OMB Approval
OMB 3235-0145
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. _____)*
IVF AMERICA, INC.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
450706 10 6
(CUSIP Number)
Claude White, One Manhattanville Road, Purchase, New York, 10577-2100
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 7, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [_].
Check the following box if a fee is being paid with the statement [X] .
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five
percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
(Continued on following page(s))
Page 1 of 6 Pages
SEC 1746 (9-82)
<PAGE>
13D
CUSIP NO. 450706 10 6 Page 2 of 6 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Morris Notelovitz, Social Security No.: ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [_]
N/A
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING PURSUANT TO
ITEMS 2(d) or 2(e) [_]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
7 SOLE VOTING POWER
NUMBER OF
SHARES 666,666
BENEFICIALLY
8 SHARED VOTING POWER
OWNED BY
0
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 666,666
WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
666,666
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [_]
N/A
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.1%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer.
This Schedule 13D relates to 666,666 shares of common stock (the
"Shares") of IVF America, Inc. (the "Company"). The principal executive
offices of the Company are located at One Manhattanville Road, Purchase,
New York, 10577-2100.
Item 2. Identity and Background.
(a) This Schedule 13D is being filed by Morris Notelovitz.
(b) Dr. Notelovitz' residential address is 2801 N.W. 58th Blvd.,
Gainesville, Florida 32605.
(c) Dr. Notelovitz' present principal occupation is physician at
INMD Acquisition Corp., a company specializing in gynecological services,
climacteric medicine services, clinical research and other services
related to pre- and post-menopausal women. INMD Acquisition Corp.'s
business address is Office Park West, 222 S.W. 36th Terrace, Gainesville,
Florida 32607.
(d) During the last five years, Dr. Notelovitz has not been
convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) During the last five years, Dr. Notelovitz has not been a party
to any civil proceeding of a judicial or administrative body of competent
jurisdiction resulting in a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to
such laws.
(f) Dr. Notelovitz is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration.
Dr. Notelovitz acquired the Shares pursuant to an Agreement and Plan
of Merger, dated June 7, 1996 (the "Merger"), by and among the Company;
its subsidiary, INMD Acquisition Corp. ("Sub"); Dr. Notelovitz, three
entities wholly-owned by Dr. Notelovitz: The Climacteric Clinic, Inc.
("CCI"), Midlife Centers of America, Inc. ("MCA"), and Women's Research
Centers, Inc., America ("WRC"); and National Menopause Foundation, Inc.
Pursuant to the Merger, CCI, MCA and WRC merged with and into Sub with Sub
surviving. The shares of common stock of CCI, MCA and WRC owned by Dr.
Notelovitz were, in the aggregate, converted into 666,666 Shares.
Item 4. Purpose of Transaction.
The Shares have been acquired for, and are being held for, investment
purposes. Dr. Notelovitz has no present plans or proposals which relate
to or would result in:
(a) The acquisition by any person of additional securities of the
Company or the disposition of securities of the Company, except as set
forth above;
(b) An extraordinary corporate transaction, such as a merger,
reorganization, or liquidation, involving the Company or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company
or any of its subsidiaries;
(d) Any change in the present board of directors or management of
the Company, including any plans or proposals to change the number of term
of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of the Company;
(f) Any other material change in the Company's business or corporate
structure;
(g) Any changes in the Company's charter, bylaws, or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person;
(h) Causing a class of securities of the Company to be delisted from
a national securities exchange or to cease to be authorized to be quoted
in an inter-dealer quotation system of a registered national securities
association;
(i) A class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer
(a) and (b) Pursuant to Rule 13d-3, Dr. Notelovitz is deemed to be
the beneficial owner of all 666,666 Shares which represent approximately
11.1% of the 6,008,227 shares of common stock reported by the Company to
be outstanding as of May 1, 1996.
(c) The following table sets forth the dates, number of shares and
per share price for all transactions in the Company's common stock
effected by Dr. Notelovitz during the 60 days preceding the date of this
Schedule 13D:
Number of Shares
Date Acquired Price per Share
June 7, 1996 666,666 3.000
(d) Any dividends on the Shares and the proceeds from the sale
thereof will be paid to Dr. Notelovitz. No other persons have the right to
receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of the Shares.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Dr. Notelovitz has executed a proxy, dated June 7, 1996, granting to
Gerardo Canet, the president of the Company, an irrevocable proxy to vote
all of the Shares at any and all meetings of the stockholders of the
Company and in any action by such stockholders without a meeting. Such
proxy expires on the earlier of June 7, 1998 or upon termination of Dr.
Notelovitz' Physician's Employment Agreement or the Employment Agreement
employing Dr. Notelovitz as Vice President for Medical Affairs and Medical
Director of the Menopause Division of Sub.
In addition, Dr. Notelovitz has been granted, pursuant to the Merger,
certain registration rights with respect to the Shares, permitting Dr.
Notelovitz to "piggyback" on any filing of a registration statement on
Form S-1 or its equivalent by the Company, covering an offering of the
Company's common stock. Such registration rights expire on June 7, 1998.
Item 7. Material to be Filed as Exhibits.
Exhibit A -- Agreement and Plan of Merger
Exhibit B -- Proxy from Dr. Notelovitz to Gerardo Canet
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
/s/ Morris Notelovitz
Morris Notelovitz
DATE: June 24, 1996
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
IVF AMERICA, INC.
INMD ACQUISITION CORP.
THE CLIMACTERIC CLINIC, INC.
MIDLIFE CENTERS OF AMERICA, INC.
WOMEN'S RESEARCH CENTERS, INC., AMERICA
NATIONAL MENOPAUSE FOUNDATION, INC.
AND
MORRIS NOTELOVITZ, M.D.
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of June 7, 1996 (the
"Agreement"), by and among (i) IVF America, Inc., a Delaware corporation,
doing business as IntegraMed America ("Parent"), (ii) INMD Acquisition
Corp., a Florida corporation and wholly-owned subsidiary of Parent
("Sub"), (iii) The Climacteric Clinic, Inc., a Florida corporation
("CCV"), (iv) Midlife Centers of America, Inc., a Florida corporation
("MCA"), (v) Women's Research Centers, Inc., America, a Florida
corporation ("WRC"), (vi) National Menopause Foundation, Inc., a Florida
corporation ("NMF"), and (viii) Morris Notelovitz, M.D., an individual
having a principal place of business at Office Park West, 222 S.W. 36th
Terrace, Gainesville, Florida 32607 ("Seller"). (CCI, MCA and WRC are
hereinafter sometimes referred to collectively as the "Merger Companies,"
or singularly as a " Merger Company;" the Merger Companies and NMF are
hereinafter sometimes referred to collectively as the "Companies," or
singularly as a "Company.")
WITNESSETH
WHEREAS, the respective boards of directors of Parent, Sub and the
Merger Companies have approved or adopted this Agreement, which provides
for the merger of the Merger Companies with and into Sub (the "Merger") on
the terms and conditions set forth herein and in accordance with the
provisions of the Florida Business Corporation Act (the "BCA");
WHEREAS, the boards of directors of Sub and the Merger Companies
have recommended this Agreement to the respective shareholders of Sub and
the Merger Companies, and such shareholders have approved this Agreement
and the consummation of the transactions contemplated hereby;
WHEREAS, Parent, Sub, the Merger Companies and Seller desire to
make certain representations and warranties and other agreements in
connection with the Merger;
WHEREAS, Seller is the holder of 100 shares of common stock, having
a par value of $1.00 per share, of NMF (the "NMF Stock"), constituting all
of the issued and outstanding capital stock of NMF;
WHEREAS, Seller desires to sell to Parent, and Parent desires to
purchase from Seller, fifty one-percent (51%) of the NMF Stock held by
Seller.
NOW, THEREFORE, Parent, Sub, the Companies and the Seller hereby
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. In accordance with the provisions of this
Agreement and the BCA, at the Effective Time (as defined in Section 1.2),
the Merger Companies shall be merged with and into Sub, the separate
existence of each of the Merger Companies shall thereupon cease, and Sub
shall be the surviving corporation in the Merger (sometimes hereinafter
called the ("Surviving Corporation") and shall continue its corporate
existence under the laws of the State of Florida under the name Women's
Medical & Diagnostic Center, Inc.
1.2 Effective Time of the Merger. The Merger shall be effected by
filing articles of merger, substantially in the form of Exhibit 1.2
attached hereto (the "Articles of Merger"), with the Department of State
of the State of Florida in accordance with section 607.1105 of the BCA.
The effective date of the Merger (the "Effective Date") shall be the date
upon which the Articles of Merger shall have been filed with the
Department of State of the State of Florida and the effective time of the
Merger (the "Effective Time") shall be the time of the filing of the
Articles of Merger with the Department of State of the State of Florida.
1.3 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Richard M.
Knellinger, P.A., Barnett Bank Building, Suite 305, 2815 N.W. 13th Street,
Gainesville, Florida 32609 at 11:00 a.m., local time, on the date first
above written.
1.4 Articles of Incorporation. The Articles of Incorporation of
Sub in effect at the Effective Time shall continue to be the Articles of
Incorporation of the Surviving Corporation until amended in accordance
with applicable law.
1.5 By-Laws. The By-Laws of Sub as in effect at the Effective
Time shall continue to be the By-Laws of the Surviving Corporation until
amended in accordance with applicable law.
1.6 Directors and Officers of Surviving Corporation.
(a) The directors of Sub at the Effective Time shall be the
initial directors of the Surviving Corporation and shall hold office from
the Effective Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the Articles of
Incorporation or By-Laws of the Surviving Corporation or as otherwise
provided by law.
(b) The officers of Sub at the Effective Time shall be the
initial officers of the Surviving Corporation and shall hold office from
the Effective Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the Articles of
Incorporation or By-Laws of the Surviving Corporation, or as otherwise
provided by law.
1.7 Conversion of the Merger Companies' Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of the
holder thereof, the outstanding shares of the Common Stock (the "Merger
Company Shares") of the Merger Companies (the "Merger Company Stock")
shall be treated as follows:
(a) All Merger Company Shares issued and outstanding on the
Closing Date shall be converted into shares of the voting Common Stock of
Parent, par value $0.01 per share ("Parent Stock"), and cash,
(collectively, the "Merger Consideration"), as provided in Section 1.8
below. From and after the Closing Date, each certificate therefore
evidencing one or more Merger Company Shares shall no longer evidence
Merger Company Shares but shall evidence only the Merger Consideration in
the manner provided below in Section 1.8 of this Agreement.
(b) All capital stock of the Merger Companies held in the
treasury of the Merger Companies immediately prior to the Closing Date
shall be canceled and no Parent Stock, cash or other consideration of any
kind shall be delivered in exchange therefor under this Agreement.
1.8 Exchange of Certificates: Merger Consideration.
(a) As of the Closing Date, the stock transfer books of the
Merger Companies shall be closed and no transfer of certificates formerly
representing Company Shares outstanding at the Closing Date shall
thereafter be made. Parent shall act as the exchange agent for the
surrender and exchange of Merger Company Shares for the Merger
Consideration. At the Closing, the Seller shall deliver to Parent in
exchange for the Merger Consideration, the stock certificate(s) for such
Merger Company Stock, duly endorsed for transfer or accompanied by stock
transfer powers executed in blank. Parent shall have no responsibility or
liability for surrendered stock certificates until its actual receipt of
same.
Upon Seller's surrender of certificate(s) representing the
outstanding shares of Merger Company Stock held by Seller duly endorsed
for transfer, together with duly executed and completed stock transfer
powers endorsed in blank, and subject to the provisions of the preceding
paragraph, Seller shall receive upon such surrender in exchange for the
shares of Merger Company Stock held by Seller, the following Merger
Consideration:
(i) In exchange for Seller's Merger Company Shares, (A)
cash in an aggregate amount equal to Three-Hundred Fifty Thousand Dollars
($350,000), as more specifically described in Section 1.8(b); and (B) a
number of shares of Parent Stock ("Parent Shares") equal to the quotient
derived by dividing Two Million Dollars ($2,000,000) by the "Parent Share
Value" as defined in clause "(iii)" below.
(ii) Notwithstanding any provisions of this Agreement, no
fractional Parent Shares will be issued. Parent shall aggregate the Parent
Shares issuable to Seller, and, if following such aggregation, Seller would
be entitled to receive a fractional Parent Share but for this Section,
Seller will, in lieu of such fractional share and upon surrender of
certificate or certificates of Merger Company Stock, receive an amount in
cash equal to the Parent Share Value multiplied by the fraction of the
Parent Share to which Seller would otherwise be entitled.
(iii) For purposes of this Agreement, the "Parent
Shares Value" shall equal the average bid price of a Parent Share, as
reported in The Wall Street Journal, NASDAQ National Market System
Transactions, for the ten consecutive trading days prior to the earlier of
(A) the Closing Date or (B) the date the Merger is publicly announced,
subject to a ceiling of Three Dollars ($3.00) per share and a floor or Two
Dollars ($2.00) per share.
(b) The Three-Hundred Fifty Thousand Dollars ($350,000) cash
portion of the Merger Consideration to be paid to Seller pursuant to
Section 1.8(a)(i) shall be paid at the Closing.
(c) Allocation of Merger Consideration.
The Merger Consideration shall be allocated $2,350,000 to
the Merger Company Stock and $650,000 to the NMF Shares.
1.9 Stock Free of Liens. The Merger Companies and Seller warrant
that the Company Stock shall be transferred in the Merger free and clear
of all liens, claims, security interests, restrictions, prior assignments,
charges or encumbrances of any kind or nature whatsoever, including,
without limitation, any tax liens (collectively, "Liens").
ARTICLE II
PURCHASE AND SALE OF NMF STOCK
2.1 Sale. and Purchase of NMF Shares. Simultaneously with the
execution and delivery of this Agreement, Seller shall sell to Parent and
Parent shall purchase from Seller, free and clear of all Liens, fifty-one
(51) shares of NMF Stock (the "NMF Shares"), such NMF Shares to constitute
fifty-one percent (51%) of the total number of issued and outstanding
shares of NMF's capital stock.
2.2 Purchase Price. Parent is purchasing the NMF Shares from
Seller for an aggregate purchase price of Six Hundred Fifty Thousand
Dollars ($650,000) (the "Purchase Price"), payable as follows:
(a) At Closing, Parent shall pay to Seller the sum of Fifty
Thousand Dollars ($50,000);
(b) The balance of Six Hundred Thousand Dollars ($600,000)
shall be paid in sixteen (16) quarterly installments of Thirty-Seven
Thousand, Five Hundred Dollars ($37,500) beginning September 1, 1996.
Parent will pay simple interest on the unpaid portion of such balance at a
rate equal to 4.16%, with accrued interest payable with each quarterly
installment.
2.3 Rights of First Refusal.
(a) Definitions. The following terms shall have the
following meanings whenever used in this Section 2.3:
(i) "Bona Fide Offer" shall mean an offer, in writing,
made and signed by an offeror or offerors who is or are a person or
persons or entity or entities financially capable of carrying out the
terms of such Bona Fide Offer.
(ii) "Bona Fide Offeror" shall mean the person or persons
making the Bona Fide Offer.
(iii) "Registered Notice" shall mean notice sent by
registered or certified mail, return receipt requested, and first-class
postage prepaid or by actual delivery by messenger or overnight deliver
service; and, if such Registered Notice is sent with respect to a Bona
Fide Offer (as provided for in Section 2.3(b) hereof), such Registered
Notice shall contain a true and complete copy of the Bona Fide Offer,
setting forth the number of shares of NMF Stock to be sold by Seller, the
price thereof and all of the terms and conditions thereof, with the
name(s), addressees) (both home and office) and business(es) or other
occupation(s) of the offeror or offerors. Any notice which does not
contain all such requisite information shall not be considered a
"Registered Notice" for the purposes of Section 2.3(b) hereof.
(b) Receipt of Bona Fide Offer by Seller/Right of First
Refusal.
(i) In the event that Seller shall receive a Bona Fide
Offer to purchase any or all of Seller's NMF Stock, and in the further
event that Seller shall desire to accept such Bona Fide Offer, Seller
shall promptly send Registered Notice to Parent. Such Registered Notice
shall offer to sell such shares of Company Stock that are the subject of
the Bona Fide Offer to Parent on terms the same as those in such Bona Fide
Offer (the "Bona Fide Offer Terms"). Parent shall accept any offer to
purchase shares, if at all, by notifying Seller, in writing, within forty
(40) days, of its election to purchase such Bona Fide Offer Shares, and
including in such notice a bank or cashiers' check for the total purchase
price of the Bona Fide Offer Shares to be so purchased.
(ii) If all Bona Fide Offer Shares are not purchased by
Parent pursuant to this Section 2.3(b), Seller may sell such Bona Fide
Offer Shares to the Bona Fide Offeror, at the Bona Fide Offer Terms for a
period of time not to exceed forty (40) days from the date the Registered
Notice is received by Parent. Any sale of Bona Fide Offer Shares may not
be made after such forty (40) day period, or to a person other than the
Bona Fide Offeror without again complying with the provisions of this
Section 2.3.
2.4 Issuance of Equity Securities by NMF.
(a) NMF agrees that it will not issue any additional equity
securities in the future without the written consent of Seller and Parent
who will mutually determine the terms of such offer(s).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLER
Each of the Companies and Seller jointly and severally represent
and warrant to Parent and Sub as follows:
3.1 Ownership of the Shares. Seller is the sole record and
beneficial owner of the Merger Company Shares and the NMF Shares, free and
clear of all Liens, and the Merger Company Shares and NMF Shares set forth
opposite his name on Exhibit 3.1 represent all of the outstanding capital
stock of the Companies. There is not outstanding any security, option,
warrant, right, agreement, understanding or commitment of any kind
entitling any person to acquire any of the Company Shares, NMF Shares or
any capital stock of any of the Companies.
3.2 Authority; Consents; No Conflicts.
(a) Seller has the full legal right, power and authority to
enter into and to perform this Agreement and all other agreements,
certificates and documents executed or delivered, or to be executed or
delivered, by Seller in connection with this Agreement (collectively, with
this Agreement, "Seller's Documents"). The Seller's Documents have been
duly authorized, executed and delivered by Seller, and the Seller's
Documents are legal, valid and binding obligations of Seller, enforceable
in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(b) No consent, approval, authorization, or waiver is
required from and no declaration or filing is required to be made to any
government authority or any other third party, in connection with the
execution, delivery and performance of this Agreement or any of Seller's
Documents by Seller, and such execution, delivery and performance and the
consummation of the transactions contemplated hereby and thereby do not
and will not (i) violate any of the provisions of any of the Companies'
articles of incorporation or by-laws, (ii) violate any provision of
applicable law or regulation or of any writ, judgment, order, award,
injunction or decree applicable to Seller or any Company, (iii) violate,
conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement,
instrument or writing of any nature to which Seller or any Company is a
party or by which he or any of them is bound or to which any of his or the
Companies' respective assets is subject, or (iv) result in the creation of
any Lien on any of any Company's assets or properties.
(c) Each Company has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by each Company and the consummation by each Company of the
transactions contemplated on its part hereby have been duly authorized by
each respective Company's board of directors and stockholders, and no
other corporate proceedings on the part of any Company are necessary to
authorize this Agreement or for such Company to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by each Company and constitutes a valid and
binding agreement of such Company enforceable against each such Company in
accordance with its terms.
3.3 Organization, Good Standing and Authority of Companies. Each
Company is a Corporation duly organized, validly existing and in good
standing under the laws of Florida and has the full power and authority to
own, lease and operate its properties as it now does and to carry on its
business as it is presently being conducted. Each Company is duly
qualified and in good standing as a foreign corporation in all
jurisdictions in which the property owned or leased by it or the nature of
the activities conducted by it requires qualification. The copies of each
Company's articles of incorporation and by-laws that have been delivered
to Parent are complete and correct as of the date of this Agreement. Each
Company's minute books that have been exhibited to the Parent are complete
and accurately reflect all action taken by the board of directors and
stockholders of such Company.
3.4 Capitalization.
(a) As of the date of this Agreement, MCA's authorized
capitalization consists of 7,500 shares of common stock, par value $1.00
per share, of which 100 shares are issued and outstanding. All of the
outstanding shares of common stock were duly authorized for issuance, were
validly issued, and are fully paid and nonassessable and, except for the
MCA capital stock constituting the Merger Company Shares, there are no
outstanding shares of capital stock or other security of MCA.
(b) As of the date of this Agreement, CCI's authorized
capitalization consists of 7,500 shares of common stock, par value $1.00
per share, of which 100 shares are issued and outstanding. All of the
outstanding shares of common stock were duly authorized for issuance, were
validly issued, and are fully paid and nonassessable and, except for the
CCI capital stock constituting the Merger Company Shares, there are no
outstanding shares of capital stock or other security of CCI.
(c) As of the date of this Agreement, WRC's authorized
capitalization consists of 500 shares of common stock, par value $1.00 per
share, of which 50 shares are issued and outstanding. All of the
outstanding shares of common stock were duly authorized for issuance, were
validly issued, and are fully paid and nonassessable and, except for the
WRC capital stock constituting the Merger Company Shares, there are no
outstanding shares of capital stock or other security of WRC.
(d) As of the date of this Agreement, NMF's authorized
capitalization consists of 500 shares of common stock, par value $1.00 per
share, of which 100 shares are issued and outstanding. All of the
outstanding shares of common stock were duly authorized for issuance, were
validly issued, and are fully paid and nonassessable and, except for the
NMF capital stock constituting NMF Shares and the 100 Shares of NMF Stock
held by Seller, there are no outstanding shares of capital stock or other
security of NMF.
(e) There are no agreements, commitments or restrictions
relating to ownership or voting of any shares of stock or other
securities of any Company, other than the shareholder's agreements entered
into by Seller and each Company (collectively, the "Shareholders
Agreement") which are listed on Exhibit 3.4.
(f) No Company has any subsidiaries nor any equity interest
in any corporation, partnership, joint venture or other entity. Each
Company has conducted its business only through such Company.
3.5 Financial Statements. Exhibit 3.5 contains (i) the unaudited
cash-basis statements of assets, liabilities and equity of each Company as
of December 31, 1995, 1994 and 1993, together with the related statements
of receipts and disbursements for the years then ended; and (ii) an
unaudited cash-basis statement of assets, liabilities and equity of each
Company as of April 30, 1996, together with the related statements of
receipts and disbursements for the four months then ended (the "Unaudited
Cash Basis Statements").
3.6 Absence of Undisclosed Liabilities. No Company has any
liability or obligation of any kind, whether accrued, absolute, contingent
or otherwise, other than (i) liabilities and obligations under leases,
commitments and other agreements entered into in the ordinary course of
business, (ii) liabilities and obligations to trade creditors incurred in
the ordinary course of business since April 30, 1996, none of which is
unusual in nature or amount and all of which in the aggregate are not
material, and (iii) other liabilities and obligations that are not
material in amount or are set forth in Exhibits to this Agreement. All of
each Company's indebtedness to Seller and any affiliate of Seller has been
discharged in full as set forth in Exhibit 3.26 to this Agreement without
any adverse tax consequence to said Company.
3.7 Absence of Certain Changes. Since December 31, 1995, each
Company has operated its business in the ordinary course and consistent
with past practice and there has been no material adverse change in the
business, properties, assets, liabilities, commitments, earnings, financial
condition or prospects of any Company.
3.8 Real and Personal Property; Absence of Encumbrances.
To the best of their knowledge and belief:
(a) Each Company has good and marketable title to or, in the
case of leases and licenses, valid and subsisting leasehold interests or
licenses in, all of its properties and assets of whatever kind (whether
real or personal, tangible or intangible), including, without limitation,
all properties and assets that are shown on the Unaudited Cash Basis
Statements and to properties and assets that are shown on any Exhibit to
this Agreement, in each case free and clear of any and all Liens, except
as may be set forth in Exhibits 3.8(b) and 3.8(c) and except for liens for
current taxes and assessments not yet due and payable. The assets owned
by each Company, together with those leased from unrelated third parties
on an arm's-length basis, constitute all of the assets, tangible and
intangible, used in or needed to conduct each Company's business in tile
manner in which it is presently conducted.
(b) Exhibit 3.8(b) lists all the equipment, machinery,
computers, furniture, leasehold improvements, vehicles and other personal
property (collectively, "Personal Property") owned or leased by each
Company and all interests therein. All Personal Property owned or leased
by each Company is in good operating condition and in good condition of
maintenance and repair, ordinary wear and tear excepted.
(c) Exhibit 3.8(c) lists all the real property (including
buildings and structures) owned or leased by each Company and all
interests therein. All such real property, buildings and structures, and
the equipment therein, and the operations and maintenance thereof, comply
with any applicable agreements and restrictive covenants and conform to
all applicable legal requirements including those relating to the
environment, health and safety, land use and zoning. All such real
property, buildings and structures are in good operating condition and
repair, ordinary wear and tear excepted.
3.9 Intellectual Property.
(a) Exhibit 3.9 sets forth a list and brief description of
all patents, trademarks, service marks, trade names and copyrights
(collectively, "Intellectual Property") that are presently being used or
have since July 1, 1985 been used, in each Company's business, all
applications for registration and registrations for Intellectual Property,
and all licenses, contracts, rights and arrangements with respect to
Intellectual Property. Except as set forth in Exhibit 3.9, no rights or
licenses have been granted with respect to any Intellectual Property and
all filings and other action necessary to perfect the full legal right of
each Company in the United States and foreign countries to Intellectual
Property have been effected.
(b) Except as set forth in Exhibit 3.9, each Company owns or
possesses the
right to use all patented and unpatented inventions, trademarks, service
marks, trade names, copyrights, trade secrets, computer lists, computer
programs and software and other proprietary processes and information of
any kind used in or necessary for the conduct of the Company's business as
now conducted, without any conflict with or infringement of the rights of
others. Except as set forth in Exhibit 3.9, no Company has received
notice of any claimed conflict with respect to any of the foregoing.
(c) Seller has no knowledge of any default or alleged default
or state of facts which with notice or lapse of time or both would
constitute a default on the part of any party in the performance under any
licenses, contracts, agreements or arrangements referred to in Exhibit
3.9.
3.10 Litigation. Except as set forth on Exhibit 3.10, (a) there is
no action, claim, litigation, proceeding, arbitration or governmental
investigation pending or, to the best of the knowledge of Seller,
threatened against, involving or affecting any Company or Seller (with
respect to the Company) or any of their respective properties or assets or
any of the Companies' respective officers, directors or employees, and (b)
there are no outstanding orders, writs, injunctions or decrees of any
court, governmental agency or arbitration tribunal against, involving or
affecting Seller, any Company, or Seller's or any Company's properties or
assets.
3.11 List of Agreements, etc. Exhibit 3.11 lists as of the date
hereof (a) all of the respective Companies' and Seller's (with respect to
any Company) material contracts or agreements to which Seller or any
Company is a party; (b) all notes and agreements relating to any
indebtedness of the Company or Seller (with respect to any Company), any
guaranties by the Company or Seller (with respect to any Company) of the
indebtedness of other persons of the Company or Seller (with respect to
any Company); (c) all leases or other rental agreements under which any
Company or Seller (with respect to any Company) is either lessor or
lessee; (d) all of the Companies' respective employment and consulting
agreements and all agreements that provide for severance or similar
benefits; (e) all agreements between any Company and Seller or any of
Seller's affiliates; and (f) all other agreements, commitments and
understandings (written or oral) that require payment by or to the Company
of more than $5,000 or cannot be terminated by the Company on less than 30
days' notice without liability. True and complete copies of all of the
leases, commitments and other agreements referred to on Exhibit 3.11 have
been delivered to the Parent.
3.12 Status of Agreements. Each of the agreements, commitments and
leases referred to in section 3.11 (the "Contracts") is presently in full
force and effect in accordance with its terms and none of the Companies
are in default and, to the best of the knowledge of the Seller, no other
party is in default under any of the provisions of any of those Contracts
and no condition exists that, with notice or lapse of time or both, would
constitute a default by any Company or, to the best of the knowledge of
the Seller, any other party to any of the Contracts. No party to any of
the Contracts has made, asserted or has any defense, set-off or
counterclaim under any of the Contracts or has exercised any option
granted to it to cancel or terminate any Contract, to shorten the term of
any Contract or to renew or extend the term of any Contract, and none of
the Companies has received any notice to that effect. None of the
Companies is engaged in any material dispute with any of its suppliers,
patients or customers and, to the best knowledge of the Seller, the
transactions contemplated by this Agreement will not have a material
adverse effect on any Company's relationship with any of its suppliers,
patients or customers. Except as set forth on Exhibit 3.11, all of the
Contracts have been entered into on an arm's-length basis, and no
Company's purchase commitments is in excess of the normal requirements of
its business or at an excessive price. The Seller and each Company are in
compliance with all terms and provisions of all contracts material to the
operation of the Companies' respective businesses or by which any Company
is bound or affected; and all such contracts are legally valid and binding
in accordance with their terms and in full force and effect except as may
be limited by bankruptcy, moratorium, reorganization, insolvency and other
similar laws of general application relating to or affecting the rights of
creditors, and by general principles of equity. Except as set forth on
Exhibit 3.11, all of the Contracts involving the Merger Companies have
been assigned to Sub as of the Closing, and any consents or authorizations
necessary in connection therewith have been so obtained.
3.13 Cash on Hand. As of the Closing, the Merger Companies have
cash and cash equivalents (not including accounts receivable) in an
aggregate amount that is not less than the aggregate accounts payable of
the Merger Companies as of the Closing.
3.14 Accounts Receivable. Exhibit 3.14 is an aged list of each
Company's accounts receivable as at June 6, 1996. Each Company's accounts
receivable arose in the ordinary course of business for goods or services
delivered or rendered, and to the best of their knowledge and belief
constitute only valid, undisputed claims, not subject to counterclaims or
set-offs.
3.15 Environmental Matters.
(a) For the purpose of this agreement, the following terms
shall have the respective meanings set forth below:
(i) "Environment" means any surface or subsurface
physical medium or natural resource, including indoor areas, air, land,
soil, surface waters, ground waters, stream and river sediments, and
biota.
(ii) "Environmental Laws" means any federal, state, local
or common law, rule, regulation, ordinance, code, order or judgment
(including the common law and any judicial or administrative
interpretations, guidances, directives, policy statements or opinions)
relating to the injury to, or the pollution or protection of human health
and safety or the Environment.
(iii) "Environmental Liabilities" means any claims,
judgments, damages (including punitive damages), losses, penalties, fines,
liabilities, encumbrances, liens, violations, costs and expenses (including
attorneys and consultants fees) of investigation, remediation or defense of
any matter relating to human health, safety or the Environment of whatever
kind or nature by any party, entity or authority, (A) which are incurred
as a result of (x) the existence of Hazardous Substances in, on, under, at
or emanating from any real property presently or formerly owned or
operated by the Company or (y) the offsite transportation, treatment,
storage or disposal of Hazardous Substances generated by the Company or
(z) the violation of any Environmental Laws or (B) which arise under the
Environmental Laws.
(iv) "Hazardous Substances" means petroleum, petroleum
products, petroleum-derived substances, radioactive materials, hazardous
wastes, polychlorinated biphenyls, lead-based paint, radon, urea
formaldehyde, asbestos or any materials containing asbestos, and any
materials or substances regulated or defined as or included in the
definition of "hazardous substances," "hazardous materials," "hazardous
constituents," "toxic substances," "pollutants," "contaminants" or any
similar denomination intended to classify substances by reason of
toxicity, carcinogenicity, ignitability, corrosivity or reactivity under
any Environmental Law.
(v) All references in this section to the Company shall
include all predecessors thereto and any person or entity the liabilities
of which, pursuant to the Environmental Laws, contractually, by common law
or by operation of law, the Company may have succeeded to.
(b) To the best of knowledge and belief, all of the current
and past operations of the Company at or from any real property presently
or formerly owned, used, leased, occupied or operated by the Company (the
"Real Property") comply and have complied with all applicable
Environmental Laws. Neither the Company nor Seller, nor, to the knowledge
of the Company or Seller, any other person or entity, has engaged in,
authorized, allowed or suffered any operations or activities upon any of
the Real Property for the purpose of or in any way involving the handling,
manufacture, treatment, processing, storage, use, generation, release,
discharge, emission, dumping or disposal of any Hazardous Substances at,
on or under the Real Property, except in compliance with all applicable
Environmental Laws.
(c) To the best of knowledge and belief, the Real Property
does not contain any Hazardous Substances in, on, over, under or at it in
concentrations which would presently violate Environmental Laws or impose
liability or obligations on the present or former owner or operator of the
Real Property under the Environmental Laws for any investigation,
corrective action, remediation or monitoring of Hazardous Substances in,
on, over, under or at the Real Property. None of the Real Property is
listed or proposed for listing on the National Priorities List pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., or any similar inventory of
sites requiring investigation or remediation maintained by any state.
Neither the Company nor Seller has received any notice, whether oral or
written, from any governmental entity or third party of any actual or
threatened Environmental Liabilities with respect to any of the Real
Property, the Company's assets, or the conduct of the Company's business.
(d) To the best of knowledge and belief, there are no
underground storage tanks, asbestos or asbestos containing materials,
polychlorinated biphenyls, urea formaldehyde, or other Hazardous Substances
(other than small quantities of Hazardous Substances stored and maintained
in accordance with all applicable Environmental Laws for use in the
ordinary course of the business of the Company) in, on, over, under or at
any presently owned or operated Real Property.
(e) To the best of knowledge and belief, there are no
conditions existing at any Real Property that require, or which with the
giving of notice or the passage of time or both may require remedial or
corrective action, removal or closure pursuant to the Environmental Laws.
(f) Seller or the Company has provided to Parent all
environmental reports, assessments, audits, studies, investigations, data
and other written environmental information in its custody, possession or
control concerning the Real Property or any Environmental Liabilities,
whether actual or threatened.
3.16 Permits and Licenses; Compliance with Law.
(a) Seller and each Company holds all the governmental
licenses, permits and authorizations (collectively, "Permits") listed
under his or its name in Exhibit 3.16 which Permits, except as set forth
in that Exhibit, are valid and unimpaired, will be unaffected by the
transactions contemplated by this agreement and constitute all of the
licenses, permits and authorizations required for the ownership or
occupancy of said Company's properties and assets and the operation of its
business, and for Seller's practice of medicine in the State of Florida
and participation in the Medicare and Medicaid programs.
(b) Seller and each Company is in compliance in all respects
with the terms and conditions of such Permits and with all requirements,
standards and procedures of the federal, state and local governmental or
regulatory bodies which issued said Permits.
(c) Other than shipping dry ice without utilizing trained
personnel to do so, to the best of knowledge and belief, Seller (with
respect to the Companies) and each of the Companies is and has been in
compliance with all federal, state and local laws, regulations,
ordinances, codes, orders, requirements, standards and procedures and
other requirements of all courts and other governmental or regulatory
authorities having jurisdiction over the Seller (with respect to the
Companies) and each of the Companies and the Companies' respective assets,
properties and operations, including, without limitation, all such laws,
regulations, orders and requirements relating to consumer or patient
protection, equal opportunity, health, reimbursement, protection of the
environment and occupational safety. Neither Seller (with respect to the
Companies) nor any Company has received any notice of any violation of or
default relating to any such law, regulation, order or other legal
requirement.
(d) Seller and the Companies have received no notice of any
violation of applicable law, order, regulation or requirement related to
Seller or any Company and Seller is not aware of any condition or state of
facts that could result in any such notice.
3.17 Employees.
(a) Exhibit 3.17 lists the names, office locations, duties,
date of hire, compensation and years of credited service for severance,
vacation and pension plan purposes of all full- and part-time employees of
each Company as of the date hereof. No employee has been granted any wage
or salary increase or bonus or any fringe benefits, except as stated in
Exhibit 3.17. No employee is owed any wages, benefits or other
compensation for past services, other then wages, benefits and
compensation accrued in the ordinary course of business during the current
pay period and accrued vacation. Each Company has complied with
applicable wage and hour, equal employment, safety and other legal
requirements relating to its employees and is not engaged in any unfair
labor practice. Exhibit 3.17 also lists all current consultants of any
Company and discloses their respective duties, date of engagement and
compensation.
(b) Except as set forth on Exhibit 3.18, no employee or
former employee of any Company is entitled to any severance payment or
similar payment, either by law or by agreement, upon the termination of
his or her employment. No key employee of any Company has indicated that
he or she is considering terminating his or her employment.
(c) No employee of any Company is represented by a union or
other collective bargaining agent, and there are no collective bargaining
or other labor agreements with respect to any of any Company's employees.
Seller knows of no efforts within the last three years to attempt to
organize any Company's employees, and no strike or labor dispute involving
any Company has occurred during the last three years or, to the best
knowledge of Seller, is threatened.
3.18 Employee Benefit Plans.
(a) No Company has an "employee benefit plans," within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended, and all regulations, rulings, and interpretations
promulgated thereunder ("ERISA").
3.19 Insurance. Each Company maintains and has maintained since
its inception adequate insurance in such amounts and against such risks
and losses as are customary for other entities of similar size engaged in
Seller's and the Companies' respective businesses. Exhibit 3.19 lists all
the insurance policies maintained by each Company, indicating the type of
coverage, name of insured, the insurer, the premium, the expiration date
of each policy and the amount of coverage. All such policies (a) are with
insurance companies reasonably believed by the Seller to be financially
sound and reputable and are in full force and effect; (b) are sufficient
for compliance with all requirements of law and of all applicable
agreements; and (c) are valid, outstanding and enforceable policies.
Complete and correct copies of such policies have been furnished to the
Parent.
3.20 Banks; Power of Attorney. Exhibit 3.20 sets forth the names
and locations of all banks, trust companies, savings and loan associations
and other financial institutions at which any Company maintains safe
deposit boxes or accounts of any nature and the names of all persons
authorized to draw thereon, make withdrawals therefrom or have access
thereto. No person or entity holds any general or special power of
attorney from any Company.
3.21 Books and Records. The books and records of each Company are
complete and correct in all material respects and have been maintained in
accordance with good business practices. The minute books of each Company,
as previously made available to Parent, contain complete and accurate records
of all meetings and accurately reflect all other corporate action of the
stockholders and board of directors of said Company.
3.22 Restrictions. No Company is party to any non-competition or
similar agreement which in any way restricts the operation of said
Company's business.
3.23 Transactions with Affiliates. Except as set forth in Exhibit
3.23 hereto and except for ordinary dealings with its employees, since
April 30, 1996, no Company has had any direct or indirect dealings with
Seller or with any other key employee of said Company or with any of their
affiliates, associates or relatives (each, an "Affiliate"). Except as set
forth in Exhibit 3.23 and except for employment arrangements with its
employees, no Company has any obligation to or claim against any
Affiliate, and no such person or entity has any obligation to or claim
against any Company. Exhibit 3.23 reasonably describes the nature and
extent of any products, services or benefits provided to any Company by
any Affiliate without a corresponding charge equal to the fair market
value of such products, services or benefits. No Affiliate has any direct
or indirect interest of any kind in any business or entity which is
competitive with any Company.
3.24 Taxes. Seller and each Company has filed with appropriate
federal, state and local authorities (or has obtained appropriate
extensions. of the time to file) all tax returns required by law,
regulation or otherwise to be filed by him or it for all taxable periods
ending on or prior to the date hereof for which tax returns have become
due. Seller and each Company has paid or made adequate provisions for the
payment of all taxes, penalties and interest which have or may become due
for or during all taxable periods of Seller and each Company ending on or
prior to the date hereof, including, without limitation, any such taxes,
penalties and interest relating to the final tax returns due with respect
to the Merger Companies in connection with their merger with and into Sub.
Seller has furnished to the Parent correct and complete copies of all
notices and correspondence sent or received since January 1, 1996 by
Seller (with respect to any Company) or any Company to or from any
federal, state or local tax authorities. However, no action of the Parent
in regard to the merger shall result in a section 338 election or deemed
election.
3.25 Third-Party, Research Sponsor and Patient Billings.
(a) To the best of knowledge and belief, all claims, reports,
filings and billings by Seller and each Company to patients, research
sponsors and third-party payors are true and correct in all respects and
are in compliance in all respects with all applicable laws and regulations
governing such claims, reporting, filings and billing and the policies of
such research sponsors and third-party payors.
(b) To the best of knowledge and belief, Seller, each Company
and each Company's officers, directors, employees and agents, have not,
directly or indirectly (i) offered, paid, solicited or received any
remuneration in violation of the Medicare or Medicaid "fraud and abuse" or
"and-referral" laws, including but not limited to 42 U.S.C. Section
Section 1320a-7b(b) or 1395nn, each as amended from time to time, the
regulations promulgated thereunder and similar provisions of state law and
regulation, (ii) offered or paid any amount to, or made any financial
arrangement with, any of Seller's or any Company's past, present or
potential customers, patients or referral services in order to obtain
business or influence or induce referrals from such customers, other than
standard pricing or discount arrangements consistent with proper business
practices and applicable law; (iii) given, or agreed to give, nor is
Seller aware that there has been given, or that there is an agreement to
make any gift or gratuitous payment of any kind, nature or description
(whether in money, property or services) to any past, present or potential
customer, patient, referral source, supplier, source of financing,
landlord, tenant, licensee or anyone else at any time of the year; (iv)
made, or agreed to make, nor is Seller aware that there is any agreement
to make any political contribution or any contributions, payment or gifts
of their respective funds or property to or for the private use of any
governmental official, employee or agent where either the payment or the
purpose of such contribution, payment or gift relates to the business of
Seller and is illegal under the laws of the United States, any state
thereof or any other jurisdiction (foreign or domestic); or (v) made, or
has agreed to make, nor is Seller aware that there have been, or that
there is any agreement to make, any payments to any person with the
intention or understanding that any part of such payment was to be used
directly or indirectly for the benefit of any past, present or potential
customer, patient, referral source, employee, supplier or landlord of
Seller or any Company, or for any purpose other than that reflected in the
documents supporting the payments.
3.26 Disclosure. No representation, warranty or other statement
made by Seller in this agreement or in any other of Seller's Documents
contains an untrue statement of a material fact, or omits to state a
material fact necessary to make the statements contained herein or therein
not misleading. Seller is not aware of any matter that could reasonably
be expected to have a materially adverse effect on any Company's business
or prospects that has not been disclosed in writing to the Parent. There
is no fact which Seller has not disclosed to Parent which adversely
affects, or insofar as Seller can foresee, will adversely affect the
ability of Seller to perform its obligations under this Agreement or any
other agreement entered into in connection with this transaction. All
documents, Exhibits, Schedules and other materials delivered or made
available, by or on behalf of Seller to Parent in connection with this
Agreement and the transactions contemplated hereby, are true and complete.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent, for the purpose of inducing Seller to enter into and
consummate this Agreement, hereby represents and warrants to Seller that:
4.1 Organization. Parent is a corporation duly organized, validly
existing and in good standing under the law of Delaware.
4.2 Authority; Consents; and No Conflicts.
(a) Parent has the full legal right, power and authority to
enter into and perform this Agreement and all other agreements,
certificates and documents executed or delivered, or to be executed and
delivered, by Parent in connection with this Agreement (collectively, with
this Agreement, the "Parent's Documents"). The execution, delivery and
performance by Parent of the Parent's Documents have been duly authorized
by all necessary corporate action of Parent and the Parent's Documents are
(or when executed and delivered will be) valid and binding obligations of
Parent enforceable against Parent in accordance with its terms, except as
may be limited by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) No consent, approval or authorization of, or declaration
or filing with any court or governmental authority or any other person or
entity is required on the part of Parent in connection with the execution,
delivery and performance of the Parent's Documents. The execution,
delivery and performance by Parent of the Parent's Documents will not (i)
conflict with the certificate of incorporation or by-laws of Parent; or
(ii) constitute a violation by the Parent of any law, regulation, order,
writ, judgment, injunction or decree applicable to it.
4.3 Liquidation of Merger Companies. Parent represents that it
has no plan or intention to liquidate to liquidate Sub, cause Sub to
transfer substantially all of its assets to another corporation or entity
controlled or affiliated with Parent or to merge Sub with and into another
corporation or entity controlled or affiliated with Parent.
4.4 Financial Position. Attached hereto as Exhibit 4.4 are copies
of Parent's Form 10-K and Form I O-Q for the year ended December 31, 1995
and the quarter ended March 31, 1996, respectively. Said documents are
true and complete in all material respects.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Reasonable Best Efforts. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its reasonable
best efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation, the
obtaining of all necessary waivers, consents and approvals and the
effecting of all necessary registrations and filings.
5.2 Physician Employment Agreement. At the Closing, Seller and
Sub shall enter into an employment agreement pursuant to which Sub shall
employ Seller to provide certain clinical and other services (the
"Physician Employment Agreement").
5.3 Employment Agreement. At the Closing, Seller and Sub shall
enter into an Employment Agreement pursuant to which Seller shall provide
certain services to Parent.
5.4 Piggyback Registration Rights.
(a) Inclusion in Other Registrations. If at any time within
two years after the date of this Agreement, Parent shall determine to file
a registration statement under the Securities Act of 1933 (the "Act") on
Form S-1 or its equivalent covering an offering of Parent's common stock
by Parent (other than an exchange offer by Parent to stockholders of
another corporation or an offer to Parent's employees) or by any of its
stockholders, Parent shall so notify Seller at least 30 days prior to the
filing. Upon written request made by Seller within 15 days after the
notice is given, Parent shall include in the registration statement such
number of the shares of Parent's common stock acquired by Seller pursuant
to this Agreement as Seller shall designate in its request, except that
Parent shall not be obligated to include any of Seller's shares in the
registration statement if:
(i) in the case of a proposed registration statement
covering shares to be offered by Parent, any proposed underwriter of the
shares covered by the registration statement advises Seller that it
reasonably believes that inclusion of Seller's shares would interfere with
the offering of the other shares being registered;
(ii) Seller shall have failed to agree in writing within
10 days after Parent's request to do so, either: (A) not to sell any of
his shares for such a period of time as Parent may designate (not to
exceed 120 days after the effective date of the registration statement),
or (B) to distribute the shares for which registration was requested (or
such lesser number of shares, in proportion to the total number of shares
to be offered pursuant to the registration statement as the underwriter
may specify) pursuant to a firm (as distinguished from a best efforts)
underwriting through an underwriter designated by Parent;
(iii) Parent withdraws the registration statement
with respect to all the shares for which registration was contemplated
before the registration statement becomes effective; or
(iv) Seller shall have failed to furnish to Parent such
information and other material as Parent or its counsel may have
reasonably requested with respect to the public offering of their shares
or shall have failed to take any other action or execute any documents
which Parent or its counsel reasonably considers necessary or desirable in
connection with the registration statement.
(b) Expenses. Parent shall pay all costs and expenses
incurred in connection with the preparation and filing of any registration
statement and, to the extent any of Seller's shares are included in that
registration statement, Seller shall pay the fees and expenses of brokers
or underwriters relating to the sale of Seller's shares, the fees and
expenses of their counsel, stock transfer taxes imposed on Seller's sales,
the registration or filing fees attributable to Seller's shares, the
incremental cost of printing the registration statements and prospectuses
requested by Seller and blue-sky fees and expenses in any jurisdiction in
which the shares would not have to be qualified but for the sale by
Seller. Notwithstanding the foregoing, if any registration statement
filed by Parent above covers only shares held by Parent stockholders,
Seller shall pay his proportionate share of all of the costs and expenses
incurred by Parent in connection with the preparation and filing of that
registration statement (in the proportion that the number of his shares
included in the registration statement bears to the total number of shares
covered by the registration statement).
(c) Additional Provisions. The following additional
provisions shall be applicable to this section:
(i) Seller's plan of distribution shall not require
Parent to file any post-effective amendment to the registration statement
to update the financial statements that are included in the registration
statement and shall not require Parent to keep the registration statement
current for more than 120 days after Seller is permitted to sell his
shares under the plan. Parent may re-register any shares which shall not
have been sold within that 120-day period, and Seller shall cooperate in
effecting any such re-registration.
(ii) Parent shall not be required to include Seller's
shares in more than two registration statements.
(iii) Parent shall indemnify Seller and any
underwriter of their shares and hold them harmless against any loss,
liability, damage or expense (including reasonable attorneys' fees)
arising out of any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
required to be stated in any registration statement or prospectus relating
to the distribution of Seller's shares, except to the extent the loss,
liability, damage or expense arises out of a statement or omission that
was based upon information furnished in writing to Parent by Seller for
use in the registration statement or prospectus. Seller shall indemnify
Parent and hold it harmless against any loss, liability, damage or expense
(including reasonable attorneys' fees) arising out of any untrue statement
or alleged untrue statement of material fact or alleged omission to state
a material fact required to be stated in any registration statement or
prospectus relating to the distribution of Seller's shares to the extent
the loss, liability, damage or expense arises out of a statement or
omission that was based upon information furnished in writing to Parent by
Seller for use in the registration statement or prospectus. Promptly
after receipt by an indemnified party of notice of the commencement of any
action, he or it shall notify the indemnifying party. Failure to give
such a notice shall not affect any liability the indemnifying party may
have to the indemnified party otherwise than under this paragraph. The
indemnifying party may participate in the action or may assume the defense
of the action, with counsel reasonably satisfactory to the indemnified
party. After giving notice of such an assumption of the defense, the
indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense other than reasonable costs of investigation.
(iv) Seller's rights under this section shall inure to
the benefit of his heirs, legatees, or personal representatives, but not
to any other transferee or successor. The provisions of this section
shall be binding upon Seller's heirs, legatees and personal
representatives.
5.5 Voting of Parent Stock. Seller shall, at the Closing, deliver
to Parent a proxy (the "Proxy") granting to Gerardo Canet, President of
Parent, an irrevocable proxy to vote all shares of Parent Stock at any and
all meetings of the stockholders of Parent, at any and all adjournments
thereof, and in any action by such stockholders without a meeting. The
Proxy shall expire on the earlier of the second anniversary of the Closing
Date or upon termination of Seller's employment under the Physician's
Employment Agreement or the Employment Agreement and, during its two year
term, shall afford to Parent the right to substitute another officer of
Parent in place of Mr. Canet. The parties shall cause an appropriate
legend to be affixed to the Parent Stock held by Seller to reflect such
restriction on voting.
5.6 Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, all costs and expenses incurred in
connection with this Agreement (including the Exhibits hereto) and the
transactions contemplated hereby (and thereby) shall be paid by the party
incurring such expenses.
5.7 Public Announcements. Parent shall have control of the
content and timing of any press release or other content and timing of any
press release or other public disclosure of information ("Public
Announcement") concerning the Merger or the other transactions
contemplated hereby. The Companies agree that neither will make any
Public Announcement with respect to this Agreement or the transactions
contemplated hereby without the prior consent of Parent, which consent
shall not be unreasonably withheld or delayed.
5.8 Commitment to Fund NMF. Parent agrees that, as part of its
commitment to the development of NMF, it will provide funding to NMF on an
as-needed basis during the four (4) year period commencing on the Closing
Date, in amounts not to exceed Five Hundred Thousand Dollars ($500,000) in
the aggregate. Parent's undertaking to provide such funding shall, in
each case, be based on NMF's demonstrated need for such additional
capital, as reasonably determined from time to time by NMF's board of
directors based on NMF's operating budget approved by NMF's board of
directors. Parent shall not receive any additional shares of NMF's stock
in consideration any funding provided in connection with the commitment
under this Section 5.10.
5.9 Option to Acquire NMF Stock.
(a) In the event that Parent shall receive a Bona Fide Offer
to purchase any or all of Parent's NMF Stock, and in the further event
that Parent shall desire to accept such Bona Fide Offer, Parent shall
promptly send Registered Notice to Seller. Such Registered Notice shall
offer to sell such shares of Company Stock that are the subject of the
Bona Fide Offer to Seller on terms the same as those in such Bona Fide
Offer (the "Bona Fide Offer Terms"). Seller shall accept any offer to
purchase shares, if at all, by notifying Parent, in writing, of his
election to purchase such Bona Fide Offer Shares, and including in such
notice a bank or cashiers' check for the total purchase price of the Bona
Fide Offer Shares to be so purchased.
(b) If all Bona Fide Offer Shares are not purchased by Parent
pursuant to this Section 5.10(b), Parent may sell such Bona Fide Offer
Shares to the Bona Fide Offeror, at the Bona Fide Offer Terms for a period
of time not to exceed forty (40) days from the date the Registered Notice
is received by Seller. Any sale of Bona Fide Offer Shares may not be made
after such forty (40) day period, or to a person other than the Bona Fide
Offeror without again complying with the provisions of Section 5.10(b).
(c) Parent and Seller agree to develop a Stockholder
Agreement with respect to their respective rights and responsibilities
relative to NMF within 30 days of the Closing. Such Stockholder Agreement
shall provide, together with other things which may be mutually agreeable,
that either Seller or Parent may at any time notify the other party of its
desire to sever their relationship as shareholders of NMF. Such
notifications shall contain the price per share of NMF at which the
notifying party is willing to sell its shares of NMF to the notified party
or to purchase the shares of NMF held by the notified party. Upon receipt
of such notice the notified party must elect to either sell its shares of
NMF to the notifying party or to purchase the shares of NMF held by the
notifying party, in either case at the price set forth in the notifying
party's severance notice. The time within which to respond to a severance
notice and the time to close the transaction shall be as reasonably agreed
to by the parties and set forth in tile Stockholder Agreement.
5.10 Liquidation of Merger Companies. Parent covenants and agrees
that for a period
of two (2) years following the Effective Time, Parent will not liquidate
Sub, cause Sub to transfer substantially all of its assets to another
corporation or entity controlled or affiliated with Parent or merge Sub
with and into another corporation or entity controlled or affiliated with
Parent.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification.
(a) Seller shall indemnify, defend and hold harmless Parent,
Sub and any of their respective directors, officers and employees and
successors and assigns, promptly upon demand at any time and from time to
time against any and all losses, liabilities, claims, actions, damages or
expenses, including without limitation reasonable attorneys' fees and
disbursements, whether involving a third party or between the parties to
this agreement, Parent or Sub may suffer, sustain or become subject to
arising out of or in connection with (i) any misrepresentation or breach
of any warranty made by Seller or any of the Companies in any of Seller's
Documents; (ii) any breach or nonfulfillment of any covenant or agreement
made by Seller or any of the Companies in any of Seller's Documents; (iii)
any tax, penalty or interest which have or may become due for any tax
period of Seller or any Company, including, without limitation, any such
tax liability of the Merger Companies arising from or in connection with
the Merger and final tax returns due with respect to each Merger Company;
and (iv) billing of a third party payor or payment received from a third
party payor in violation of applicable federal or state law.
(b) Seller shall indemnify, defend and hold harmless Parent,
Sub and any of their respective directors, officers and employees and
successors and assigns, promptly upon demand at any time and from time to
time, against any and all damages, claims, losses, liabilities and
expenses, including without limitation, reasonable legal, accounting,
consulting, engineering and other expenses, which may arise out of (i) any
action, suit, claim or proceeding seeking money damages, injunctive
relief, remedial action, or any other remedy by reason of (A) violation of
or noncompliance with the Environmental Laws or any permit, license,
approval, authorization or registration issued under the Environmental
Laws, or (B) the disposal, discharge or release of solid wastes or
Hazardous Substances whether in compliance with Environmental Laws or not,
or (C) the ownership, operation or use of any landfill, waste water
treatment facility, air pollution control equipment, storage lagoon,
impoundment, or other waste management or pollution control facility or
equipment whether in compliance with the Environmental Laws or not, or (D)
exposure to any Hazardous Substances, noises, odors or vibrations or (ii)
compliance with Environmental Laws, all to the extent they arise from the
present or former ownership, use, lease, occupancy or operation of any
Real Property.
(c) Parent shall indemnify, defend and hold harmless Seller,
promptly upon demand at any time and from time to time, against any and
all losses, liabilities, claims, actions, damages or expenses, including
without limitation reasonable attorneys' fees and disbursements, whether
involving a third party or between the parties to this agreement, Seller
may suffer, sustain or become subject to arising out of or in connection
with (a) any misrepresentation or breach of any warranty made by the
Parent in any of the Parent's Documents; and (b) any breach or
nonfulfillment of any covenant or agreement made by the Parent in any of
the Parent's Documents.
6.2 Defense. An indemnified party shall promptly give written
notice to the indemnifying party after the indemnified party has knowledge
that any legal proceeding has been instituted or any claim has been
asserted in respect of which indemnification may be sought under the
provisions of section 6.1. If the indemnifying party, within ten (10)
days after the indemnified party has given such notice (or within such
shorter period of time as an answer or other responsive motion may be
required), shall have acknowledged in writing his or its obligation to
indemnify and shall have furnished to the indemnified party a bond, letter
of credit, escrow or similar arrangement in an amount equal to the total
amount demanded in such claim or proceeding, then the indemnifying party
shall have the right to control the defense of such claim or proceeding,
and the indemnified party shall not settle or compromise such claim or
proceeding without the written consent of the indemnifying party, which
consent shall not unreasonably be withheld or delayed. The indemnified
party may in any event participate in any such defense with his or its own
counsel and at his or its own expense.
6.3 Survival. All representations, warranties, indemnities,
covenants and agreements made by Seller and Parent, respectively, in
Seller's Documents or the Parent's Documents, as the case may be, and in
any instrument or certificate delivered pursuant to, or provided for in
said Documents shall survive the consummation of the transactions
contemplated by this Agreement. Each party to this Agreement shall be
deemed to have relied upon each and every representation and warranty of
the other party, regardless of any investigation or examination made at
any time by or for the party relying on such representation and warranty.
ARTICLE VII
CERTAIN DELIVERIES AT CLOSING
7.1 Parent's Deliveries and Conditions to Seller's Obligations.
Parent is delivering the following items to Seller herewith in the
form satisfactory to Seller:
(a) A certified copy of the resolutions of the respective
boards of directors of Parent and Sub authorizing the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
(b) The opinion of Claude E. White, Esq. legal counsel to the
Parent, dated the Closing Date, in the form annexed hereto as Exhibit
7.1(b).
(c) Four Hundred Thousand Dollars ($400,000).
(d) The Physician Employment Agreement, duly executed by the
Sub.
(e) The Employment Agreement, duly executed by Parent (the
"Employment
Agreement").
(f) A certificate for the Parent Stock, in the name of Morris
Notelovitz.
(g) Copies of afl consents, approvals or waivers from
regulatory authorities and third parties necessary for the execution,
delivery and performance of the Parent's Documents and the transactions
contemplated thereby.
(h) Promissory Note in the amount of $600,000.
7.2 Seller's Deliveries.
Seller is delivering to Parent the following herewith in form
reasonably satisfactory to Parent:
(a) A certified copy of the articles of incorporation of, and
a good standing certificate for, each Company, dated not earlier than ten
(10) days prior to the Closing Date, from the Secretary of State of
Florida.
(b) The opinion of Richard M. Knellinger, P.A., legal counsel
to Seller, dated the Closing Date, in the form annexed hereto as Exhibit
7.2(b).
(c) A certified copy of the resolutions adopted by the
Companies' respective boards of directors and shareholders authorizing and
approving the transactions contemplated by this Agreement.
(d) Certificates representing the Merger Company Shares and
the NMF Shares, without legends, duly endorsed in blank or accompanied by
duly executed stock powers, together with any required stock transfer tax
stamps affixed and canceled and all taxes on such transfer, if any, paid
in full, all at the expense of Seller. Such Shares shall be delivered to
the Parent free and clear of all Liens.
(e) The Physician Employment Agreement, duly executed by
Seller.
(f) The Employment Agreement, duly executed by Seller.
(g) The Proxy, duly executed by Seller.
(h) Copies of all consents, approvals or waivers from
regulatory authorities and third parties necessary for the execution,
delivery and performance of Seller's Documents and the transactions
contemplated thereby, all without cost or other adverse consequences to
the Company.
ARTICLE VIII
RESTRICTIVE COVENANTS
8.1 (a) For four (4) years after the Closing Date, Seller shall
not:
(i) directly or indirectly engage or be interested
(whether as owner, partner, lender, consultant, employee, agent or
otherwise) in any business, activity or enterprise which competes with any
aspect of the business being conducted by any of the Companies, Parent or
Sub, or their successor(s);
(ii) directly or indirectly employ or otherwise engage,
or offer to employ or otherwise engage, any person who is then (or was at
any time within two (2) years prior to the time of such employment,
engagement or offer thereof) an employee, representative or agent of any
Company, Parent or Sub, or their successor(s); or
(iii) solicit any business from any person or entity
that has been a patient or customer of any of the Companies, Parent or
Sub, or their successor(s) or directly or indirectly induce or influence
any customer, patient, supplier or other person that has a business
relationship with any of the Companies, Parent of Sub, or their
successor(s) to discontinue or reduce the extent of such relationship.
(b) In addition, Seller shall never use or divulge any trade
secrets, patient, customer or supplier lists, pricing information,
marketing arrangements or strategies, business plans, internal performance
statistics, training manuals or other information concerning any of the
Companies, Parent or Sub or any of its affiliates that is competitively
sensitive or confidential.
8.2 Seller acknowledges and agrees that the covenants contained in
this Article VIII are fair, reasonable and necessary in order to protect
the Parent's expenditure for the Company Shares and therefore it is the
desire and intent of the parties that the provisions of this Article shall
be enforced to the fullest extent permissible under the laws and public
policy applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Article shall be
adjudicated to be invalid or unenforceable, such deletion shall apply only
with respect to the operation of such provision in the particular
jurisdiction in which such adjudication is made. In addition, should any
court determine that the provisions of this Article VIII shall be
unenforceable with respect to scope, duration or geographic area, such
court shall be empowered to substitute, to the extent enforceable,
provisions similar to those contained in this Article VIII, or other
provisions so as to provide to the Parent, to the fullest extent permitted
by applicable law, the benefits intended by this Article VIII.
8.3 Because the breach or attempted or threatened breach of this
restrictive covenant will result in immediate and irreparable injury to
Parent for which the Parent will not have an adequate remedy at law,
Parent shall be entitled, in addition to all other available remedies, to
a decree of specific performance of this covenant and to a temporary and
permanent injunction enjoining such breach, without posting bond or
furnishing similar security. The provisions of this Article VIII are in
addition to and independent of any agreements or covenants contained in
any employment, consulting or other agreement between Parent, Sub any of
the Companies or their successor(s) and Seller.
8.4 Nothing in Section 8.1 shall prevent Seller from engaging
solely in the practice of Medical Services as defined in the
Physician,Employment Agreement after one (1) year following termination of
Seller's employment pursuant to the Employment Agreement or the
Physician's Employment Agreement, whichever first occurs.
ARTICLE IX
MISCELLANEOUS
9.1 Brokers. Seller represents and warrants to Parent that
neither Seller has dealt with or retained any broker or finder or agreed
to pay any commission or fee to any broker or finder for or on account of
this Agreement or the transactions contemplated hereby. Parent represents
and warrants to Seller that it has not dealt with or retained any broker
or finder for or on account of this Agreement or the transactions
contemplated hereby. Each party agrees to indemnify the other against any
loss, cost or expense, including attorneys' fees, as a result of any claim
for a fee or commission asserted by any broker or finder with respect to
this Agreement or the consummation thereof whose claim arises through
dealings with such broker or finder by the indemnifying party.
9.2 Further Assurances. If at any time after the Closing Date any
further assignment, transfers or assurances in law are reasonably
necessary or desirable to carry out the provisions of this Agreement, the
parties to this Agreement shall without further consideration execute and
deliver any and all assignments, transfers, and assurances in law, and do
all things, reasonably necessary or proper to such end and otherwise to
carry out the provisions, intent and transactions contemplated by this
Agreement.
9.3 Notice. Any notice or other communication required, by, or
which may be given pursuant to this Agreement shall be in writing and
either personally delivered or mailed, certified or registered mail,
postage prepaid, return receipt requested, or overnight courier, prepaid,
and shall be deemed given when received. Any such notice or communication
shall be sent to the address set forth below:
If to Parent or Sub, at:
IVF America, Inc.
One Manhattanville Road
Purchase, New York 10577-2100
Attention: Dwight Ryan, Vice President
With a copy to:
IVF America, Inc.
One Manhattanville Road
Purchase, New York 10577-2100
Attention: Claude White, General Counsel
And if to Seller, at:
Morris Notelovitz, M.D.
2801 N.W. 58th Blvd.
Gainesville, Florida 32605
With a copy to:
Richard M. Knellinger, P.A.
Barnett Bank Building
Suite 305
2815 NW 13th Street
Gainesville, Florida 32609-2829
Attn: Richard M. Knellinger
Any party may change the persons and addressees to which
notices or other communications are to be sent to it by giving written
notice of any such change to the other party hereto.
9.4 Headings. The headings contained in this Agreement are
inserted for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
9.5 Exhibits and Schedules. All Exhibits and Schedules referred
to in this Agreement are deemed annexed hereto and made a part of this
Agreement.
9.6 Entire, Agreement. This Agreement, together with the Exhibits
and Schedules and the other written agreements specifically identified
elsewhere in the Agreement constitutes the entire agreement between the
parties to it and supersedes all prior agreements and Understandings with
respect to the subject matter of this Agreement; may not be amended,
modified or discharged, nor may any of its terms be waived, except by an
instrument in writing, signed by the party or parties to be charged; and
shall bind and inure to the benefit of the parties and their respective
heirs, executors, administrators, personal representatives, successors and
permitted assigns. Nothing expressed or mentioned in this Agreement is
intended, or will be construed, to give any person, firm, corporation or
other entity, other than the parties to this Agreement and their
respective successors and assigns, any legal or equitable right, remedy or
claim under or in respect of this Agreement.
9.7 Assignment. This Agreement may not be assigned by any party
hereto without the prior written consent of the other party, except that
Parent may assign this Agreement and its rights hereunder or delegate its
objections hereunder to any direct or indirect wholly-owned subsidiary of
Parent.
9.8 Waivers. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the
right of such party at a later time to enforce the same. No waiver of any
nature, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be or construed as a further or continuing waiver of
any such condition or any breach of any other term, covenant,
representation or warranty of this Agreement.
9.9 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument.
9.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida,
irrespective of the principal place business of the parties hereto.
9.11 Expenses. Each party shall bear its own expenses in
connection with this Agreement and all obligations to be performed by it
hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement the
date first above written.
IVF AMERICA, INC. MIDLIFE CENTERS OF AMERICA, INC.
By: /s/ Dwight P. Ryan By: /s/ Morris Notelovitz
Name: Dwight P. Ryan Name: Morris Notelovitz, M.D.
Title: Vice President Title: President
INMD ACQUISITION CORP. CLIMACTERIC CLINIC, INC.
By: /s/ Dwight P. Ryan By: /s/ Morris Notelovitz
Name: Dwight P. Ryan Name: Morris Notelovitz, M.D.
Title: Vice President Title: President
SELLER: WOMEN'S RESEARCH CENTERS, INC.,
AMERICA
/s/ Morris Notelovitz By: /s/ Morris Notelovitz
MORRIS NOTELOVITZ, M.D. Name: Morris Notelovitz, M.D.
Title: President
NATIONAL MENOPAUSE FOUNDATION, INC.
By: /s/ Morris Notelovitz
Name: Morris Notelovitz, M.D.
Title: President
EXHIBIT B
June 7, 1996
IVF America, Inc.
One Manhattanville Road
Purchase, New York 10577-2100
Ladies and Gentlemen:
In connection with the closing of the Agreement and Plan of Merger
("Agreement") dated June 7, 1996 by and among IVF America, Inc., doing
business as IntegraMed America (the "Company"), INMD Acquisition Corp.,
The Climacteric Clinic, Inc., Midlife Centers of America, Inc., Women's
Research Centers, Inc., America, National Menopause Foundation, Inc. and
Morris Notelovitz, M.D. and in compliance with Section 5.5 of the
Agreement. I hereby irrevocably constitute and appoint Gerardo Canet my
attorney-in-fact and agent to vote any and all shares of the 666,666
shares of Common Stock of the Company issued to me and bearing Certificate
Number IVF 1029 or any replacement thereof (the "Shares"), at any and all
meetings of the Shareholders of the Company, at any and all postponements
or adjournments thereof and in any action by stockholders without a
meeting. In connection with such Proxy, Mr. Canet agrees to vote the
Shares in favor of my election to the Board of Directors of the Company.
I agree I that this Proxy is being given to induce (the Company to enter
into the Agreement, and that this Proxy constitutes part of the
consideration provided by me under the Agreement. This Proxy shall expire
on the earlier of the second anniversary of the Closing Date (as defined
in the Agreement) or termination of either the Employment or Physician
Employment Agreements referred to in the Agreement. During the pendency
of this Proxy, the Company shall have the right, by written notice to me,
to substitute another individual to have the rights and responsibilities
granted to Gerardo Canet in this Proxy. Upon expiration of this Proxy, I
shall have the absolute and unrestricted right, power and authority to
vote the Shares as I, in my sole discretion, see fit.
/s/ Morris Notelovitz
Morris Notelovitz, M.D.
Acknowledged and Accepted:
IVF America, Inc.
By: /s/ Dwight P. Ryan
Dwight P. Ryan, Vice President
