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EXHIBIT 10.60
MASTER TERMINATION
AND
INDEMNIFICATION AGREEMENT
This MASTER TERMINATION AND INDEMNIFICATION AGREEMENT (the "Agreement")
is made and entered this 31st day of May, 2000, but effective as of NOVEMBER 10,
1999 (the "Effective Date"), between and among SOUTHEAST TEXAS CARDIOLOGY
ASSOCIATES, P.A., a Texas professional association ("SETCA"), SOUTHEAST TEXAS
CARDIOLOGY ASSOCIATES II, P.A., a Texas professional association ("SETCA II,
P.A."), SOUTHEAST TEXAS CARDIOLOGY ASSOCIATES II, L.L.P., a Texas Limited
Liability Partnership ("SETCA II, L.L.P."), RODOLFO SOTOLONGO, M. D.
("SOTOLONGO"), WAYNE MARGOLIS, M. D. ("MARGOLIS"), MICHAEL SMITH, M.D.
("SMITH"), MIGUEL CASTELLANOS, M.D. ("CASTELLANOS"), RAYTEL SOUTHEAST
MANAGEMENT, L.P., a Texas limited partnership ("RSM"), its corporate general
partner, RAYTEL TEXAS PHYSICIAN SERVICES, INC., a Delaware corporation ("RTPS"),
RAYTEL MANAGEMENT HOLDING, INC. ("RMH") Limited Partner of RSM, and RAYTEL
MEDICAL CORPORATION, a Delaware corporation ("RMC"), all collectively referred
to as the "Parties," and SOTOLONGO, MARGOLIS, SMITH and CASTELLANO are sometimes
referred to as the "Shareholders."
RECITALS
A. WHEREAS, the Parties have entered into certain agreements for the
sale and acquisition of and subsequent management and operation of a cardiology
medical practice principally located at 755 South 11th Street, Beaumont, Texas,
and 2693 North Street, Beaumont, Texas, with additional locations in Orange and
Port Arthur Texas (the "Practice"), and
B. WHEREAS, the Parties have entered into certain agreements to manage
the cardiology Practice; and
C. WHEREAS, the Parties have agreed to alter their arrangements in such
a way that they alter the management and control over the Practice and certain
business relationships among the parties hereto; and.
D. WHEREAS, the Parties have agreed to (i) terminate those agreements
and arrangements on the terms and conditions set forth herein and (ii) to
transition all ownership, management and control over all aspects of the
Practice of SETCA, SETCA II, PA and SETCA II, L.L.P. referred to in A. above and
collectively herein referred to as the ("Practice"), and (iii)
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pursuant to and in connection therewith, simultaneously with the execution of
this Agreement certain parties to this Agreement are also entering into a Stock
Purchase Agreement dated May 31, 2000 (the "Stock Purchase Agreement"), between
RMC, RMH, RTPS and RTPS ACQUISITION COMPANY, L.L.C., a Texas limited liability
company (referred to as "Purchaser") pursuant to which Purchaser acquires and
purchases all of the stock of RTPS, and (iv) further in connection therewith
Purchaser is acquiring and assuming from RTPS a certain equipment lease and
office lease relating to a nuclear imaging facility in Orange, Texas.
NOW, THEREFORE, in consideration of the promises, mutual covenants,
representations, warranties and conditions contained herein, the abandonment of
and waiver of their rights of the amounts and/or other assets that the Parties
would otherwise be entitled to receive, as described herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
covenant and agree as follows:
AGREEMENT
ARTICLE I
CANCELLATION OF MASTER TRANSACTION AGREEMENT AND RELATED AGREEMENTS
1.1. Termination of Master Transaction Agreement and Related Agreements.
(a) The parties agree that effective as of the Effective Date,
the Master Transaction Agreement dated August 21, 1996, as amended by
the First Amendment to the Master Transaction Agreement dated October 1,
1997 and the Second Amendment to the Master Transaction Agreement dated
December 3, 1999, together with all rights and obligations arising
thereunder, and except as otherwise set forth herein, are terminated.
(b) Effective as of the Effective Date, the Agreement and
Covenant Not to Compete ("Noncompetition Agreement") among SETCA, the
Shareholders, RMC, RTPS, and RSM dated September 18, 1996, and as
thereafter amended together with all of the rights and obligations
created by it, are terminated and are of no force or effect.
(c) The Succession Agreement dated May, 1998 among SOTOLONGO,
MARGOLIS, SMITH, and CASTELLANOS and SETCA II, P.A. and all rights,
duties and obligations thereunder are terminated effective as of the
Effective Date, including without limitation, the terms and provisions
of the spousal guarantee contained therein.
(d) The Parties expressly agree that the terms of the
noncompetition clause set forth at Section 11 of the Succession
Agreement are, effective as of the Effective Date, void and of no force
or effect.
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(e) Effective as of the Effective Date, each of the Employment
Agreements, between SOTOLONGO, MARGOLIS, SMITH, and CASTELLANOS,
individually, and SETCA II, P.A., each dated September 18, 1996, are
terminated.
(f) The parties expressly agree that effective as of the
Effective Date, the Covenant Not to Compete, contained in each of the
above referenced Employment Agreements at Section 9, are void and of no
force or effect.
(g) The Parties expressly agree that the terms of the
noncompetition clause and all rights, duties and obligations thereunder
contained at Article IV of the Partnership Purchase Agreement and
Assignment dated September 18, 1996 among RSM, SOTOLONGO, MARGOLIS,
SMITH, and CASTELLANOS, are, effective as of the Effective Date, void
and of no force or effect.
(h) The Parties expressly agree that the terms of the
noncompetition clause and all rights, duties and obligations thereunder
contained at Article VIII of the Agreement for the Purchase and Sale of
Assets dated September 18, 1996 among SETCA, SOTOLONGO, MARGOLIS, SMITH,
RSM, RTPS and RMC, are, effective as of the Effective Date, void and of
no force or effect.
1.2. Cancellation of Promissory Notes. SOTOLONGO, MARGOLIS, SMITH and
CASTELLANOS (herein collectively referred to as the "Physicians") have
contributed to the Purchaser the Promissory Notes as described in Section
2.03(a) of the Master Transaction Agreement and pursuant to the Stock Purchase
Agreement the Purchaser has transferred the obligations secured by such
Promissory Notes to Raytel and such Promissory Notes are cancelled in the
transaction. The original principal amount of each Promissory Note is as
follows:
<TABLE>
<CAPTION>
PHYSICIAN PRINCIPAL AMOUNT OF NOTE
--------- ------------------------
<S> <C>
SOTOLONGO $686,631.00
MARGOLIS $686,631.00
SMITH $686,631.00
CASTELLANOS $228,876.00
</TABLE>
Raytel agrees that SOTOLONGO, MARGOLIS, SMITH and CASTELLANOS are
entitled to retain any and all interest amounts already paid on the Promissory
Notes. Raytel and RSM further agree that they shall have no right to assignment
of the Promissory Notes or to setoff against any amounts owed or otherwise paid
to SOTOLONGO, MARGOLIS, SMITH and/or CASTELLANOS except as otherwise set forth
herein.
1.2. Right to Retain Cash Consideration. The Parties agree that
SOTOLONGO, MARGOLIS, SMITH and CASTELLANOS shall have the right to retain and
shall not be obligated to repay any portion of the cash consideration paid to
them by RMC pursuant to Section 2.03 (b) of the Master Transaction Agreement.
The amounts of such cash consideration are as follows:
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<TABLE>
<CAPTION>
PHYSICIAN CASH AMOUNT
--------- -----------
<S> <C>
SOTOLONGO $1,144,384.00
MARGOLIS $1,144,384.00
SMITH $1,144,384.00
CASTELLANOS $ 381,462.00
</TABLE>
1.3 Cancellation of Obligation to Deliver Common Stock. SOTOLONGO,
MARGOLIS, SMITH, and CASTELLANOS have contributed to the Purchaser their right
to receive the shares of RMC Common Stock pursuant to Section 2.03(c) of the
Master Transaction Agreement, and pursuant to the terms of the Stock Purchase
Agreement the Purchaser has cancelled Raytel's obligation to deliver and issue
such stock. Any stock already transferred shall be returned by SOTOLONGO,
MARGOLIS, SMITH, and CASTELLANOS.
1.4 Related Agreements.
(a) The parties acknowledge that it is presently RMC's intent to
terminate and to divest its present contractual arrangements to provide certain
cardiology management and imaging related services to the Baptist Hospital of
Southeast Texas through certain subsidiaries of RMC including but not limited to
Raytel Texas Hospital Management, Inc. ("RTHM"). The parties further agree that
effective as of the Effective Date SETCA II, P.A. or any of the Physicians or
the Practice may, in their discretion, offer and negotiate for the provision of
the same or similar services to the Baptist Hospital of Southeast Texas (and its
successor) and any such offer and negotiations, whether made now or prior to
this date, shall not be and shall not give rise to a cause of action against
SETCA II, P.A., any Practice, any Physician or any Shareholder on any grounds,
including but not limited to a claim for tortious interference with contract
rights or for breach of fiduciary duties or otherwise.
(b) RMC agrees to liquidate RTHM and cancel all contractual
obligations therein, upon proof that Baptist Hospital will permit such
termination without penalty to RTHM.
ARTICLE II
TERMINATION OF MANAGEMENT SERVICES AGREEMENT
2.1 Management Services Agreement. The Management Services Agreement
dated September 18, 1996 between RTPS and RMS and SETCA II, P.A., as amended by
the First Amendment to the Management Services Agreement dated October 1, 1997
and as assigned to RSM is hereby terminated effective as of the Effective Date.
2.2. Management Authority. Pursuant to the termination of the Management
Services Agreement, all obligations and authority of CMP and RSM to provide
management services to SETCA II, P.A. are terminated as of the Effective Date.
2.3 Termination of Billing and Collection Services.
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(a) As of the Effective Date, RSM shall cease providing the
billing and collection related services as outlined in Section 4.8 of the
Management Services Agreement.
(b) As of the Effective Date, the exclusive special power of
attorney granted to RSM by SETCA II, P.A. in connection with such billing and
collection services is terminated.
(c) The Parties agree that they shall cooperate in finalizing
the transfer of the billing and collection functions of the Practice in an
efficient and timely manner to SETCA II, L.L.P. or to such other entity as the
Shareholders shall designate.
2.4 Revocation of Power of Attorney. The Parties agree that the
exclusive power of attorney and appointment as agent and attorney-in-fact
granted by SETCA II, P.A. to RSM pursuant to Section 4.9 (a) of the Management
Services Agreement is hereby revoked as of the Effective Date.
2.5. Control Over Medical Group Account. Effective as of the Effective
Date, SETCA II, L.L.P. shall have sole and exclusive control and discretion in
and to all Medical Group Account(s) of the Practice as referenced in Sections
4.8 and 4.9 of the Management Services Agreement and any other bank accounts
associated with the Management Services Agreement. Any "sweep" account or sweep
of that account is terminated as of the Effective Date.
2.6. Termination of Obligation to Maintain Practice. Pursuant to the
termination of the Management Services Agreement, effective as of the Effective
Date, SETCA II, P.A.'s obligation to maintain a full-time cardiology practice in
the Practice Territory as set forth in Section 5.1 of the Management Services
Agreement is terminated.
2.7. Noncompetition. The Parties expressly agree that the terms of the
noncompetition clause set forth at Section 5.8 of the Management Services
Agreement plus all other agreements are, effective as of the Effective Date,
void and of no force or effect.
2.8. Termination of Obligation to Pay Fees. SETCA II, P.A.'s obligation
to pay and RMS authority to hold the RMS monthly management and performance
fees, if any, pursuant to Sections 6.1, 6.2, and 6.3 of the Management Services
Agreement is terminated as of the Effective Date and such fees shall no longer
be due or payable thereafter. Any unpaid and accrued fees and any other amounts
that may be due and owing by SETCA II, P.A. or any other party is hereby
terminated and released.
2.10 Books and Records. SETCA II, L.L.P. shall retain all patient
records and files (including billing information and computer data) related to
the Practice.
ARTICLE III
Intentionally deleted.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of Each Party. Without waiving or
modifying any representation or warranty made by a Party in the Stock Purchase
Agreement, each Party to this Agreement hereby represents and warrants to each
other Party hereto, on the date hereof and as of the Effective Date, as follows:
(a) Standing. Each Party (except those Parties who are
individuals) is a duly organized legal entity, validly existing and in good
standing under the laws of the state in which incorporated and/or organized.
(b) Corporate Authority. Each party has full corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. The Board of Directors, Board of Managers, shareholders,
and/or partners of each Party have taken all action required by law, by such
Party's Articles of Association and/or organization, and Bylaws, or otherwise,
to authorize the execution and delivery of this Agreement and such other
transaction documents as may be required hereunder and the consummation of the
transactions contemplated hereby.
(c) Effect of This Agreement. Neither the execution and delivery
of this Agreement nor the consummation of the transactions set forth herein nor
compliance by any Party with any of the provisions hereof will violate, breach,
or, with the giving of notice or passage of time, constitute an event of default
(or give rise to any right of termination, cancellation or acceleration) under
any of the terms, conditions or provisions of any agreement or other instrument
or obligation of any Party hereto except for the requirement of consent or
waiver to such transactions by the other party to the agreement or instrument.
(d) Compliance with Applicable Laws. No party has received any
notice of any violation of any law or order, writ, injunction or decree of any
court or Federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality (including without
limitation applicable laws and regulations regarding government contracting,
bribery and other prohibited foreign and domestic payment practices,
environmental protection, equal employment opportunity, civil rights, and
occupational safety and health).
(e) Litigation and Investigations. Except as disclosed in
writing, each Party represents and warrants that there are no lawsuits,
proceedings, claims or governmental investigations pending, or known to be
threatened or contemplated, against such Party, at law or in equity, or before
or by any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which, if determined adversely, could have
a material adverse effect on the Assets or the Practice or the ability of SETCA
II, L.L.P. to carry on the Practice following the Effective Date.
(f) Tax Returns. Each party warrants that it has filed with the
appropriate state and federal governmental agencies all material tax returns and
tax reports required to be filed by
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it and which pertain to the operations of the Practice and that such returns
have been lawfully filed and in all material respects are true and accurate.
(g) Disclosure. No representation or warranty by any Party in
this Agreement contains or will contain any untrue statement of a material fact,
or omits to state a material fact necessary to make the statements not
misleading in light of the circumstances under which they were made.
ARTICLE V
CLOSING
5.1. Closing. The consummation of the transactions contemplated
hereunder (the "Closing") shall take place simultaneously with the execution and
delivery of this Agreement and the Stock Purchase Agreement (the "Closing
Date"), but effective as of the Effective Date. The Closing shall take place
simultaneously at the offices of Orgain, Bell & Tucker, LLP, 470 Orleans,
Beaumont, Texas, and at the offices of Raytel, or at such other places as the
parties may mutually agree. The parties may close this Agreement at their
respective principal offices or at the offices of their attorneys and the
parties may exchange signature pages to this Agreement or to any document
executed in connection herewith by fax machine, and a faxed copy of a signature
page shall have the same force and effect as an original.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES,
INDEMNIFICATION AND MUTUAL RELEASE
6.1. Survival. The representations and warranties of the Parties
contained in this Agreement or in any certificate or instrument delivered
pursuant hereto shall survive the Closing Date for the period in which a claim
with respect thereto may be made, in accordance with the provisions of 6.3
hereto.
6.2. Indemnity. Without waiving, limiting or modifying any indemnity
agreement contained in the Stock Purchase Agreement, the parties agree to the
following:
(a) By RMC, RTPS, and RSM. Subject to the limitations set forth
in paragraph 6.3 hereto, RMC, RTPS, and RSM jointly and severally, indemnify,
defend, protect and hold SETCA, SETCA II, P.A., SETCA II, L.L.P., and each of
the Shareholders harmless from, and against, any and all claims, demands, suits,
actions, causes of action, losses, damages and liabilities (including but not
limited to claims or liabilities relating to environmental damage or claims by
Medicare, Medicaid, Health Care Finance Administration (including but not
limited to Title XVIII of the Social Security Act, codified at 42 U.S.C.A.
sections 1395-1395cc and Medicare regulations codified at 42 C.F.R. Parts
405-424, and 482-498), any insurance company,
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managed care organization or other health care claims paying or claims
processing intermediary), including reasonable attorney's fees and litigation
expenses, arising from or on account of:
(1) any breach by RMC, RTPS, and/or RSM of this
Agreement or the Stock Purchase Agreement;
(2) any inaccuracy to, misrepresentation in or breach of
any of the warranties, representations, covenants or agreements made by RMC,
RTPS, and/or RSM herein; and
(3) RMC's, RTPS's, and/or RSM 's management of the
Practice and use and occupation of any premises in which the Practice is located
prior to the Closing Date, including, without limitation, any and all amounts
payable to local, state or federal tax authorities, claims made by creditors of
RMC, RTPS, and/or RSM and liability claims made with respect to the management
of the Practice by RMC prior to the Effective Date, except for liabilities
expressly assumed herein by SETCA II, L.L.P..
Notwithstanding the foregoing, the requirement set forth in Section 6.2(a) that
RMC, RTPS, and RSM jointly and severally, indemnify, defend, protect and hold
SETCA, SETCA II, P.A., SETCA II, L.L.P., and each of the Shareholders harmless
from, and against, any and all claims, demands, suits, actions, causes of
action, losses, damages and liabilities(including but not limited to claims or
liabilities relating to environmental damage or claims by Medicare, Medicaid,
Health Care Finance Administration (including but not limited to Title XVIII of
the Social Security Act, codified at 42 U.S.C.A. sections 1395-1395cc and
Medicare regulations codified at 42 C.F.R. Parts 405-424, and 482-498), any
insurance company, managed care organization or other health care claims paying
or claims processing intermediary shall not apply in the event the claim was
submitted by RMC, RTPS or RSM based upon incorrect or erroneous information
suplied by SETCA, SETCA II, P.A., SETCA II, L.L.P., or any of the Shareholders.
(b) By SETCA, SETCA II, P.A, SETCA II, L.L.P., and Each
Shareholder. Subject to the limitations set forth in Section 6.3 hereto, SETCA,
SETCA, II, P.A., SETCA II, L.L.P., and/or each Shareholder indemnify, defend,
protect, and hold RMC, RTPS, and/or RSM harmless from and against any and all
claims, demands and liabilities, including reasonable attorneys' fees, arising
from or on account of:
(1) SETCA's, SETCA, II, P.A.'s, SETCA II, L.L.P.'s,
and/or each Shareholder's operation of the Practice or the use and occupation of
the premises in which the Practice is located on or after the Closing, including
without limitation any and all amounts payable to local, state or federal tax
authorities, claims made by creditors of SETCA, SETCA, II, P.A., SETCA II,
L.L.P., and/or each Shareholder and liability claims made with respect to the
conduct of the Practice by SETCA, SETCA, II, P.A., SETCA II, L.L.P., and/or each
Shareholder following the Effective Date;
(2) any breach by SETCA, SETCA, II, P.A., SETCA II,
L.L.P., and/or each Shareholder of this Agreement or the Stock Purchase
Agreement; and
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(3) any inaccuracy to, misrepresentation in, or breach
of any of the warranties, representations, covenants or agreements made by
SETCA, SETCA, II, P.A., SETCA II, L.L.P., and/or each Shareholder herein.
6.3. Limits to Indemnity. Notwithstanding the provisions of this Article
VI, or any other provisions set forth in this Agreement or in any document
delivered hereunder.
(a) Any claim for indemnification made pursuant to paragraph 6.2
above must be made in writing to the Party against which/whom indemnification is
sought during the twelve (12) month period following the Effective Date, unless
and to the extent that such claim relates to a claim or liability relating to
environmental damage or claims by Medicare, Medicaid or the Health Care Finance
Administration or any insurance company, managed care organization or other
health care claims paying or claims processing intermediary (collectively,
"Environmental or Medicare Claims"), which Environmental or Medicare Claims must
be made, if at all, in writing within three (3) years following the Effective
Date.
(b) A Party shall be entitled to indemnification (i) only in the
event that all such claims exceed $500, and then only with respect to the excess
above $500 and (ii) only in an amount, in the aggregate not exceeding
$5,000,000, unless and to the extent that a claim is an Environmental or
Medicare Claim, in which case such Party's or Parties' aggregate liability for
all such Environmental or Medicare Claims shall be unlimited.
6.4 Mutual Release.
For and in consideration of this Agreement and the covenants and
releases made herein, the sufficiency of which consideration is hereby
acknowledged and confessed, RTPS, RMH and Raytel Medical Corporation (herein
collectively referred to as the "Raytel Related Parties"), individually and
collectively, have ACQUITTED, RELEASED AND FOREVER DISCHARGED, and by these
presents do for themselves and for and on behalf of their respective parent and
affiliated companies, successors, assigns, hereby ACQUIT, RELEASE AND FOREVER
DISCHARGE SETCA, SETCA II, P.A., SETCA II, L.L.P, Sotolongo, Margolis, Smith,
Castellanos, the spouses of the Shareholders, and all other physicians who are
associated with SETCA (herein referred to colletively as the "SETCA Related
Parties") of and from any and all claims, demands, debts, liens, causes of
action, damages or liabilities, at law or in equity, either in contract or in
tort, as well as any other character or kind of action, known and unknown, now
held or owned by the Raytel Related Parties or any of them, in whole or in part,
which any or all of Raytel Related Parties may now have or may hereafter claim
to hold or possess, on account of, growing out of, related to or concerning,
whether directly or indirectly, proximately or remotely, the Master Transaction
Agreement, the Management Services Agreement, the Noncompetition Agreement, the
Succession Agreement, the Partnership Purchase Agreement, the Agreement for the
Purchase and Sale of Assets and all related agreements entered into between any
of the Raytel Related Parties and the SETCA Related Parties (herein referred to
collectively as the "Transaction Agreements"), or otherwise arising from the
dealings between the parties in connection with the Transaction Agreements;
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PROVIDED, HOWEVER, this release and discharge shall not release any of the terms
and provisions of this Agreement, the Stock Purchase Agreement and the Asset
Purchase and Conveyance Agreement and any other closing documents executed in
connection therewith.
Likewise, for and in consideration of this Agreement and the covenants
and releases made herein, the sufficiency of which consideration is hereby
acknowledged and confessed, the SETCA Related Parties, individually and
collectively, have ACQUITTED, RELEASED AND FOREVER DISCHARGED, and by these
presents do for themselves and for and on behalf of their respective parent and
affiliated companies, successors, assigns, hereby ACQUIT, RELEASE AND FOREVER
DISCHARGE the Raytel Related Parties of and from any and all claims, demands,
debts, liens, causes of action, damages or liabilities, at law or in equity,
either in contract or in tort, as well as any other character or kind of action,
known and unknown, now held or owned by the SETCA Related Parties or any of
them, in whole or in part, which any or all of SETCA Related Parties may now
have or may hereafter claim to hold or possess, on account of, growing out of,
related to or concerning, whether directly or indirectly, proximately or
remotely, the Transaction Agreements and all related agreements entered into
between any of the Raytel Related Parties and the SETCA Related Parties or
otherwise arising from the dealings between the parties in connection with the
Transaction Agreements; PROVIDED, HOWEVER, this release and discharge shall not
release any of the terms and provisions of this Agreement, the Stock Purchase
Agreement and the Asset Purchase and Conveyance Agreement and any other closing
documents executed in connection therewith.
It is understood and agreed that this is a FULL AND COMPLETE MUTUAL AND
GENERAL RELEASE, and includes all claims of any kind or character, including by
way of illustration, but not by way of limitation, actual damages sustained by
any of Raytel Related Parties or any of the SETCA Related Parties, damages for
breach of any of the Transaction Agreements or for breach of any oral or written
contract, damages and claims for fraud and conversion, damages recoverable under
the Texas Deceptive Trade Practices Act, damages for mental anguish, damages for
fraud or fraudulent inducement, damages for misrepresentation, damages
recoverable under any federal or state securities law statute, exemplary
damages, property damages, damages for lost profits, consequential damages,
attorney's fees, and any other type of damages, including any claim for damages
to accrue in the future from any cause, whether known or anticipated at this
time or otherwise, and regardless of whether specified within the categories
enumerated above. It is the intention of the parties in executing this Agreement
and the releases made herein that the same shall be as general as possible, and
that the same shall cover every conceivable contingency which might arise in the
future, or which may have arisen in the past, whether known or unknown at this
time, BUT EXCLUDING any claims that may arise under or pursuant to this
Agreement.
6.5 No Disparaging Remarks. All parties to this Agreement further agree
that no party shall make any type of oral or written statement, comment,
allegation or other communication of any type that disparages or that may tend
to disparage the reputation of any other party to this Agreement.
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ARTICLE VII
GENERAL PROVISIONS
7.1. Miscellaneous.
(a) Recitals. The Recitals set forth at the beginning of this
Agreement are incorporated into and make a part of the body of this Agreement;
(b) Amendments. No amendments or additions to this Agreement
shall be binding unless in writing and signed by all Parties;
(c) Waiver. Each Party, may, by written notice to the other
Parties:
(1) waive any of the conditions to its obligations
hereunder or extend the time for the performance of any obligation or action of
the other(s);
(2) waive any inaccuracies in the representations of the
other contained in this Agreement or in any documents delivered pursuant to this
Agreement;
(3) waive compliance with any of the covenants of the
other contained in this Agreement; or
(4) waive or modify performance of any of the
obligations of the other.
No action taken pursuant to this Agreement, including without limitation
any investigation by or on behalf of either party, shall be deemed to constitute
a waiver by the party taking such action of compliance with any representations,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provision.
(e) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective
successors, assigns, heirs and personal representatives. No Party may assign or
transfer any rights or obligations under this Agreement without the prior
written consent of the other Party.
(f) Notices. All notices and other communications provided for
in this Agreement shall be given or made by telex, telecopy, telegraph, cable,
certified or registered mail (return receipt requested), or delivered personally
or by a nationally recognized overnight courier service to the address set forth
below (or such other address as may be designated by any method permitted by
this Paragraph). All such communications shall be deemed to have been duly given
when transmitted by telex or telecopier (if a copy thereof is also mailed to the
recipient, certified or
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registered mail, postage paid), or personally delivered or delivered by cable,
telegraph, or nationally overnight courier service, or five (5) calendar days
after mailing, postage prepaid, to the address set forth below.
If to SETCA, SETCA II, P.A.,
SETCA II, L.L.P. and/or the SOUTHEAST TEXAS CARDIOLOGY
Shareholders: ASSOCIATES II, L.L.P.
2693 North Street
Beaumont, TX 77701
Attn: Rodolfo Sotolongo, M. D.,
Managing Partner
With Copy to: ORGAIN, BELL & TUCKER, L.L.P.
470 Orleans Street
Beaumont, TX 77701
Attn: John Creighton, Esq.
Lance J. Fox, Esq.
and
If to RMC, RTPS, and RSM: RAYTEL MEDICAL CORPORATION, INC.
2755 Campus Drive, Suite 200
San Mateo, California 94403
Attn: Richard F. Bader
Chairman and Chief Executive Officer
(g) Paragraph Headings. The paragraph headings used in this
Agreement are included solely for the convenience of the parties and shall not
affect or be used in connection with the interpretation of this Agreement.
(h) Severability. In the event any provision or portion of a
provision of this Agreement is held to be invalid, void or unenforceable, the
rest of the Agreement shall, nonetheless, remain in full force and effect and
shall in no way be affected, impaired, or invalidated.
(i) Entire Agreement. This Agreement, the Stock Purchase
Agreement, the Asset Purchase and Conveyance Agreement and the closing documents
executed in connection herewith constitutes the entire agreement between the
parties and supersedes all prior understandings, previous negotiations, and any
memoranda or understanding with respect to the subject matter hereof.
(j) No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
person.
12
<PAGE> 13
(k) Counterparts. This Agreement may be executed in any number
of identical counterparts, each of which shall be deemed to be an original, and
all of which together shall be deemed to be one and the same instrument when
each Party has signed one such counterpart.
(l) Exhibits. All exhibits attached to this Agreement are
incorporated herein by reference.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of NOVEMBER 10, 1999.
SETCA, P.A.: RSM:
SOUTHEAST TEXAS CARDIOLOGY ASSOCIATES, RAYTEL SOUTHEAST MANAGEMENT, L.P.,
P.A., a Texas professional corporation a Texas limited partnership
By: /s/ Rodolfo Sotolongo, M.D. By: /s/ Richard F. Bader
--------------------------------------- ----------------------------------
Rodolfo Sotolongo, M. D. Richard F. Bader
Its: President and Chief Executive Officer RAYTEL TEXAS PHYSICIAN
SERVICES, INC., a Delaware
corporation (the "General
Partner")
Its: Chairman and Chief Executive
Officer
SETCA II, P.A. RMC:
SOUTHEAST TEXAS CARDIOLOGY ASSOCIATES II, RAYTEL MEDICAL CORPORATION,
P.A., a Texas professional corporation a Delaware corporation
By: /s/ Rodolfo Sotolongo, M.D. By: /s/ Richard F. Bader
--------------------------------------- ----------------------------------
Rodolfo Sotolongo, M. D. Richard F. Bader
Its: President and Chief Executive Officer Its: Chairman and Chief Executive
Officer
SETCA II, L.L.P
SOUTHEAST TEXAS CARDIOLOGY ASSOCIATES II,
L.L.P., a Texas limited liability partnership
By: /s/ Rodolfo Sotolongo, M.D.
---------------------------------------
Rodolfo Sotolongo, M. D.
Its: President and Chief Executive Officer
<PAGE> 14
PARTNERS:
RODOLFO P. SOTOLONGO, M.D., P.A.
By: /s/ Rodolfo Sotolonog, M.D.
-----------------------------------------
Rodolfo P. Sotolongo, M.D., President
/s/ Rodolfo Sotolonog, M.D.
--------------------------------------------
RODOLFO P. SOTOLONGO, M.D., individually
WAYNE S. MARGOLIS, M.D., P.A.
By: /s/ Wayne S. Margolis, M.D.
-----------------------------------------
Wayne S. Margolis, M.D., President
/s/ Wayne S. Margolis, M.D.
--------------------------------------------
WAYNE S. MARGOLIS, M.D., individually
MICHAEL SMITH, M.D., P.A.
By: /s/ Michael Smith, M.D.
-----------------------------------------
Michael Smith, M.D., President
/s/ Michael Smith, M.D.
--------------------------------------------
MICHAEL SMITH, M.D., individually
MIGUEL CASTELLANOS, M.D., P.A.
By: /s/ Miguel Castellanos, M.D.
-----------------------------------------
Miguel Castellanos, M.D., President
/s/ Miguel Castellanos, M.D.
--------------------------------------------
MIGUEL CASTELLANOS, M.D., individually
