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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT,
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT - May 6, 1998
(Date of Earliest Event Reported)
STERLING VISION, INC.
(Exact Name of Registrant as Specified in Charter)
New York 1-14128 11-3096941
------------ ----------- ----------
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
1500 Hempstead Turnpike
East Meadow, New York 11554
(Address of Principal Executive Offices)
(516) 390-2100
(Registrant's telephone number, including area code)
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Item 5. Other Events:
On May 6, 1998, the Registrant, through its wholly owned
subsidiary, Insight Laser Centers N.Y. I., Inc., purchased substantially all of
the assets of an ambulatory surgery center located in Garden City, New York (the
"Center") and, in connection therewith: (i) settled its legal action against the
estate of the former owner of such Center; (ii) entered into a long term lease
of the premises in which such Center is located; and (iii) entered into an
agreement pursuant to which it will manage the operations of the Center, on an
interim basis, pending the approval, from the New York State Department of
Health, of the transfer of the license and certificate of need therefor to the
Company.
Item 7. Financial Statements and Exhibits.
Exhibit No. Document
10.79 Contract of Sale, dated May 6, 1998, pursuant to which Insight
Laser Centers N.Y. I, Inc. purchased, from Nassau Center
for Ambulatory Surgery, Inc., substantially all of the Center's
Non-Medical Assets.
10.80 Contract of Sale, dated May 6, 1998,
pursuant to which Insight AmSurg Centers,
Inc. has agreed to purchase, from Nassau
Center for Ambulatory Surgery, Inc., the
Center's New York State License and
Certificate of Need therefor.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned hereunto duly authorized.
STERLING VISION, INC.
By: Joseph Silver
----------------------------------------------------
Name: Joseph Silver
Title: Executive Vice President & General Counsel
Date: May 11, 1998
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FINAL
ASSET PURCHASE AGREEMENT
By and Among
NASSAU CENTER FOR AMBULATORY SURGERY, INC.,
INSIGHT LASER CENTERS N.Y. I, INC.
And
STERLING VISION, INC.
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TABLE OF CONTENTS
1. Sale of Non-Article 28 Assets......................................2
2. Excluded Assets....................................................3
3. Purchase Price and Assumption of Assumed Liabilities...............4
4. Representations of NCA.............................................5
5. Representations of Purchaser.......................................7
6. Documents to be Delivered at Closing...............................8
7. Sales, Transfer and Documentary Taxes.............................10
8. Closing Adjustments...............................................10
9. Brokers...........................................................10
10. Books and Records.................................................11
11. Employees.........................................................11
12. Indemnification...................................................12
13. Limitation of Remedies; Covenant Not to Sue ......................15
14. Further Assurances................................................16
15. Expenses..........................................................16
16. Entire Agreement..................................................16
17. Operation of Center...............................................16
18. Notice............................................................16
19. Binding Agreement.................................................18
20. Trade Name of Center..............................................18
21. Counterparts......................................................18
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22. Headings..........................................................18
23. Amendment and Waiver ....................................18
24. Governing Law .............................................18
25. Waiver of Breach or Violation Not Deemed Continuing...............18
26. Severability......................................................18
27. Acknowledgment....................................................18
28. Confidential Information..........................................18
29. Legal Fees........................................................19
30. Equitable Relief .................................................19
31. Acts and Omissions of the Parties ................................19
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is made and entered into as of May 6, 1998,
by and among NASSAU CENTER FOR AMBULATORY SURGERY, INC. (hereinafter referred to
as "NCA"), a New York corporation with an office at 450 Endo Boulevard, Garden
City, New York 11530, INSIGHT LASER CENTERS N.Y. I, INC. (hereinafter referred
to as "Purchaser"), a New York corporation having its principal offices at 1500
Hempstead Turnpike, East Meadow, New York 11554, and STERLING VISION, INC.
("Parent"), a New York corporation with offices at 1500 Hempstead Turnpike, East
Meadow, New York 11554. Hereinafter NCA, Purchaser and Parent may be
collectively referred to as the "Parties," and individually as a "Party."
WITNESSETH:
WHEREAS, NCA operates an ambulatory surgical center licensed under Article
28 of the New York State Public Health Law (the "Center") in a portion of the
building (the "Building") located at 450 Endo Boulevard, Garden City, New York
11530 (hereinafter referred to as the "Premises"); and
WHEREAS, NCA desires to sell to Purchaser, and Purchaser desires to
purchase from NCA, substantially all of the Non-Article 28 Assets, as
hereinafter defined, of NCA (specifically excluding the Excluded Assets, as said
term is
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hereinafter defined, including, without limitation, the CON, as hereinafter
defined); and
WHEREAS, Purchaser desires to acquire such Non-Article 28 Assets of NCA and
to assume certain liabilities and obligations of NCA, all upon and subject to
the terms and conditions hereinafter set forth; and
WHEREAS, on or about May 5, 1997, Purchaser and Parent, among others,
commenced an action in the Supreme Court of the State of New York, County of New
York, against NCA, among others, under Index No. 108032/97 and captioned
Sterling Vision, Inc. and Insight Laser Centers, Inc., Plaintiffs v. Norman O.
Stahl, Nassau Ophthalmic Services, P.C., Nassau Center for Ambulatory Surgery,
Inc., Eye Physicians and Surgeons of Hauppauge, P.C. (hereinafter collectively
referred to as the "Stahl Defendants"), RGB Medical Ventures, James R. Brower
and Chase Reilly (hereinafter collectively referred to as the "RGB Defendants")
(the "Sterling Litigation"); and
WHEREAS, on or about May 23, 1997, Empire Fiscal Management, Inc. commenced
an action in the Supreme Court of the State of New York, County of Nassau,
against NCA under Index No. 16379-97 and captioned Empire Fiscal Management,
Inc. v. Nassau Center for Ambulatory Surgery, Inc. (the "EFM Litigation"); and
WHEREAS, simultaneously herewith, the Plaintiffs and the Stahl Defendants
in the Sterling Litigation, and all parties to the EFM Litigation, desire to
fully settle, with no liability among them, and dismiss with prejudice, the
Sterling Litigation and the EFM Litigation; and
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WHEREAS, simultaneously herewith Purchaser and Parent are executing and
delivering to NCA, understanding that NCA will furnish the same to Summit
Technology, Inc. ("Summit") that certain general release, of even date, in favor
of Summit, releasing any and all claims of Purchaser and Parent and/or any and
all entities controlled by Parent relating to that certain Summit Laser
Workstation No. 5056 (collectively, the "Summit Documents"); and
WHEREAS, pursuant to that certain Purchase Agreement of even date herewith
among NCA, and Insight Amsurg Centers, Inc. ("IAC") (the "Article 28 Agreement")
and subject to, among other things, approval of the New York State Public Health
Council of the New York State Department of Health and other regulatory
agencies, and in accordance with the Article 28 Agreement, NCA will sell and
deliver to IAC and IAC will purchase from NCA all of NCA's right, title and
interest in and to the New York State license to operate the Center including
the Certificate of Need therefor ( collectively, the "CON"), and certain other
assets of NCA, all as referred to therein (the CON, together with such other
assets, hereinafter sometimes collectively referred to as the "Medical Assets").
NOW, THEREFORE, in consideration of the foregoing recitals as well as the
Parties' respective promises, representations, covenants and warranties, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto do hereby agree as follows:
1. Sale of Non-Article 28 Assets.
(a) Subject to, and upon the terms and conditions contained herein, NCA
hereby sells, assigns and delivers to Purchaser, free and clear of any and all
claims, liens, mortgages, pledges, security interests, charges, rights of others
and/or other encumbrances of any kind or nature (collectively, "Liens"), other
than the Permitted Liens, as said term is hereinafter defined, and Purchaser
hereby purchases and acquires from NCA, all of NCA's right, title and interest
in and to, as the same exist on the date hereof, except for the Excluded Assets,
the tangible and intangible assets of the Center and the business thereof, as
well as all computer software licenses, to the extent assignable, properties and
rights of NCA, wherever located and whether or not reflected on NCA's books and
records, relating to the Center, including, without limitation, all of the
Center's accounts receivable, furniture, fixtures, equipment, inventory,
supplies, stationary and printing materials, tools, spare parts, instruments,
records and those assets described on Schedule 1(a) annexed hereto and made a
part hereof (collectively, the "Non-Article 28 Assets"), regardless of whether
such interest is proprietary in nature or leased, all as indicated on Schedule
1(a) hereto.
(b) EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL
OF THE NON-ARTICLE 28 ASSETS SOLD, ASSIGNED AND DELIVERED BY NCA AND ACQUIRED BY
PURCHASER HEREUNDER ARE IN A "WHERE IS" AND "AS IS" CONDITION INCLUDING, BUT NOT
LIMITED TO, BOTH LATENT AND PATENT DEFECTS. EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH HEREIN, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY NCA, AND
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PURCHASER AND PARENT WAIVE ALL SUCH WARRANTIES, OTHER THAN AS SET FORTH
EXPRESSLY IN THIS AGREEMENT, REGARDING THE CONDITION AND USE OF THE ASSETS,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE AND/OR PURPOSE.
(c) Notwithstanding anything to the contrary contained herein, in the
event any Non- Article 28 Asset cannot, by its terms, be transferred by NCA
without the consent of a third party, such Non-Article 28 Asset shall not be
deemed sold, assigned or delivered hereby unless and until such third party
consent is so obtained; provided, however, that the foregoing shall not relieve
Purchaser or Parent from its respective obligations pertaining to any and all
Assumed Liabilities, as hereinafter defined, and/or any and all other
liabilities and/or obligations of Purchaser and/or Parent hereunder and/or under
any and/or all Transaction Documents, as hereinafter defined. If any such
consent shall not be obtained or if any attempted assignment would be
ineffective or would impair Purchaser's right in, to and/or under the
Non-Article 28 Asset in question so that Purchaser would not in effect acquire
the benefit of all such rights, NCA, to the maximum extent permitted by law and
the Non-Article 28 Asset, shall act after the date hereof as Purchaser's agent
in order to obtain for it the benefits thereunder and shall cooperate, to the
maximum extent permitted by law and the Non-Article 28 Asset, with Purchaser in
any other reasonable arrangement designed to provide such benefits to Purchaser.
2. Excluded Assets. Notwithstanding anything contained herein, the
following assets (collectively, the "Excluded Assets") are excluded from the
term Non-Article 28 Assets:
(a) All cash assets of NCA including, without limitation, all checking
and savings accounts, petty cash, cash on hand, tax pre-payments, refunds and
rights thereto, loans receivable from any source whatsoever and the cash value
of life insurance;
(b) All vehicles and personal items, such as professional plaques,
books, and personal stationary;
(c) All assets of NCA's executive or incentive compensation plans,
bonus plans, deferred compensation agreements, employee pension, profit sharing,
savings or retirement plans, and group life, health or accident insurance or
other employee benefit plans, agreements, arrangements or commitments including,
without limitation, severance, holiday, vacation, Christmas or other bonus plans
maintained by NCA or with respect to which NCA makes or has an obligation to
make contributions or under which any present or former officer, director,
employee, consultant or agent of NCA is entitled to a benefit, and all of NCA's
rights with respect thereto;
(d) All of NCA's insurance policies (including, but not limited to,
malpractice, casualty life, and liability insurance) and prepaid premiums with
respect thereto and any agreements with respect to the financing of such prepaid
premiums and any and all claims thereunder and proceeds thereof;
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(e) NCA's corporate seal, minute book and stock book;
(f) All of NCA's right, title and interest in, to and under this
Agreement and any and all instruments, documents, and agreements to which NCA is
a party and/or by which any of NCA's assets are bound, other than, and
specifically excluding, the equipment leases more particularly described on
Schedule 3(b)(ii) hereto and any computer software licenses set forth thereon,
if and to the extent that same is not transferrable pursuant to the express
provisions thereof;
(g) The Medical Assets; and
(h) All assets and properties of NCA, if any, more particularly
described on Schedule 2(h) annexed hereto.
3. Purchase Price and Assumption of Assumed Liabilities.
(a) In consideration of NCA's sale, assignment and delivery of the
Non-Article 28 Assets to Purchaser, Purchaser is simultaneously herewith paying
to NCA, by wire transfer of immediately available funds, to the account of NCA
or its designee, the amount of One Million Five Hundred Ninety Seven Thousand
Six Hundred Seventy and 30/100 ($1,597,670.30) Dollars (the "Purchase Price").
(b) Purchaser and Parent, jointly and severally, hereby assume and
agree to pay, perform and discharge, as and when the same shall become due,
those liabilities and obligations of NCA, only, described on Schedule 3(b)(i)
annexed hereto and made a part hereof, and whether or not the same arose prior
to or after the date hereof, together with those liabilities and obligations
under the equipment leases and software licenses described on Schedule 3(b)(ii)
annexed hereto, but only to the extent liabilities and obligations due under
said equipment leases accrue (unless if and to the extent said payments are set
forth on Schedule 3(b)(i) hereof) from and after the date hereof (collectively,
the "Assumed Liabilities"). Without limiting the generality of the foregoing,
all liabilities and obligations described as "Category I" on Schedule 3(b)(i)
shall be paid within ninety (90) days of the date hereof. In the event that any
Category I liability is not paid in full, Purchaser shall (or Parent shall cause
Purchaser to) provide NCA promptly (but in no event beyond said ninety (90) day
period) with a statement addressed to NCA from the payee of each such Category I
liability stating that said payee releases NCA from all further obligations with
respect thereto. Purchaser shall (or Parent shall cause Purchaser to) (but in no
event beyond seven (7) days after receipt by the issuing entity thereof),
provide NCA with copies of all cancelled checks issued by or on behalf of either
party on account of such Assumed Liabilities.
(c) It is expressly understood and agreed that, other than the Assumed
Liabilities, neither Purchaser nor Parent is hereby assuming, and/or agreeing to
pay and/or becoming liable for, any obligation and/or liability of NCA.
(d) The Purchase Price and Assumed Liabilities shall be allocated among
the Non-Article 28 Assets acquired hereunder in accordance with Schedule 3(d)
hereof. It is agreed that the
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apportionments set forth on Schedule 3(d) were arrived at by arm's length
negotiation and properly reflect the respective fair market value of the
Non-Article 28 Assets. NCA and Purchaser each hereby covenant and agree that
neither will take a position on any and all tax returns, before any governmental
agency charged with the collection of any and all taxes, or in any judicial
proceeding that is in any way inconsistent with the terms of this Section 3(d)
or Schedule 3(d).
4. Representations of NCA. NCA represents and warrants to Purchaser that,
except as set forth on any Schedule annexed hereto, the following are true and
correct, in all material respects, as of the date hereof:
(a) NCA is duly organized, validly existing and in good standing under
the laws of the State of New York, and has all the requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. NCA has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated hereby
and thereby.
(b) Except as otherwise set forth on Schedule 4(b) annexed hereto and
made a part hereof, the execution and delivery by NCA of this Agreement and the
other documents referred to herein, and the performance by NCA of the
transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary corporate action, and no further corporate action or
approval is required in order to consummate this Agreement and each other
document to be executed and delivered pursuant to, and in accordance with, the
terms hereof and as contemplated hereby, as valid, binding obligations of NCA,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws, and except that no representation is made as to the remedy of
specific performance and any other equitable relief, which are each subject to
certain equitable defenses and to the discretion of the court before which any
proceeding thereof may be brought;
(c) Except as otherwise set forth on Schedule 4(c) attached hereto and
made a part hereof, neither the execution, delivery or performance of the
transactions contemplated by this Agreement by NCA nor the consummation of the
transactions contemplated hereby by NCA, will (with or without notice or the
passage of time, or both) result in: (i) a conflict with, or a breach or
violation of, the certificate of incorporation or by-laws of NCA; (ii) the
creation of any Lien on any of the Non-Article 28 Assets and/or the Medical
Assets; or (iii) a breach or violation of any of the terms or provisions of, or
constitute a default pursuant to, or liability under, any material covenant or
agreement to which NCA is a party or by which NCA or any of the Non-Article 28
Assets is bound, or any judgment or any law, rule, regulation or ordinance to
which NCA or any of the Non-Article 28 Assets is subject; except, however, with
respect to: (i) the contracts, service agreements and the like set forth on
Schedule 3(b)(i) hereof; and (ii) the equipment leases and software licenses set
forth on Schedule 3(b)(ii) hereof. No governmental or other authorization,
approval, order, consent or waiting period that has not been complied with by
NCA prior to the date hereof, is or was required in connection with the
execution, delivery, and performance of this Agreement, only, by NCA;
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(d) NCA is transferring to Purchaser all of its right, title, and
interest in all of the Non- Article 28 Assets, free and clear of all Liens,
other than those Liens identified on Exhibit 4(d) attached hereto and made a
part hereof (the "Permitted Liens");
(e) NCA is not in default in its performance, in any material respect,
of any of its equipment leases and/or computer software licenses, including but
not limited to those described in Schedule 3(b)(ii) and included within the
Non-Article 28 Assets to be assigned to the Purchaser; subject, however, to the
provisions of Section 1(c) and 6(a) hereof. NCA has not received any notice of
default which has not been cured as of the date hereof, under any such equipment
lease and/or computer software license, and NCA has paid all payments and rent
required to be paid under each of such equipment leases and/or computer software
licenses through the date hereof;
(f) Except as set forth on Schedule 4(f) annexed hereto and made a part
hereof, to the best of NCA's knowledge and belief, there is no action, suit,
litigation, claim, investigation or proceeding, whether legal or administrative
or in mediation or arbitration, pending or, to the best of NCA's knowledge and
belief, threatened, at law or in equity or admiralty, before or by any court or
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, against or affecting the Non-Article 28
Assets, the Center or the transactions contemplated hereby. NCA is not in
default, in any material respect, with respect to any order, writ, information
or decree of any court or any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality relating to the
Center or the Non- Article 28 Assets;
(g) NCA has fully complied, in all material respects, with, and the
Non-Article 28 Assets and the Center are in compliance, in all material
respects, with all applicable Federal, state or local laws, ordinances, or
regulations, and presently has all material licenses, franchises, permits and
other governmental authorizations which are necessary to the operation of the
Center as it is being conducted by NCA and NCA has not received any notice or
complaint, whether oral or written, alleging any violation of any such laws,
ordinances or regulations. NCA has not engaged in, and to the best of NCA's
knowledge and belief, there has not been, any dumping, discarding, burying,
discharging, releasing, land filling, depositing, storing, use or disposing of
any material or substance on or about the Building which is toxic or hazardous
or would be treated as "hazardous substances" in accordance with applicable law.
There have been no environmental investigations, studies, audits, tests, reviews
or other analyses, the purpose of which was to discover, identify or otherwise
characterize the condition of the soil, groundwater, air, product quality or
presence of asbestos at the Building;
(h) Except for the Excluded Assets and except as set forth on Schedule
3(b)(ii) annexed hereto, all of the Non-Article 28 Assets are owned by NCA, free
and clear of all Liens, other than Permitted Liens;
(i) All Non-Article 28 Assets which are necessary to the operation of
the Center are in compliance with all applicable governmental laws, statutes,
rules and regulations;
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(j) The CON is in full force and effect. To the best of NCA's
knowledge, there are no agreements between NCA and any third party (other than
as set forth in any of the Transaction Documents) that restrict, in any material
respect, the use of the Center as an Article 28 Ambulatory Surgery Center;
(k) Since January 1, 1998, NCA has not sold, transferred and/or
disposed of any of its assets and/or properties except in the ordinary course,
consistent with past practices; and
(l) To the best of NCA's knowledge and belief, no representation or
warranty of NCA contained in this Agreement or in any of the Schedules annexed
hereto, or in any other document, instrument or agreement delivered by or on
behalf of NCA to Parent or Purchaser in connection with the consummation of the
transactions set forth herein or contemplated hereby, all of which are being
executed and delivered simultaneously herewith, contains any untrue statement of
a material fact.
5. Representations of Purchaser. Purchaser and Parent, jointly and
severally, each hereby represent and warrant to NCA that the following are true
and correct, in all material respects, as of the date hereof:
(a) Purchaser is a corporation, duly organized, validly existing and in
good standing under the laws of the State of New York, and has the corporate
power to own its properties and to carry on its business as presently conducted.
Parent is a corporation, duly organized, validly existing and in good standing
under the laws of the State of New York, and has the power and authority to
carry on its business as presently conducted. Each of Purchaser and Parent has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby;
(b) The execution and delivery by Purchaser and Parent of this
Agreement and the other documents referred to herein, and the performance by
Purchaser and Parent of the transactions contemplated hereby and thereby, have
been duly and validly authorized by all necessary corporate and/or other action;
(c) This Agreement and the documents referred to herein and to be
executed and delivered simultaneously herewith, constitute the legal, valid,
binding and enforceable obligations of Purchaser and Parent, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws,
and except that no representation is made as to the remedy of specific
performance and any other equitable relief which are each subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(d) Neither the execution or delivery of this Agreement by Purchaser or
Parent, as the case may be, nor the consummation of the transactions
contemplated hereby by Purchaser or Parent, as the case may be, will (with or
without notice or the passage of time, or both) result in: (i) a
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conflict with, or a breach or violation of the certificate of incorporation or
by-laws of Purchaser or Parent, as the case may be; or (ii) a breach or
violation of any of the terms or provisions of, or constitute a default pursuant
to, any material contract or agreement to which Purchaser or Parent, as the case
may be, is a party or by which any is bound, or any judgment or any law, rule,
regulation or ordinance to which any of them are subject. No governmental
authorization, approval, order, consent or waiting period that has not been
complied with, is or was required in connection with the execution, delivery and
performance of this Agreement by Purchaser and Parent; and
(e) PURCHASER HAS INDEPENDENTLY EXAMINED, TO ITS SATISFACTION, THE
VALUE OF THE NON-ARTICLE 28 ASSETS AND IS ACQUIRING SAID ASSETS "WHERE IS" AND
"AS IS" ON THE DATE HEREOF, SOLELY UPON PURCHASER'S INDEPENDENT EXAMINATION,
WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER FROM NCA AS TO THE VALUE,
CONDITION AND/OR MERCHANTABILITY OF ANY OF SAID ASSETS, EXCEPT AS OTHERWISE
STATED HEREIN. PURCHASER AGREES THAT, FOLLOWING THE DATE HEREOF, NCA SHALL NOT
HAVE ANY RESPONSIBILITY OR LIABILITY TO PURCHASER OR PARENT RELATED TO THE
CONDITION OF THE ASSETS CONVEYED HEREUNDER, EXCEPT FOR A BREACH OF NCA'S
COVENANTS, UNDERTAKINGS, REPRESENTATIONS AND/OR WARRANTIES UNDER THIS AGREEMENT.
(f) To the best of Purchaser's and Parent's knowledge and belief, no
representation or warranty of Purchaser and/or Parent contained in this
Agreement or in any Schedules annexed hereto, or in any other document,
instrument or agreement delivered by or on behalf of Purchaser and/or Parent in
connection with the consummation of the transactions set forth herein or
contemplated hereby, all of which are being executed and delivered
simultaneously herewith, contains any untrue statement of a material fact.
6. Documents to be Delivered at Closing:
(a) Documents to be Delivered by NCA. Contemporaneously herewith, NCA
is executing and delivering or causing to be executed and delivered to Purchaser
the following, it being understood that, subject to the provisions of Section
1(c) hereof, in the event any contract, lease, permit, approval and/or other
intangible asset of NCA is not, by its terms, assignable without the prior
written consent of a third party, such contract, lease, permit, approval and/or
other intangible assets shall not be deemed assigned (by NCA to Purchaser) until
any such approval has been so obtained:
(i) That certain Lease of even date between Norman Stahl and Carol
Stahl, as co-trustees under Trust Agreement dated November 25, 1991, as amended
(the "Stahl Trust") and Purchaser relating to a portion of the premises located
at 450 Endo Boulevard, Garden City, New York 11530 (the "Lease");
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(ii) that certain Consulting and Administrative Services Agreement
of even date herewith, between NCA and Purchaser (the "Consulting Agreement");
(iii) the Article 28 Agreement;
(iv) that certain Limited Contingent Guarantee of Carol Stahl
(the "Limited Guarantee");
(v) a Good Standing Certificate of NCA of recent date from the
Secretary of State of the State of New York;
(vi) a General Release, executed by the Stahl Defendants in favor
of all of the plaintiffs in the Sterling Litigation and EMF Litigation,
respectively;
(vii) a Certificate of the President or the Secretary of NCA,
certifying that all corporate actions necessary to authorize NCA's execution,
delivery, performance and consummation of this Agreement and the transactions
contemplated hereby, have been taken, attached to which Certificate is a copy of
the resolutions of the Board of Directors of NCA authorizing such actions; and
(viii) Copies of all consents, authorizations, orders or approvals
of, and filings with, any Federal, state or local governmental agency, board or
other regulatory body which are required for, or in connection with, the
execution, delivery and performance of this Agreement by NCA and the
consummation of the transactions contemplated hereby.
(b) Documents to be Delivered by Purchaser and/or Parent.
Contemporaneously herewith, Purchaser and/or Parent, as the case may be, are
executing and delivering, or causing to be executed and delivered, to NCA, the
following:
(i) the Lease;
(ii) the Consulting Agreement;
(iii) the Article 28 Agreement;
(iv) that certain Guaranty, of even date herewith, of Purchaser's
obligations under this Agreement, made by Parent in favor of NCA;
(v) that certain Security Agreement, of even date herewith,
between NCA and Purchaser;
(vi) Stipulation of Discontinuance with prejudice with regard to
the Sterling Litigation and EFM Litigation;
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(vii) General Release to be executed by Purchaser, Parent and all
other Plaintiffs with regard to the Sterling Litigation and Empire Fiscal
Management and Charles Raab, in favor of the Stahl Defendants, in the Sterling
Litigation and in the EFM litigation respectively;
(viii) Sales Tax Return and Payment;
(ix) The Summit Documents;
(x) a Certificate of the Secretary of Purchaser, certifying that
all corporate actions necessary to authorize Purchaser's execution, delivery,
performance and consummation of this Agreement and the transactions contemplated
hereby, have been taken, attached to which is a copy of the resolutions of the
Board of Directors authorizing such actions;
(xi) a Certificate of the Secretary of Parent, certifying that all
corporate actions necessary to authorize Parent's execution, delivery,
performance and consummation of this Agreement and the transactions contemplated
hereby, have been taken, attached to which is a copy of the resolutions of the
Board of Directors authorizing such actions;
(xii) Copies of all consents, authorizations, orders or approvals
of, and filings with, any Federal, state or local governmental agency, board or
other regulatory body which are required for, or in connection with, the
execution, delivery and performance of this Agreement by Purchaser and/or Parent
and the consummation of the transactions contemplated hereby; and
(xiii) a Good Standing Certificate of recent date of each of
Purchaser and Parent, issued by the Secretary of State of the State of New York.
7. Sales, Transfer and Documentary Taxes. Purchaser shall pay all federal,
state and local sales, documentary and other such transfer taxes, if any, due as
a result of the sale of Non-Article 28 Assets to Purchaser, and Purchaser's
acquisition of the Non-Article 28 Assets in accordance herewith, whether imposed
by law on NCA, Purchaser or Parent; and Purchaser and Parent, jointly and
severally, shall indemnify, reimburse and hold harmless NCA in respect of
Purchaser's and/or Parent's liability for payment of, or failure to pay, any
such taxes or the filing of, or failure to file, any reports required to be
filed by Purchaser and/or Parent in connection therewith.
8. Closing Adjustments. To the extent possible, the parties shall, on the
date hereof, make such adjustments as may be necessary for the allocation of
customary closing adjustments including, but not limited to, prepaid equipment
lease rents, prepaid utilities, other prepaid expenses and the like, it being
specifically understood that the Purchaser will not be assuming any accrued and
unpaid salary, vacation pay, sick pay and the like, with respect to the
employees of NCA. The Parties agree that, if not practicable to do so on the
date hereof, such adjustments shall be made through post closing adjustments.
9. Brokers. The Parties acknowledge that there was no broker involved in
this transaction.
<PAGE>
10. Books and Records.
(a) Included within the Non-Article 28 Assets are all records,
documents, bills, invoices, statements, ledger cards and other documents,
records and files having to do with the operation of the Center (excluding,
however, NCA's minute and stock records and its medical records) including, but
not limited to, records relating to billing, government and third-party programs
(collectively "NCA's Records"), wherever located. Purchaser undertakes and
agrees, at its own costs and expense, to keep and maintain the same at the
Premises for the joint use of NCA and Purchaser, and to allow NCA to have
reasonable access thereto during usual business hours on usual business days.
NCA shall be entitled to make extracts therefrom and copies thereof of any of
the same at NCA's own cost and expense, provided, however, that NCA does not
materially disrupt the operation of Purchaser's business. Purchaser agrees to
use NCA's Records only in accordance with applicable law and to maintain any
required confidentiality with respect thereto.
(b) After six (6) years from the date hereof, Purchaser may destroy or
store NCA's Records provided it shall first give reasonable (but in no event
less than thirty (30) days) prior written notice thereof to NCA, which may, at
its option, elect to remove copies of the same from the said Premises and keep
them in its own possession or otherwise dispose of them.
11. Employees.
(a) It is specifically agreed that NCA is responsible for all
obligations to its former and current employees or any representative of those
employees arising out of, or in connection with, the employment relationship,
the severance of the employment relationship or any obligation NCA may have to
any representative of those employees. Purchaser shall have no obligation to any
former or current employee of NCA to employ any such employee or, in any manner,
be responsible for the payment of any compensation, severance and/or termination
pay, etc., relating to any employee of NCA, except if and to the extent
disclosed on Schedule 3(b)(i) hereof (and, accordingly, assumed by Purchaser and
Parent hereunder), or due to any union or other labor organization. In the event
that Purchaser or either Parent shall elect to employ any of NCA's employees
after the date hereof, to any of which employment NCA hereby expressly consents,
Purchaser shall be responsible for all salary and other compensation solely to
the extent that the same accrues and becomes payable to such employee as of the
date of hire by Purchaser from and after the date hereof (unless such obligation
is an Assumed Liability in which case it shall be paid as provided above).
(b) Purchaser shall not assume any liability or obligation whatsoever
under any pension or retirement plans or any employee welfare plan maintained by
NCA. Any obligations of NCA thereunder (including, but not limited to, any
liability or obligation under or relating to the Employee Retirement Income
Security Act of 1974, as amended, or the Multi-Employer Pension Plan Amendments
Act of 1980) shall remain the obligations of NCA, as the case may be, after the
date hereof. Neither Purchaser nor Parent assumes any liability for any
employment-related claim of an employee relating to the employment of such
employee by NCA. NCA shall retain liability for any and all claims under its
welfare benefit plans or policies with respect to the employment by NCA of
<PAGE>
its employees (including any liability for accrued vacation and other benefits
in accordance with NCA's policies).
12. Indemnification.
(a) NCA and NCA's successors and assigns but, except as otherwise set
forth in Subsection (g) herein, none of its or their respective officers,
directors, shareholders (including, without limitation, the estate of Dr. Norman
O. Stahl (the "Stahl Estate") and those individuals beneficially interested
therein), employees, agents, transferees, affiliates and/or relatives of any of
the foregoing (each of the foregoing parties hereinafter referred to
individually as a "Seller Affiliate" and, collectively, the "Seller Affiliates")
shall indemnify, defend and hold harmless Purchaser and Parent, from and against
any and all losses, claims, liabilities, damages, costs, fees and expenses,
including, without limitation, reasonable attorneys' fees and disbursements, of
every kind and description, inchoate or otherwise (collectively, "Losses")
suffered or incurred by Purchaser or Parent resulting from, relating to, or
incident to: (i) a breach by NCA of any representation or warranty contained in
this Agreement; (ii) a failure by NCA to perform and/or comply with any of the
terms or provisions of this Agreement on its part to be observed, complied with
and/or performed, except if and to the extent such failure to perform or comply
with is a result of, or relates to, Purchaser's, Parent's and/or, except and
otherwise set forth in Article 31 hereof, any Employee's (as such term is
defined in Article 31 of this Agreement) of NCA, act or failure to act, from and
after the date hereof, including, but not limited to, a breach by Purchaser
and/or Parent of any of the provisions of the Consulting Agreement; (iii) any
and all liabilities of the Center and/or NCA existing as of date hereof that are
not Assumed Liabilities; and (iv) any and all actions, suits, claims, or legal,
administrative, arbitration, governmental or other proceedings or investigations
against Parent or Purchaser and/or any of their respective officers, directors,
shareholders, employees, agents, and/or affiliates (each a "Purchaser Affiliate"
and, collectively, the "Purchaser Affiliates") that relate to the Center, the
Non-Article 28 Assets, the Medical Assets and/or the Excluded Assets in which
the principal event giving rise thereto occurred prior to the date hereof,
except in the case of the Excluded Assets, in which the principal event giving
rise thereto may have occurred on or following the date hereof as well; all of
the foregoing being hereinafter collectively referred to as "Purchaser Losses."
Notwithstanding anything contained in this Agreement to the contrary, neither
NCA nor any and all of the Seller Affiliates shall have any obligation to
indemnify, and shall have no liability to, Purchaser, Parent and/or any
Purchaser Affiliate for any Losses suffered or incurred by Purchaser, Parent
and/or any Purchaser Affiliate resulting from, relating to, or incident to, any
and all actions, suits, claims and/or proceedings asserted or commenced by or on
behalf of any and/or all of the RGB Defendants and/or their respective
successors and/or assigns, regardless of whether any of the same arose prior to,
on, or following the date hereof, and whether or not the same relates to the
Center, the Non-Article 28 Assets, the Excluded Assets and/or the Medical
Assets.
(b) Purchaser and Parent, jointly and severally (but none of the
Purchaser Affiliates), shall indemnify, defend and hold harmless NCA from and
against any and all Losses, suffered or incurred by NCA resulting from, relating
to or incident to: (i) a breach by Purchaser and/or Parent of any representation
or warranty contained in this Agreement; (ii) a failure by Purchaser and/or
<PAGE>
Parent to perform and/or comply with any of the terms or provisions of this
Agreement on their respective parts to be observed, complied with and/or
performed; (iii) any and all Assumed Liabilities; (iv) any and all actions,
suits, claims, or legal, administrative, arbitration, governmental or other
proceedings or investigations against NCA and/or any and/or all Seller
Affiliates that relate to the Center, the Non-Article 28 Assets, the Medical
Assets and/or the Excluded Assets in which the principal event giving rise
thereto occurred on or following the date hereof and/or which results from or
arises out of any act or omission of Purchaser, Parent and/or any Purchaser
Affiliates; and (v) any and all actions, suits, claims and/or proceedings
asserted or commenced by or on behalf of any and/or all of the RGB Defendants
and/or their respective successors and/or assigns, regardless of whether any of
the same arose prior to, on, or following the date hereof, and whether or not
the same releases to the Center, the Non-Article 28 Assets, the Excluded Assets
and/or the Medical Assets; all of the foregoing being hereinafter collectively
referred to as "Seller Losses").
(c) Notwithstanding anything in this Agreement and/or in any of the
instruments, documents and/or agreements referred to in this Agreement and/or
therein and/or being executed simultaneously herewith (all such instruments,
documents and/or agreements being hereinafter collectively referred to as the
"Transaction Documents") to the contrary, as to matters which are subject to
claims for indemnification pursuant to Section 12(a) hereof and/or under any of
the Transaction Documents, NCA shall not be liable unless and until the
aggregate of Purchaser's Losses which are the subject of any such claim(s) for
indemnification under this Agreement and/or under any and/or all of the
Transaction Documents shall exceed the aggregate sum of Twenty Thousand
($20,000) Dollars. In no event shall the total indemnification and/or any other
liability of NCA under this Agreement and/or under any and all of the
Transaction Documents (other than the Lease) exceed, in the aggregate, the sum
of $1,650,000 inclusive of any and all attorneys' fees and any and all related
litigations costs, including, but not limited to, any and all amounts payable
pursuant to the provisions of Section 29 hereof.
(d) Notwithstanding anything else contained in this Agreement to the
contrary, it is expressly understood and agreed that the representations and
warranties made by each of the Parties hereto shall only survives for a period
of one (1) year from the date hereof. Each of the Parties shall be entitled to
rely upon the representations and warranties made by the others in this
Agreement regardless of any information or knowledge obtained in the course of
any investigation or otherwise.
(e) (i) In the event that Purchaser, Parent and/or any Purchaser
Affiliate (each an "Indemnified Purchaser Party" and, collectively, the
"Indemnified Purchaser Parties") shall have a claim against NCA hereunder (each
a "Purchaser Claim") that does not involve a claim or demand being asserted
against or sought to be collected from it (or them) by a third party, the
Indemnified Purchaser Party shall : (A) if such Purchaser Claim relates to a
breach of a representation and/or warranty made by NCA hereunder, be required to
(x) serve upon NCA a notice of such Purchaser Claim, specifying the nature of
such Purchaser Claim and the amount or the estimated amount thereof to the
extent then feasible (which estimate shall not be conclusive of the final amount
of such Purchaser Claim (a "Claim Notice"); and (y) commence formal legal action
against NCA, as a result thereof, within a maximum period of twelve (12) months
from the date this Agreement, regardless of whether any such Purchaser Claim
arose prior to or after such twelve (12) month period; and (B) if such Purchaser
Claim relates to any obligation, covenant and/or undertaking of NCA hereunder,
<PAGE>
shall be required to (x) serve upon NCA a Claim Notice with respect thereto and
(y) commence formal legal action, as a result thereof, against NCA within a
maximum period of eighteen (18) months from the date of this Agreement,
regardless of whether any such Purchaser Claim arose prior to or after such
eighteen (18) month period, after each of which respective dates any and all
rights of each such Indemnified Purchaser Party to obtain indemnification in
respect of any and all other Purchaser Claims (that have not been pursued in
accordance with either of the provisions of (A) and (B) above), shall expire, be
of no further force and/or effect and shall be deemed waived. If NCA shall fail
to notify, in writing, the Indemnified Purchaser Party, within thirty (30) days
from receipt of a Claim Notice, that it disputes such Purchaser Claim, the
amount of such Purchaser Claim shall be conclusively deemed a liability of NCA
hereunder.
(ii)In the event an Indemnified Purchaser Party shall have a
Purchaser Claim that involves a claim or demand being asserted against or sought
to be collected from such Indemnified Purchaser Party by a third party, such
Indemnified Purchaser Party shall be required to serve upon NCA a Claim Notice
with respect to such Purchaser Claim within a maximum period of sixty (60) days
after such Indemnified Purchaser Party is apprised of such Purchaser Claim; and
if such Purchaser Claim is disputed, (as between NCA and the Indemnified
Purchaser Party) by NCA within thirty (30) days after its receipt of any such
Claim Notice, commence formal legal action against NCA within a maximum period
of eighteen (18) months from the date of this Agreement, regardless of whether
any such Purchaser Claim arose prior to or following such eighteen (18) month
period, after which date any and all rights of each such Indemnified Purchaser
Party to obtain indemnification in respect of any and all other third-party
Purchaser Claims (that have not been pursued in accordance with the foregoing)
shall expire, be of no further force and/or effect and shall be deemed waived.
If NCA does not dispute (as between NCA and the Indemnified Purchaser Party)
such Purchaser Claim within thirty (30) days after its receipt of any such Claim
Notice, the obligation to indemnify the Indemnified Purchaser Parties with
respect thereto, shall be conclusively deemed to be an obligation of NCA and, in
such event, NCA shall be required, at its sole cost and expense, to defend such
Indemnified Purchaser Parties against such Purchaser Claim with counsel
reasonably satisfactory to such Indemnified Purchaser Parties. NCA shall not,
without the prior written consent of the Indemnified Purchaser Party, consent to
the entry of any judgment against such Indemnified Purchaser Party or enter into
any settlement or compromise which does not include, as an unconditional term
thereof (i.e., there being no requirement that the Indemnified Purchaser Party
pay any amount of money or give any other consideration), the giving by the
claimant or plaintiff to such Indemnified Purchaser Party of a release, in form
and substance satisfactory to the Indemnified Purchaser Party, from all
liability in respect of such claim or litigation. If any Indemnified Purchaser
Party desires to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense.
(iii) With respect to the provisions of Subsections 12(e)(i)
and (ii) hereof, it is expressly understood and agreed that the failure of an
Indemnified Purchaser Party to comply with the applicable requirements of
Subsections 12(e)(i) or (ii) (as the case may be) to deliver a Claim Notice to
NCA and (except if such Purchaser Claim is not disputed by NCA within thirty
(30) days of its receipt of any such Purchaser Claim as provided for
hereinabove) commence formal legal action (with respect to any such Claim
Notice) within the respective time periods set forth therein (and, regardless of
whether any such Purchaser Claim arose prior to or after the applicable time
<PAGE>
period), shall constitute such Indemnified Purchaser Party's waiver of any and
all rights and/or remedies with regard to any such Purchaser Claim.
(iv) All claims for indemnification by NCA and/or any Seller
Affiliate against Purchaser and/or Parent under this Agreement shall be asserted
and resolved under the procedures set forth in Subsections (e)(i), (ii) and
(iii) of this Section 12 by substituting in the appropriate place "Seller
Losses" for "Purchaser Losses", "Seller Claim" for "Purchaser Claim",
"Indemnified Seller Party" for "Indemnified Purchaser Party" , "NCA" and/or
"Seller Affiliates" for "Purchaser", "Parent" and/or "Purchaser Affiliates", and
"Purchaser and Parent, jointly and severally" for "NCA", and variations of any
of the foregoing; provided, however, that, notwithstanding anything contained in
this Agreement to the contrary, nothing contained in this Section 12 shall, in
any way, restrict NCA's right to make a claim for indemnification against
Purchaser and/or Parent as a result of Purchaser's, and/or Parent's failure to
pay and/or discharge any of the Assumed Liabilities and/or with regard to any of
the matters described in Section 12(b)(iv) and/or (v) hereof, regardless of when
asserted.
(f) It is expressly understood and agreed that the rights and remedies
of each of the Parties hereto and of each Purchaser Affiliate and Seller
Affiliate under any and all theories of law and/or equity (with respect to the
matters contemplated by Sections 12, 13 and 30 of this Agreement) are and shall
be limited to those set forth in Sections 12, 13 and 30 hereof.
(g) Notwithstanding anything to the contrary contained in this Section
12 and/or in Section 13 below, nothing contained herein and/or therein shall be
deemed to abrogate, limit and/or otherwise restrict the right of Purchaser,
Parent and/or any Purchaser Affiliate from exercising any right and/or remedy
that is expressly granted to each of them under the Limited Contingent Guaranty
being executed by Carol Stahl simultaneously herewith, subject to the terms,
conditions and limitations contained herein and/or therein.
13. Limitation of Remedies; Covenant Not to Sue.
(a) Notwithstanding anything else contained in this Agreement to the
contrary, Purchaser's, Parent's and/or each Purchaser Affiliate's sole remedy,
in addition to the equitable remedy of specific performance, against NCA, with
respect to any and all Purchaser Claims hereunder for Purchaser Losses shall
(except as otherwise set forth in the last sentence of Subsection 12(e)(i)
hereof and the second sentence of Subsection 12(e)(ii) hereof, only) not accrue
unless and until the entry of a final, binding and non-appealable judgment
against NCA in favor of Purchaser, Parent and/or such Purchasers Affiliate with
respect to such Purchaser Claim.
(b) NCA, Purchaser and Parent each hereby acknowledge that it is NCA's
intention to distribute, promptly, to the Stahl Estate and/or those beneficially
interested therein, all or substantially all of the Purchase Price paid by the
Purchaser to NCA for the sale of NCA's Non- Article 28 Assets to the Purchaser
in accordance with the terms hereof, and the cash portion of the Purchase Price
(as defined in the Article 28 Agreement) paid to NCA pursuant to the terms of
the Article 28 Agreement. Purchaser and Parent each hereby acknowledges and
agrees that such distribution: (i) shall not be deemed a fraudulent conveyance;
(ii) shall be completely and
<PAGE>
unconditionally disregarded in determining whether NCA has breached any of its
representations, warranties and/or covenants made by NCA in this Agreement
and/or any of the Transaction Documents; provided, however, that,
notwithstanding any such distribution, (x) NCA (and Carol Stahl, pursuant to her
Limited Contingent Guaranty being executed simultaneously herewith) shall not be
relieved of its (and/or her) obligation to perform its (and/or her) covenants
set forth in this Agreement and/or in Carol Stahl's Limited Contingent Guaranty;
and (y) shall in no way affect the indemnification obligations of Purchaser
and/or Parent contained in this Agreement in favor of NCA and/or the Seller
Affiliates.
14. Further Assurances. At any time and from time to time after the date
hereof, at any Party's request and without further consideration, the other
Party(ies) will promptly execute and deliver all such further documents or
perform such acts as may be reasonably required for the more effective
implementation of any of the transactions contemplated herein and/or in any of
the documents being executed in connection herewith including, but not limited
to, Purchaser and Parent's execution and delivery of any and all documents and
instruments requested by Summit in connection with Purchaser's and Parent's
release of any claims it may have against Summit.
15. Expenses. Each Party shall pay all of its respective consultants,
attorneys and/or accountants' fees and expenses incurred by such Party in
connection with the negotiation and execution of this Agreement and the
consummation of the transactions contemplated hereby.
16. Entire Agreement. This Agreement, including the Exhibits and Schedules
annexed hereto and all documents executed and delivered in connection herewith,
embodies the entire agreement and understanding amongst the Parties hereto and
supersedes all prior agreements and understandings, both oral and written,
relating to the subject matter hereof, including, without limitation, that
certain Closing Escrow Agreement effective as of the 18th day of October, 1996,
by and among, Norman O. Stahl (both individually and as Trustee under U/A dated
November 25, 1991), Carol Stahl, Nassau Ophthalmic Services, P.C., Nassau Center
for Ambulatory Surgery, P.C., Eye Physicians & Surgeons of Hauppauge, P.C.,
Refractive & Laser Surgery Associates, P.C., Diverse Services for the
Professions, Inc., Eye Designs of Suffolk, Inc., Sterling Vision, Inc., Insight
Laser Centers, LLC, Insight Laser Center, Inc. and Certilman Balin Adler &
Hyman, LLP and all instruments, documents and agreements referred to therein.
17. Operation of the Center. From and after the date hereof, NCA shall take
no action which would disqualify NCA as the owner and/or operator of the Center
or, in any material way, prejudice or delay the approval of the transfer of the
CON to IAC; provided, however, that the foregoing shall not be applicable with
respect to: (i) any and all delays and/or disqualifications caused and/or
resulting from any information and/or report furnished, in good faith, by NCA to
any regulatory agency and/or authority requesting the same; or (ii) any transfer
of the CON as provided for in Article 17 of the Article 28 Agreement.
18. Notice. Any notice, consent or other communication required or
permitted to be given under this Agreement shall be in writing and shall be
delivered personally, or sent by a nationally recognized, overnight courier
(e.g., Federal Express), certified U.S. Mail, return receipt requested, with all
postage and other charges prepaid, and addressed as set forth below:
<PAGE>
For NCA: Nassau Center for Ambulatory Surgery, Inc.
12 Ridge Court
Old Brookville, New York 11545
Attn.: Adam Stahl
With a copy to: Certilman, Balin, Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attn.: Steven J. Kuperschmid. Esq.
and Epstein Becker & Green
250 Park Avenue
New York, New York 10177-0077
Attn: Joseph L. Hutner, Esq.
For Purchaser: Insight Laser Centers N.Y. I, Inc.
1500 Hempstead Turnpike
East Meadow, New York 11554
Attn.: General Counsel
With a copy to: McDermott Will & Emery
50 Rockefeller Plaza
New York, New York 10020
Attn.: Brian Hoffman, Esq.
and Charles Raab
450 Endo Boulevard
Garden City, New York 11530
For Parent Sterling Vision, Inc.
1500 Hempstead Turnpike
East Meadow, New York 11554
Attn.: General Counsel
With a copy to: McDermott Will & Emery
50 Rockefeller Plaza
New York, New York 10020
Attn.: Brian Hoffman, Esq.
19. Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and each of their respective successors,
assigns, heirs and personal representatives. This Agreement may not be assigned
by any Party hereto without the prior written consent of the others. Any such
permitted assignment, however, shall not relieve the assigning Party of its
liabilities and obligations hereunder.
<PAGE>
20. Trade Name of Center. Nothing contained herein shall limit and/or
otherwise restrict Purchaser and/or IAC from changing the trademark of the
Center subject, however, to their prior receipt of all necessary regulatory
approvals, including, but not limited to, the approval of the New York State
Department of Health.
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which, shall be deemed an original and all of which, when
taken together, shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the Parties
and delivered to the other Parties.
22. Headings. The Section headings of this Agreement are for reference
purposes only and shall not affect, in any way, the meaning or interpretation of
this Agreement.
23. Amendment and Waiver. This Agreement may not be amended, modified or
waived, in whole or in part, at any time, except by a writing signed by the
Party to be charged.
24. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
EXCLUDING CHOICE OF LAW PRINCIPLES THEREOF.
25. Waiver of Breach or Violation Not Deemed Continuing. The waiver by any
Party of a breach or violation of any provision of this Agreement shall not
operate as, or be construed to be, a waiver of any subsequent breach or
violation of any provision hereof. No breach or violation of any provision
hereof may be waived, except by an agreement, in writing, signed by the waiving
Party.
26. Severability. In the event any provision of this Agreement or any of
the attached Exhibits, Schedules or documents to be delivered in connection
herewith, should be adjudged invalid, such adjudication shall in no manner
affect the other provisions of this Agreement and the Exhibits or Schedules
attached hereto or the documents to be delivered in connection herewith, all of
which shall remain in full force and effect as if the provision so declared or
adjudged to be invalid was not originally a part hereof.
27. Acknowledgment. The Parties acknowledge and agree that they have read
this Agreement and the attached Exhibits and Schedules in their entirety and
that they understand and agree to be bound by the terms and conditions as stated
therein.
28. Confidential Information. Each Party agrees that such Party and its
representatives at all times hereafter will hold, in a fiduciary capacity and in
strict confidence, all information, data and documents received from the other
Parties (collectively, "Information") and will not, without the consent of the
disclosing Party, use or disclose, directly or indirectly, the Information in
any manner whatsoever, in whole or in part. Notwithstanding the foregoing, the
obligations under this Section 28 to maintain such confidentiality shall not
apply to any Information (a) that is in the public domain at the time furnished
by the disclosing Party, (b) that becomes in the public domain thereafter
through any means other than as a result of any act of the receiving party or of
its agents, officers, directors or shareholders which constitutes a breach of
this Agreement, or (c) that is, in the
<PAGE>
reasonable opinion of such Party's independent counsel, required by applicable
law or a court of competent jurisdiction to be disclosed.
29. Legal Fees. In the event of any litigation arising our of or relating
to this Agreement, or any instrument or document delivered pursuant thereto, the
substantially prevailing Party shall be entitled to reasonable attorneys' fees,
costs and expenses, including all related litigation costs. Attorneys fees shall
include all fees incurred in establishing the entitlement to, and the quantum
of, such fees. Likewise included shall be all fees and related litigation costs
incurred in connection with all appeals and applications to the initial tribunal
and all courts to which appeals are taken.
30. Equitable Relief. The Parties agree that a remedy at law would be
insufficient in the event of any breach or threatened breach of any of the
terms, covenants, conditions and/or provisions hereof and/or of any document
and/or of any instrument delivered in connection herewith. Accordingly, the
aggrieved Party shall be entitled to injunctive relief to compel the breaching
Party to perform or refrain from performing any action required or prohibited
hereunder and/or thereunder.
31. Acts and Omissions of the Parties. Notwithstanding anything contained
in this Agreement and/or in the Transaction Documents to the contrary, and
notwithstanding NCA's obligation to employ and/or engage the Key Management
Employees (as said term is defined in the Consulting Agreement) of the Center
including, but not limited to, its Administrator and Chief Financial Officer, it
is specifically under stood and agreed that any and all acts and/or omissions of
such Key Management Employees, as well as any and all acts and/or omissions of
any and all other employees of NCA (either engaged by Purchaser on behalf of NCA
and/or engaged by NCA at the specific instance and/or request of Purchaser)
(collectively, the "Employees"), from and after the date hereof:
(i) shall not be deemed, for all purposes, and under this
Agreement (including, but not limited to, Article 12 hereof) and/or under any
and all Transaction Documents, to be the acts and/or omissions of NCA and/or any
Seller Affiliate, except if and to the extent any such Employee has acted and/or
failed to act pursuant to the explicit direction and/or authorization of either
of Carol Stahl and/or Adam Stahl; and
(ii) shall be deemed, for all purposes, and under this
Agreement (including, but
not limited to, Article 12 hereof) and/or under any and all Transaction
Documents, to be the acts and/or omissions of Purchaser, except if and to the
extent any such Employee has acted and/or failed to act pursuant to the explicit
direction and/or authorization of either Carol Stahl and/or Adam Stahl.
<PAGE>
IN WITNESS WHEREOF, each Party has executed this Agreement as of the date
and year first above written.
Insight Laser Centers N.Y. I, Inc.
By:
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Jerry Lewis, President
Sterling Vision, Inc.
By:
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Jerry Lewis, President
Nassau Center for Ambulatory Surgery, Inc.
By:
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Carol Stahl, Vice President
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("the "Agreement") made as of the 6th
day of May, 1998 (the "Effective Date"), by and between Nassau Center for
Ambulatory Surgery, Inc., a New York corporation with an office at 450 Endo
Boulevard, Garden City, New York 11530 (hereinafter referred to as "Seller" or
"NCA") and Insight Amsurg Centers, Inc., a New York corporation with an office
at 1500 Hempstead Turnpike, East Meadow, New York 11554 (hereinafter referred to
as "Buyer").
W I T N E S S E T H :
WHEREAS, Seller owns and operates an ambulatory surgery center
that is licensed pursuant to Article 28 of the Public Health Law of the State of
New York (the "Center") in a portion of the premises (the "Building") located at
450 Endo Boulevard, Garden City, New York 11530 (the "Premises") ; and
WHEREAS, Seller, Insight Laser Centers N.Y.I, Inc. ("Insight")
and Sterling Vision, Inc. ("Sterling"), each an affiliate of Buyer, have entered
into an agreement (the "Asset Purchase Agreement") of even date herewith
pursuant to which Seller is, simultaneously herewith, selling and transferring
to Insight, substantially all of its non-medical assets (the "Non-Medical
Assets"); and
WHEREAS, Seller and Insight have entered into an agreement of
even date herewith pursuant to which Insight shall provide interim consulting
and administrative services to Seller (the "Interim Consulting Agreement")
pending the consummation of the transactions contemplated by this Agreement; and
WHEREAS, Seller desires to sell and Buyer desires to purchase
all of Seller's right, title and interest in and to the assets of the Center
other than the Non Medical Assets and the Excluded Assets (as said term is
defined in the Asset Purchase Agreement) thereof, and the right to own and
operate the Center as described herein (collectively, the "Medical Assets"), all
subject to Buyer's submission to, and approval by, the Public Health Council of
the New York State Department of Health (the "PHC") of its certificate of need
application (the "CON Application") for a change in ownership of the Seller's
license to operate, including its Certificate of Need for the Center
(collectively, the "CON"); and
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WHEREAS, Seller and Buyer are desirous of taking such other
and further action as may be reasonably necessary to protect their respective
interests until such time as Buyer receives approval by the PHC of its CON
Application.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
1. CONVEYANCE BY SELLER
1.1 Subject to the terms and conditions of this Agreement, at
the Closing (as defined in Section 3 of this Agreement), Seller shall sell, free
and clear of all liens, claims and/or encumbrances (collectively, "Liens"),
other than the Permitted Liens (as hereinafter defined), and Buyer shall
purchase all of the Seller's right, title and interest in and to the Medical
Assets including, but not limited to: (i) Seller's right to operate the Center
at the Premises, including rights regarding certificates of authority and
licenses owned or held by Seller, including, but not limited to, those set forth
on Schedule 1.1(a) attached hereto and incorporated herein by this reference,
which right shall not be granted by Seller to any other individual or entity
pending approval by the PHC of Buyer's CON Application to become the operator
thereof; (ii) Seller's rights under any and all provider contracts and related
agreements in existence as of the Closing Date including, but not limited to,
those which are set forth on Schedule 1.1(b) attached hereto and incorporated
herein by this reference (provided the same are then in full force and effect),
copies of which shall be provided by Seller to Buyer prior to, or simultaneously
with, the Closing; (iii) the right to use the name "NASSAU CENTER FOR AMBULATORY
SURGERY" and the Center's current telephone and facsimile numbers; (iv) all
accounts receivable of the Seller relating to the operation of the Center from
and after the Effective Date hereof through the Closing Date; and (v) all cash
remaining in the Depository Account and Operating Account (as said terms are
defined in the Interim Consulting Agreement) on the Closing Date.
2. PURCHASE PRICE
2.1 As consideration for the Medical Assets, Buyer shall: (i)
pay to Seller the sum of Fifty Thousand ($50,000) Dollars upon the execution of
this Agreement by unendorsed bank, cashier's or certified check to the order of
Seller drawn upon a bank which is a member of the New York Clearinghouse or, at
Seller's option, by wire transfer of immediately available funds to an account
designated by Seller simultaneously with the execution hereof (which cash
portion of the Purchase Price is to be paid directly to Seller and shall not be
the subject of an escrow arrangement); (ii) by its execution hereof, assume
(and/or cause Insight to assume) payment of all outstanding amounts due and
payable, as of the Closing Date, by the Seller to Insight pursuant to the terms
of the Interim Consulting Agreement, including, but not limited to, any and all
sums of money loaned to NCA by Insight pursuant to the terms thereof; and (iii)
by its execution hereof, assume payment (and/or cause Insight to assume payment)
of all outstanding obligations, liabilities and/or the like, of any kind or
nature, of the Seller existing as of the Closing Date which have been incurred,
assumed and/or consented to, in writing, by Insight, on behalf of the Seller or
in any
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other capacity, pursuant to, and/or during the term of, the Interim Consulting
Agreement, and whether or not reflected on the books and records of the Seller
and/or contained on any Schedule hereto including, but not limited to, any and
all equipment lease and/or other accounts payable related to any and/or all of
the foregoing (all liabilities and obligations assumed pursuant to Subsections
(ii) and (iii) hereof being hereinafter collectively referred to as the "Assumed
Liabilities").
2.2 Notwithstanding anything to the contrary contained in this
Agreement and/or in the Interim Consulting Agreement, in the event that this
Agreement and/or the Interim Consulting Agreement expires and/or is terminated
for any reason other than: (i) as a result of the Closing hereunder or (ii) as a
result of NCA's wrongful termination hereof and/or of the Consulting Agreement,
payment of any and/or all consulting and administrative service fees required to
be paid by NCA to Insight pursuant to the terms of the Interim Consulting
Agreement shall be subordinate to any and all obligations, liabilities,
commitment and/or the like to third parties incurred from and after the date
hereof (x) by Insight, whether on behalf of NCA or otherwise, and/or (y) by NCA
with Insight's consent thereto (including, but not limited to, with respect to
items (x) and (y) above, any accounts payable to third parties and/or any
payments due, and/or to become due, under any lease for any of the Center's
furniture, fixtures and/or equipment, it being understood that the foregoing
provision shall survive the expiration and/or termination of this Agreement
and/or the Interim Consulting Agreement.
2.3 Notwithstanding anything to the contrary contained herein,
in the event any Medical Asset cannot, by its terms, be transferred by NCA
without the consent of a third party (other than, and specifically excluding,
the CON), such Medical Asset shall not be deemed sold, assigned or delivered
hereby unless and until such third party consent is so obtained; provided,
however, that the foregoing shall not relived Buyer from its obligations
pertaining to any and all Assumed Liabilities, and/or any and all other
liabilities and/or obligations of Buyer hereunder and/or under any and /or all
of the Transaction Documents, (as said term is hereinafter defined). If any such
consent shall not be obtained or if any attempted assignment would be
ineffective or would impair Buyer's right in, to and/or under the Medical Asset
in question so that Buyer would not, in effect, acquire the benefit of all such
rights, Seller, to the maximum extent permitted by law and/or the Medical Asset,
shall act after the Closing Date as Buyer's agent in order to obtain for it the
benefits thereunder and shall cooperate, to the maximum extent permitted by law
and/or the Medical Asset, with Buyer in any other reasonable arrangement
designed to provide such benefits to Buyer.
2.4 The Purchase Price shall be allocated among the Medical
Assets of the Center as set forth on Schedule 2.4 hereto. The parties hereto
agree to conform with the above allocation for tax and other purposes and hereby
acknowledge that such allocation is reasonable.
3. CLOSING Subject to the time limitations set forth in Section 13.1 of
this Agreement, and subject to the fulfillment of all conditions precedent set
forth in this Agreement, the closing of the purchase and sale of the Medical
Assets as contemplated hereunder (the "Closing") shall take place on the first
business day of the month following the month in which
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Buyer receives the written approval, by the PHC, of its CON Application
(all contingencies to such approval having first been satisfied), together with
any required approvals of all other New York State agencies and authorities
having jurisdiction over the Center and/or such CON Application, or at such time
after such approvals are obtained as the parties may mutually agree in writing,
but, in any event, not later than April 30, 2003. The Closing will be held at
the offices of Certillman, Balin, et al, 90 Merrick Avenue, East Meadow, New
York 11554, on such date or such other date and time as the parties shall
mutually agree (the "Closing Date").
4. ADJUSTMENTS TO THE PURCHASE PRICE
4.1 There shall be no adjustments of the Purchase Price
described herein.
5. DELIVERIES AT CLOSING
5.1 At the Closing, Buyer shall deliver to Seller:
(a) a termination, in a signed writing, of the
Interim Consulting Agreement;
(b) a good standing certificate or equivalent
documentation from the State of New York as of a date within five (5) business
days of the Closing Date;
(c) copies of any required consents, authorizations,
orders or approvals of, and filings with, any federal, local, state or other
governmental agency, board, regulatory body or other individual or entity which
are required for, or in connection with, the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
which are not otherwise required to be delivered by Seller pursuant to Section
5.2 hereof and/or under any of the other Transaction Documents (as said term is
hereinafter defined); and
(d) copies of all corporate actions necessary to
authorize Buyer's execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, including a copy of the
corporate resolutions of Buyer authorizing the same, which shall be certified by
Buyer's Secretary.
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5.2 At the Closing, Seller shall deliver to Buyer:
(a) a Bill of Sale for the Medical Assets to be
transferred pursuant to this Agreement in form and substance reasonably
satisfactory to counsel to the Parties hereto;
(b) copies of any required consents, authorizations,
orders or approvals of, and filings with, any federal, local, state or
governmental agency, board, regulatory body or other individual or entity which
are required for, or in connection with, the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
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which are not otherwise to be delivered by Buyer pursuant to Section 5.1 hereof
and/or under any of the other Transaction Documents (as said term is hereinafter
defined);
(c) copies of all corporate actions necessary to
authorize Seller's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby, including a copy of the
corporate resolutions of Seller authorizing the same, which shall be certified
by Seller's President or Secretary;
(d) the original (or original replacement therefor)
license to operate the Center; and
(e) a termination, in a signed writing, of the
Interim Consulting Agreement.
5.3 At the Closing, Seller and Buyer shall duly execute and
deliver to each other an Assignment and Assumption Agreement relating to the
items referred to in clauses (ii) and (iii) of Section 2.1 hereof in a form to
be reasonably agreed upon by counsel to each of the Parties hereto.
5.4 At the Closing, Seller shall convey the Medical Assets to
Buyer free and clear of all mortgages, liens, charges and encumbrances, (other
than those Liens as may be set forth on Schedule 5.4 hereto), except if and to
the extent any and/or all Liens (whether or not on Schedule 5.4 hereto) have
been created by an act and/or failure to act on the part of Insight, whether as
consultant to the Seller pursuant to the terms of the Interim Consulting
Agreement or otherwise (such Liens, together with those Liens set forth on
Schedule 5.4 hereto, being hereinafter collectively referred to as the
"Permitted Liens").
6. PROVIDER AGREEMENTS
6.1 Prior to or upon receipt of approval by the PHC of the CON
Application, Buyer shall apply for new Medicare and Medicaid provider numbers.
6.2 The provisions of Section 6.1 shall survive the Closing
Date.
7. REPRESENTATIONS AND COVENANTS OF SELLER
(a) Seller hereby covenants and agrees with Buyer that, during
the period from the Effective Date of this Agreement to the Closing Date, Seller
shall conduct its business only in the ordinary and usual course, consistent
with past practices subject, however, to the terms of the Interim Consulting
Agreement. Without limiting the generality of the foregoing, Seller shall, to
the extent practicable, keep available the services of its Key Management
Employees (as said term is defined in the Interim Consulting Agreement), and
take no affirmative action to materially, adversely affect its relationships
with regulatory entities.
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(b) Seller hereby covenants and agrees with Buyer that, during
the period from the Effective Date of this Agreement to the Closing Date,
subject, however, to the terms of the Interim Consulting Agreement, it shall
not:
(i) Amend, supplement or otherwise alter, in any
material, adverse respect, any contracts or relationships with providers;
(ii) Enter into any contract or engage in any
transaction with respect to the Center, except as may otherwise be permitted by
the terms of the Interim Consulting Agreement and/or assumed or consented to by
Insight in writing;
(iii) Make any change in its accounting practices;
(iv) Enter into any contract that would cause any of
its representations and warranties contained in the Asset Purchase Agreement to
be untrue, in any material respect, except if and to the extent entered into by
Insight, on behalf of Seller or in any other capacity pursuant to, and/or during
the term of, the Interim Consulting Agreement; and
(v) Take any action prior to the Closing which would
disqualify Seller as the owner and operator of the Center or, in any material
way, prejudice or delay approval of the CON Application; provided, however, that
the foregoing shall not be applicable with respect to all delays and/or
disqualifications caused and/or resulting from any information and/or report
furnished, in good faith, by the Seller to any regulatory agency and/or
authority requesting the same.
(c) Seller represents and warrants to Buyer that,
except as set forth on any Schedule annexed hereto, the following are true and
correct, in all material respects, as of the date hereof:
(i) Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of New York,
and has all the requisite corporate power and authority to own, lease and
operate its properties and to carry on its business asnow being conducted.
Seller has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby;
(ii) The execution and delivery by Seller of this
Agreement and the other documents referred to herein, and the performance by
Seller of the transactions contemplated hereby and thereby, have been duly and
validly authorized by all necessary corporate action, and except as otherwise
set forth herein, no further action or approval, corporate or otherwise, is
required in order to constitute this Agreement and each other document to be
executed and delivered pursuant to the terms hereof, as valid and binding
obligations of Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, and except that of the remedy of
specific performance and any other equitable relief, which may be subject to
certain
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equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(iii) Neither the execution, delivery or performance of this
Agreement by Seller, nor Seller's consummation of the transactions contemplated
hereby, will (with or without notice or the passage of time, or both) result in:
(i) a conflict with, or a breach or violation of, the certificate of
incorporation or by-laws of Seller; (ii) the creation of any lien on the Center
or any of the Medical Assets; or (iii) a breach or violation of, or liability
under, any of the terms or provisions of, or constitute a default pursuant to,
any material contract, covenant or agreement to which Seller is a party or by
which Seller, the Center or any of the Medical Assets is bound, or any judgment,
law, rule, regulation or ordinance to which Seller, the Center or any of the
Medical Assets is subject. Except as otherwise set forth herein, no governmental
or other authorization, approval, order, consent or waiting period that has not
been complied with by Seller prior to the date hereof, is or was required in
connection with the execution, delivery, and performance of this Agreement by
Seller;
(iv) On the Closing Date, Seller will be transferring to Buyer
all of its right, title, and interest in and to all of the Medical Assets, free
and clear of all liens, claims and/or encumbrances, other than the Permitted
Liens;
(v) Except as set forth on Schedule 7(c)(v) annexed hereto and
made a part hereof, to the best of Seller's knowledge and belief, no action,
suit, litigation, claim, investigation or proceeding, whether legal or
administrative or in mediation or arbitration, is pending or, to the best of
Seller's knowledge and belief, threatened, at law or in equity or admiralty,
before or by any court or Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, against or
affecting the Seller, the Medical Assets, the Center or the transactions
contemplated hereby. Seller is not in default, in any material respect, with
respect to any order, writ or decree of any court or any Federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality relating to the Center or the Medical Assets;
(vi) The CON is in full force and effect; and, to the best of
Seller's knowledge, there are no agreements between Seller and any third party
(other than as set forth in the Transaction Documents) that restricts the use
and occupancy of the Center, in any material respect, as an Article 28
Ambulatory Surgery Center; and
(vii) To the best of Seller's knowledge and belief, no
representation or warranty of Seller contained herein or in any Schedule annexed
hereto, contains any untrue statement of a material fact.
8. REPRESENTATIONS AND COVENANTS OF BUYER
(a) Buyer hereby covenants and agrees with Seller as
follows:
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(i) Buyer agrees, at its sole expense, to promptly
prepare and use its best, good faith effort to submit the CON Application to the
PHC no later than sixty (60) days after the Effective Date, and to all other
governmental agencies having jurisdiction over the establishment, transfer and
operation of ambulatory surgery centers. Buyer further agrees to diligently
pursue such CON Application. Buyer will promptly, after the filing thereof,
deliver to Seller a copy of its CON Application and copies of all correspondence
between Buyer and the New York State Department of Health relating to such CON
Application, including, but not limited to, all contingent and final approvals,
by the PHC, of the CON Application; and
(ii) Buyer will take no action prior to the Closing
which would delay or disqualify Buyer as the future operator of the Center, or
in any way prejudice or delay approval of the CON Application.
(b) Buyer hereby represents and warrants to Seller that the
following are true and correct, in all material respects, as of the date hereof:
(i) Buyer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of New York, and has
all the requisite corporate power and authority to own its properties and to
carry on its business as now being conducted. Buyer has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) The execution and delivery by Buyer of this
Agreement and the other documents referred to herein, and the performance by
Buyer of the transactions contemplated hereby and thereby, have been duly and
validly authorized by all necessary corporate action, and, except as otherwise
set forth herein, no further action or approval, corporate or otherwise, is
required in order to constitute this Agreement and each other document to be
executed and delivered pursuant to the terms hereof, as valid and binding
obligations of Buyer, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, and except that of the remedy of
specific performance and any other equitable relief, which may be subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(iii) Neither the execution, delivery or performance of this
Agreement by Buyer, nor Buyer's consummation of the transactions contemplated
hereby, will (with or without notice or the passage of time, or both) result in:
(i) a conflict with, or a breach or violation of, the certificate of
incorporation or by-laws of Buyer; or (ii) a breach or violation of, or
liability under, any of the terms or provisions of, or constitute a default
pursuant to, any material contract, covenant or agreement to which Buyer is a
party or by which Buyer is bound, or any judgment, law, rule, regulation or
ordinance to which Buyer is subject. Except as otherwise set forth herein, no
governmental or other authorization, approval, order, consent or waiting period
that has not been complied with by Buyer prior to the date hereof, is or was
required in connection with the execution, delivery, and performance of this
Agreement by Seller;
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(iv) To the best of Buyer's knowledge and belief, no action,
suit, litigation, claim, investigation or proceeding, whether legal or
administrative or in mediation or arbitration, is pending or, to the best of
Buyer's knowledge and belief, threatened, at law or in equity or admiralty,
before or by any court or Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, against or
affecting the Buyer or the transactions contemplated hereby. Buyer is not in
default, in any material respect, with respect to any order, writ or decree of
any court or any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality; and
(v) To the best of Buyer's knowledge and belief, no
representation or warranty of Buyer contained herein or in any Schedule annexed
hereto, contains any untrue statement of a material fact.
9. PRE-CLOSING COVENANTS
9.1 From and after the date of this Agreement, Seller shall
afford Buyer and its accountants, counsel and other representatives full access,
during normal business hours, to such of the properties, books, contracts,
records and employees of Seller as Buyer may reasonably request, provided that
the same does not unreasonably interfere with the conduct of Seller's business;
and, during such period, shall furnish to Buyer all information, within its
possession, concerning the business, properties and personnel of Seller as Buyer
may reasonably request, and permit Buyer to make copies thereof.
9.2 Between the date hereof and the Closing Date, each party
hereto shall promptly supply, supplement or amend the Schedules attached hereto
with respect to any matter arising after the date hereof that, if in existence
as of the date hereof, would have been required to be set forth or described in
such Schedule(s). Between the date hereof and the Closing Date, if any
regulatory entity shall commence any examination, review, investigation,
action, suit or proceeding against Seller or Buyer with respect to this
Agreement, the CON Application, the Center and/or the Medical Assets, such party
shall give prompt notice thereof to the other and shall keep the other informed
as to the status thereof.
9.3 Each party shall obtain, before the Closing Date, all
licenses, certificates, permits, consents, evidences of authority and other
approvals required to be obtained from any regulatory agency, political
subdivision or other person in connection with the consummation of the
transactions contemplated by this Agreement, including, without limitation, all
consents necessary from regulatory entities (such as, but not limited to, the
New York State Department of Health and/or the Health Care Financing
Administration) so that the same will continue in effect after the Closing Date.
9.4 Except as provided by this Agreement, as may be required
by law, or as the other party hereto may otherwise consent to in writing, no
party hereto will enter into any transaction, take any action, or permit any
event to occur which would result in any of its representations and warranties
contained in this Agreement (or in any document delivered by or
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on behalf of such party or any of their representatives in connection with this
Agreement or the consummation of the transactions contemplated hereby) not being
true and correct immediately after such transaction has been entered into or
consummated, such action has been taken, or such event has occurred; provided,
however, that the provisions of this Section 9.4 shall not be applicable to any
action taken, and/or contract entered into, in each case by Insight, on behalf
of the Seller pursuant to the terms of, and/or during the period of, the Interim
Consulting Agreement.
9.5 Subject to the terms and conditions of this Agreement,
each of the parties shall use all reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things, and execute and
deliver, or cause to be executed and delivered, as the case may be, all such
further assignments, endorsements and other documents as such other party and/or
governmental agency may reasonably request in order to consummate the
transactions contemplated by this Agreement.
9.6 Seller shall make or cause to be made all such filings and
submissions as may be required of Seller under applicable laws, rules and
regulations for the consummation of the transactions contemplated by this
Agreement; and Buyer shall make or cause to be made all such other filings and
submissions as may be required of Buyer under applicable laws, rules and
regulations for the consummation of the transactions contemplated by this
Agreement. The parties hereto shall coordinate and cooperate with one another in
exchanging such information and reasonable assistance as may be requested by
either of them in connection with the foregoing.
9.7 Each party hereto shall give prompt written notice to the
other party of any written notice of default received by it subsequent to the
date of this Agreement and prior to the Closing Date under any contract,
relating to the Center, to which it is a party or by which any of its assets is
bound.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER. The
obligations of Buyer hereunder are subject to the fulfillment, at or prior to
the Closing, of all of the following conditions precedent, unless such
fulfillment is waived, in writing, by Buyer:
(a) The CON Application shall be approved by the PHC
authorizing Buyer to own and operate the Center;
(b) The representations and warranties of Seller as set forth
in this Agreement and/or in the Asset Purchase Agreement shall be true and
correct, in all material respects, as of the date of the Closing, as though made
on and as of the Closing Date;
(c) No injunction, temporary restraining order, judgment or
other order of any court or governmental agency or instrumentality shall have
been issued or have been entered which would be violated by the consummation of
the transactions contemplated herein; and no suit, action or other proceeding
brought by the United States or the State of New York, or any agency or
instrumentality of the United States or the State of New York, shall be pending
in which
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it is sought to restrain or prohibit the effectuation of this Agreement
or the consummation of the transactions contemplated herein; and
(d) Seller shall be in good standing under the laws of the
State of New York.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. The
obligations of Seller hereunder are subject to the fulfillment, at or prior to
the Closing, of all of the following conditions precedent, unless such
fulfillment is waived, in writing, by Seller:
(a) The PHC shall have approved the CON Application;
(b) No injunction, temporary restraining order, judgment or
other order of any court or governmental agency or instrumentality shall have
been issued or entered which would be violated by the consummation of the
transactions contemplated herein; and no suit, action or other proceeding
brought by the United States or the State of New York, or any agency or
instrumentality of the United States or the State of New York, shall be pending
in which it is sought to restrain or prohibit the effectuation of this Agreement
or the consummation of the transactions contemplated herein; and
(c) Buyer shall be in good standing under the laws of the
State of New York.
12. INDEMNIFICATION.
(a) NCA and NCA's successors and assigns but, except as
otherwise set forth in Subsection (g) herein, none of its or their respective
officers, directors, shareholders (including, without limitation, the estate of
Dr. Norman O. Stahl (the "Stahl Estate") and those individuals beneficially
interested therein), employees, agents, transferees, affiliates and/or relatives
of any of the foregoing (each of the foregoing parties hereinafter referred to
individually as a "Seller Affiliate" and, collectively, the "Seller Affiliates")
shall indemnify, defend and hold harmless Buyer from and against any and all
losses, claims, liabilities, damages, costs, fees and expenses, including,
without limitation, reasonable attorneys' fees and disbursements, of every kind
and description, inchoate or otherwise (collectively, "Losses") suffered or
incurred by Buyer resulting from, relating to, or incident to: (i) a breach by
NCA of any representation or warranty contained in this Agreement; (ii) a
failure by NCA to perform and/or comply with any of the terms or provisions of
this Agreement on its part to be observed, complied with and/or performed,
except if and to the extent such failure to perform or comply with is a result
of, or relates to, Buyer's and/or Insight's and/or, except and otherwise set
forth in Article 23 hereof, any Employee's (as such term is defined in Article
23 of this Agreement) of NCA, act or failure to act, from and after the date
hereof,
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including, but not limited to, a breach by Insight of any of the
provisions of the Consulting Agreement; (iii) any and all liabilities of the
Center and/or NCA existing as of date hereof that are not Assumed Liabilities
(as defined in the Asset Purchase Agreement); (iv) any and all actions, suits,
claims, or legal, administrative, arbitration, governmental or other proceedings
or investigations against Buyer and/or any of its officers, directors,
shareholders, employees, agents, and/or affiliates (each a "Purchaser Affiliate"
and, collectively, the "Purchaser Affiliates") that relate to the Center and/or
the Medical Assets, in which the principal event giving rise thereto occurred
prior to the date hereof; all of the foregoing being hereinafter collectively
referred to as "Purchaser Losses"; provided, however, that notwithstanding the
foregoing, the term Purchaser Losses, as used herein, shall not include, and
shall be deemed to specifically exclude any and all Losses suffered or incurred
by Buyer and/or any Purchaser Affiliate resulting from, relating to, or incident
to, any and all actions, suits, claims and/or proceedings asserted or commenced
by or on behalf of any and/or all of the RGB Defendants (as said term is defined
in the Asset Purchase Agreement) and/or their respective successors and/or
assigns, regardless of whether any of the same arose prior to, on, or following
the date hereof, and whether or not the same relates to the Center and/or the
Medical Assets.
(b) Buyer (but none of the Purchaser Affiliates), shall
indemnify, defend and hold harmless NCA from and against any and all Losses,
suffered or incurred by NCA resulting from, relating to or incident to: (i) a
breach by Buyer of any representation or warranty contained in this Agreement;
(ii) a failure by Buyer to perform and/or comply with any of the terms or
provisions of this Agreement on its part to be observed, complied with and/or
performed; (iii) any and all Assumed Liabilities; and (iv) any and all actions,
suits, claims, or legal, administrative, arbitration, governmental or other
proceedings or investigations against NCA and/or any and/or all Seller
Affiliates that relate to the Center, in which the principal event giving rise
thereto occurred on or following the date hereof and/or which results from or
arises out of any act or omission of Buyer and/or any Purchaser Affiliates; all
of the foregoing being hereinafter collectively referred to as "Seller Losses").
(c) Notwithstanding anything in this Agreement and/or in any
of the instruments, documents and/or agreements referred to in this Agreement
and/or therein and/or being executed simultaneously herewith (all such
instruments, documents and/or agreements being hereinafter collectively referred
to as the "Transaction Documents") to the contrary, as to matters which are
subject to claims for indemnification pursuant to Section 12(a) hereof and/or
under any of the Transaction Documents, NCA shall not be liable unless and until
the aggregate of Purchaser's Losses which are the
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subject of any such claim(s) for indemnification under this Agreement and/or
under any of the Transaction Documents shall exceed the aggregate sum of Twenty
Thousand ($20,000) Dollars. In no event shall the total indemnification and/or
any other liability of NCA under this Agreement and/or under any and all of the
Transaction Documents (other than the Lease for the Premises being entered into
simultaneously herewith between Carol Stahl and Norman Stahl, as Co-Trustees, as
Landlord, and Insight, as Tenant) exceed, in the aggregate, the sum of
$1,650,000 inclusive of any and all attorneys' fees and any and all related
litigations costs, including, but not limited to, any and all amounts payable
pursuant to the provisions of Subsection 24(f) hereof.
(d) Notwithstanding anything else contained in this Agreement
to the contrary, it is expressly understood and agreed that the representations
and warranties made by each of the Parties hereto shall only survives for a
period of one (1) year from the date hereof. Each of the Parties shall be
entitled to rely upon the representations and warranties made by the others in
this Agreement regardless of any information or knowledge obtained in the course
of any investigation or otherwise.
(e) (i) In the event that Buyer and/or any Purchaser Affiliate
(each an "Indemnified Purchaser Party" and, collectively, the "Indemnified
Purchaser Parties") shall have a claim against NCA hereunder (each a "Purchaser
Claim") that does not involve a claim or demand being asserted against or sought
to be collected from it (or them) by a third party, the Indemnified Purchaser
Party shall : (A) if such Purchaser Claim relates to a breach of a
representation and/or warranty made by NCA hereunder, be required to (x) serve
upon NCA a notice of such Purchaser Claim, specifying the nature of such
Purchaser Claim and the amount or the estimated amount thereof to the extent
then feasible (which estimate shall not be conclusive of the final amount of
such Purchaser Claim (a "Claim Notice"); and (y) commence formal legal action
against NCA, as a result thereof, within a maximum period of twelve (12) months
from the date this Agreement, regardless of whether any such Purchaser Claim
arose prior to or after such twelve (12) month period; and (B) if such Purchaser
Claim relates to any obligation, covenant and/or undertaking of NCA hereunder,
shall be required to (x) serve upon NCA a Claim Notice with respect thereto and
(y) commence formal legal action, as a result thereof, against NCA within a
maximum period of eighteen (18) months from the date of this Agreement,
regardless of whether any such Purchaser Claim arose prior to or after such
eighteen (18) month period, after each of which respective dates any and all
rights of each such Indemnified Purchaser Party to obtain indemnification in
respect of any and all other Purchaser Claims (that have not been pursued in
accordance with either of the provisions of (A) and (B) above), shall expire, be
of no further force and/or effect and shall be deemed waived. If NCA shall fail
to notify, in writing, the Indemnified Purchaser Party, within thirty (30) days
from receipt of a Claim Notice, that it disputes such Purchaser Claim, the
amount of such Purchaser Claim shall be conclusively deemed a liability of NCA
hereunder.
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(ii) In the event an Indemnified Purchaser
Party shall have a Purchaser Claim that involves a claim or demand being
asserted against or sought to be collected from such Indemnified Purchaser Party
by a third party, such Indemnified Purchaser Party shall be required to serve
upon NCA a Claim Notice with respect to such Purchaser Claim within a maximum
period of sixty (60) days after such Indemnified Purchaser Party is apprised of
such Purchaser Claim; and if such Purchaser Claim is disputed (as between NCA
and the Indemnified Purchaser Party) by NCA within thirty (30) days after its
receipt of any such Claim Notice, commence formal legal action against NCA
within a maximum period of eighteen (18) months from the date of this Agreement,
regardless of whether any such Purchaser Claim arose prior to or following such
eighteen (18) month period, after which date any and all rights of each such
Indemnified Purchaser Party to obtain indemnification in respect of any and all
other third-party Purchaser Claims (that have not been pursued in accordance
with the foregoing) shall expire, be of no further force and/or effect and shall
be deemed waived. If NCA does not dispute (as between NCA and the Indemnified
Purchaser Party) such Purchaser Claim within thirty (30) days after its receipt
of any such Claim Notice, the obligation to indemnify the Indemnified Purchaser
Parties with respect thereto, shall be conclusively deemed to be an obligation
of NCA and, in such event, NCA shall be required, at its sole cost and expense,
to defend such Indemnified Purchaser Parties against such Purchaser Claim with
counsel reasonably satisfactory to such Indemnified Purchaser Parties. NCA shall
not, without the prior written consent of the Indemnified Purchaser Party,
consent to the entry of any judgment against such Indemnified Purchaser Party or
enter into any settlement or compromise which does not include, as an
unconditional term thereof (i.e., there being no requirement that the
Indemnified Purchaser Party pay any amount of money or give any other
consideration), the giving by the claimant or plaintiff to such Indemnified
Purchaser Party of a release, in form and substance satisfactory to the
Indemnified Purchaser Party, from all liability in respect of such claim or
litigation. If any Indemnified Purchaser Party desires to participate in, but
not control, any such defense or settlement, it may do so at its sole cost and
expense.
(iii) With respect to the provisions of
Subsections 12(e)(i) and (ii) hereof, it is expressly understood and agreed that
the failure of an Indemnified Purchaser Party to comply with the applicable
requirements of Subsections 12(e)(i) or (ii) (as the case may be) to deliver a
Claim Notice to NCA and (except if such Purchaser Claim is not disputed by NCA
within thirty (30) days of its receipt of any such Purchaser Claim as provided
for hereinabove) commence formal legal action (with respect to any such Claim
Notice) within the respective time periods set forth therein (and, regardless of
whether any such Purchaser Claim arose prior to or after the applicable time
period), shall constitute such Indemnified Purchaser Party's waiver of any and
all rights and/or remedies with regard to any such Purchaser Claim.
(iv) All claims for indemnification by NCA
and/or any Seller Affiliate against Buyer under this Agreement shall be asserted
and resolved under the procedures set forth in Subsections (e)(i), (ii) and
(iii) of this Section 12 by substituting in the appropriate place "Seller
Losses" for "Purchaser Losses", "Seller Claim" for "Purchaser Claim",
"Indemnified Seller Party" for "Indemnified Purchaser Party" , "NCA" and/or
"Seller Affiliates" for "Buyer"
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and/or "Purchaser Affiliates", and "Buyer" for "NCA", and variations of any of
the foregoing; provided, however, that, notwithstanding anything contained in
this Agreement to the contrary, nothing contained in this Section 12 shall, in
any way, restrict NCA's right to make a claim for indemnification against Buyer
as a result of Buyer's failure to pay and/or discharge any of the Assumed
Liabilities and/or with regard to any of the matters described in Section
12(b)(iv) hereof, regardless of when asserted.
(f) It is expressly understood and agreed that the rights and
remedies of each of the Parties hereto and of each Purchaser Affiliate and
Seller Affiliate under any and all theories of law and/or equity (with respect
to the matters contemplated by Sections 12, 13 and 14 of this Agreement) are and
shall be limited to those set forth in Sections 12, 13 and 14 hereof.
(g) Notwithstanding anything to the contrary contained in this
Section 12 and/or in Section 13 below, nothing contained herein and/or therein
shall be deemed to abrogate, limit and/or otherwise restrict the right of Buyer
and/or any Purchaser Affiliate from exercising any right and/or remedy that is
expressly granted to each of them under the Limited Contingent Guaranty being
executed by Carol Stahl simultaneously herewith, subject to the terms,
conditions and limitations contained herein and/or therein.
13. LIMITATION OF REMEDIES; COVENANT NOT TO SUE.
(a) Notwithstanding anything else contained in this Agreement
to the contrary, Buyer's and/or each Purchaser Affiliate's sole remedy, in
addition to the equitable remedy of specific performance, against NCA, with
respect to any and all Purchaser Claims hereunder for Purchaser Losses shall
(except as otherwise set forth in the last sentence of Subsection 12(e)(i)
hereof and the second sentence of Subsection 12(e)(ii) hereof, only) not accrue
unless and until the entry of a final, binding and non-appealable judgment
against NCA in favor of Purchaser and/or such Purchaser Affiliate with respect
to such Purchaser Claim.
(b) NCA and Buyer each hereby acknowledge that it is NCA's
intention to distribute, promptly, to the Stahl Estate and/or those beneficially
interested therein, all or substantially all of the Purchase Price paid by
Insight to NCA for the sale of NCA's Non-Medical Assets to Insight in accordance
with the terms of the Asset Purchase Agreement, and the cash portion of the
Purchase Price (as defined herein) paid to NCA by Buyer pursuant to the terms
hereof. Buyer hereby acknowledges and agrees that such distribution: (i) shall
not be deemed a fraudulent conveyance; (ii) shall be completely and
unconditionally disregarded in determining whether NCA and/or Insight has
breached any of its representations, warranties and/or covenants made by NCA
and/or Insight in this Agreement and/or in any of the Transaction Documents;
provided, however, that, notwithstanding any such distribution,
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(x) NCA (and Carol Stahl, pursuant to her Limited Contingent Guaranty being
executed simultaneously herewith) shall not be relieved of its (and/or her)
obligation to perform its (and/or her) covenants set forth in this Agreement
and/or in any of the Transaction Documents and/or in Carol Stahl's Limited
Contingent Guaranty; and (y) shall in no way affect the indemnification
obligations of Buyer and/or Insight contained in this Agreement and/or the other
Transaction Documents, respectively, in favor of NCA and/or the Seller
Affiliates.
14. EQUITABLE RELIEF The parties agree that a remedy at law as a result
of any breach or threatened breach of the provisions of this Agreement will be
inadequate. Accordingly, the aggrieved party shall be entitled to injunctive
relief to compel the breaching party to perform or refrain from performing any
required or prohibited action hereunder.
15. FAILURE TO CLOSE--TERMINATION OF AGREEMENT
15.1 Notwithstanding any other provision of this Agreement to
the contrary:
(a) If the Closing does not occur within 36 months
from the Effective Date of this Agreement for any reason, except for the willful
default by Seller in the performance of its obligations hereunder and/or as a
result of a breach of Seller's covenants contained in Subsections 8(a) and/or
8(b)(v) hereof, then, at any time thereafter, Seller, subject to the provisions
of Subsection (b) below, shall have the option to terminate this Agreement, by
written notice given to the Buyer, and Seller shall have the unrestricted right
to retain the cash portion of the Purchase Price as liquidated damages and not
as a penalty.
(b) Notwithstanding the provisions of Subsection (a)
above, if Buyer, or any shareholder of Buyer, shall be disapproved by the PHC
and/or the Department of Health on the basis of his character, competence or
record as an operator of a health care facility, then Buyer shall have the
obligation to designate another individual or individuals ("Designee")to whom
all of the equity interests in the Buyer shall be transferred; and, in such
event, the period of 36 months set forth hereinabove shall be extended for an
additional period of twenty-four (24) months.
(c) If Buyer has the right to designate a Designee to
whom all of the equity interests in the Buyer will be transferred, but fails to
so designate such Designee and/or cause to be transferred to such Designee such
equity interests in the Buyer within ninety (90) days of the date of Buyer's
receipt of any such notice of disapproval from the PHC and/or Department of
Health, then, at Seller's option, this Agreement shall terminate and Seller
shall be entitled to retain the cash portion of the Purchase Price, as
liquidated damages.
(d) The parties hereto acknowledge and agree that Seller's
retention of the cash portion of the Purchase Price as liquidated damages
hereunder would be reasonable in light of the harm caused by Buyer's breach of
this Agreement, the difficulty of proof of Seller's losses
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occasioned thereby, and the difficulty, inconvenience or non-feasibility of
otherwise obtaining an adequate remedy.
16. MERGER, AMENDMENT AND WAIVER
16.1 This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof and the transactions
contemplated hereby, and there are no other representations, warranties,
agreements, undertakings or conditions, whether written or oral, or whether made
by the parties hereto or by their agents, or by persons or entities purporting
to be their agents, except as may be contained herein.
16.2 Any of the terms or provisions of this Agreement may be
amended, modified or eliminated, and the observance or performance of any term,
covenant, condition or provision herein may be omitted or waived (either
generally or in a particular instance, and either prospectively or
retroactively) only by the written consent or consents of Seller and Buyer. A
party hereto may, only by an instrument in writing, waive compliance for its
benefit by the other party hereto of any term or provision of this Agreement on
the other part of such other party to be performed or complied with. Such waiver
by any party hereto of a breach of any term or provision of this Agreement shall
not be construed as a waiver of any subsequent breach.
17. ASSIGNMENT. This Agreement may not be transferred or otherwise
assigned by a party without the written consent of the other party.
Notwithstanding anything to the contrary contained in this Section, Buyer may
assign its rights under this Agreement to a corporation or individuals for the
purpose of qualifying as an established party under Article 28 of the Public
Health Law. Nothing contained in this Section shall, however, extend any of the
time limitations contained in this Agreement. Nothing contained in this
Agreement to the contrary shall prevent Seller from assigning this Agreement
and, in connection therewith, assigning and/or transferring the Medical Assets,
to a limited liability company wholly owned by Carol A. Stahl or the Estate of
Norman O. Stahl, in the event of a dissolution of Seller, provided that, and
conditioned upon, such limited liability company assumes all of the obligations
of Seller hereunder.
18. NOTICES All notices, requests, demands, consents and other
communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given either by:
(i) personal delivery (including deliveries by express, overnight courier
service) against a receipted copy; or (ii) by certified or registered United
States mail, return receipt requested, postage prepaid, to the following
addresses:
(a) If to Buyer:
Insight AmSurg Centers, Inc.
1500 Hempstead Turnpike
East Meadow, New York 11554
Attention: General Counsel
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with a copy to:
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020-5400
Attention: Brian Hoffman, Esq.
Charles Raab
450 Endo Boulevard
Garden City, New York 11530
(b) If to Seller:
Nassau Center for Ambulatory Surgery, Inc.
c/o Carol Stahl
12 Ridge Ct.
Upper Brookville, New York 11545
Epstein, Becker, et al.
250 Park Avenue
New York, New York 10017
Attention: Adam Stahl, Esq.
Arent, Fox, Kintner, Plotkin & Kahn
1675 Broadway
New York, New York 10019
Attention: Jerry Levy, Esq.
or to such other address of which Notice in accordance with this Article shall
have been provided by such party. Notices may only be given in the manner
hereinabove described in this Article 18 and shall be deemed received: (i) when
delivered, if delivered by personal delivery; or (ii) three (3) days after the
mailing thereof, if delivered by mail.
19. COUNTERPARTS This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page hereto by telecopier shall be
effective as delivery of a manually executed counterpart hereof.
20. BROKERS The parties hereto represent to each other that they have
not employed or entered into any agreement, arrangement or undertaking with any
broker or finder in connection with this Agreement or the transactions
contemplated hereby. Each party is solely responsible for any brokerage or
finders arrangement which they may have entered into. Each party agrees to
indemnify and save harmless the other party from and against any and all claims,
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losses, damages or expenses, of any kind or character, including reasonable
attorneys' fees, for the breach of the foregoing representations and warranties
set forth in this Section founded upon the act of the party giving such
indemnification. The provisions of this section shall survive the Closing.
21. NEW YORK LAW TO GOVERN; VENUE This Agreement shall be construed in
accordance with, and shall be governed by and enforced under, the laws of the
State of New York applicable to agreements fully executed and to be performed
therein, without regard to its conflict of laws principles. The parties agree
that any litigation brought under or in connection with this Agreement shall be
brought in the Supreme Court of the State of New York State, and that Nassau
County shall be the proper and exclusive venue for such litigation.
22. FURTHER ASSURANCES At any time and from time to time after the date
hereof, at any party's request and without further consideration, the other
party(ies) will promptly execute and deliver all such further documents or
perform such acts as may be reasonably required for the more effective
implementation of any of the transactions contemplated herein and/or in any of
the documents being executed in connection herewith.
23. ACTS AND OMISSIONS OF THE PARTIES Notwithstanding anything
contained in this Agreement and/or the Transaction Documents to the contrary,
and notwithstanding the Seller's obligation to employ and/or engage the Key
Management Employees (as said term is defined in the interim Consulting
Agreement) of the Center including, but not limited to, its Administrator and
Chief Financial Officer, it is specifically understood and agreed that any and
all acts and/or omissions of such Key Management Employees, as well as any and
all acts and/or omissions of any and all other employees of the Seller (either
engaged by Insight on behalf of the Seller and/or engaged by the Seller at the
specific instance and/or request of Insight) (collectively, the "Employees')
from and after the date hereof:
(i) shall not be deemed, for all purposes, and under this Agreement
(including, but not limited to, Article 12 hereof) and/or under any and all
Transaction Documents, to be the acts and/or omissions of the Seller and/or any
Affiliate of the Seller, except if and to the extent any such Employee has acted
and/or failed to act pursuant to the explicit direction and/or authorization of
either of Carol Stahl and/or Adam Stahl; and
(ii) shall be deemed, for all purposes, and under this Agreement
(including, but not limited to, Article 12 hereof) and/or under any and all
Transaction Documents, to be the acts and/or omissions of Insight, except if and
to the extent any such Employee has acted and/or failed to act pursuant to the
explicit direction and/or authorization of either Carol Stahl and/or Adam Stahl.
24. MISCELLANEOUS PROVISIONS.
(a) Partial Invalidity. If any one or more of the terms, provisions,
promises, covenants or conditions of the Agreement, or the application thereof
to any person or circumstance, shall be adjudged, to any extent, to be invalid,
unenforceable, void or voidable for
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any reason whatsoever by a court of competent jurisdiction, each and all of the
remaining terms, provisions, promises, covenants and conditions of this
Agreement, or their application to other persons or circumstances, shall not be
affected thereby and shall be valid and enforceable to the fullest extent
permitted by law, unless such a construction would substantially frustrate the
purposes of the Parties in entering into this Agreement.
(b) Headings, Titles. The headings appearing herein are for convenience
and reference only and shall not be deemed to govern, limit, modify or, in any
manner, affect the scope, meaning or intent of the provisions of this Agreement.
(c) Binding Effect. Subject to the provisions contained herein, this
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and upon each of their respective successors and permitted assigns.
(d) Covenants and Conditions. Each covenant hereof is a condition, and
each condition hereof is, as well, a covenant by the Parties bound thereby,
unless waived in writing by the Parties hereto.
(e) Recitals. The recitals set forth in the preamble to this Agreement
are hereby incorporated by reference as if fully set forth herein at length.
(f) Legal Fees. In the event of any litigation arising out of or
relating to this Agreement or any instrument or document delivered pursuant
hereto or in connection herewith, the substantially prevailing party shall be
entitled to reasonable attorneys' fees, costs and expenses and all related
litigation costs. Attorneys fees shall include all fees incurred in establishing
the entitlement to and the quantum of such fees. Likewise included shall be all
fees and related litigation costs incurred, by the substantially prevailing
party, in connection with all appeals and applications to the initial tribunal
and all courts to which appeals are taken.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date and year first above written.
SELLER:
NASSAU CENTER FOR AMBULATORY SURGERY, INC.
By:
-------------------------------------
Name: Carol Stahl
Title: Vice President
BUYER:
INSIGHT AMSURG CENTERS, INC.
By:
-------------------------------------
Name: Jerry Lewis
Title: President
INSIGHT LASER CENTERS N.Y. I, INC.
For Purposes of Sections 2.2, 13(b) and 24 Hereof:
By:
-------------------------------------
Name: Jerry Lewis
Title: President
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SCHEDULE 1.1(a)
CERTIFICATES AND LICENSES
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SCHEDULE 1.1(b)
PROVIDER CONTRACTS AND RELATED AGREEMENTS
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EXHIBIT 5.4
ASSUMPTION AND ASSIGNMENT AGREEMENTS
24
