EXHIBIT 2.1
PARTNERSHIP AND LIMITED LIABILITY COMPANY MEMBERSHIP
INTEREST PURCHASE AGREEMENT
THIS PARTNERSHIP AND LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST
PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 12th day of August,
2002, by and among Endocare, Inc., a Delaware corporation (the "BUYER"), U.S.
Medical Development, Inc., a Nevada corporation ("USMD"), U.S.M.D. I, L.L.C., a
Texas limited liability company ("USMDLLC") and U.S.M.D., Ltd., a Texas limited
partnership ("USMDLTD"; USMD, USMDLLC and USMDLTD are sometimes hereinafter
individually referred to as a "SELLER" and collectively as the "SELLERS").
WITNESSETH
WHEREAS, the Sellers are engaged in the business of owning, managing and
operating entities that own medical devices and other equipment which provide
cryosurgical therapy for prostate cancer and therapies for benign prostate
hyperplasia (the "BUSINESS") through USMD's cryosurgery and benign prostate
hyperplasia divisions (the "DIVISIONS");
WHEREAS, each of the Sellers desires to sell, assign and transfer to the
Buyer, and the Buyer desires to purchase from the Sellers, each of the Sellers'
general partnership interests, limited partnership interests, limited liability
company membership interests and other equity and ownership interests of any
kind or nature in the partnerships and limited liability companies of the
Divisions; and
WHEREAS, the parties wish to set forth their agreement with respect to
the purchase and sale of the Interests and other matters.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and promises herein contained, the parties agree as follows:
1. PURCHASE, SALE, AND ASSIGNMENT OF THE INTERESTS.
1.1 PURCHASE, SALE AND ASSIGNMENT.
(A) Subject to the terms and conditions hereof, at the Initial
Closing (as defined in Section 1.4 hereof) each of the Sellers shall sell,
assign, convey and otherwise transfer to the Buyer, and the Buyer shall purchase
from the Sellers, all right, title and interest of Sellers in and to (i) each
limited partnership, limited liability company membership and other ownership or
equity interest (including, without limitation, each option or other right to
purchase or acquire any such limited partnership, limited liability company
membership and other ownership or equity interest) as set forth and described on
Schedule 1.1 hereto (collectively, the "INITIAL INTERESTS"), in the partnerships
and limited liability companies of the Divisions or that constitute a portion of
the Business as listed on Schedule 1.1 hereto (collectively, the
"PARTNERSHIPS"), (ii) a ninety-nine percent (99%) interest in each general
partnership interest and each option or other right to purchase or acquire any
such general partnership interest, as set forth and described in Schedule 1.1,
in the Partnerships ("FIRST TRANCHE GP INTERESTS"; the Initial Interests and the
First Tranche GP Interests are collectively referred to herein as the "FIRST
TRANCHE INTERESTS"), (iii) any management agreements or other similar agreements
between Sellers and/or any of their respective affiliates, on the one hand, and
any of the Partnerships, on the other hand (the "MANAGEMENT AGREEMENTS") and
(iv) any rights of Sellers and/or any of their affiliates to distribute Buyer's
products in any territory ("DISTRIBUTION RIGHTS"), in each case, free and clear
of any and all
security interests, liens, charges, claims, agreements (other than the
obligations of Buyer under the Partnership Agreements from and after the Initial
Closing), obligations and encumbrances of any nature whatsoever (as defined in
Section 2.2) ("ENCUMBRANCES").
(B) Subject to the terms and conditions hereof, at the Second
Closing (as defined in Section 1.4 hereof) each of the Sellers shall sell,
assign, convey and otherwise transfer to Buyer, and the Buyer shall purchase
from the Sellers, all right, title and interest of Sellers in and to the
Sellers' then remaining one percent (1%) interests in each general partnership
interest of the Sellers, as set forth and described in Schedule 1.1, in the
Partnerships (the "SECOND TRANCHE GP INTERESTS"; the First Tranche Interests and
the Second Tranche GP Interests are collectively referred to herein as the
"INTERESTS"), free and clear of any and all Encumbrances.
1.2 PURCHASE PRICE. In consideration of the sale, assignment and
transfer of the Interests pursuant to Section 1.1 hereof, the Buyer agrees to
pay to Sellers the consideration set forth in Section 1.2(A) below (the
"PURCHASE PRICE").
(A) Consideration. The Purchase Price shall be payable as
follows:
(1) by offset at and as of the Second Closing of the
$900,000 xxxxxxx money deposit previously paid to USMD in accordance with the
Letter of Intent executed April 8, 2002 between the Buyer and U.S. Therapies
L.L.C., a Nevada limited liability company and predecessor-in-interest to USMD;
(2) by Buyer's forgiveness at and as of the Initial Closing
of the unpaid principal balance together with all accrued and unpaid interest
thereon through the Initial Closing Date under that certain Promissory Note
dated July 15, 2002 issued by USMD to Buyer in the original principal amount of
$6,800,000;
(3) by discharge on the Initial Closing Date, as provided in
Section 1.2(B) hereof, of the unpaid principal balance together with all accrued
and unpaid interest thereon and all other amounts, costs and expenses due with
respect thereto through the Initial Closing Date (the "DISCHARGED INDEBTEDNESS
AMOUNT"), under that certain Promissory Note dated October 29, 2001 issued by
Atlantic Cryotherapy, L.P. to The Frost National Bank ("FROST BANK") in the
original principal amount of $184,500 (the "ATLANTIC NOTE"); and
(4) by payment to the Sellers on the Initial Closing Date of
the sum of $3,330,000 by wire transfer of immediately available funds to an
account designated by the Sellers.
(B) Discharge of Indebtedness. On the Initial Closing Date,
Buyer shall pay at Sellers' direction, the Discharged Indebtedness Amount to
Frost Bank, by wire transfer of immediately available funds to an account
designated by or by check payable to Frost Bank. Sellers shall, at least three
(3) business days prior to the Initial Closing Date, designate to Buyer in
writing the aggregate pay-off amount for Frost Bank as of the Initial Closing
Date and the account to which proceeds for pay-off shall be delivered, which
designation shall be accompanied by written instructions substantially in the
form attached hereto as Exhibit 1.2(B) (a "PAY-OFF LETTER") executed by Frost
Bank, including, without limitation, instructions to provide for the prompt
termination, release and full satisfaction of all Encumbrances, from Frost Bank
setting forth the amounts owed and the pay-off instructions.
1.3 NO ASSUMPTION OF LIABILITY. Except as expressly provided in this
Agreement, neither party shall assume or shall be deemed to have assumed any
liability or obligation of any other party of any kind, character, or
description, whether known or unknown, absolute or contingent, accrued
2
or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or
unsecured, joint or several, due or to become due, vested or unvested,
executory, determined, determinable or otherwise (a "LIABILITY").
1.4 CLOSING.
(A) INITIAL CLOSING. The initial closing of the transactions
contemplated hereby, other than the transactions contemplated by Section 1.1(B)
hereof, (the "INITIAL CLOSING") shall be held as soon as practicable after the
date hereof (the "INITIAL CLOSING DATE"), at the offices of Xxxxxxx, Xxxxxxx &
Xxxxxxxx LLP, 00000 Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, or at such
other location as the Buyer shall designate.
(B) SECOND CLOSING. The closing of the transactions contemplated
by Section 1.1(B) hereof (the "SECOND CLOSING"; the Initial Closing and the
Second Closing are sometimes collectively referred to herein as the "CLOSINGS")
shall be held on the next business day following the Initial Closing Date or
such later date determined by the mutual written agreement of the parties (the
"SECOND CLOSING DATE") at the offices of Xxxxxxx, Phleger & Xxxxxxxx LLP, 00000
Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, or at such other location as the
Buyer shall designate.
(C) TRANSACTIONS. For purposes of this Agreement, "TRANSACTIONS"
shall mean any and all of the transactions contemplated by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Each of the Sellers, jointly and severally, on its own behalf and on
behalf of the Partnerships, as applicable, represents and warrants to the Buyer,
as follows, as of the date hereof, except as set forth on the disclosure
schedule furnished to Buyer and attached hereto which sets for the exceptions to
the representations and warranties contained in this Section 2 and certain other
information called for by this Section 2 (the "SELLERS DISCLOSURE SCHEDULE")
which Sellers Disclosure Schedule identifies any such exceptions with reasonable
particularity and is arranged in sections corresponding to the numbered and
lettered sections contained in this Agreement. The parties acknowledge and agree
that disclosure of any fact or item in any particular section of the Sellers
Disclosure Schedule shall be deemed to be made in any other specific section or
sections of the Sellers Disclosure Schedule to which such disclosure reasonably
relates.
2.1 AUTHORITY. Each of the Sellers possesses full corporate or
partnership power and authority, as the case may be, to execute and deliver this
Agreement and to consummate the Transactions. This Agreement has been duly and
validly executed and delivered by each of the Sellers and constitutes the legal,
valid and binding obligation of each of the Sellers, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or other similar laws from time to time in effect which
affect the enforcement of creditors' rights generally and by general principles
of equity.
2.2 NO VIOLATION. The execution and delivery of this Agreement by
the Sellers and the performance by each of them of the Transactions will not (A)
violate any provision of the Articles of Incorporation or By-laws of USMD or the
Partnership Organizational Documents (as defined below) of USMDLTD or the
Partnership Organizational Documents of the Partnerships, (B) violate any law or
regulation of any United States federal, territorial, state or local
governmental or regulatory agency or authority (an "AUTHORITY"), (C) require any
consent or approval of, notice to or filing with any Authority which has not
been obtained or made, except where the failure to obtain such consent or
approval, or to provide such notice or filing, would not have a Material Adverse
Effect (as defined below) on the Sellers
3
and the Partnerships (or any of them), (D) result in a breach of any provision
of, or require the consent or approval of any third party which has not been
obtained under any contract or agreement to which the Sellers or the
Partnerships (or any of them) is a party, or (E) result in the creation or
imposition of any Encumbrance upon any portion of the assets of the Partnerships
pursuant to the terms of any contract or agreement to which the Sellers or the
Partnerships (or any of them) is a party (the consents, approvals and notices,
if any, required to be obtained or made and referred to in clauses (C) and (D)
above are collectively referred to herein as "SELLERS CONSENTS"). Sellers have
heretofore delivered to the Buyer true, correct and complete copies of (X) the
certificates of limited partnership of each of USMDLTD and the Partnerships and
all amendments thereto (collectively, the "PARTNERSHIP CERTIFICATES"), (Y) the
limited partnership agreements of each of USMDLTD and the Partnerships and all
amendments thereto and limited liability company agreements of each of USMDLLC
and the Partnerships and all amendments thereto (collectively, the "PARTNERSHIP
AGREEMENTS"), and (Z) all other organizational documents, if any, of each of
USMDLTD, USMDLLC and the Partnerships governing the ownership, operation, voting
and control of any of USMDLTD, USMDLLC and the Partnerships (the documents
described in clauses (X), (Y) and (Z) above are, collectively referred to herein
as the "PARTNERSHIP ORGANIZATIONAL DOCUMENTS").
2.3 TITLE TO THE INTERESTS.
(A) USMD is the record and beneficial owner of and has good and
valid title to a 99.5% limited partnership interest in USMDLTD, free and clear
of any and all Encumbrances. USMD has no other ownership or equity interest of
any kind (including, without limitation, any option or right to purchase or
acquire any such other ownership or equity interest) in either USMDLTD or,
except as listed in Schedule 1.1, any of the Partnerships. USMD is the sole
record and beneficial owner of limited partnership interests in USMDLTD. There
are no agreements or other commitments of any nature relating to the issuance of
general or limited partnership interests in USMDLTD.
(B) U.S.M.D. I, L.L.C., a Texas limited liability company is the
record and beneficial owner of and has good and valid title to a 0.5% general
partnership interest in USMDLTD, free and clear of any and all Encumbrances.
U.S.M.D. I, L.L.C. has no other ownership or equity interest of any kind
(including, without limitation, any option or right to purchase or acquire any
such other ownership or equity interest) in either USMDLTD or, except as listed
in Schedule 1.1, any of the Partnerships. U.S.M.D. I, L.L.C. is the sole record
and beneficial owner of general partnership interests in USMDLTD.
(C) The list of the Partnerships set forth in Schedule 1.1
hereto is a true, correct and complete list of each partnership and limited
liability company of the Divisions or through which the Business (or any portion
thereof) is conducted.
(D) The list of the Interests set forth and described in
Schedule 1.1 hereto is a true, correct and complete list of each general
partnership, limited partnership, limited liability company membership and other
ownership or equity interest (including, without limitation each option or other
right to purchase or acquire any such general partnership, limited partnership,
limited liability company membership and other ownership or equity interest), of
the Partnerships owned beneficially or of record by the Sellers (or any of
them).
(E) USMDLTD is the record and beneficial owner of and has good
and valid title to the Interests in the percentages set forth in Schedule 1.1
opposite USMDLTD's name thereon, free and clear of any and all Encumbrances.
USMD is the record and beneficial owner of and has good and valid title to the
Interests in the percentages set forth in Schedule 1.1, opposite USMD's name
thereon, free and clear of any and all Encumbrances. USMDLLC is the record and
beneficial owner
4
of and has good and valid title to the Interests in the percentages set forth in
Schedule 1.1, opposite USMDLLC's name thereon, free and clear of any and all
Encumbrances.
(F) Section 2.3(F) of the Sellers Disclosure Schedule contains a
correct and complete list of each Partnership together with the names of each
holder (including Sellers), and each such holder's respective ownership
percentage, in general partnership, limited partnership, limited liability
company membership and other equity ownership interests (including, without
limitation, each option or other right to purchase or acquire any such general
partnership, limited partnership, limited liability company membership and other
equity ownership interests), in each such Partnership.
(G) The delivery by the Sellers of the Interests to the Buyer at
the Initial Closing or the Second Closing, as provided herein, shall convey to
the Buyer good and valid title to the Interests, free and clear of all, and
shall not result in Buyer being subject to any, Encumbrances.
(H) Each of the issued and outstanding general partnership,
limited partnership, limited liability company membership and other equity
ownership interests (including, without limitation, each option or other right
to purchase or acquire any such general partnership, limited partnership,
limited liability company membership and other equity ownership interests), in
the Partnerships, including, without limitation, the Interests, has been issued
in full compliance with the Partnership Organizational Documents applicable
thereto and in full compliance with all applicable securities laws, rules,
regulations and requirements. After the original issuance of any such interests
that are general partner interests in any of the Partnerships (including the
First Tranche GP Interests and the Second Tranche GP Interests), each subsequent
transfer, if any, of any such general partner interests (including the First
Tranche GP Interests and the Second Tranche GP Interests), was made in full
compliance with the Partnership Organizational Documents applicable thereto and,
in full compliance with all applicable securities laws, rules, regulations and
requirements.
(I) Except with respect to any required capital contributions in
Tri-States Cryotherapy, L.P., each of the Sellers has made any and all capital
contributions required to be made by it prior to the date hereof (including,
without limitation, any required initial capital contributions) to the
Partnerships as required by the Partnership Organizational Documents. None of
the Sellers has any obligation to make any other capital contribution or any
loan or other payment or any other transfer of assets or services to the
Partnerships.
2.4 OTHER OWNERSHIP INTERESTS. No other person has any right to
obtain or acquire any general partnership, limited partnership, limited
liability company membership or other ownership or equity interest (including,
without limitation, any option or other right to purchase or acquire any such
general partnership, limited partnership, limited liability company membership
or other ownership or equity interest), in or to any of the Partnerships or its
capital, profits or distributions.
2.5 CONTRACTS AND COMMITMENTS.
(A) CONTRACTS. Set forth in Section 2.5 of the Sellers
Disclosure Schedule is a true, correct and complete list of each of the
following agreements, whether written or oral, to which the Partnerships (or any
of them) is a party:
(1) any lease of real property, or legally binding
commitment, contract, obligation or agreement for the purchase or sale of real
property (hereinafter, legally binding commitments, contracts, obligations and
agreements of any nature shall all be included in the term "AGREEMENT");
5
(2) any employment agreement with any officer, employee,
director or consultant which is not terminable without severance liability in
excess of $10,000.00 at the discretion of such Partnership on thirty (or fewer)
days' notice from such Partnership;
(3) any agreement to lend or borrow money;
(4) any collective bargaining agreement with any labor union
or other representative of employees;
(5) any agreement guaranteeing the payment or performance of
the obligations of others, except in the ordinary course of business;
(6) any lease of any personal property under the express
terms of which such Partnership shall hereafter be obligated to make aggregate
annual payments exceeding one hundred thousand dollars ($100,000.00);
(7) any ongoing agreement for the sale or purchase of
products or services by such Partnership under the terms of which such
Partnership could hereafter be entitled to receive or obligated to make
aggregate annual payments exceeding one hundred thousand dollars ($100,000.00)
for any such agreement;
(8) any partnership or joint venture agreement the existence
of which the Sellers have not informed the limited partners of the Partnerships;
(9) any security or pledge agreement;
(10) any management or similar agreement, including each
Management Agreement; or
(11) all Partnership Organizational Documents; and
(12) any other agreement material to any of the
Partnerships.
(B) ENFORCEABILITY AND ASSIGNABILITY. Each of the agreements set
forth in Section 2.5 of the Sellers Disclosure Schedule and the requirements
relating to the indebtedness referenced in Section 2.6 (the "CONTRACTS") is
enforceable and in full force and effect, except as such enforceability and
effectiveness may be limited by bankruptcy, insolvency or other similar laws
from time to time in effect which affect the enforcement of creditors rights
generally and by general principles of equity; and none of the Partnerships is
in breach or default, nor are there any facts that with notice or lapse of time
would cause a breach or default by the Partnerships under any of the Contracts,
nor is any of the Sellers aware of any existing breach or default or of any
facts that with notice or lapse of time would constitute a breach or default of
any such Contract by any other party thereto. Each of the written Contracts
incorporates all of the material terms and conditions agreed to by the parties
thereto. The consummation of the Transactions will not be deemed to be an
assignment of any of the Contracts requiring the consent of any other person.
2.6 INDEBTEDNESS OF THE PARTNERSHIPS. None of the Partnerships has,
nor shall the consummation of the Transactions result in any of the Partnerships
being subject to, any debt, guaranty, liability or obligation of any nature,
whether accrued, absolute, contingent or otherwise, due or to become due, or
known or unknown, other than such liabilities incurred in the ordinary course of
business
6
consistent with past practices or which have not had or could not reasonably be
expected to result in a Material Adverse Effect on the Sellers and the
Partnerships (or any of them).
2.7 LITIGATION. There is no suit, action or other proceeding, or
injunction or final judgment relating thereto, pending, or to the knowledge of
the Sellers, threatened (i) against any of the Sellers or the Partnerships, nor,
to the knowledge of the Sellers, any investigation that might result in any such
suit, action or proceeding, (ii) that, to the knowledge of the Sellers,
otherwise relates to or may affect the Business or either of the Divisions or
(iii) that challenges, or that may have the effect of preventing, delaying,
making illegal or otherwise interfering with, any of the Transactions.
2.8 STATEMENT OF REVENUE. The Sellers have previously delivered to
the Buyer an unaudited, internally prepared Summary of Revenue of the
Partnerships for the year ended December 31, 2001 and for the quarter ended
March 31, 2002 (the "SUMMARY OF REVENUES"). Such Summary of Revenues (i) has
been prepared in accordance with the books and records of the Sellers and the
Partnerships, and (ii) fairly presents the financial condition and results of
operations of the Partnerships as of the respective dates thereof and for the
periods covered thereby.
2.9 ABSENCE OF CHANGES. Except for the execution and delivery of
this Agreement and the Transactions, since December 31, 2001, there has not been
any event or development which could reasonably be expected to result in a
Material Adverse Effect (as hereafter defined) on any of the Sellers or the
Partnerships. For purposes of this Agreement, "MATERIAL ADVERSE EFFECT" means,
for any person, a material adverse effect (a) on the business, operations,
financial condition, assets and properties, liabilities or prospects of such
person, taken as a whole, or (b) on the ability of such person to consummate the
Transactions, provided, however, that it shall not include any of the following,
either alone or in combination any effect or change occurring as a result of (i)
general economic or financial conditions, or (ii) other developments which are
not unique to the person but also uniformly affect each of the other persons who
participate or are engaged in the lines of business in which the person
participates or is engaged.
2.10 TANGIBLE PERSONAL PROPERTY. Each of the Partnerships is in
possession of and has good title to, or has valid leasehold interests in or
valid rights to use, all tangible personal property, equipment, plants,
buildings, structures, facilities and all other assets and properties necessary
for the conduct of the Business, except where the failure to hold such title,
interest or right would not have a Material Adverse Effect either individually
or in the aggregate on the Partnerships (or any of them). All tangible personal
property and equipment used by the Partnerships in the conduct of the Business
(the "PARTNERSHIPS EQUIPMENT") is with no known material defects and is in good
operating condition and repair (subject to normal wear and tear) so as to permit
the operation of the Business as presently conducted. Section 2.10 of the
Sellers Disclosure Schedule contains a list and description of (i) each item of
Partnership Equipment with a book value that exceeds $25,000; (ii) the name of
the Partnership that owns such item of Partnership Equipment and (iii) the
physical location of such item of Partnership Equipment.
2.11 BENEFIT PLANS; ERISA.
(A) None of the Sellers or the Partnerships presently maintains
or contributes to, nor have any of the Sellers or the Partnerships ever
maintained or contributed to, any Benefit Plan (as hereafter defined).
(B) None of the Sellers or the Partnerships nor any ERISA
Affiliate has at any time within the six (6) year period preceding the Initial
Closing Date maintained, contributed to, or been obligated to contribute to any
Defined Benefit Plan or "multiemployer plan" (as defined in Section
7
(3)(37) or 4001(a)(3) of ERISA) and no condition exists that presents a material
risk to any of the Sellers or the Partnerships or an ERISA Affiliate of
incurring a liability under Title IV of ERISA.
(1) "BENEFIT PLAN" means any bonus, incentive compensation,
deferred compensation, pension, profit sharing, retirement, stock purchase,
stock option, stock ownership, stock appreciation rights, phantom stock, leave
of absence, layoff, vacation, day or dependent care, legal services, cafeteria,
life, health, accident, disability, workers' compensation or other insurance,
severance, separation or other employee benefit plan, practice, policy or
arrangement of any kind, whether written or oral, including, but not limited to,
any "employee benefit plan" within the meaning of Section 3(3) of ERISA
established, arranged or maintained by the Sellers and the Partnerships (or any
of them) or any corporate group of which the Sellers and the Partnerships (or
any of them) is or was a member, existing at the Initial Closing Date or prior
thereto, to which the Sellers and the Partnerships (or any of them) contributes
or has contributed, or under which any employee, officer, director or former
employee, officer or director of the Sellers and the Partnerships (or any of
them) or any beneficiary thereof is covered, is eligible for coverage or has
benefit rights.
(2) "ERISA AFFILIATE" means any entity which is a member of
a "controlled group of corporations" or which is or was under" common control"
with the Sellers and the Partnerships (or any of them) as defined in Section 414
of the Code.
(3) "DEFINED BENEFIT PLAN" means each Benefit Plan which is
subject to Part 3 of Title I of ERISA, Section 412 of the code or Title IV of
ERISA.
(4) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the rules and regulations promulgated thereunder.
2.12 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL
AUTHORIZATIONS.
(A) Each of the Sellers and the Partnerships is, and at all
times since its incorporation or organization, as the case may be, has been, in
compliance with each legal requirement that is or was applicable to it or to the
conduct or operation of the Business or the ownership or use of any of its
assets, except where failure to comply would not result in a Material Adverse
Effect.
(B) No event has occurred or circumstance exists that (with or
without notice or lapse of time) (i) may constitute or result in a violation by
the Sellers and the Partnerships (or any of them) of any legal requirement,
except where such violation would not result in a Material Adverse Effect on the
Sellers and Partnerships (or any of them) or (ii) may give rise to any
obligation on the part of the Sellers and the Partnerships (or any of them) to
undertake, or to bear all or any portion of the cost of, any remedial action of
any nature, except where the cost of such remedial action would not have a
Material Adverse Effect.
(C) None of the Sellers or the Partnerships has received any
written notice or other written communication from any Authority or any other
person regarding (i) any actual, alleged, possible, or potential violation of,
or failure to comply with, any legal requirement, or (ii) any actual, alleged,
possible, or potential obligation on the part of the Sellers and the
Partnerships (or any of them) to undertake, or to bear all or any portion of the
cost of, any remedial action of any nature.
2.13 ENVIRONMENTAL MATTERS.
(A) Each of the Sellers and the Partnerships is in compliance
with all applicable Environmental Laws (as defined below) except where such
failure could reasonably be expected to have a
8
Material Adverse Effect, and there are no circumstances which may materially
prevent or interfere with such compliance in the future. None of the Sellers or
the Partnerships has received any communication (whether written or oral),
whether from an Authority, citizen group, employee or otherwise, that alleges
that the Sellers and the Partnerships (or any of them) or any of their
respective assets or properties used in the Business is not in full compliance
with Environmental Laws. All permits, registrations and other governmental
authorizations currently held by the Sellers and the Partnerships (or any of
them) pursuant to Environmental Laws (collectively, "ENVIRONMENTAL PERMITS")
represent all permits necessary for the conduct of the Business as currently
conducted, except where the failure to hold such Environmental Permits (or any
of them) could reasonably be expected to have a Material Adverse Effect. None of
the Sellers or the Partnerships has been notified by any relevant Authority that
any permit will be modified, suspended or revoked or cannot be renewed in the
ordinary course of business.
(B) There is no Environmental Notice (as defined below) that is
(i) pending or, to the knowledge of the Sellers, threatened against the Sellers
and the Partnerships (or any of them) or (ii) to the knowledge of the Sellers,
pending or threatened against any person whose liability for such Environmental
Notice may have been retained or assumed by or could reasonably be imputed or
attributed to the Sellers and the Partnerships (or any of them).
(C) To the knowledge of the Sellers, there are no past or
present actions, activities, circumstances, conditions, events or incidents
arising from the operation, ownership or use of any property currently or
formerly owned, operated or used by the Sellers and the Partnerships (or any of
them), including, without limitation, the release, emission, discharge or
disposal of any Material (as defined below) into the Environment (as defined
below), that (i) could reasonably be expected to result in the incurrence of
costs under Environmental Laws or (ii) could reasonably be expected to form the
basis of any Environmental Notice against or with respect to the Sellers and the
Partnerships (or any of them) or against any person whose liability for any
Environmental Notice may have been retained or assumed by or could be imputed or
attributed to the Sellers and the Partnerships (or any of them).
(D) For purposes of this Section 2.13:
(1) "ENVIRONMENT" means any surface water, ground water,
drinking water supply, land surface or subsurface strata, ambient air and any
indoor workplace.
(2) "ENVIRONMENTAL NOTICE" means any written notice by any
person alleging potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental costs, harm or
damages to person, property, natural resources or other fines or penalties)
arising out of, based on or resulting from (a) the emission, discharge,
disposal, release or threatened release in or into the Environment of any
Material or (b) circumstances forming the basis of any violation, or alleged
violation, of any applicable Environmental Law.
(3) "ENVIRONMENTAL LAWS" means all national, state, local
and foreign laws, codes, regulations, common law, requirements, directives,
orders, and administrative or judicial interpretations thereof, all as in effect
on the date hereof or on the Initial Closing Date, that may be enforced by any
Authority, relating to pollution, the protection of the Environment.
(4) "MATERIAL" means pollutants, contaminants or chemical,
industrial, hazardous or toxic materials or wastes, including, without
limitation, petroleum and petroleum products.
9
2.14 TAX MATTERS.
(A) Each of the Sellers and the Partnerships has filed on a
timely basis all Tax Returns (as defined below) that it was required to file,
and all such Tax Returns were complete and accurate in all material respects.
Each of the Sellers and the Partnerships has paid on a timely basis all Taxes
that were due and payable, or if not yet due and payable, such Taxes are accrued
on the books and records of the Sellers and the Partnerships. The unpaid Taxes
(as defined below) for tax periods through July 31, 2002 do not exceed the
accruals and reserves for Taxes (excluding accruals and reserves for deferred
Taxes established to reflect timing differences between book and Tax income) set
forth on the books and records of the Sellers and the Partnerships. None of the
Sellers or the Partnerships has any actual or potential liability for any Tax
obligation of any other taxpayer (including any affiliated group of entities
that included the Sellers and the Partnerships (or any of them) during a prior
period). All Taxes that any of the Sellers or Partnerships is or was required by
law to withhold or collect have been duly withheld or collected and, to the
extent required, have been paid to the proper Authority.
(B) Sellers have made available to Buyer complete and accurate
copies of all federal income Tax Returns, and have delivered to Buyer complete
and accurate copies of all examination reports and statements of deficiencies,
if any, assessed against or agreed to by the any of the Sellers and the
Partnerships (or any of them). Sellers have delivered to Buyer or made available
to Buyer complete and accurate copies of all other Tax Returns of each of the
Sellers and the Partnerships, together with all related examination reports and
statements of deficiency for all periods from and after incorporation or
organization, as the case may be. To the knowledge of the Sellers, no
examination or audit of any Tax Return of any of the Sellers or the Partnerships
by any Authority is currently in progress or, threatened or contemplated. None
of the Sellers or the Partnerships has been informed in writing by any
jurisdiction that the jurisdiction believes that the Sellers or the Partnerships
(or any of them) was required to file any Tax Return that was not filed. None of
the Sellers or the Partnerships has waived any statute of limitations with
respect to Taxes or agreed to an extension of time with respect to a Tax
assessment or deficiency.
(C) For purposes of this Agreement:
(1) "TAX" (and, with correlative meaning, "TAXES," "TAXABLE"
and "TAXING") means (i) any federal, state, local or foreign income, alternative
or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem,
transfer, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed by any Authority responsible for
the imposition of any such tax (domestic or foreign), (ii) any liability for
payment of any amounts of the type described in (i) as a result of being a
member of an affiliated, consolidated, combined, unitary or other group for any
Taxable period and (iii) any liability for the payment of any amounts of the
type described in (i) or (ii) as a result of any express obligation to indemnify
any other person.
(2) "TAX RETURN" means any return, report, information
return, schedule or other document (including any related or supporting
information) filed or required to be filed with respect to any taxing authority
with respect to Taxes.
2.15 PERMITS. Section 2.15 of the Sellers Disclosure Schedule
contains a true and complete list of all permits used in and material,
individually or in the aggregate, to the Sellers and the Partnerships (or any of
them) or the conduct of the Business. All such permits are currently effective
and valid and have been validly issued. To the knowledge of Sellers, no
additional permits are necessary to enable the Sellers and the Partnerships (or
any of them) to conduct the Business in material compliance with all applicable
federal, state and local laws. Neither the execution, delivery or performance of
this
10
Agreement nor the mere passage of time will have any effect on the continued
validity or sufficiency of such permits, nor will any additional permits be
required by virtue of the execution, delivery or performance of this Agreement
to enable the conduct of the Business as now conducted. The Sellers have
provided or made available to Buyer true and complete copies of all permits
listed in the Sellers Disclosure Schedule.
2.16 REGULATORY COMPLIANCE.
(A) Each of the Sellers and the Partnerships has timely filed or
otherwise provided all registrations, reports, data, and other information and
applications with respect to its medical device, pharmaceutical, consumer,
health care, and other governmentally regulated products (the "REGULATED
PRODUCTS") required to be filed with or otherwise provided to the United States
Food and Drug Administration (the "FDA") or any other Authority with
jurisdiction over the manufacture, use, or sale of the Regulated Products, has
complied in all material respects with all legal requirements of the FDA or
other Authority with respect to the Regulated Products (including but not
limited to the Federal Food, Drug, and Cosmetic Act, the Medicare Anti-Kickback
Statute, the Health Insurance Portability and Accountability Act, the Federal
False Claims Act, the Federal laws concerning physician self-referral known as
"Xxxxx I" and "Xxxxx II", and the rules and regulations of the Joint Commission
on Accreditation of Healthcare Organizations) in all material respects, and all
regulatory licenses or approvals in respect thereof are in full force and
effect. All documentation, correspondence, reports, data, analyses and
certification relating to or regarding any medical devices of any of the Sellers
or the Partnerships filed with or delivered by or on behalf of any of the
Sellers or the Partnerships to any Authority was in all material respects true
and accurate when so filed or delivered and, to the knowledge of the Sellers,
remains true and accurate in all material respects. Each Regulated Product is
being distributed and marketed in all material respects in compliance with all
applicable requirements under all applicable laws.
(B) Section 2.16(B) of the Sellers Disclosure Schedule sets
forth a list of each Regulated Product manufactured, marketed, distributed, sold
or licensed by or on behalf of the any of the Sellers or the Partnerships as of
the date of this Agreement.
(C) No request has ever been made to recall, withdraw, suspend
or discontinue any Regulated Product distributed or managed by any of the
Sellers or the Partnerships (whether voluntarily or otherwise). To the knowledge
of the Sellers, no proceedings (whether completed or pending) seeking the
recall, withdrawal, suspension or seizure of any Regulated Product managed or
distributed by any of the Sellers or the Partnerships are pending or, to the
knowledge of the Sellers, threatened against any of the Sellers or the
Partnerships, nor have any such proceedings ever been instituted.
(D) None of the Sellers or the Partnerships has received any
written notice from the FDA or any other Authority of any action to withdraw its
approval or request the recall of any Regulated Product, any action to enjoin
production of any Regulated Product.
2.17 BROKERS. None of the Sellers have retained any broker in
connection with the Transactions. Buyer has, and will have, no obligation to pay
any broker's, finder's, investment banker's, financial advisor's or similar fee
in connection with this Agreement or the Transactions by reason of any action
taken by or on behalf of any of the Sellers or the Partnerships.
2.18 MATERIAL MISSTATEMENTS AND OMISSIONS. The statements,
representations and warranties of the Sellers contained in this Agreement
(including the exhibits and schedules hereto) and in each document, statement,
certificate or exhibit furnished or to be furnished by or on behalf of the
Sellers pursuant hereto, or in connection with the Transactions, taken together,
do not contain and will not
11
contain any untrue statement of a material fact and do not or will not omit to
state a material fact necessary to make the statements or facts contained herein
or therein, in light of the circumstances made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
Buyer represents and warrants to each of the Sellers, as of the date
hereof, as follows:
3.1 AUTHORITY AND NO VIOLATION. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer possesses full corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions. This Agreement has
been duly and validly executed and delivered by the Buyer and constitutes the
legal, valid and binding obligation of the Buyer, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or other similar laws from time to time in effect which
affect the enforcement of creditors' rights generally and by general principles
of equity. The execution and delivery of this Agreement by the Buyer and the
performance by it of the Transactions do not violate the Certificate of
Incorporation or Bylaws of the Buyer or, to the Buyer's knowledge, (A) violate
any law or regulation of any Authority, (B) require any consent or approval of,
notice to or filing with any Authority which has not been obtained or made,
except where the failure to obtain such consent or approval, or to provide such
notice or filing, would not have a Material Adverse Effect on the Buyer or (C)
result in a breach of any provision of, or require the consent or approval of
any third party which has not been obtained under, the terms of any contract or
agreement to which the Buyer is a party, which violation, breach or consent or
approval (if not obtained) would have a Material Adverse Effect on the Buyer.
3.2 LITIGATION. There is no suit, action or other proceeding, or
injunction or final judgment relating thereto, pending, or to the knowledge of
Buyer, threatened against Buyer that challenges, or that may have the effect of
preventing, delaying, making illegal or otherwise interfering with, any of the
Transactions.
3.3 BROKERS. Except for its retention of Xxxxx, Xxxxxxxx & Xxxx,
Buyer ("BUYER'S FINANCIAL ADVISOR") has not retained any broker or investment
banker in connection with the Transactions. Sellers and the Partnerships have,
and will have, no obligation to pay any broker's, finder's, investment banker's,
financial advisor's or similar fee, including without limitation, any fees of
Buyer's Financial Advisor, in connection with this Agreement or the Transactions
by reason of any action taken by or on behalf of the Buyer.
4. CERTAIN COVENANTS.
4.1 TRANSACTIONAL TAXES. Each of the Sellers shall be liable,
jointly and severally, for, and shall indemnify and hold harmless the Buyer and
the Partnerships against, all Taxes with respect to the sale, transfer, or
assignment of the Interests or the consummation of the Transactions.
4.2 ACCESS. Each of the Sellers shall provide, during the normal
business hours of Seller, to Buyer, reasonable access to the facilities, books,
and records of the Sellers and the Partnerships and any partnerships of which
any of the Partnerships is the general partner and shall cause their officers,
employees, accountants, and other agents and representatives ("collectively,
"REPRESENTATIVES") to reasonably cooperate with each Representative of Buyer in
connection with Buyer's due diligence investigation of the Sellers and the
Partnerships and the assets, contracts, liabilities, operations, records and
other aspects of the Business and the Divisions.
12
4.3 OPERATIONS. Each of the Sellers covenants and agrees on its own
behalf and on behalf of each of the Partnerships that the operations and
financial affairs of each of the Partnerships and the partnerships of which any
of the Partnerships is the general partner will be conducted in its ordinary
course of business consistent with past practices during the period from the
effective date hereof until the Initial Closing.
4.4 INFORMATION ACCESS. Buyer agrees that, at the Sellers' expense,
for a period of seven (7) years after the Initial Closing Date, it will assist
and cooperate with the Sellers in collecting and assembling information relating
to the operation of the business of the Partnerships on or prior to the Initial
Closing Date that customarily has been provided or used in connection with the
preparation of any and all Tax Returns, information returns or other reports
required to be filed by the Sellers with any Authority. During such period,
Buyer shall retain, and neither destroy nor dispose of, all Tax Returns, books
and records (including computer files) of, or with respect to the activities of,
the Business and the Divisions for all taxable periods ending prior to the
Initial Closing Date.
4.5 FILINGS. Each of the Buyer and the Sellers, on its own behalf
and on behalf of the Partnerships, shall promptly take all such action as may,
under applicable law, be necessary or appropriate for, and will promptly file
and, if appropriate, use its best efforts to have declared effective or approved
all documents and notifications with or to any Authority that are necessary or
appropriate for the consummation of the Transactions, and each of the Buyer and
the Sellers shall promptly give the other party information requested by such
other party pertaining to it and its affiliates that is reasonably necessary to
enable such other party to take such actions and file in a timely manner all
documents and notifications required to be so filed by applicable law.
4.6 OTHER ACTIONS. Each of the Buyer and the Sellers, on its own
behalf and on behalf of the Partnerships, shall use its reasonable best efforts
to consummate the Transactions and make them effective as promptly as
practicable, including, without limitation, (i) defending lawsuits or other
proceedings challenging this Agreement or the consummation of any of the
Transactions, (ii) using reasonable best efforts to lift any injunction or order
adversely affecting this Agreement or the consummation of the Transactions or
(iii) using reasonable best efforts to obtain any consents necessary for its
performance of the Transactions.
4.7 NO SOLICITATION OR NEGOTIATION. Between the date hereof and the
Initial Closing Date, none of the Sellers will (nor will the Sellers permit any
of the Sellers' officers, directors, general partners, employees, agents,
Representatives or affiliates to) directly or indirectly, take any of the
following actions with any person other than Buyer: (i) solicit, initiate,
entertain or encourage any proposals or offers from, or conduct discussions with
or engage in negotiations with any person relating to any possible acquisition
of any of the Partnerships or any of the Interests (whether by way of merger,
purchase of equity or ownership interests, purchase of assets or otherwise) or
any material portion of its or their assets; (ii) provide information with
respect to it or any of the Partnerships to any person, other than to Buyer,
relating to, or otherwise cooperate with, facilitate or encourage any effort or
attempt by any such person to which the Sellers (or any of them) has knowledge,
to acquire any of the Partnerships or any of the Interests (whether by way of
merger, purchase of equity or ownership interest, purchase of assets or
otherwise) or any portion of its or their assets; or (iii) enter into any
agreement with any person providing for the possible acquisition of any of the
Partnerships or any of the Interests (whether by way of merger, purchase of
equity or ownership interest, purchase of assets or otherwise), or any portion
of its or their assets. In addition, each of the Sellers also agrees that,
unless and until this Agreement is terminated in accordance with its terms, it
will not commence, be involved in, or take any actions in furtherance of, the
process of becoming a public company through an initial public offering.
Notwithstanding the foregoing, nothing in this Section 4.7 shall restrict or be
deemed to restrict the Sellers, between the date
13
hereof and the Initial Closing, from offering and selling limited partnership
interests in the Partnerships to potential new limited partners in the ordinary
course of business and consistent with past practices.
4.8 TERMINATION OF DISTRIBUTION AGREEMENTS. Each of Buyer and the
Sellers hereby agrees and acknowledges that, upon consummation of the
Transactions, each distributor or distribution agreement between Buyer, on the
one hand, and Sellers (or any of them), on the other hand, shall, without any
further action, be automatically terminated and of no further force and effect.
5. CONDITIONS TO OBLIGATIONS OF THE BUYER AND THE SELLERS.
5.1 THE BUYER'S CONDITIONS. The Sellers will deliver or cause to be
delivered to the Buyer:
(A) CERTIFICATE. At the Initial Closing, certificates of an
authorized officer of each of the Sellers certifying (i) copies of resolutions
duly adopted by the Board of Directors of USMD, the general partner of USMDLTD
and the manager(s) and/or member(s) of USMDLLC authorizing and approving the
execution, delivery and performance of this Agreement and the other agreements
and documents executed and delivered in connection herewith, (ii) that all
action by each of the Sellers and the Partnerships necessary to approve the
execution, delivery and performance of this Agreement, and the other agreements
and documents executed and delivered by the Sellers and the Partnerships (or any
of them) in connection herewith, shall have been duly and validly taken, (iii)
that the representations and warranties of each of the Sellers contained in this
Agreement shall be true and correct in all material respects at and as of the
Initial Closing Date with the same effect as if made at and as of the Initial
Closing Date (except to the extent such representations specifically relate to
an earlier date, in which case such representations shall be true and correct in
all material respects as of such earlier date and in any event, subject to the
foregoing materiality qualification) and (iv) such other matters as the Buyer
may reasonably request.
(B) ASSIGNMENT AND ASSUMPTION AGREEMENTS AND AMENDMENTS TO
PARTNERSHIP AGREEMENTS.
(1) At the Initial Closing, (i) an Assignment Agreement,
providing for the sale, assignment and assumption of the First Tranche Interests
and the assignment of the Management Agreements and the Distribution Rights, all
as set forth in Section 1.1 above, substantially in the form satisfactory to the
Buyer, Sellers and their legal counsel (the "INITIAL ASSIGNMENT AGREEMENT") and
(ii) if recommended by counsel to the Buyer, amendments to the Partnership
Agreements providing for the admission and substitution of the Buyer as the
general partner of the Partnerships, substantially in the form satisfactory to
the Buyer, Sellers and their legal counsel (the "AMENDMENT AGREEMENTS"), in each
case, executed by each of Buyer and the Sellers (and any other parties required
for the effectuation thereof) and such other documentation as shall be
reasonably requested by the Buyer to evidence the valid assignment of the First
Tranche Interests and, if recommended by legal counsel to the Buyer, the
admission and substitution of the Buyer as the general partner of the
Partnerships.
(2) At the Second Closing, an Assignment Agreement providing
for the sale, assignment and assumption of the Second Tranche GP Interests as
set forth in Section 1.1 above (the "SECOND ASSIGNMENT AGREEMENT"), executed by
each of Buyer and the Sellers and such other documentation as shall be
reasonably requested by the Buyer to evidence the valid assignment of the Second
Tranche GP Interests.
(C) AMENDMENTS TO PARTNERSHIP CERTIFICATES. At the Initial
Closing, if advised to do so by legal counsel to the Buyer, Certificates of
Amendment to the Partnership Certificates of the
14
Partnerships, evidencing the substitution and admission of the Buyer as the
general partner of the Partnerships, in a form satisfactory to the Buyer and its
legal counsel, executed by each of Buyer and the Sellers (and any other parties
required for the effectuation thereof).
(D) TERMINATION OF ENCUMBRANCES. At the Initial Closing,
evidence satisfactory to Buyer and its counsel that:
(1) each of the promissory notes issued by any of the
Partnerships to Frost Bank, including, without limitation, the Atlantic Note,
the Promissory Note dated April 18, 2002 issued by East Coast Cryotherapy, L.P.
to Frost Bank in the original principal amount of $324,970.81, the Promissory
Note dated April 18, 2002 issued by East Michigan Cryotherapy, L.P. to Frost
Bank in the original principal amount of $184,500 and the Promissory Note dated
October 29, 2001 issued by Georgia Cryotherapy, L.P. to Frost Bank in the
original principal amount of $335,564.76 (the "FROST/PARTNERSHIPS NOTES") and
any security agreements and other documents, instruments or agreements executed
by any of the Partnerships with Frost Bank related to or in connection with the
Frost/Partnerships Notes (the "FROST/PARTNERSHIPS LOAN DOCUMENTS", have been
terminated and cancelled and are of no further force or effect;
(2) all Encumbrances on or with respect to (i) any of the
Interests, including, but not limited to, Encumbrances of Frost Bank thereon,
and (ii) any Encumbrances on or with respect to the Partnerships (or any of
them) or any of the Partnerships' respective assets and properties, including,
but not limited to, Encumbrances of Frost Bank with respect to the
Frost/Partnerships Notes and Frost/Partnerships Loan Documents, have, in each
case, been fully released and terminated (the "RELEASED ENCUMBRANCES"),
including, without limitation, a Pay-Off Letter executed by Frost Bank with
respect to the Discharged Indebtedness Amount and Uniform Commercial Code
("UCC") termination statements terminating all UCC financing statements which
cover any of the Released Encumbrances; provided, however, notwithstanding the
closing of the Transactions, failure to secure the release of any Encumbrances
by Sellers shall not constitute a waiver on the part of Buyer of the obligations
of Sellers set forth in this subsection (D).
(E) RELEASES. At the Initial Closing, releases in the form
attached hereto as Exhibit 5.1(E) executed by each of the Sellers and Xxxx X.
House, M.D.
(F) NON-COMPETITION AGREEMENTS. At the Initial Closing,
non-competition, non-solicitation and non-disclosure agreements substantially in
the form attached hereto as Exhibit 5.1(F) executed by each of the Sellers, Xxxx
X. House, M.D., Xxxxx X. Xxxxx, M.D., H. Xxx Xxxxxxx, M.D. and Xxxxxx X. Xxxxx.
(G) LEGAL OPINIONS.
(1) At the Initial Closing, an opinion of Xxxxxx and Xxxxx
LLP, dated the Initial Closing Date, substantially in the form of Exhibit
5.1(G).
(2) At the Initial Closing, evidence that opinions of Xxxxxx
and Xxxxx LLP, dated the Initial Closing Date and substantially in the form
required by any of the Partnership Agreements have, where applicable, been
delivered to the Partnerships.
(H) GOOD STANDING CERTIFICATES. At the Initial Closing,
certificates dated as of a date not earlier than the tenth (10th) business day
prior to the Initial Closing as to the good standing of each of the Sellers and
the Partnerships executed by the appropriate officials of the jurisdictions of
organization of each of the Sellers and the Partnerships.
15
(I) CONSENTS. At the Initial Closing, each of the Sellers
Consents.
(J) OTHER CLOSING DOCUMENTS. At the Initial Closing, such other
deeds, bills of sale, assignments, certificates of title, documents and other
instruments of transfer and conveyance as may reasonably be requested by Buyer,
each in form and substance satisfactory to Buyer and its legal counsel and
executed by Sellers.
5.2 SELLERS' CONDITIONS. The Buyer will deliver or cause to be
delivered to the Sellers:
(A) CERTIFICATE. At the Initial Closing, a Certificate of the
Secretary of the Buyer certifying (i) copies of resolutions duly adopted by the
Board of Directors of the Buyer authorizing and approving the execution,
delivery and performance of this Agreement and the other agreements and
documents executed and delivered in connection herewith, (ii) that all action by
Buyer necessary to approve the execution, delivery and performance of this
Agreement, and the other agreements and documents executed and delivered by
Buyer in connection herewith, shall have been duly and validly taken, (iii) that
the representations and warranties of the Buyer contained in this Agreement
shall be true and correct in all material respects at and as of the Initial
Closing Date with the same effect as if made at and as of the Initial Closing
Date (except to the extent such representations specifically relate to an
earlier date, in which case such representations shall be true and correct in
all material respects as of such earlier date and in any event, subject to the
foregoing materiality qualification) and (iv) such other matters as the Sellers
may reasonably request.
(B) ASSIGNMENT AGREEMENTS. At the Initial Closing, the Initial
Assignment Agreement, executed by the Buyer and, at the Second Closing, the
Second Assignment Agreement, executed by the Buyer.
(C) AMENDMENT AGREEMENTS. At the Initial Closing, the Amendment
Agreements, executed by the Buyer.
(D) GOOD STANDING CERTIFICATE. At the Initial Closing, a
Certificate dated as of a date not earlier than the tenth (10th) business day
prior to the Initial Closing as to the good standing of Buyer executed by the
Secretary of State of the State of Delaware.
6. SURVIVAL OF REPRESENTATIONS; INDEMNITIES.
6.1 SURVIVAL; LIABILITY.
(A) SURVIVAL. The representations and warranties contained in
this Agreement shall survive the sale, assignment and transfer to the Buyer of
the Interests and shall continue in full force and effect for twelve (12) months
following the Initial Closing, except that (i) the representations and
warranties contained in Sections 2.1, 2.3 and 2.4 shall survive forever and (ii)
the representations and warranties contained in Sections 2.11, 2.12, 2.13 and
2.14 shall survive through the applicable statute of limitations (the
"EXPIRATION DATE"). The agreements and covenants contained in this Agreement
shall survive in accordance with their terms.
(B) NO EFFECT ON LIABILITY. None of (i) the consummation of the
Transactions, (ii) the delay or omission of any party to exercise any of its
rights under this Agreement or (iii) any investigation or disclosure that any
party makes, any notice that any party gives, or any knowledge that any party
obtains as a result thereof, or otherwise, shall (x) affect the liability of the
parties to one another for breaches of their covenants contained in this
Agreement, (y) affect the liability of the parties to one
16
another for misrepresentation under this Agreement, or (z) prevent any party
from relying on the representations contained in this Agreement.
6.2 INDEMNITIES.
(A) SELLERS' INDEMNITY. Each of the Sellers, jointly and
severally, shall indemnify, defend and hold harmless the Buyer and its officers,
directors, employees, partners, affiliates, agents, successors, subsidiaries and
permitted assigns (collectively, the "BUYER INDEMNIFIED GROUP") from and against
any and all liabilities, damages, obligations, claims and expenses (including,
without limitation, costs of investigation and defense and reasonable attorney's
fees) (collectively "LOSSES") that any member of the Buyer Group sustains or
becomes subject to as a result of, arising out of or relating to (i) the breach
of any of the warranties or representations of the Sellers (or any of them) made
herein, (ii) the breach of any covenants or agreements of the Sellers (or any of
them) made herein, and (iii) any Third Party Claims (as defined in Section
6.2(C) below) arising out of or relating to the ownership of the Interests, the
operation of the Partnerships and the conduct of the Business in any period
prior to the Initial Closing.
(B) THE BUYER'S INDEMNITY. The Buyer shall indemnify, defend and
hold harmless each of the Sellers and their respective officers, directors,
employees, partners, affiliates, agents, successors, subsidiaries and permitted
assigns (collectively, the "SELLERS INDEMNIFIED GROUP") from and against all
Losses that any member of the Sellers Indemnified Group sustains or becomes
subject to as a result of (i) the breach of any of the warranties or
representations of the Buyer made herein, (ii) the breach of any of the
covenants or agreements of the Buyer made herein, and (iii) the ownership of the
Interests, the operation of the Partnerships and the conduct of the Business in
any period subsequent to the Initial Closing.
(C) THIRD PARTY CLAIM. If any claim, action, suit or proceeding
is filed or initiated by a third party against any party entitled to the benefit
of indemnity hereunder (each, a "THIRD PARTY CLAIM"), written notice thereof
shall be given to the indemnifying party as promptly as practicable (and in any
event within three (3) days after the service of the citation or summons);
provided, however, that the failure of any indemnified party to give timely
notice shall not affect rights to indemnification hereunder except to the extent
that the indemnifying party demonstrates actual damage caused by such failure.
After such notice, if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection with such Third Party Claim, then the
indemnifying party shall be entitled, if it so elects, to take control of the
defense and investigation of such Third Party Claim and to employ and engage
attorneys of its own choice to handle and defend the same, such attorneys to be
reasonably satisfactory to the indemnified party, at the indemnifying party's
cost, risk and expense (unless (i) the indemnifying party has failed to assume
the defense of such Third Party Claim or (ii) the named parties to such Third
Party Claim include both of the indemnifying party and the indemnified party,
and the indemnified party and its counsel determine in good faith that there may
be one or more legal defenses available to such indemnified party that are
different from or additional to those available to the indemnifying party and
that joint representation would be inappropriate), and to compromise or settle
such Third Party Claim, which compromise or settlement shall be made only with
the written consent of the indemnified party, such consent not to be
unreasonably withheld. The indemnified party may withhold such consent if such
compromise or settlement would adversely affect the conduct of business or
requires less than an unconditional release to be obtained. If (i) the
indemnifying party fails to assume the defense of such Third Party Claim within
15 days after receipt of notice thereof pursuant to this Section 6.2, or (ii)
the named parties to such Third Party Claim include both the indemnifying party
and the indemnified party and the indemnified party and its counsel determine in
good faith that there may be one or more legal defenses available to such
indemnified party that are different from or additional to those available to
the
17
indemnifying party and that joint representation would be inappropriate, the
indemnified party against which such Third Party Claim has been filed or
initiated will (upon delivering notice to such effect to the indemnifying party)
have the right to participate, at the indemnifying party's cost and expense, in
the defense, compromise or settlement of such Third Party Claim; provided,
however, that such Third Party Claim shall not be compromised or settled without
the written consent of both the indemnified and the indemnifying party, which
consent shall not be unreasonably withheld. The indemnifying party shall be
liable for any settlement of any Third Party Claim effected pursuant to and in
accordance with this Section 6.2 and for any final judgment (subject to any
right of appeal), and the indemnifying party agrees to indemnify and hold
harmless the indemnified party from and against any Losses by reason of such
settlement or judgment.
Regardless of whether the indemnified party participates in the defense,
the indemnifying party will pay reasonable costs and expenses in connection with
the defense, compromise or settlement for any Third Party Claim under this
Section 6.2.
(D) COOPERATION. The indemnified party shall cooperate in all
reasonable respects with the indemnifying party and such attorneys in the
investigation, trial and defense of such Third Party Claim and any appeal
arising therefrom; provided, however, that the indemnified party may, at its own
cost, participate in the investigation, trial and defense of such Third Party
Claim and any appeal arising therefrom. The indemnifying party shall pay all
reasonable expenses due under this Section 6.2 as such expenses become due. In
the event such expenses are not so paid, the indemnified party shall be entitled
to settle any Third Party Claim under this Section 6.2 without the consent of
the indemnifying party and without waiving any rights the indemnified party may
have against the indemnifying party.
(E) LIMITATIONS ON INDEMNIFICATION OF BUYER INDEMNIFIED GROUP.
Claims for indemnification by the Buyer Indemnified Group under Section 6.2(A)
hereof shall be limited as follows:
(1) Any claim for indemnification by the Buyer Indemnified
Group under Section 6.2(A)(i) hereof shall be made on or before the applicable
Expiration Date (if any); and
(2) Except for any claim for indemnification by the Buyer
Indemnified Group relating to a breach of the representations or warranties
contained in Sections 2.1, 2.3 or 2.4, as to which this Section 6.2(E)(2) shall
not apply, Sellers shall not be liable to the Buyer Indemnified Group for any
claims for indemnification made by the Buyer Indemnified Group under Section
6.2(A)(i) hereof until the aggregate amount of Losses with respect to such
claims exceeds $50,000, and then only to the extent such indemnification claims
exceed such amount; and
(3) Except for any claim for indemnification by the Buyer
Indemnified Group relating to a breach of the representations or warranties
contained in Sections 2.1, 2.3 or 2.4, as to which this Section 6.2(E)(3) shall
not apply, the aggregate liability of Seller for Losses under Section 6.2(A)
shall be limited to $7,000,000.
(F) REMEDIES. Except with respect to claims based on fraud or
willful misconduct, the parties hereto acknowledge and agree that the indemnity
obligations set forth above shall be the exclusive remedy of the indemnified
parties with respect to the Transactions.
7. FURTHER ASSURANCES AND COOPERATION.
Following the Closings, each of the Sellers and Buyer shall each
promptly execute, deliver and/or file such documents, and promptly take such
other actions (at the requesting party's expense, unless otherwise provided in
this Agreement), as shall be reasonably requested by the other party to
effectuate
18
the Transactions, including, without limitation, if requested by Buyer,
executing, delivering and/or filing amendments to the Partnership Organizational
Documents to reflect the consummation of the Transactions and causing the
execution, delivery and/or filing of such documents and amendments by the
holders (other than Buyer) of equity or ownership interests in the Partnerships.
8. CONFIDENTIALITY; MARKET STANDSTILL.
8.1 CONFIDENTIALITY.
(A) From and after the date hereof and through the Initial
Closing Date, neither Sellers and the Partnerships, on the one hand, nor Buyer,
on the other hand (such party, as applicable, for the purpose of this Section
8.1, the "DISCLOSING PARTY") shall, without the prior written consent of the
other party (for the purpose of this Section 8.1, the "NON-DISCLOSING PARTY"),
disclose to any person Confidential Information (as defined below) of the
Non-disclosing Party, except to a Disclosing Party's affiliates, employees or
Representatives who need to know such information for any reason contemplated by
this Agreement (and then only to the extent that such persons are under an
obligation to maintain the confidentiality of the Confidential Information), or
use any Confidential Information of the Non-disclosing Party for any reason
other than contemplated by this Agreement unless such Disclosing Party has (i)
consulted with the Non-disclosing Party and obtained the Non-disclosing Party's
prior written consent, and (ii) been advised by counsel that disclosure is
required to be made under applicable legal requirements or the requirements of a
national securities exchange or another similar regulatory body. In the event
that the Disclosing Party is requested or required by documents, subpoena, civil
investigative demand, interrogatories, requests for information, or other
similar process to disclose any Confidential Information, the Disclosing Party
shall provide the Non-disclosing Party with prompt written notice of such
request or demands or other similar process so that the Non-disclosing Party may
seek an appropriate protective order or, if such request, demand or other
similar process is mandatory, waive the Disclosing Party's compliance with the
provisions of this Section 8.1(A) as appropriate.
(B) The term "CONFIDENTIAL INFORMATION" as used herein means (i)
as to Buyer, all confidential information relating to Buyer's business and
operations, and (ii) as to Sellers, all confidential information relating to the
business and operations of the Sellers and their affiliates in each of (i) and
(ii) whether disclosed prior to or after the date hereof. The term "Confidential
Information" does not include information which becomes generally available to
the public other than as a result of disclosure by the Disclosing Party, or
becomes available to the Disclosing Party on a non-confidential basis from a
source other than the Non-disclosing Party, provided that such source is not
bound by a confidentiality agreement with the Non-disclosing Party; provided,
however, the term "Confidential Information" does not include information which
becomes generally available to the public other than as a result of disclosure
by the Disclosing Party, or becomes available to the Disclosing Party on a
non-confidential basis from a source other than the Non-disclosing Party,
provided that such source is not bound by a confidentiality agreement with the
Non-disclosing Party.
8.2 PUBLIC ANNOUNCEMENTS.
None of Buyer or the Sellers shall issue any press release or otherwise
make any public statements with respect to the Transactions without the prior
consent of Buyer (in the case of the Sellers) or the Sellers (in the case of
Buyer), except as may be required by applicable law, including any determination
by Buyer that a press release or other public statement is required under
applicable securities or regulatory rules. If any party determines, with the
advice of counsel, that it is required by applicable law to make this Agreement
or any terms thereof public, it shall consult with the other parties regarding
such disclosure and seek confidential treatment for such terms or portions of
this Agreement as may be requested by the other parties.
19
9. GENERAL PROVISIONS.
9.1 TERMINATION.
This Agreement may be terminated and the Transactions may be abandoned
at any time prior to the Initial Closing whether before or after approval and
adoption of this Agreement:
(A) by written consent of Buyer and the Sellers;
(B) by Buyer or the Sellers if (i) any court of competent
jurisdiction in the United States or other United States federal or state
governmental entity shall have issued an order, decree, ruling or other action
restraining, enjoining or otherwise prohibiting the Transactions and such order,
decree, ruling or other action is or shall have become non-appealable, or (ii)
the Transactions have not been consummated by August 30, 2002 (the "FINAL
DATE"); provided that no party may terminate this Agreement pursuant to this
clause (ii) if such party's failure to fulfill any of its obligations under this
Agreement or the Transactions shall have been a principal reason that the
Initial Closing shall not have occurred on or before the Final Date.
(C) by the Sellers if (i) there shall have been a breach in any
material respect of any representations or warranties on the part of Buyer set
forth in this Agreement or if any representations or warranties of Buyer shall
have become untrue in any material respect, provided that none of the Sellers
has breached any of its obligations hereunder in any material respect; or (ii)
there shall have been a breach by Buyer of any of its covenants or agreements
hereunder in any material respect or materially adversely affecting (or
materially delaying) the ability of Buyer or the Sellers to consummate the
Transactions, and Buyer has not cured such breach within ten (10) business days
after written notice by the Sellers thereof, provided that none of the Sellers
has breached any of its obligations hereunder in any material respect; or
(D) by the Buyer if (i) there shall have been a breach in any
material respect of any representations or warranties on the part of the Sellers
(or any of them) set forth in this Agreement or if any representations or
warranties of the Sellers (or any of them) shall have become untrue in any
material respect, provided that Buyer has not breached any of its obligations
hereunder in any material respect; or (ii) there shall have been a breach by the
Sellers (or any of them) of one or more of its covenants or agreements hereunder
in any material respect or materially adversely affecting (or materially
delaying) the ability of the Buyer or the Sellers to consummate the Transaction,
and the Sellers have not cured such breach within ten (10) business days after
notice by the Buyer thereof, provided that Buyer has not breached any of its
obligations hereunder in any material respect.
9.2 EFFECTS ON TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 9.1 above, this Agreement
shall forthwith become void and have no effect without liability on the part of
any party hereto or its affiliates other than the provisions of this Section 9.2
and Sections 8, 9.3, 9.7, 9.8, 9.15 and 9.16.
9.3 REIMBURSEMENT OF BUYER'S THIRD PARTY EXPENSES. In the event
Buyer terminates this Agreement pursuant to Section 9.1(D)(ii) as a result of
the Sellers' breach of Section 4.7 hereof, the Sellers shall promptly pay to
Buyer in cash, as liquidated damages and not as a penalty, the amount of Buyer's
Third Party Expenses (notwithstanding Section 9.15 hereof) related to this
Agreement and the Transactions, up to a maximum amount of $100,000.
9.4 NOTICES. All notices and other communications hereunder shall be
in writing and shall be delivered personally (including express courier) or sent
by telecopy (and promptly confirmed by
20
mail) or sent by prepaid registered or certified mail (return receipt requested)
or by overnight delivery by a nationally recognized overnight courier to the
parties at the following addresses:
(A) if to the Sellers, to:
U. S. Medical Development, Inc.
0000 Xxxxx Xxxxx Xxxxxxx 000, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
(B) if to the Buyer, to
Endocare, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Notices sent as aforesaid shall be deemed given and effective upon receipt. Any
party (and any other person or entity designated to receive notice) may change
its address or telecopy number for notice by delivery to all other parties of
notice to such effect in the manner set froth herein.
9.5 ENTIRE AGREEMENT. This Agreement (including the exhibits,
schedules (including Sellers Disclosure Schedule), documents and instruments
referred to or incorporated herein) constitutes the entire agreement, and
supersedes all other prior agreements and undertakings (including
representations and warranties), both written and oral, among the parties with
respect to the subject matter hereof and thereof.
9.6 THIRD PARTIES; ASSIGNMENT. This Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder. None of the Sellers may assign this Agreement or any interest therein
without the prior written consent of the Buyer. The Buyer may assign this
Agreement or any interest therein without the consent of the Sellers.
9.7 GOVERNING LAW. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without regard to principles of conflicts of law).
21
9.8 CONSENT TO JURISDICTION AND FORUM SELECTION. Each of the Buyer
and the Sellers irrevocably agrees that any legal action or proceeding with
respect to this Agreement or for the recognition and enforcement of any judgment
in respect hereof brought by the other party hereto or its successors or assigns
will be brought and determined in the Chancery or other courts of the State of
Delaware, and each of the Buyer and the Sellers hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts. Each of Buyer and Sellers hereby irrevocably waives, and
agrees not to assert, by way of motion, as a defense, counterclaim or otherwise,
in any action or proceeding with respect to this Agreement, (a) any claim that
it is not personally subject to the jurisdiction of the above-named courts for
any reason other than the failure to lawfully serve process, (b) that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise), (c) to the fullest extent permitted by
applicable law, that (i) the suit, action or proceeding in any such court is
brought in an inconvenient forum, (ii) the venue of such suit, action, or
proceeding is improper and (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts and (d) any right to trial by jury.
9.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts which together shall constitute a single agreement.
9.10 CERTAIN DEFINITIONS
(A) "AFFILIATE". For purposes of this Agreement an "AFFILIATE"
of the Sellers or the Partnerships (or any of them) or the Buyer is a person
that directly, or through one or more intermediaries, controls, or is controlled
by, or is under common control with the Sellers or the Partnerships (or any of
them) or Buyer, as the case may be. "CONTROL" (including the terms "controlled
by" and "under common control with") means the possession, directly or
indirectly of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of stock or other interests,
by contract, credit arrangement, or otherwise.
(B) "PERSON". For purposes of this Agreement a "PERSON" means
any natural person, corporation, general partnership, limited partnership,
limited liability company, proprietorship, other business organization, trust,
union, association or Authority.
(C) "KNOWLEDGE". For purposes of this Agreement "KNOWLEDGE OF
THE SELLERS" means the knowledge of each of the officers and directors of USMD,
each general partner of USMDLTD and each officer and director of each such
general partner and each manager and officer of USMDLLC. Each such individual
will be deemed to have Knowledge of a particular fact or other matter if: (i)
such individual is actually aware of such fact or other matter; or (ii) a
prudent individual could be expected to discover or otherwise become aware of
such fact or other matter in the course of conducting a reasonable investigation
concerning the existence of such fact or other matter.
9.11 AMENDMENT. This Agreement may only be amended by an instrument
in writing signed by the parties hereto.
9.12 WAIVER. Any term or provision of this Agreement may be waived
at any time by the party or parties entitled to the benefits thereof but (A) no
such waiver shall be effective unless in writing and signed by the party claimed
to have made such waiver, and (B) no waiver of any term, provision or breach of
this Agreement shall operate or be construed as a waiver of the same or any
other term or provision, or any other breach of this Agreement, on any other
occasion.
22
9.13 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and mutually
acceptable to the parties herein.
9.14 CONSTRUCTION. No provision of this Agreement shall be construed
in favor of or against any party on the ground that such party or its counsel
drafted the provision. Except as otherwise provided herein, any remedies
provided for herein are not exclusive of any other lawful remedies which may be
available to either party. This Agreement shall at all times be construed so as
to carry out the purposes stated herein.
9.15 EXPENSES. Whether or not the Transactions are consummated, all
fees, costs and expenses incurred in connection with the Transactions, this
Agreement and the other agreements and transactions contemplated hereby and
thereby, including all legal, accounting, financial advisory, broker's
consulting and other fees and expenses of third parties incurred by a party in
connection with the negotiation, documentation and effectuation of the terms and
conditions of the Transactions, this Agreement and the other agreements and
transactions contemplated hereby and thereby ("THIRD PARTY EXPENSES"), shall be
the obligation of the respective party incurring such Third Party Expenses. For
further clarity, the parties hereto understand and agree that any Third Party
Expenses incurred by or on behalf of the Partnerships shall be the obligation of
the Sellers.
9.16 ATTORNEYS FEES. In the event any action is brought for
enforcement or interpretation of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys fees and costs incurred in said action.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BUYER:
ENDOCARE, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: COO & CFO
USMD:
U.S. MEDICAL DEVELOPMENT, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
USMDLTD:
U.S.M.D. LTD., a Texas limited
partnership
By: U.S.M.D. I, L.L.C., its general
partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
USMDLLC:
U.S.M.D. I, L.L.C., a Texas limited
liability company
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE TO PARTNERSHIP INTEREST AND
LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST
PURCHASE AGREEMENT]
SCHEDULE 1.1
GENERAL PARTNERSHIP, LIMITED PARTNERSHIP, LIMITED LIABILITY COMPANY MEMBERSHIP
AND OTHER OWNER EQUITY TO BE PURCHASED
This schedule has been omitted in accordance with Item 601(b)(2) of
Regulation S-K. A copy of this schedule will be furnished supplementally to the
Securities and Exchange Commission upon request.
SELLERS DISCLOSURE SCHEDULE
This schedule has been omitted in accordance with Item 601(b)(2) of
Regulation S-K. A copy of this schedule will be furnished supplementally to the
Securities and Exchange Commission upon request.
EXHIBIT 1.2(B)
FORM OF PAY-OFF LETTER
This exhibit has been omitted in accordance with Item 601(b)(2) of
Regulation S-K. A copy of this exhibit will be furnished supplementally to the
Securities and Exchange Commission upon request.
EXHIBIT 5.1(E)
RELEASE
This exhibit has been omitted in accordance with Item 601(b)(2) of
Regulation S-K. A copy of this exhibit will be furnished supplementally to the
Securities and Exchange Commission upon request.
EXHIBIT 5.1(F)
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This exhibit has been omitted in accordance with Item 601(b)(2) of
Regulation S-K. A copy of this exhibit will be furnished supplementally to the
Securities and Exchange Commission upon request.
EXHIBIT 5.1(G)
SELLERS COUNSEL OPINION
This exhibit has been omitted in accordance with Item 601(b)(2) of
Regulation S-K. A copy of this exhibit will be furnished supplementally to the
Securities and Exchange Commission upon request.