"
shall mean the period beginning with the public release of quarterly financial
information for Q for the quarter ended September 30, 2004 and ending on the
date that the Directors of Q are next prohibited from trading in shares of Q
under the Xxxxxxx Xxxxxxx Compliance Policy of Q then in effect, but shall not
include any trading days during such period on which the Company is legally
prohibited from selling any Q shares, (D) the "Second Test Period" shall mean
the period beginning with the public release of quarterly financial information
for Q for the quarter ended December 31, 2004 and ending on the date that the
Directors of Q are prohibited from trading in shares of Q under the Xxxxxxx
Xxxxxxx Compliance Policy of Q then in effect, but shall not include any trading
days during such period on which the Company is legally prohibited from selling
any Q shares, (E) the "Third Test Period" shall mean the period beginning with
the public release of quarterly financial information for Q for the quarter
ended March 31, 2005 and ending on the date that the Directors of Q are
prohibited from trading in shares of Q under the Xxxxxxx Xxxxxxx Compliance
Policy of Q then in effect, but shall not include any trading days during such
period on which the Company is legally prohibited from selling any Q shares;
provided, however, that if there was a Gain during any of the First Test Period,
the Second Test Period or the Third Test Period but the Company was not able to
sell shares of Q for at least 60 business days of such periods (whether because
Rule 144 (without regard to any volume limitation) was not available to the
Company for sales of Q shares or another legal prohibition applied), then the
Third Test Period shall instead mean the period beginning with the public
release of quarterly financial information for Q for the quarter ended June 30,
2005 and ending on the date that the Directors of Q are next prohibited from
trading in shares of Q under the Xxxxxxx Xxxxxxx Compliance Policy of Q then in
effect but shall not include any trading days during such period on which the
Company is legally prohibited from selling Q shares; provided, further, however,
that if there was a Gain during the First Test Period, the Second Test Period or
the Third Test Period (including the additional period referred to above), but
the Company was not able to sell shares of Q for at least 60 business days of
such periods (whether because Rule 144 (without regard to any volume limitation)
was not available to the Company for sales of Q shares or another legal
prohibition applied), the Third Test Period shall instead mean the additional
test period(s) beginning with the public release of quarterly financial
information for Q for the next consecutive quarter and ending on the date that
the Directors of Q are next prohibited from trading in shares of Q under the
Xxxxxxx Xxxxxxx Compliance Policy of Q then in effect but shall not include any
trading days during such period on which the Company is legally prohibited from
selling Q shares and such
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test periods shall continue as set forth above until the Company was able to
sell shares of Q for at least 60 business days of all such periods and (F) Rule
144 shall mean Rule 144 of the Exchange Act of 1934, as amended. The Company
hereby agrees that it will not sell any Q shares owned by it (excluding those
indirectly owned through AHR Seller Group) pursuant to Rule 144, during the
first five trading days of any of the First Test Period, the Second Test Period
or the Third Test Period. If the Company is legally prohibited from selling Q
shares on any day, the day shall not count in determining whether the
consecutive days have been achieved as set forth in the definition of Trading
Period.
(vi) Notwithstanding the foregoing, (A) the total payments pursuant to
this Section 1.3(b) shall in no event exceed $5,600,000 less Adstock Limited's
Proceeds Percent thereof, (B) in the event there is more than one applicable
Trading Period during either the First Test Period, the Second Test Period or
the Third Test Period, the Gain and Trading Price for such First Test Period,
Second Test Period or Third Test Period shall be measured using the highest of
the Average Prices for any Trading Period during such First Test Period, Second
Test Period or Third Test Period and (C) no payment shall be required by the
Buyers with respect to any of the First Test Period, the Second Test Period or
Third Test Period if the Company was not legally able to sell shares of Q during
such period (whether because Rule 144 (without regard to any volume limitation)
was not available to the Company for sales of Q shares or another legal
prohibition applied).
(c) In the event there is a Sale Transaction (defined herein) with
respect to Q on or prior to the end of the Third Test Period, then (i) if no
payment has been made to Sellers pursuant to Section 1.3(b), the Buyers shall
pay to the Sellers an aggregate amount equal to the Transaction Gain (as defined
herein) and (ii) if any payment has been made to the Sellers pursuant to Section
1.3(b), the Buyers shall pay to the Sellers an aggregate amount equal to the
excess, if any, of the difference between (A) the Transaction Gain and (B) the
amounts previously paid to Sellers pursuant to Section 1.3(b). For purposes
hereof, a Transaction Gain shall mean an amount equal to 50% of (A) the number
of shares of Q owned by the Company on the date hereof (excluding those owned
indirectly through AHR Seller Group, LLC) multiplied by (B) the difference
between (1) the Value (defined herein) per share that the Company receives for
or as a distribution with respect to the Q shares in connection with the Sale
Transaction and (2) $2.00. In the event the Company receives any consideration
other than cash in connection with the Sale Transaction, then it shall pay any
amounts owed to Sellers less Adstock Limited's Proceeds Percent pursuant to this
Section 1.3(c), in the form, and in the same proportion, of the cash and
securities received by the Company in the Sale Transaction and the amount of
such securities to be paid to Sellers (the "Sellers Securities") shall have a
Fair Market Value (defined herein) on the closing date of the Sale Transaction
equal to the amount payable to Sellers as a distribution of securities;
provided, that if the Company is required to pay any amounts owed hereunder in
the form of securities received in a Sale Transaction and such securities may
not be transferred to the Sellers because of contractual or securities laws
restrictions, then the Company shall use reasonable efforts to sell the Sellers
Securities (and promptly distribute the net proceeds to Sellers) or distribute
them to the Sellers as soon as reasonably practicable after restrictions on
their transfer lapse, and shall hold the Sellers Securities for the account of
the Sellers until such time. The Company shall not be liable to the Sellers for
any fluctuation in price relating to the Sellers Securities for the period the
Company holds the Sellers Securities. Notwithstanding the foregoing, the total
payments pursuant to this Section 1.3(c) shall in no event exceed $5,600,000
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less Adstock Limited's Proceeds Percent. For purposes hereof, (x) "Sale
Transaction" shall mean (A) the sale of all, or substantially all, of Q's
consolidated assets, in any single transaction or series of related
transactions, (B) any merger or consolidation involving Q unless, as a result of
such merger or consolidation, the Company receives shares of the surviving
entity which are publicly traded (in which case the Trading Price shall be
calculated after taking into effect the adjustment in (d) below and Section
1.3(b) shall continue to apply to such securities as if they were the shares of
Q) and (C) a transaction in which Q acquires substantially all of its publicly
traded stock, if the Company is the sponsor or co-sponsor of such transaction or
has the opportunity to sell its shares to Q as part of such transaction but has
declined to do so (in which case the consideration shall be measured as provided
above and any Q shares retained by the Company shall be treated as securities
received in such Sale Transaction and shall be valued at the cash price at which
the Company had the opportunity to sell its Q shares as part of such
transaction), (y) "Value" shall mean the cash consideration received by the
Company in connection with the Sale Transaction plus the Fair Market Value of
any securities received by the Company determined on the date of receipt thereof
and (z) "Fair Market Value" shall mean the value of securities received by the
Company (which if such securities are publicly traded, shall be the trading
price thereof (using the same principles set forth under the definition of
Trading Price for Q shares above assuming the Trading Period is the five
consecutive trading days preceding the receipt)) and if not publicly traded
shall be determined in good faith by the New GP).
(d) For purposes of Sections (b) and (c) above, the Trading Price of
the Q shares, and the volume requirement shall be adjusted to take into account
any stock splits, reverse stock splits, combinations, conversions, exchanges,
reclassifications or other actions that would warrant an equitable adjustment to
the share price including mergers and consolidations excluded from Section
1.3(c)(x)(B) above.
(e) Within two business days of the consummation of the sale of the
interests held by the Company in Nursefinders Acquisition Corp. on the date
hereof (as set forth in Schedule A hereto), the Buyers shall pay to the Sellers
an aggregate amount equal to 75% of the proceeds received by the Company in
connection with such sale of said securities (the "Nursefinders Payment").
(f) The Buyers shall pay to each Seller any amounts due to it
pursuant to Section 1.3(b), (c) and (e), with the aggregate payments divided
among the Sellers pro rata based on the adjusted Proceeds Percent shown on
Schedule 1.2(a)(after giving effect to the reallocation of the AMI Proceeds
Percent) and made to the accounts set forth on Exhibit 1.2(a). Any such payment
shall be accompanied by a statement from the New GP as to the calculation of
such payment. Notwithstanding the foregoing, to the extent the Company has any
liabilities (whether contingent, absolute or otherwise, including, but not
limited to any tax liabilities, unpaid or contingent accounts payable, accrued
pension benefits, deferred compensation or any other financial liabilities) that
relate to periods on or prior to the date hereof, such liabilities shall reduce
any payments owed to Sellers under Section 1.3(b) above. If the Company has such
liabilities in excess of $50,000 it will provide notice (the "Liability Notice")
to the Sellers of the nature and amount of such liabilities with adequate detail
to allow the Sellers to evaluate such liabilities on or prior to the date which
is 180 days from the date hereof. If within 30 days of receipt of the Liability
Notice, Sellers who have more than 50% of the Proceeds Percent notify
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(the "Dispute Notice") the Buyer that they are disputing the liabilities in the
Liabilities Notice, then the Buyer and the Sellers who provide the Dispute
Notice (the "Disputing Sellers") will have 30 days from receipt of the Dispute
Notice to agree on the amount of liabilities. If the Buyer and the Disputing
Sellers are unable to do so in such time period, then the liabilities amount
shall be sent to arbitration before a single arbiter under the rules of the
American Arbitration Association. The non-prevailing party in the arbitration
proceeding will be responsible for payment of the fees associated therewith
(which if owed by the Sellers will reduce any payments owed to them under
Section 1.3(b) above and will be paid pro rata based on their Proceeds Percent).
(g) Each of the Buyers and the New GP agrees (i) not to take any
action for the purpose of avoiding or diminishing its obligations under Sections
1.3(b) through 1.3(f) above and (ii) not to agree to be bound by any amendment
to the Xxxxxxx Xxxxxxx Compliance Policy of Q which would result in prohibiting
the Company from selling its shares of Q throughout the entirety of either the
First Test Period, the Second Test Period and the Third Test Period, provided,
however, that each of the Sellers acknowledges that neither (i) any additional
debt or equity investments that the Company makes in good faith in existing
portfolio companies (including such investments as are senior to the existing
investment) nor (ii) any sale of shares of Q by the Company shall be deemed
actions for the purpose of avoiding or diminishing its obligations.
(h) For so long as the Company owns the interests held by it in NAC
on the date hereof (as set forth on Schedule A to this Agreement), the Company
hereby agrees that in the event it makes an investment in NAC or any entity
which acquires securities in NAC in addition to the NAC Investment (the
"Additional Investment"), then the Company shall use reasonable commercial
efforts to provide that 75% of the Additional Investment be offered to the
Sellers (other than AMI) (or their permitted transferees hereunder), prorata
based on their adjusted Proceeds Percent (excluding for this purpose the
Proceeds Percent of AMI) on substantially the same terms as the Company makes
the Additional Investment. The Sellers will be required to respond promptly if
they desire to participate in the Additional Investment and shall be deemed to
have declined their right to so participate if they have not responded within
ten calendar days of receipt of the notice of their right to participate in the
Additional Investment. The Sellers shall have the right to assign their rights
hereunder to (i) an affiliate (as defined under the Securities Act of 1933, as
amended), (ii) a fund that they have made an investment in, provided, in each
such case, the transferee is an accredited investor (as defined under the
Securities Act of 1933, as amended) or (iii) such other party so long as such
party is identified to the Company in advance and the Company has approved such
transferee, such approval not to be unreasonably withheld or delayed. In
connection with an Additional Investment, the Company shall provide Buyers with
information it receives from NAC relating to the Additional Investment to the
extent it is not otherwise bound by a confidentiality agreement relating
thereto.
1.4 Transfers(a) For purposes hereof, the admission of the New GP as
a general partner of the Company shall be deemed to occur immediately prior to
the transfer by the Sellers of the Interests and all parties hereto hereby
consent to such transfers and the admission of the Buyers and the New GP as
partners of the Company for purposes of complying with Section 6.1(a) of the
Partnership Agreement (as defined below) and otherwise. In addition, each of the
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parties hereto hereby waives (i) the restriction on transferability set forth in
Section 6.1(d) of the Agreement of Limited Partnership of the Company dated as
of July 9, 1996, as amended to date (the "Partnership Agreement"), (ii) any
other violation of or defaults under the Partnership Agreement that may be
caused by the consummation of the transactions contemplated hereby and (iii) any
requirements relating to transfers set forth in the subscription documents
executed by certain of the LPs in connection with the initial capitalization of
the Company.
1.5 Adstock Treatment. Notwithstanding the foregoing, Adstock
Limited hereby agrees that it will not receive any of the Purchase Price
hereunder or amounts payable under Section 1.3, except for amounts relating to
the AMI Amount under Section 1.2(a) hereof. Adstock Limited will retain its
limited partner interest in the Company after the Closing Date as set forth in
the Amended and Restated Agreement of Limited Partnership.
II. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
Each Seller severally, and not jointly with the other Sellers,
represents and warrants to each Buyer and the New GP as follows only with
respect to such Seller:
2.1 Organization; Authority. It is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization. It
has all requisite power and authority to enter into this Agreement, and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by it of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
other action. This Agreement has been duly executed and delivered by it and is
valid, binding and enforceable against it in accordance with its terms, except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, or the availability of equitable remedies.
2.2 Title to Interests. It is the sole record and beneficial owner
of the Interests shown next to its name on Schedule 1.2(a) hereof and it is
selling such Interests free and clear of all liens, claims, encumbrances,
options, pledges and security interests of any kind, whether arising by
agreement, operation of law or otherwise ("Liens"), except as may arise (i)
under the Partnership Agreement, or (ii) applicable federal and state securities
or blue sky laws ("Permitted Encumbrances"), and upon consummation of the
transactions contemplated hereby, it will transfer good and valid title to the
Interests being purchased by such Buyer from it, free and clear of all Liens,
except Permitted Encumbrances.
2.3 No Violation; Consents and Approvals. The execution and delivery
by it of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not (a) conflict
with, or result in any violation of or default (or an event which, with notice
or lapse of time or both, would constitute a default) under, its organizational
documents, if any, (b) violate any judgment, order, injunction or decree (an
"Order"), or statute, law, ordinance, rule or regulation ("Applicable Law"),
excluding federal and state securities and blue sky laws applicable to the
transaction contemplated by this Agreement, applicable to it or its property or
assets, or (c) give rise to any right of termination, cancellation or
acceleration under, or result in the creation of any Lien upon the Interests
held by it under, any note, bond, mortgage, indenture, license, agreement,
capital lease or other instrument or
9
obligation ("Contracts") to which it is a party or by which it or any of its
assets may be bound (except as may arise under the Partnership Agreement),
except in the case of (b) and (c), as would not have a material adverse effect
on the ability of such Seller to sell the Interests pursuant to or otherwise
satisfy its obligations under this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with ("Governmental
Approval"), any court, administrative agency or commission or other governmental
entity, authority or instrumentality, domestic or foreign ("Governmental
Authority"), nor any consent, approval, order or authorization of any other
third party is required to be obtained or made by or with respect to it in
connection with the execution and delivery by it of this Agreement or the
consummation by it of the transactions contemplated hereby, other than any
consent, approval, order or authorization, or registration, declaration or
filing, required under federal and state securities and blue sky laws applicable
to the transaction contemplated by this Agreement, except such consent,
approval, order or authorization where the failure to obtain such consent,
approval, order or authorization would not have a material adverse effect on the
ability of Seller to sell the Interests pursuant to this Agreement. Except as
created by this Agreement, there are no outstanding subscriptions, options,
rights (including phantom stock rights), warrants, calls, commitments,
understandings, arrangements, plans or other agreements of any kind to acquire
its Interests (except as may arise under the Partnership Agreement).
Notwithstanding the foregoing or any other provision of this Agreement, no
representation is being made by any Seller with respect to any rights Adstock
Limited may have under the Partnership Agreement or applicable law.
2.4 Brokers. No broker, finder or financial advisor or other person
is entitled to any brokerage fees, commissions, finders' fees or financial
advisory fees in connection with the transactions contemplated hereby by reason
of any action taken by it or any of its partners, officers, employees,
representatives or agents, provided, however, that in the case of each LP
Seller, this representation is being made to the best of its knowledge.
III. REPRESENTATIONS AND WARRANTIES OF BUYERS AND THE NEW GP.
Each Buyer and the New GP, severally, and not jointly with the other
Buyers or the New GP, hereby represents and warrants to each Seller as follows:
3.1 Organization; Authority. It is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, and
has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by it of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary action on its
part. This Agreement has been duly executed and delivered by it and is valid,
binding, and enforceable against it in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally or the availability of equitable remedies.
3.2 No Violation; Consents and Approvals. The execution and delivery
by it of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, (a) conflict
with, or result in any violation of or default under, any provision of its
organizational documents, (b) violate any Order or Applicable
10
Laws applicable to it or its property or assets or (c) give rise to any right of
termination, cancellation or acceleration under, or conflict with, or result in
any violation of or default under any Contracts to which it is a party or by
which it or its assets may be bound, which conflict, violation or default would
prevent it from consummating the transaction. No Governmental Approval from a
Governmental Authority or any consent, approval, order or authorization of any
other third party is required to be obtained or made by or with respect to it or
its affiliates in connection with its execution and delivery of this Agreement,
or the consummation by it of the transactions contemplated hereby.
3.3 Brokers. No broker, finder or financial advisor or other person
is entitled to any brokerage fees, commissions, finders' fees or financial
advisory fees in connection with the transactions contemplated hereby, other
than Winchester Capital Technology Partners, advisor to the Buyers, by reason of
any action taken by it or any of its partners, officers, employees,
representatives or agents.
3.4 Sophisticated Purchaser. Each Buyer (i) is a sophisticated
entity and is able to bear any financial risks associated with the purchase of
the Interests, (ii) has adequate information to make an informed decision
regarding the purchase of the Interests, (iii) has such knowledge and
experience, and has made investments of a similar nature, so as to be aware of
and understand the risks inherent in the purchase in the Interests, (iv) has
independently, and without reliance upon Sellers, and based on such information
as such Buyer has deemed appropriate, made its own analysis and decision to
purchase the Interests, and (v) is purchasing the Interests with investment
intent and not with a view toward distribution.
3.5 Unregistered Securities Acknowledgement. Each Buyer understands
that the Interests have not been registered under the Securities Act of 1933, as
amended (the "Act"), and such Interests may not be transferred except pursuant
to a duly available exemption from such registration requirements.
3.6 Accredited Investor. Each Buyer is an accredited investor, as
such term is defined in Regulation D under the Act.
IV. MISCELLANEOUS.
4.1 Further Assurances. From time to time after the Closing Date, at
the request of the other party hereto and at the expense of the party so
requesting, the parties hereto shall execute and deliver to such requesting
party such documents and take such other action as such requesting party may
reasonably request in order to consummate the transactions contemplated hereby.
4.2 Notices. All notices, requests, demands, waivers and
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered (i) by hand
(including by reputable overnight courier), (ii) by mail (certified or
registered mail, return receipt requested) or (iii) by telecopy facsimile
transmission (receipt of which is confirmed):
(a) If to any Seller, to the address shown below such Seller's
signature on the signature pages hereof; and
11
with a copy (which shall not constitute notice to any Seller)
to:
O'Melveny & Xxxxxx
Times Square Xxxxx
Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxx Xxxxxxxxx, Esq.
(b) If to the Buyers or the New GP, to:
Nova General Partner Limited
c/o Nova Capital Management Ltd.
00 Xxxxx Xxxxxx
Xxxxxx, X00 0XX
Telecopy: 00 (0) 0000000000
Attention: Xxxxx Xxxxxxxxxx
with a copy to:
Xxxxxxx Brothers and Company Limited
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxxxx
XX0 0XX
Xxxxxxx
Telecopy: 44 1922 629815
Attention: Xxxxx Xxxxxx
and a copy to:
Xxxxxx Xxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxx XX0 X0XX
Telecopy: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Xxxxxx Xxxxxxx, Company Secretary
12
and a copy to:
Xxxxxx Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
and a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
or to such other person or address as any party shall specify by notice in
writing to the other parties. All such notices, requests, demands, waivers and
communications shall be deemed to have been given (i) on the date on which so
hand-delivered, (ii) on the third business day following the date on which so
mailed and (iii) on the date on which telecopied and confirmed, except for a
notice of change of address, which shall be effective only upon receipt thereof.
4.3 Amendment, Modification and Waiver. This Agreement may be
amended, modified or supplemented at any time by written agreement of the
Buyers, the New GP and the Sellers owning at least 50% of the aggregate Proceeds
Percent (which must include any Seller that is adversely affected in a manner
different than any other Seller). Any failure of a Seller to comply with any
term or provision of this Agreement may be waived by both the Buyers and the New
GP, and any failure of the Buyers or the New GP to comply with any term or
provision of this Agreement may be waived by Sellers owning at least 50% of the
aggregate Proceeds Percent (which must include any Seller that is adversely
affected in a manner different than any other Seller), at any time by an
instrument in writing signed by or on behalf of such other parties, but such
waiver shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure to comply.
4.4 Entire Agreement. This Agreement and the exhibits, schedules and
other documents referred to herein which form a part hereof contain the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement supersedes all prior agreements and understandings, oral and
written, with respect to its subject matter.
4.5 Severability. Should any provision of this Agreement for any
reason be declared invalid or unenforceable, such decision shall not affect the
validity or enforceability of any of the other provisions of this Agreement,
which other provisions shall remain in full force and effect and the application
of such invalid or unenforceable provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall be valid and be
enforced to the fullest extent permitted by law.
13
4.6 Binding Effect; Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, successors and assigns.
4.7 No Third-Party Beneficiaries. This Agreement is not intended and
shall not be deemed to confer upon or give any person except the parties hereto
and their respective successors and assigns any remedy, claim, liability,
reimbursement, cause of action or other right under or by reason of this
Agreement.
4.8 Fees and Expenses. Whether or not the transactions contemplated
hereby are consummated pursuant hereto, each party hereto shall pay all fees and
expenses incurred by it or on its behalf in connection with this Agreement, and
the consummation of the transactions contemplated hereby, provided, however,
that the Company shall bear the fees and expenses of O'Melveny and Xxxxxx,
counsel to the Company from the AMI Amount as set forth in Section 1.2(a).
4.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.10 Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, the term "person"
shall mean and include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof. As used in
this Agreement, the term "affiliate" shall have the meaning set forth in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended.
4.11 Legal Suits. The prevailing party in any legal suit, action or
proceeding (including in respect of any action asserting a claim based on any
matter purported to be released hereby) shall be entitled to recover its
reasonable legal fees and expenses relating thereto from the non-prevailing
party.
4.12 Governing Law. This Agreement shall be governed by the laws of
the State of New York applicable to agreements made and to be fully performed
therein, excluding choice of law principles that would require the application
of the laws of a jurisdiction other than the State of New York.
4.13 RELEASE. (a) In consideration of the mutual benefits contained
herein, each of the LPs for itself and its heirs, representatives, affiliates,
agents, employees, officers, directors, shareholders, and successors and
assigns, collectively, hereby waives, releases and forever discharges the
Company, the GP, the Investment Manager (as defined in the Partnership
Agreement), each of the other LPs and the New GP and each of their affiliates,
directors, officers, partners, members, representatives and shareholders (in
their capacity as such) from any and all claims, actions, causes of action,
judgments, executions, suits, demands, liabilities, obligations, expenses
(including, without limitation, attorneys' fees and investigative fees), debts
14
and damages of any nature and kind, whether known or unknown, direct or
indirect, whether heretofore or hereafter arising based in tort, contract or
other theory of recovery, that any of them has or may have relating to or
arising out of any event or relationship, or any action or failure to act, and
in any way involving the Company or its business (including any rights under the
Partnership Agreement or any other agreement and documents to which the Company,
the LPs or the GP or New GP, on the one hand or such LP on the other hand, are
or have been parties, other than this Agreement and any agreements entered in
connection herewith), provided, however, that this release shall not prevent an
LP from making a claim or bringing an action against Atlantic Medical
Associates, L.P. or the Investment Manager with respect to recovering any
damages or legal expenses incurred by such LP in connection with any litigation
brought by a third party against such LP in its capacity as a LP of the Company
or by reason of such LP's representative having served on the Company's Limited
Partner Advisory Committee. Each party expressly waives the benefit of any
statutory provisions or principles of law which would limit their release of
unknown claims. In any litigation arising from or related to the matters
released hereby, the release contained in this Section may be pleaded by any
released party as a defense, counterclaim or cross-claim, and shall be
admissible into evidence without foundation testimony whatsoever.
(b) In consideration of the mutual benefits contained herein, the
Company for itself and its heirs, representatives, affiliates, agents,
employees, officers, directors, shareholders, and successors and assigns,
collectively, hereby waives, releases and forever discharges the LPs, the GP,
Investment Manager and each of their affiliates, directors, officers, members,
partners, representatives and shareholders (in their capacity as such) from any
and all claims, actions, causes of action, judgments, executions, suits,
demands, liabilities, obligations, expenses (including, without limitation,
attorneys' fees and investigative fees), debts and damages of any nature and
kind, whether known or unknown, direct or indirect, whether heretofore or
hereafter arising based in tort, contract or other theory of recovery, that any
of them has or may have relating to or arising out of any event or relationship,
or any action or failure to act, and in any way involving the Company or its
business (including any rights under the Partnership Agreement or any other
agreement and documents to which the LPs or the Investment Manager are or have
been parties, other than this Agreement and any agreements entered in connection
herewith). Each party expressly waives the benefit of any statutory provisions
or principles of law which would limit their release of unknown claims. In any
litigation arising from or related to the matters released hereby, the release
contained in this Section may be pleaded by any released party as a defense,
counterclaim or cross-claim, and shall be admissible into evidence without
foundation testimony whatsoever.
(c) In consideration of the mutual benefits contained herein, the GP
for itself and its heirs, representatives, affiliates, agents, employees,
officers, directors, shareholders, and successors and assigns, collectively,
hereby waives, releases and forever discharges the Company and the New GP and
each of their affiliates, directors, officers, members, partners,
representatives and shareholders (in their capacity as such) from any and all
claims, actions, causes of action, judgments, executions, suits, demands,
liabilities, obligations, expenses (including, without limitation, attorneys'
fees and investigative fees), debts and damages of any nature and kind, whether
known or unknown, direct or indirect, whether heretofore or hereafter arising
based in tort, contract or other theory of recovery, that any of them has or may
have relating to or arising out of any event or relationship, or any action or
failure to act, and in any
15
way involving the Company or its business (including any rights under the
Partnership Agreement or any other agreement and documents to which the Company
is or has been a party, other than this Agreement and any agreements entered in
connection herewith). Each party expressly waives the benefit of any statutory
provisions or principles of law which would limit their release of unknown
claims. In any litigation arising from or related to the matters released
hereby, the release contained in this Section may be pleaded by any released
party as a defense, counterclaim or cross-claim, and shall be admissible into
evidence without foundation testimony whatsoever.
(d) In consideration of the mutual benefits contained herein, the
Investment Manager for itself and its heirs, representatives, affiliates,
agents, employees, officers, directors, shareholders, and successors and
assigns, collectively, hereby waives, releases and forever discharges the LPs
and each of their affiliates, directors, officers, members, partners,
representatives and shareholders (in their capacity as such) from any and all
claims, actions, causes of action, judgments, executions, suits, demands,
liabilities, obligations, expenses (including, without limitation, attorneys'
fees and investigative fees), debts and damages of any nature and kind, whether
known or unknown, direct or indirect, whether heretofore or hereafter arising
based in tort, contract or other theory of recovery, that any of them has or may
have relating to or arising out of any event or relationship, or any action or
failure to act, and in any way involving the Company or its business (including
any rights under the Partnership Agreement or any other agreement and documents
to which the LPs are or have been parties, other than this Agreement and any
agreements entered in connection herewith). Each party expressly waives the
benefit of any statutory provisions or principles of law which would limit their
release of unknown claims. In any litigation arising from or related to the
matters released hereby, the release contained in this Section may be pleaded by
any released party as a defense, counterclaim or cross-claim, and shall be
admissible into evidence without foundation testimony whatsoever.
(e) In consideration of the mutual benefits contained herein, the
New GP and the Buyers for itself and its heirs, representatives, affiliates,
agents, employees, officers, directors, shareholders, and successors and
assigns, collectively, hereby waives, releases and forever discharges the LPs
and each of their affiliates, directors, officers, members, partners,
representatives and shareholders (in their capacity as such) from any and all
claims, actions, causes of action, judgments, executions, suits, demands,
liabilities, obligations, expenses (including, without limitation, attorneys'
fees and investigative fees), debts and damages of any nature and kind, whether
known or unknown, direct or indirect, whether heretofore or hereafter arising
based in tort, contract or other theory of recovery, that any of them has or may
have relating to or arising out of any event or relationship, or any action or
failure to act, and in any way involving the Company or its business (including
any rights under the Partnership Agreement or any other agreement and documents
to which the LPs are or have been parties, other than this Agreement and any
agreements entered in connection herewith). Each party expressly waives the
benefit of any statutory provisions or principles of law which would limit their
release of unknown claims. In any litigation arising from or related to the
matters released hereby, the release contained in this Section may be pleaded by
any released party as a defense, counterclaim or cross-claim, and shall be
admissible into evidence without foundation testimony whatsoever.
16
(f) In consideration of the mutual benefits contained herein, the GP
for itself and its heirs, representatives, affiliates, agents, employees,
officers, directors, shareholders, and successors and assigns, collectively,
hereby waives, releases and forever discharges the LPs and each of their
affiliates, directors, officers, members, partners, representatives and
shareholders (in their capacity as such) from any and all claims, actions,
causes of action, judgments, executions, suits, demands, liabilities,
obligations, expenses (including, without limitation, attorneys' fees and
investigative fees), debts and damages of any nature and kind, whether known or
unknown, direct or indirect, whether heretofore or hereafter arising based in
tort, contract or other theory of recovery, that any of them has or may have
relating to or arising out of any event or relationship, or any action or
failure to act, and in any way involving the Company or its business (including
any rights under the partnership agreement or any other agreement and documents
to which the LPs are or have been parties, other than this Agreement and any
agreements entered in connection herewith). Each party expressly waives the
benefit of any statutory provisions or principles of law which would limit their
release of unknown claims. In any litigation arising from or related to the
matters released hereby, the release contained in this Section may be pleaded by
any released party as a defense, counterclaim or cross-claim, and shall be
admissible into evidence without foundation testimony whatsoever.
(g) In addition to the releases above, with respect to any party
hereto that may be governed by, or subject to, the jurisdiction of the laws of
the State of California, such party:
(i) hereby fully and completely release and forever discharge (on
behalf of itself and each of its respective predecessors,
successors, assigns, heirs, legatees, executors, representatives,
attorneys, agents, guardians, custodians, administrators,
conservators, affiliates and associates and any other person or
entity who may in any fashion claim any interest in the subject
matter hereof by, through, or on behalf of any party hereto
(including, without limitation, any parents and subsidiaries of
either)) the other parties and each of their directors, officers,
partners, members, representatives and shareholders (in their
capacity as such) (the "Releasees") from any and all claims,
demands, controversies, liabilities, damages, debts, obligations,
costs, expenses, losses, compensation, attorneys' fees or causes of
action of any kind or nature, whether now known or unknown,
suspected or unsuspected, in law or in equity, that arose from the
beginning of time through and including the date hereof, in
connection with, arising from or related to the Company or any
agreement, understanding or arrangement or proposed agreement,
understanding or arrangement in connection with, arising from or
related to any of the foregoing (including any rights under the
Partnership Agreement or any other agreement and documents to which
the they are or have been parties, other than this Agreement and any
agreements entered in connection herewith); and
(ii) waives any and all rights which it may have with respect to the
subject matter of this release under the provisions of Section 1542
of the Civil Code of the State of California as now worded and as
hereafter amended, which section provides in pertinent part:
17
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
It is understood and agreed that the facts in respect to
which this Agreement is executed may turn out to be
other than or different from the facts in that respect
now known or believed by each of the parties to be true;
and with such understanding and agreement, the parties
expressly accept and assume the risk of facts being
other than or different from the assumptions and
perceptions as of any date prior to and including the
date hereof, and agree that this Agreement shall be in
all respects effective and shall not be subject to
termination or rescission by reasons of any such
difference in facts.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CALEDONIA INVESTMENTS plc
By: /s/ T.C.W. XXXXXX
-----------------------------------------
Name: T.C.W. Xxxxxx
Title: Chief Executive Officer
By: /s/ X.X. XXXXXXX
-----------------------------------------
Name: X.X. Xxxxxxx
Title: Chairman of the Board
XXXXXXX BROTHERS AND COMPANY LIMITED
By: /s/ X.X. XXXXXX
-----------------------------------------
Name: X.X. Xxxxxx
Title: Company Secretary
NOVA GENERAL PARTNER LIMITED
By: /s/ XXXXXX XXXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
CALIFORNIA PUBLIC EMPLOYEES RETIREMENT
SYSTEM
By: /s/ JONCARLO XXXX
-----------------------------------------
Name: Joncarlo Xxxx
Title: Portfolio Manager
Address: 0000 X. Xx., Xxx. 0000
Xxxxxxxxxx, XX
19
ATLANTIC MEDICAL INVESTORS, LLC
By: /s/ J. XXXXXX XXXXXXX
-----------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Member
Address: 000 0xx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
CIBC WMC INC. F/K/A
CIBC WOOD GUNDY CAPITAL CORP.
By: /s/ XXXXX XXXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
Address: 000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
THE BOARD OF REGENTS OF THE UNIVERSITY OF
TEXAS SYSTEM
By: /s/ XXXX X. XxXXXXX
-----------------------------------------
Name: Xxxx X. XxXxxxx
Title: Managing Director
Address: 000 X. Xxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
THE PERMANENT UNIVERSITY FUND OF THE
STATE OF TEXAS
By: /s/ XXXX X. XxXXXXX
-----------------------------------------
Name: Xxxx X. XxXxxxx
Title: Managing Director
Address: 000 X. Xxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
20
LJR LIMITED PARTNERSHIP
By: /s/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Address: Xxxxxxxx Management Co.
Non-Member Manager of the
General Partners of LJR Limited
Partnership
W.S. INVESTMENTS, L.P.
By: JD Partners, its General Partner
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Partner
Address: 00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
ADSTOCK LIMITED
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title:
Address:
ATLANTIC MEDICAL ASSOCIATES, L.P.
By: Atlantic Medical Partners LLC, its general
partner
By: /s/ J. XXXXXX XXXXXXX
-----------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Member
Address: 000 0xx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
21
ATLANTIC MEDICAL CAPITAL, L.P.
BY: Atlantic Medical Associates, L.P., its
general partner
By: Atlantic Medical Partners LLC, its general
partner
By: /s/ J. XXXXXX XXXXXXX
----------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Member
Address: 000 0xx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
DRESDNER KLEINWORT XXXXXX PORTFOLIO
HOLDINGS LLC
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: 1345 Ave. of the Americas
Xxx Xxxx, XX 00000
EQUITABLE LIFE ASSURANCE SOCIETY
By: /s/ D. MARCHARI
--------------------------------------------
Name: D. Marchari
Title: Signatory for Equitable Life
Address: 00 Xxx Xxxxx Xxxxxx
Xxxxxx, XX0X000, X.X.
XXX XX PENSION TRUSTEES CORP.
By: /s/ I.P. XXXXXX
--------------------------------------------
Name: I.P. Xxxxxx
Title: Director
Address: Xxxxxxxxx Xxxxx Venture Advisers Ltd.
22
AXA GENERAL INSURANCE LTD.
By: /s/ I.P. XXXXXX
--------------------------------------------
Name: I.P. Xxxxxx
Title: Director
Address: Xxxxxxxxx Xxxxx Venture Advisers Ltd.
Solely with respect to
Section 4.13(b) hereof:
ATLANTIC MEDICAL CAPITAL, L.P.
By: Atlantic Medical Associates, L.P., its general partner
By: Atlantic Medical Partners LLC, its general partner
By: /s/ J. XXXXXX XXXXXXX
--------------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Member
Solely with respect to
Section 4.13(d) hereof:
ATLANTIC MEDICAL MANAGEMENT, LLC
By: /s/ J. XXXXXX XXXXXXX
--------------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: Managing Director
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SCHEDULE A
ATLANTIC MEDICAL CAPITAL, L.P.
SCHEDULE OF PORTFOLIO INVESTMENTS
NURSEFINDERS ACQUISITION CORP.
1,025,924 shares of Class A common stock
433,276 shares of Series A convertible preferred stock
Warrants to purchase 86,655 shares of Class A common stock, expiring
July 30, 2009
SINCLAIR MONTROSE LTD.
1,000,000 shares of common stock
ALIGNIS, INC.
1,000,000 shares of Series D preferred stock
$1,000,000 convertible promissory note bearing interest at 8%
Warrants to purchase 595,745 and 530,407 shares of common stock,
expiring July 30, 2006 and March 10, 2007, respectively
QUOVADX, INC. (FORMERLY XXXXX.XXX, INC.)
2,327,651 shares of common stock
AHR SELLER GROUP, LLC
87,906 membership units
NOTIFY MD, INC.
19,379 shares of common stock
431,081 shares of Series 2001-A convertible preferred stock
800,000 shares of Series 2001-B convertible preferred stock
465,077 shares of Series 2001-C convertible preferred stock
HCR
Contingent payment right pursuant to Securities Stock Purchase Agreement dated
as of December [ ], 2003 between the Company and HCR Investors, LLC.
ADDITIONAL ASSETS:
Med Cambio, Inc. note
Note
24
Schedule 1.2(e) Liabilities
