Exhibit 10.14
EXECUTION COPY
ASSET PURCHASE AGREEMENT
This
ASSET PURCHASE AGREEMENT (this “ Agreement
”),
dated as of February 23, 2007 is made and entered into by and
between Universal Hospital Services, Inc., a Delaware
corporation (“ UHS
”),
and Intellamed, Inc., a Texas corporation (“
Intellamed
”).
WHEREAS,
on the terms and subject to the conditions set forth in this
Agreement, Intellamed desires to sell and assign to UHS, and
UHS desires to purchase from Intellamed, the assets of the
ICMS division of Intellamed (the “ Division
”)
as more particularly described herein and UHS shall assume and
to pay certain obligations, commitments and liabilities of the
Division to the extent provided herein for the aggregate
consideration described herein.
NOW,
THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements and the conditions
set forth in this Agreement, UHS and Intellamed hereby agree
as follows:
ARTICLE
I
TRANSFER
OF ASSETS; ASSUMPTION OF LIABILITIES
Section
1.01 Transfer of Assets. On
the terms and subject to the conditions set forth in this
Agreement, Intellamed shall, at the Closing (as defined in
Section 3.01 hereof), sell, transfer and assign to UHS,
and UHS shall purchase and acquire from Intellamed, all of
Intellamed’s right, title and interest, as of the
Closing Date (as defined in Section 3.01 hereof), in and
to all of the assets currently owned by Intellamed or the
Division, as applicable, and necessary for use in the conduct
and operation of the Division after the Closing (as defined in
Section 3.01) by UHS, including, without limitation, the
assets identified below (collectively, the “
Acquired
Assets ”),
but excluding the Excluded Assets (as defined in
Section 1.02):
(a)
All
of the equipment, machinery, furniture, fixtures, including
test equipment, tools, work benches, interests in vehicles,
computers, printers, servers and other data processing
hardware, wherever located, including without limitation,
those assets identified on Schedule 1.01(a)
hereto;
(b)
All
of the inventories of supplies and parts and the interest in
all orders or contracts for the purchase of supplies and
parts, including without limitation, those assets identified
on Schedule 1.01(b)
hereto,
which shall be updated at Closing (collectively, “the
“ Supplies
and Parts ”);
(c)
All
of the interest in and benefits under all licenses, leases,
contracts and agreements (other than those identified in
Section 1.01(d)) including, without limitation, those
identified in Schedule 1.01(c)
,
which shall be updated at Closing;
(d)
All
of the interest in and all benefits under all customer
contracts, including, without limitation, the contracts
identified in Schedule 1.01(d)
which
shall be updated at Closing
(together
with the licenses, leases, contracts and agreements subject to
Section 1.01(c), the “ Subject
Contracts ”);
(e)
All
documents or other tangible materials embodying technology or
intellectual property rights owned by or licensed to
Intellamed or the Division, as applicable, wherever located,
including, without limitation all software programs and
related documentation for software;
(f)
All
Intellectual Property Rights (as defined in
Section 4.20(a)) owned by or licensed to Intellamed or
the Division, as applicable, or used in, developed for use in
or necessary to the conduct and operation of the Division as
now conducted, including, without limitation, those identified
in Schedule 1.01(f)
;
(g)
True
and complete copies of all books, records and other documents
and information relating to the Acquired Assets, including,
without limitation, all customer, prospect, dealer and
distributor lists, sales literature, inventory records,
purchase orders and invoices, sales orders and sales order log
books, customer information, commission records,
correspondence, product data, material safety data sheets,
price lists, product demonstrations, quotes and bids and all
product catalogs and brochures;
(h)
All
permits, licenses and other governmental approvals held by
Intellamed or the Division, as applicable, to the extent they
are assignable (collectively, the “ Assignable
Permits ”);
(i)
All
interest in those telephone numbers listed in
Schedule
1.01(i) ,
including the general telephone number currently being used
for the Houston, Texas office of the Division;
and
(j)
Goodwill
of the Division (including all goodwill associated with and
symbolized by any other trademark or service mark, trade name
or corporate name used in the conduct and operation of the
Division as the Division is now being conducted), all related
tangibles and intangibles and all rights to continue to use
the Acquired Assets in the conduct of a going
business.
The
parties hereto expressly agree that UHS is not assuming any of
the liabilities, obligations or undertakings relating to the
Acquired Assets, except as provided in
Section 1.03.
Section
1.02 Excluded Assets. Intellamed
shall not sell, transfer or assign to UHS, and UHS shall not
purchase or acquire the assets set forth in Schedule
1.02 ,
any cash, commercial paper, bank accounts or marketable
securities of the Division, the receivables earned but not
billed and the accounts receivable on the books of Intellamed
on the Closing Date and any insurance policy maintained by
Intellamed or the Division, as applicable (hereinafter, all
such assets shall be referred to collectively as the
“ Excluded
Assets ”).
Section
1.03 Assumed Liabilities. At
the Closing and on the terms and subject to the conditions set
forth in this Agreement, UHS agrees to assume only the
following liabilities of Intellamed (collectively,
the
“
Assumed
Liabilities ”)
and shall not assume or have any responsibility with respect
to any other liability of Intellamed not included within the
definition of the Assumed Liabilities: all obligations and
liabilities arising after the Closing (or later date on which
assignments are received pursuant to Section 1.05 below)
under (a) all Subject Contracts that Intellamed or the
Division, as applicable, assigns to UHS and that UHS assumes
(including the performance of services relating to unearned
revenue under the customer contracts and of future obligations
under leases for vehicles used in the operation of the
Division), (b) all Assignable Permits assigned to UHS, in each
case other than any liability
arising
out of or relating to a breach that occurred prior to the Closing
(or later date on which assignments are received pursuant to
Section 1.05 below) and (c) earned but unused vacation of
certain employees of Intellamed as set forth in Schedule
1.03 (which
shall be updated as of the Closing Date).
Section
1.04 Retained Liabilities. UHS
shall not assume, and nothing contained in this Agreement
shall be construed as an assumption by UHS of, any
liabilities, obligations or undertakings of Intellamed of any
nature whatsoever, whether accrued, absolute, fixed or
contingent, known or unknown, due or to become due,
unliquidated or otherwise, including, without limitation, any
liabilities, obligations or undertakings under any of its
Employee Plans or payroll or employment practices, other than
the Assumed Liabilities.
Section
1.05 Unobtained Consents. In
the event that any consent to assignment of any Acquired Asset
has not yet been obtained as of the Closing (each such Asset,
a “ Restricted
Asset ”),
then:
(a)
at
the Closing, Intellamed shall assign or transfer such
Restricted Asset or any interest arising thereunder or
resulting therefrom to UHS to the extent that such assignment
or transfer would neither constitute a breach thereof nor
adversely affect the material rights of UHS
thereunder;
(b)
Intellamed
shall continue to use its best efforts and cooperate with UHS
to obtain all such consents as soon as practicable following
Closing; and
(c)
if
and when the applicable consent(s) is subsequently obtained,
this Agreement or any other document or instrument delivered
at the Closing shall thereafter constitute an assignment or
transfer of such Restricted Asset and all interests arising
thereunder or resulting therefrom in their
entirety.
ARTICLE
II
PURCHASE
PRICE
Section
2.01 Amount. The
aggregate consideration for the Acquired Assets shall be (a) a
purchase price (the “ Purchase
Price ”)
equal to the sum of (i) the Base
Purchase Price ,
which shall be $16,500,000, less the following items referred
to collectively in Section 2.01(a) as the “
Subtractions
”):
(A) the
accounts
receivable of the Division that have been earned but not
collected as of the Closing Date, (B) the unearned
deferred revenue collected by Intellamed from customers of the
Division as of the Closing Date, (C) $98,000 (relating to
the initial valuation of Supplies and Parts),
(D)
earned
but unused vacation of certain employees of Intellamed as set forth
in Schedule
1.03 (which
shall be updated as of the Closing Date) and (E) an amount
equal to 1.36 times the amount (if any) by which (x) the annualized
revenue from the contracts identified in Schedule 1.01(d)
as
updated at Closing is less than (y) $10,200,000 (the “
Contract
Revenue Deficiency ”)
as of the Closing Date, plus (ii) an amount equal to (A)
Intellamed’s book value for new Supplies and Parts as of the
Closing Date and (B) 33% of the new replacement cost for the
harvested Supplies and Parts on hand on the Closing Date and (iii)
the Earn-Out
Purchase Price as
more particularly described in Section 2.02 and (b) the
assumption by UHS of the Assumed Liabilities. The respective
amounts of the Subtractions shall be estimated and agreed to by
Intellamed and UHS at Closing (collectively, the “
Estimated
Subtractions ”).
Within 45 days after the Closing Date, Intellamed and UHS shall
agree on the definitive respective amounts of the Subtractions
(collectively, the “ Definitive
Subtractions ”).
Within 45 days after the Closing Date, Intellamed shall remit
payment to UHS by company check for the amount by which the
Definitive Subtractions exceed the Estimated Subtractions (if any)
and UHS shall remit payment to Intellamed by company check for the
amount by which the Estimated Subtractions exceed the Definitive
Subtractions (if any). In addition, at Closing, UHS shall pay to
Intellamed.
Section
2.02 Earn-Out Purchase Price.
(a)
The
Earn-Out Purchase Price shall be equal to the amount by which
the “ Earn-Out
Revenue ”
exceeds the “ Target
Earn-Out Revenue ”
during the 12 full consecutive months following the Closing
Date (the “ First
Earn-Out Period ”)
and during the 12 full consecutive months following the first
anniversary of the Closing (the “ Second
Earn-Out Period ”).
(b)
The
Earn-Out Revenue shall be defined as the gross revenues of UHS
during the First Earn-Out Period or the Second Earn-Out
Period, as applicable, from: (i) a written list of customers
(including, without limitation, names and relevant contact and
other information) of the Division that Intellamed shall
provide to UHS at Closing (the “ Customer
List ”);
and (ii) any additional customers obtained under the Joint
Promotion Agreement to be entered into by Intellamed and UHS
at Closing (as more particularly described in Section 7.01(f))
and which Intellamed and UHS agree to include in the Earn-Out
Revenue. Intellamed shall be permitted to approach all
potential customers, other than (A) current customers of UHS
for which UHS is providing onsite biomedical, imaging or asset
management services or (B) customers with which UHS is
conducting, and can illustrate, active discussions for the
provision of biomedical or imaging program
services.
(c)
The
Target Earn-Out Revenue for (i) the First Earn-Out Period
shall equal $15,646,000 and (ii) the Second Earn-Out Period
shall equal $17,211,000. The Target Earn-Out Revenue for the
First Earn-Out Period and for the Second Earn-Out Period shall
be reduced by the amount of the Contract Revenue Deficiency
for the First Earn-Out Period and for the Second Earn-Out
Period, respectively.
(d)
UHS
shall provide to Intellamed a detailed accounting of the
revenue from each customer and the Earn-Out Revenue during the
First Earn-Out Period and the Second Earn-Out Period,
respectively, accompanied by a certification from the Chief
Financial Officer of UHS as to the accuracy of the
calculations in such accounting, not later than 30 days after
the end of each such period. Intellamed shall have the right,
at its sole expense, to review the books of UHS to verify the
foregoing accounting.
(e)
To
the extent that the Earn-Out Purchase Price exceeds $5,000,000
(the “ Excess
”)
and in the event that the Amended and Restated Credit
Agreement dated as of May 26, 2005 among UHS and General
Electric Capital Corporation as agent for the lenders and the
other lenders party thereto remains in full force and effect,
then UHS shall obtain the consent of General Electric Capital
Corporation before paying any of the Excess to
Intellamed.
Section
2.03 Advance of Purchase Price. UHS
shall make advances of the Purchase Price to Intellamed (each,
an “ Advance
”
and collectively the “ Advances
”)
in accordance with the following terms and
conditions:
(a)
UHS
shall make an Advance to Intellamed of $500,000 upon the
execution and delivery of this Agreement by UHS and
Intellamed.
(b)
UHS
shall make an Advance to Intellamed of $500,000 on
March 1, 2007 and April 1, 2007 provided that as of
the date of such Advance (i) the conditions to UHS’
obligation to close the transactions contemplated hereby in
Section 7.01(a) are satisfied, (ii) Intellamed shall
not have breached any of its covenants and agreements
hereunder, (iii) the conditions to UHS’ obligation to
close the transactions contemplated hereby in Section 7.01(d)
are satisfied, (iv) UHS shall have received the consent of
General Electric Capital Corporation as agent for the lenders
and the other lenders party thereto with respect to the
Amended and Restated Credit Agreement dated as of May 26,
2005, and (iv) Intellamed shall have delivered to UHS a
certificate of its Chief Executive Officer to the effect that
each of the conditions to an Advance set forth in
Section 2.03(b)(i) through (iii) are satisfied in all
respects.
(c)
Intellamed
shall execute and deliver a promissory note in the form
substantially as forth in Exhibit
A (the
“ Note
”)
upon the execution and delivery of this Agreement by UHS and
Intellamed.
Section
2.04 Time and Manner of Payments. UHS
shall make the Advances on or prior to the Closing Date and
shall pay the Base Purchase Price on the Closing Date by wire
transfer to Intellamed’s account at such bank as
Intellamed has indicated to UHS no less than three (3)
business days prior to the Closing. Subject to
Section 2.02(e) hereof, UHS shall pay the Earn-Out
Purchase Price by wire transfer to Intellamed’s account
at such bank as Intellamed has indicated to UHS not less than
three (3) business days prior to the date on which such
payment actually is made: (a) for the First Earn-Out
Period, within 30 days following the end of the First Earn-Out
Period and (b) for the Second Earn-Out Period, within 30
days following the end of the Second Earn-Out
Period.
Section
2.05 Dispute Resolution. In the event of any dispute
between Intellamed and UHS concerning (a) the Definitive
Subtractions or (b) the Earn-Out Revenue, Intellamed and UHS
shall refer such dispute to an accounting firm that Intellamed
and UHS shall mutually agree upon (the
“Accountant”), which shall be instructed to
resolve such disputes within 60 days of the referral, acting
as an expert and not as an arbitrator. Intellamed and UHS
shall make available to the
Accountant
at reasonable times and upon reasonable notice at any time
during the pendency of any such dispute the documents,
materials and the books and records used in determining the
Definitive Subtractions or the Earn-Out Revenue, as
applicable. Intellamed and UHS shall have the right to meet
jointly with the Accountant during this period and to present
their respective positions. The resolution of disputes by the
Accountant and its determination of the Definitive
Subtractions or the Earn-Out Revenue, as applicable, shall (i)
be set forth in writing, (ii) be conclusive and binding upon
Intellamed and UHS and (iii) become final and binding upon the
date of such resolution.
Section
2.06 Allocation of Purchase Price. Within
90 days after the Closing, UHS shall, subject to
Intellamed’s consent (which shall not be unreasonably
withheld), prepare a written and good faith allocation of the
Purchase Price among the Acquired Assets, taking into account
any appraisals which may be obtained by UHS (copies of which
shall be provided to Intellamed), the applicable Treasury
Regulations and the fair market value of such items. Such
written allocation shall then be attached to this Agreement
as Exhibit B
.
Intellamed shall provide information that may be required by
UHS for the purpose of preparing Returns (as defined in
Section 4.13) with respect to this transaction and shall
execute and file such Returns as are requested by UHS. UHS and
Intellamed agree to make consistent use of the allocation,
fair market value and useful lives specified on
Exhibit B
for
all purposes, including, without limitation, Tax (as defined
in Section 4.13) and financial accounting
purposes.
ARTICLE
III
CLOSING
Section
3.01 Closing. The
closing of the transactions contemplated by this Agreement
(the “ Closing
”)
shall occur on either April 1, 2007 or May 1, 2007 at
10:00 a.m., Minneapolis, Minnesota time, and shall take
place at 7700 France Avenue South, Suite 275, Edina, MN 55435,
or on such other date and time and at such other place as is
mutually agreeable to UHS and Intellamed. The date on which
the Closing occurs is referred to herein as the “
Closing
Date ”
and the Closing shall be deemed effective as of
12:01 a.m., Minneapolis, Minnesota time, on the Closing
Date.
Section
3.02 General Procedure; Deliveries. At
the Closing, each party shall deliver to the party entitled to
receipt thereof the documents required to be delivered
pursuant to this Agreement and such other documents,
instruments and materials (or complete and accurate copies
thereof, where appropriate) as may be reasonably required in
order to effectuate the intent and provisions of this
Agreement, and all such documents, instruments and materials
shall be satisfactory in form and substance to counsel for the
receiving party. The conveyance, transfer, assignment and
delivery of the Acquired Assets
shall
be effected by the execution and delivery of a bill of sale in
substantially the form attached hereto as Exhibit C
(the
“ Bill
of Sale ”),
an assignment and assumption agreement in substantially the
form attached hereto as Exhibit D
(the
“ Assignment
and Assumption Agreement ”),
and such other instruments of conveyance, transfer, assignment
and delivery (including assignments of all customer and vendor
contracts) as UHS shall reasonably request to cause Intellamed
to transfer, convey, assign and deliver the Acquired Assets to
UHS and as Intellamed shall reasonably request to evidence
UHS’s assumption of the Assumed
Liabilities.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF INTELLAMED
Intellamed
and all of Intellamed’s subsidiaries as set forth
in Schedule
4.06 hereby
jointly represent and warrant to UHS that, except as set forth
in the Disclosure Schedule delivered by Intellamed to UHS on
the date hereof (collectively, the “ Disclosure
Schedule ”)
(which Disclosure Schedule sets forth the exceptions to the
representations and warranties contained in this Article IV
under captions referencing the specific Sections to which such
exceptions apply):
Section
4.01 Incorporation and Corporate Power.
Except
as set forth in Schedule
4.01 ,
Intellamed is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Texas and has the corporate power and authority and all
authorizations, licenses, permits and certifications necessary
for the conduct and operation of the Division as the Division
is now being conducted and to own, lease and operate the
Acquired Assets. The copies of Intellamed’s Articles of
Incorporation and Bylaws which have been furnished by
Intellamed to UHS prior to the date hereof reflect all
amendments made thereto and are correct and complete as of the
date hereof. Intellamed is qualified to do business as a
foreign corporation in each of Kansas and
Tennessee.
Section
4.02 No Breach. Except
as set forth in Schedule 4.02
,
the execution, delivery and performance of this Agreement by
Intellamed and the consummation by Intellamed of the
transactions contemplated hereby do not conflict with or
result in any breach of any of the provisions of, constitute a
default under, result in a violation of, result in the
creation of a right of termination or acceleration or any
lien, security interest, charge or encumbrance, or require any
authorization, consent, approval, exemption or other action by
or notice to any court or other governmental body, under the
provisions of the Articles of Incorporation or Bylaws of
Intellamed, any indenture, mortgage, lease, loan agreement or
other agreement or instrument by which Intellamed or the
Division, as applicable, or the Acquired Assets are bound or
affected or any law, statute, rule or regulation or order,
judgment or decree to which Intellamed or the Assets are
subject.
Section
4.03 Governmental Authorities; Consents.
Except
as set forth in Schedule 4.03
,
(a) neither Intellamed nor the Division, as applicable,
is required to submit any notice, report or other filing with
any governmental authority in connection with the execution or
delivery of this Agreement or the consummation of the
transactions contemplated hereby and (b) no consent,
approval or authorization of any
governmental
or regulatory authority or any other party or person is
required to be obtained by either Intellamed or the Division,
as applicable, in connection with the execution, delivery and
performance of this Agreement or the transactions contemplated
hereby. Each of Intellamed and the Division, as applicable,
has obtained or at Closing shall have obtained all consents,
approvals or authorizations disclosed in Schedule
4.03 pursuant
to the preceding sentence.
Section
4.04 Execution, Delivery; Valid and Binding
Agreement. The
execution, delivery and performance of this Agreement by
Intellamed and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by the Board of Directors of Intellamed, and no
other proceedings on the part of Intellamed are necessary to
authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered
by Intellamed and constitutes the valid and binding obligation
of Intellamed, enforceable in accordance with its terms,
except that (a) such enforcement may be subject to any
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, relating
to or limiting creditors’ rights generally and (b) the
remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought.
Section
4.05 Financial Statements. Intellamed
has furnished UHS with a copy of the statement of sales and
direct costs of sales of the service division of Intellamed
for the 10-month period ended October 31, 2006
(collectively, the “ Financial
Statements ”).
The Financial Statements (a) are based upon the information
contained in the books and records of Intellamed, (b) fairly
present the sales and direct costs of sales of the service
division of Intellamed for the periods referred to therein and
(c) were prepared in conformity with accounting principles
generally accepted in the United States of
America.
Section
4.06 No Subsidiaries. Except
as set forth in Schedule
4.06 ,
Intellamed does not own any stock, partnership interest, joint
venture interest or any other security issued by any other
corporation, organization or entity.
Section
4.07 Absence of Undisclosed Liabilities.
To
the knowledge of Intellamed, with respect to the Acquired
Assets or the conduct and operation of the Division,
Intellamed has no liabilities, obligations or undertakings
(whether accrued, absolute, contingent, unliquidated or
otherwise, whether due or to become due, whether known or
unknown, and regardless of when asserted) being assumed by UHS
hereunder or by operation of law other than the Assumed
Liabilities.
Section
4.08 No Material Adverse Changes. Since October 31,
2006, there has been no event, occurrence or development with
respect to the conduct and operation of the Division or the
Acquired Assets that, taken together with other events,
occurrences and developments with respect to the conduct and
operation of the Division or the Acquired Assets, has had, or
would reasonably be expected to have, a Material Adverse
Effect. As used in the Agreement, the term “Material
Adverse Effect” shall mean any effect that is (a)
materially adverse to the condition (financial or otherwise),
performance, (solely with respect to this Section 4.08, to the
knowledge of Intellamed) prospects or operations of the
Division or the Acquired Assets or (b) would impair the
ability of Intellamed to perform its obligations under this
Agreement or otherwise threaten or impede the consummation of
the transactions contemplated hereby.
Section
4.09 Absence of Certain Developments. Except
as set forth in Schedule
4.09 ,
since October 31, 2006, with respect to the conduct and
operation of the Division, neither the Division nor
Intellamed, as applicable, has:
(a)
mortgaged,
pledged or subjected to any lien, charge or any other
encumbrance, any of the Acquired Assets;
(b)
sold,
assigned or transferred (including, without limitation,
transfers to any employees, affiliates or shareholder) any
tangible assets, or canceled any debts or claims, in each
case, except in the ordinary course of business;
(c)
sold,
assigned or transferred (including, without limitation,
transfers to any employees, affiliates or shareholder) any
patents, trademarks, trade names, copyrights, trade secrets or
other intangible assets;
(d)
disclosed,
to any person other than UHS and authorized representatives of
UHS or Intellamed, any proprietary or confidential
information, other than pursuant to a confidentiality
agreement prohibiting the use or further disclosure of such
information, which agreement is set forth in
Schedule
4.09 and
is in full force and effect on the date hereof;
(e)
waived
any rights of material value or suffered any extraordinary
losses or adverse changes in collection loss experience,
whether or not in the ordinary course of business or
consistent with past practice;
(f)
taken
any other action or entered into or modified or terminated any
other transaction or agreement other than in the ordinary
course of business and in accordance with past custom and
practice, or entered into any transaction with any employee,
officer, director, affiliate or shareholder, other than
employment arrangements otherwise disclosed in this Agreement
and the Disclosure Schedule hereto, or the transactions
contemplated by this Agreement;
(g)
increased
the compensation and employee benefits of officers or
employees thereof or paid any bonus thereto;
(h)
suffered
any material theft, damage, destruction or loss of or to any
property or properties owned or used by it, whether or not
covered by insurance;
(i)
made
any change in accounting principles or practices from those
utilized in the preparation of the Financial
Statements;
(j)
made
any change in employment terms for any of the directors,
officers and employees outside the ordinary course of business
or adopted, modified or terminated any Employee
Plan;
(k)
delayed
or postponed the payment of accounts payable and other
liabilities outside of the ordinary course of business;
or
(l)
agreed
to do any of the foregoing.
Section
4.10 Inventory. The
Supplies and Parts are (a) of quality and quantity usable in
the ordinary course of business; (b) not obsolete or damaged;
and (c) in good working condition.
Section
4.11 Gross Accounts Receivable. Intellamed’s
gross accounts receivable outstanding on the Closing Date
shall be valid receivables subject to no valid counterclaims,
defenses or offsets except routine customer complaints or
warranty demands of an immaterial nature.
Section
4.12 Properties; Assets.
(a)
Intellamed
does not own any real property. The real property demised by
the leases (collectively, the “ Leases
”)
described in Schedule
4.12 constitutes
all of the real property used or occupied by Intellamed (the
“ Real
Property ”).
The Real Property has access, sufficient for the conduct and
operation of Intellamed as the Division is now being
conducted, to public roads and to all utilities, including
electricity, sanitary and storm sewer, potable water, natural
gas and other utilities, used in the conduct and operation of
the Division at that location.
(b)
The
Leases are in full force and effect and Intellamed or the
Division, as applicable, holds a valid and existing leasehold
interest under the Leases for the respective terms set forth
therein. Intellamed has delivered to UHS true and complete
copies of the Leases, and the Leases have not been modified in
any respect, except to the extent that such modifications are
disclosed by the copies delivered to UHS. Neither Intellamed
nor the Division, as applicable, is in default, and no
circumstances exist which, if unremedied, would, either with
or without notice or the passage of time or both, result in
such default under the Leases; nor, to the knowledge of
Intellamed or the Division, as applicable, is any other party
to the Leases in default.
(c)
Except
as set forth in Schedule
4.12 ,
Intellamed or the Division, as applicable, has good and
marketable title to the Acquired Assets which it owns, free
and clear of all liens and encumbrances. At the Closing,
Intellamed or the Division, as applicable, shall deliver the
Acquired Assets to UHS free and clear of all liens and
encumbrances.
(d)
Schedule 1.01(a)
hereto
sets forth a description of all Acquired Assets which
constitute equipment, machinery, computers, work stations,
test equipment, furniture and fixtures, owned by Intellamed or
the Division, as applicable. Schedule 1.01(b)
,
as amended at Closing, shall set forth a description of all
Acquired Assets which constitute the Supplies and Parts.
Except as set forth in Schedule
4.12 ,
the Acquired Assets to be transferred to UHS at Closing
constitute all of the assets necessary for the conduct and
operation of the Division in the ordinary course of business
as the Division is currently being conducted. All of the
Acquired Assets to be transferred at the Closing are in good
condition and repair, ordinary wear and tear excepted, and are
usable (consistent with current use) in the ordinary course of
business as the Division is currently being conducted. There
are no material defects in the Acquired Assets or other
conditions relating thereto.
(e)
Neither
Intellamed nor the Division, as applicable, is in violation in
any material respect of any applicable zoning ordinance or
other law, regulation or requirement relating to the operation
of any properties used, and neither Intellamed nor the
Division, as applicable, have received any notice of any such
violation, or the existence of any condemnation proceeding
with respect to the Real Property.
(f)
Neither
Intellamed nor the Division, as applicable, have any knowledge
of improvements made or contemplated to be made by any public
or private authority, the costs of which are to be assessed as
special taxes or charges against any of the Real Property,
which special taxes or charges could be transferred to the
lessee under any of the Leases, and there are no present
assessments.
(g)
Intellamed,
the Division and the Real Property are in material compliance
with all applicable environmental laws, rules and regulations.
To the knowledge of Intellamed or the Division, as applicable,
no dangerous, toxic or hazardous pollutant, contaminant,
chemical or similar material or substance has been generated,
treated, manufactured, buried, stored or released on, under or
about any part of the Real Property.
Section
4.13 Tax Matters. Intellamed
warrants that Intellamed has: (a) timely filed (or has had
timely filed on its behalf) all returns, declarations,
reports, estimates, information returns, schedules and
statements (collectively, the “ Returns
”)
required to be filed or sent by it in respect of any Taxes or
required to be filed or sent by it by any taxing authority
having jurisdiction; (b) timely and properly paid (or has had
paid on its behalf) all Taxes shown to be due and payable on
such Returns; (c) established on its balance sheet as of
December 31, 2006, in accordance with the accounting basis
used by Intellamed for income tax purposes, reserves that, to
the knowledge of Intellamed, are adequate for the payment of
any Taxes not yet due and payable by Intellamed; and (d)
complied in all material respects with all applicable laws,
rules and regulations relating to the withholding of Taxes and
the payment thereof. All Returns filed by or on behalf of
Intellamed are correct and complete. Intellamed has not
requested any extension of time within which to file any
Return, which Return has not since been filed. No deficiency
for any Taxes has been proposed, asserted or assessed against
Intellamed that has not been resolved and paid in full. There
are no liens for Taxes upon the Division or the Acquired
Assets. For purposes of this Agreement, the term
“ Tax
”
or “ Taxes
”
means all taxes, charges, fees, levies, or other assessments
of any kind.
Section
4.14 Contracts and Commitments.
(a)
Schedule
4.14 lists
the following contracts, commitments and/or binding
understandings, whether oral or written, to which Intellamed
or the Division, as applicable, is a party and which are
currently in effect, and which relate to the conduct and
operation of the Division or the Acquired Assets:
| |
(i)
|
all
employment, consulting or severance agreements, all Employee Plans
and all union or collective bargaining agreements;
|
| |
(ii)
|
all
distributor, dealer, manufacturer’s representative,
finder’s or broker’s agreements, sales agency or
advertising agency contracts;
|
| |
(iii)
|
all
contracts terminable by the other party thereto upon a change of
control of Intellamed or the Division, as applicable, or upon the
failure of Intellamed or the Division, as applicable, to satisfy
financial or performance criteria specified in such contract as
provided therein;
|
| |
(iv)
|
all
leases of real or personal property (to the extent not otherwise
disclosed in Schedule
4.12 );
|
| |
(v)
|
all
contracts between or among Intellamed or the Division, as
applicable, any director, officer or employee thereof or any member
of his or her family or any entity affiliated with any such person
relating in any way to the Division in excess of $1,000 or that is
otherwise material;
|
| |
(vi)
|
all
contracts relating to the performance and payment of any surety
bond or letter of credit required to be maintained by Intellamed or
the Division, as applicable;
|
| |
(vii)
|
all
confidentiality or nondisclosure agreements;
|
| |
(viii)
|
all
agreements or indentures relating to the borrowing of money or to
mortgaging, pledging or otherwise placing a lien on any of the
Acquired Assets;
|
| |
(ix)
|
any
guaranty of any obligation for borrowed money or
otherwise;
|
| |
(x)
|
all
contracts or group of related contracts with the same party for the
purchase of products or services under which the undelivered
balance of such products or services is in excess of
$5,000;
|
| |
(xi)
|
all
contracts or group of related contracts with the same party for the
sale of products or services under which the undelivered balance of
such products or services has a sales price in excess of
$1,000;
|
| |
(xii)
|
all
agreements for the sale of any capital asset;
|
| |
(xiii)
|
all
franchise agreements;
|
| |
(xiv)
|
any
contract or commitment for capital expenditures in excess of
$5,000;
|
| |
(xv)
|
all
contracts which prohibit Intellamed or the Division, as applicable,
from freely engaging in business anywhere in the United
States;
|
| |
(xvi)
|
all
license agreements or agreements providing for the payment or
receipt of royalties, finder’s fees or other compensation by
Intellamed or the Division, as applicable, in connection with the
Intellectual Property Rights listed in Schedule
4.20 ;
|
| |
(xvii)
|
all
agreements, whether oral or written, providing for the payment or
receipt of royalties, commissions, finder’s fees or other
compensation by Intellamed or the Division, as
applicable;
|
| |
(xviii)
|
all
Subject Contracts; and
|
| |
(xix)
|
any
other agreement of Intellamed or the Division, as applicable, not
entered into in the ordinary course of business or that is
otherwise material to the Acquired Assets, the Division, or the
financial condition or results of operation of Intellamed or the
Division, as applicable, or the sales and direct costs of sales of
the service division of Intellamed.
|
(b)
Each
of Intellamed or the Division, as applicable, has performed
all obligations required to be performed by it in connection
with the contracts or commitments required to be disclosed
in Schedule
4.14 and
is not in receipt of any claim of default under any contract
or commitment required to be disclosed under such caption.
Neither Intellamed nor the Division, as applicable, has any
knowledge of any breach or anticipated breach by any other
party to any contract or commitment required to be disclosed
under such caption.
(c)
Prior
to the date of this Agreement, UHS has been supplied with a
true and correct copy of each written contract or commitment,
and a written description of each oral contract or commitment,
referred to in Schedule
4.14 ,
together with all amendments, waivers or other changes
thereto.
(d)
Except
as set forth in Schedule 4.14
,
all of the interest of Intellamed or the Division, as
applicable, in and benefits under all licenses, leases,
contracts and agreements are assignable in accordance with
Sections 1.01(c) and 1.01(d) hereof.
Section
4.15 Litigation. There
are no actions, suits, proceedings, orders or investigations
pending or, to the knowledge of Intellamed or the Division, as
applicable, threatened against Intellamed or the Division, as
applicable, at law or in equity or before or by any federal,
state or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign with
respect to the Acquired Assets or the Division.
Section
4.16 No Brokers or Finders. Except
as set forth in Schedule 4.16, there are no claims for
brokerage commissions, finders’ fees, investment
advisory fees or similar compensation in connection with the
transactions contemplated by this Agreement, based on any
arrangement,
understanding,
commitment or agreement made by or on behalf of Intellamed or
the Division, as applicable, obligating Intellamed or the
Division, as applicable, or UHS to pay such
claim.
Section
4.17 Employees.
(a)
Each
of Intellamed and the Division, as applicable, has complied in
all material respects with all laws relating to the employment
of labor, including provisions thereof relating to wages,
hours, equal opportunity, collective bargaining,
nondiscrimination and the payment of social security and other
Taxes. To the knowledge of Intellamed or the Division, as
applicable, no officer or manager of the Division has any
present intention to terminate his or her employment, or is a
party to any confidentiality, non-competition, proprietary
rights or other such agreement between such employee and any
party besides such entity that would be material to the
performance of such employee’s employment duties, or the
ability of Intellamed or the Division to conduct the business
of such entity. No labor strike, work stoppage, slowdown, or
other material labor dispute has occurred, and none is
underway or, to the knowledge of Intellamed or the Division,
as applicable, threatened. There is no workman’s
compensation liability, experience or matter outside the
ordinary course of business. There is no employment-related
charge, complaint, grievance, investigation, inquiry or
obligation of any kind, pending or threatened in any forum,
relating to an alleged violation or breach by Intellamed or
the Division, as applicable, or any officer or director
thereof, of any law, regulation or contract; and no employee
or agent of the Division has committed any act or omission
giving rise to material liability for any such violation or
breach. No employee, officer or manager of the Division is
excluded, suspended or otherwise ineligible to participate in
any federal or state health care program or in any state or
federal procurement/non-procurement program; has received
notice that the government proposes to exclude or debar such
employee, officer or manager from participation in any federal
or state health care program or procurement/non-procurement
program; or is the subject of or otherwise part of any ongoing
federal or state health care investigation.
(b)
Schedule 4.17(b)
lists
all employees of the Division who hold a temporary work
authorization, including but not limited to H-1B, L-1, F-1 or
J-1 visas or work authorizations (collectively, the
“ Work
Permits ”),
setting forth the name of each employee, the type of Work
Permit and the length of time remaining on such Work Permit.
With respect to each Work Permit, all of the information that
Intellamed provided to the Department of Labor, the
Immigration and Naturalization Service or the Department of
Homeland Security (collectively, the “
Department
”)
in the application for such Work Permit was, to
Intellamed’s knowledge, true and complete at the time of
filing and is, to Intellamed’s knowledge, true and
complete as of the date hereof. Intellamed received the
appropriate notice of approval from the Department with
respect to each such Work Permit. Intellamed has not received
any notice from the Department or any other governmental
authority that any Work Permit has been revoked. There is no
action pending or threatened in writing to revoke or adversely
modify the terms of any of the Work Permits. Except as set
forth in Schedule 4.17(b)
,
the Division has no current employee who is (i) a
non-immigrant employee whose status would terminate or
otherwise be affected by the business transaction consummated
under this Agreement, or (ii) an alien who is authorized
to
work
in the United States on a non-immigrant status. For each
employee of the Division hired after November 6, 1986,
Intellamed has retained an Immigration and Naturalization
Service Form I-9, completed in accordance with the
applicable rules and regulations.
Section
4.18 Insurance. Schedule
4.18 lists
and details each insurance policy maintained by Intellamed or
the Division, as applicable, with respect to the Acquired
Assets and the conduct and operation of the Division and sets
forth the date of expiration of each such insurance policy.
All such insurance policies are, and until the Closing Date
shall be, in full force and effect.
Section
4.19 Compliance with Laws; Permits. Each
of Intellamed and the Division, as applicable, has complied in
all material respects with all applicable laws and regulations
of foreign, federal, state and local governments and all
agencies thereof which affect the Division, the Acquired
Assets or any leased properties of Intellamed or the Division,
as applicable, and to which Intellamed or the Division, as
applicable, may be subject (including, without limitation, any
state or federal acts, including rules and regulations
thereunder, regulating or otherwise affecting, equal
employment opportunity, employee health and safety or the
environment); and no claims have been filed by any such
governments or agencies against Intellamed or the Division, as
applicable, alleging such a violation of any such law or
regulation which have not been resolved to the satisfaction of
such governments or agencies. Neither Intellamed nor the
Division, as applicable, is relying on any exemption from or
deferral or qualification of any such applicable law,
regulation or other requirement that would not be available to
UHS after it acquires the Acquired Assets. Except as set forth
in Schedule 4.19
,
Intellamed or the Division, as applicable, holds all of the
permits, licenses, certificates and other authorizations of
foreign, federal, state and local governmental agencies
required for the conduct and operation of the Division.
Neither Intellamed nor the Division, as applicable, has made
or agreed to make gifts of money, other property or similar
benefits (other than incidental gifts of articles of nominal
value) to any actual or potential customer, supplier,
governmental employee or any other person in a position to
assist or hinder Intellamed or the Division, as applicable, in
connection with any actual or proposed
transaction.
Section
4.20 Intellectual Property Rights; Software.
(a)
“
Intellectual
Property Rights ”
means (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications,
and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions,
and reexaminations thereto, (ii) all trademarks, service
marks, trade dress, logos, slogans, trade names, corporate
names, Internet domain names, and rights in telephone numbers,
together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals
in connection therewith, (iii) all copyrightable works,
all copyrights, and all applications, registrations, and
renewals in connection therewith, (iv) all mask works and
all applications, registrations, and renewals in connection
therewith, (v) all trade secrets and
confidential
business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing
and production processes and techniques, technical data,
designs, drawings, specifications, customer and supplier
lists, pricing and cost information, and business and
marketing plans and proposals), (vi) all computer
software (including source code, executable code, data,
databases, and related documentation), (vii) all
advertising and promotional materials, (viii) all other
proprietary rights, and (ix) all copies and tangible
embodiments thereof (in whatever form of medium)
(collectively, “ Intellectual
Property Rights ”).
Schedule
4.20 lists
all Intellectual Property Rights that are held by Intellamed
or the Division, as applicable, in the conduct and operation
of the Division.
(b)
Neither
Intellamed nor the Division, as applicable, has received any
notice of any infringement, misappropriation or violation by
Intellamed or the Division, as applicable, of any Intellectual
Property Rights of any third parties and neither Intellamed
nor the Division, as applicable, has infringed,
misappropriated or otherwise violated any such Intellectual
Property Rights; and with respect to the S2 software which
constitutes an Acquired Asset, no infringement, illicit
copying, misappropriation or violation has occurred or shall
occur with respect to the conduct and operation of the
Division as the Division is now being conducted or solely as a
result of the transaction contemplated by this
Agreement.
(c)
Intellamed
and the Division, as applicable, own or license under valid
license agreements all of the software required for the
conduct and operation of the Division as the Division is now
being conducted or planned to be conducted and these license
agreements are listed on Schedule
4.20 .
(d)
Intellamed
and the Division, as applicable, have taken all reasonable and
necessary actions to maintain and protect all Intellectual
Property Rights held by Intellamed or the Division, as
applicable, in the conduct and operation of the Division and
shall continue to maintain and protect all such Intellectual
Property Rights prior to Closing so as not to adversely affect
the validity or enforceability thereof. To the knowledge of
Intellamed and the Division, as applicable, the owners of any
Intellectual Property Rights licensed to Intellamed or the
Division, as applicable, have taken all necessary and
desirable actions to maintain and protect the Intellectual
Property Rights covered by such license.
(e)
Intellamed
and the Division, as applicable, have complied with and are
presently in compliance with all foreign, federal, state,
local, governmental (including, but not limited to, the
Federal Trade Commission and State Attorneys General),
administrative or regulatory laws, regulations, guidelines and
rules applicable to any Intellectual Property Rights and shall
take all steps necessary to ensure such compliance until
Closing, the violation of which would have a Material Adverse
Effect.
Section
4.21 Customers and Suppliers. Schedule
4.21 lists
all the customers and all the suppliers of Intellamed or the
Division, as applicable, with respect to the conduct and
operation of the Division for the each of the first 10 months
of 2006 and the year 2005 and sets forth opposite the name of
each such customer the revenues with respect to Intellamed or
the Division, as applicable, and as specified therein,
attributable to such customer for each such year. Since
December 31, 2006, no customer or supplier listed
in Schedule
4.21 has
indicated that it shall stop or decrease the rate of
business
done
with Intellamed or the Division, as applicable. The services
provided to the customers of Intellamed or the Division, as
applicable, are consistent with their respective contracts and
satisfy the performance expectations of the customers
thereunder, respectively.
Section
4.22 Employee Benefits.
(a)
All
employee benefit plans (as defined in Section 3(3) of
Employee Retirement Income Security Act of 1974, as amended
(collectively, “ ERISA
”))
and all material benefit programs or practices providing for
bonuses, incentive compensation, vacation pay, insurance,
restricted stock, stock options, employee discounts or passes,
company cars, tuition reimbursement or any other perquisite or
benefit (including, without limitation, any fringe benefit
under Section 132 of the Internal Revenue Code of 1986,
as amended (collectively, the “ Code
”))
to present or former employees, officers or independent
contractors of Intellamed, that are not employee benefit plans
within the meaning of Section 3(3) of ERISA, in each
case, maintained or contributed to by Intellamed and
applicable to employees of Intellamed as well as all
related trusts, insurance contracts, or funds (collectively,
“ Employee
Plans ”)
have been maintained, funded and administered in all material
respects in compliance with the documents and instruments
governing the Employee Plans, and comply in form and operation
in all material respects with the applicable requirements of
the Code, ERISA, and other applicable law. All premiums,
contributions or other payments due for all periods ending
before the Closing Date have been paid (or, with respect to
those not yet due, shall have been paid on or before the
applicable due date) with respect to each Employee Plan within
the time periods prescribed by applicable law.
(b)
Each
Employee Plan (and its related trust) that is intended to meet
the qualification requirements of Code Section 401(a)
(hereinafter a “ Pension
Plan ”)
has received a determination letter, or an opinion letter upon
which the Pension Plan is entitled to rely, from the Internal
Revenue Service that such Employee Plan satisfies such
qualification requirements and nothing has occurred since the
date of such determination or opinion letter that could
adversely affect the qualified status of such Employee
Plan.
(c)
Except
as set forth in Schedule
4.22 ,
Intellamed has no individuals (i) receiving continuation
coverage pursuant to Part 6 of Subtitle B of Title I of ERISA
and Code Section 4980B or applicable state law (collectively,
“ COBRA
”)
under any group health plan maintained by Intellamed; (ii) to
whom COBRA continuation coverage has been offered but not yet
elected; or (iii) to whom COBRA continuation coverage shall be
offered in connection with the transactions contemplated by
this Agreement but with respect to whom the deadline for
providing notice for such coverage has not yet
passed.
(d)
Neither
Intellamed nor any ERISA Affiliate maintains or contributes to
or has ever maintained or contributed to a “defined
benefit plan” within the meaning of Section 3(35) of
ERISA or a “multiemployer plan” within the meaning
of Section 3(37) of ERISA. For purposes of this Agreement,
“ ERISA
Affiliate ”
means, with respect to any entity, trade or business, any
other entity, trade or business that is a member of a group
described in Section 414(b), (c), (m) or (o) of the Code or
Section 4001(b)(1) of ERISA that includes the first entity,
trade or business, or that is a member of the same
“controlled group” as the first entity, trade or
business pursuant to Section 4001(a)(14) of
ERISA.
Section
4.23 Government Contracts. With
respect to any Government Contracts, there is no (a) civil
fraud or criminal acts or bribery, or any other violation of
law by Intellamed or any of its directors, officers, or
employees, (b) pending criminal investigation by any
Government Entity, (c) any misstatement or omission by
Intellamed under any Government Contracts, (d) request by a
Government Entity for a contract price adjustment based on a
claimed disallowance by any Governmental Entity or a claim of
defective pricing, (e) dispute between Intellamed and a
Governmental Entity which has resulted in a government
contracting officer’s adverse final decision or (f)
termination by a Governmental Entity for default by Intellamed
of any Government Contract, or (g) claim or request for
equitable adjustment by Intellamed against a Governmental
Entity. There is or has been no termination for default or
convenience, cure notice, or show cause notice issued by the
United States Government or by any prime contractor or
subcontractor, in writing, with respect to performance by
Intellamed as a subcontractor of any portion of the obligation
of a Government Contract which, individually or in the
aggregate, would reasonably be expected to have a Material
Adverse Effect on Intellamed. Intellamed has complied with all
material terms and conditions of its Government Contracts.
Neither Intellamed nor any of Intellamed’s directors,
officers, or employees is or has been debarred or suspended
from participation in the award of contracts with any
Governmental Entity or has been declared nonresponsible in the
last five (5) years. “Government Contracts” means
any prime contract, subcontract, teaming agreement or
arrangement, joint venture, basic ordering agreement, blanket
purchase agreement, letter agreement, purchase order, delivery
order, task order, grant, cooperative agreement, bid, change
order or other commitment or funding vehicle between
Intellamed and (i) a Governmental Entity, (ii) any prime
contractor to a Governmental Entity or (iii) any subcontractor
with respect to any contract described in the foregoing clause
(i) or (ii). “Governmental Entity” means any
federal, state, local, foreign, international or multinational
entity or authority exercising executive, legislative,
judicial, regulatory, administrative or taxing functions of or
pertaining to government.
Section
4.24 Computer and Technology Security.
Intellamed
has taken all reasonable steps to safeguard the information
technology systems utilized in the operation of the business
of Intellamed, including the Division, including the
implementation of procedures designed to ensure that such
information technology systems are free from any disabling
codes or instructions, time, copy protection device, clock,
counter or other limiting design or routing and any
“back door,” “time bomb,”
“Trojan horse,” “worm,” “drop
dead device,” “virus,” or other software
routines or hardware components that in each case permit
unauthorized disablement or unauthorized erasure of data or
other software by a third party, and to date there have been
no successful unauthorized intrusions or breaches of the
security of the information technology systems.
Section
4.25 Certain Business Relationships with the
Division. Except
as set forth in Schedule
4.25 ,
none of the shareholders of Intellamed and all of
Intellamed’s subsidiaries as set forth in
Schedule 4.06
,
nor the directors, officers, employees and shareholders of
Intellamed, and the Division’s officers and employees
has been involved in any business arrangement or relationship
with the Division within the past 12 months, and none of the
shareholders of Intellamed and all of Intellamed’s
subsidiaries as set forth in Schedule 4.06
,
nor the directors, officers, employees and shareholders of
Intellamed and the Division’s officers and
employees
own any asset, tangible or intangible, that is used in the
conduct and operation of the Division.
Section
4.26 Data Privacy.
(a)
The
collection, use, transfer, import, export, storage, disposal,
and disclosure by Intellamed and the Division, as applicable,
of personal information or other information relating to
persons protected by law has not violated and, if performed
after Closing in substantially the same manner as performed
immediately prior to Closing, shall not violate any applicable
local, state, federal or foreign law relating to data
collection, use, privacy, or protection (including, without
limitation, any requirement arising under any constitution,
state, code, treaty, decree, rule, ordinance or regulation)
(collectively, the “ Data
Laws ”).
Each of Intellamed and the Division, as applicable, has
complied with, and is presently in compliance with, its
privacy policies, which policies comply with all Data Laws.
The transactions contemplated by this Agreement shall not
result in the violation of any Data Laws, or the privacy
policies of Intellamed or the Division, as
applicable.
(b)
Without
limiting the generality of the foregoing, each of Intellamed
and the Division, as applicable, is in material compliance
with the Health Insurance Portability and Accountability Act
of 1996 (“ HIPAA
”).
(c)
There
is no complaint, audit, proceeding, investigation, or claim
against or, to the knowledge of Intellamed and the directors
and officers (and employees with responsibility for data
privacy matters) of Intellamed, threatened against, by any
governmental authority, or by any party respecting the
collection, use, transfer, import, export, storage, disposal,
and disclosure of personal information by any party in
connection with Intellamed or the Division, as applicable, or
the business thereof. There have been no security breaches
compromising the confidentiality or integrity of personal
information.
Section
4.27 Disclosure .
The representations and warranties contained in this Article
IV are true and correct in all material respects and, taken
together with the Disclosure Schedule, do not omit any
material fact necessary to make the statements contained
therein, in light of the circumstances under which they were
made, not misleading. There is no material fact known to
Intellamed or the Division, as applicable, which has not been
disclosed to UHS pursuant to this Agreement and the Disclosure
Schedule.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF UHS
UHS
hereby represents and warrants to Intellamed
that:
Section
5.01 Incorporation and Corporate Power. UHS
is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of
Delaware, with the requisite corporate power and
authority to enter into this Agreement and perform its
obligations hereunder.
Section
5.02 Execution, Delivery; Valid and Binding
Agreement. The
execution, delivery and performance of this Agreement by UHS
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all requisite
corporate action, and no other
corporate
proceedings on its part are necessary to authorize the
execution, delivery or performance of this Agreement. This
Agreement has been duly executed and delivered by UHS and
constitutes the valid and binding obligation of UHS,
enforceable in accordance with its terms, except that
(a) such enforcement may be subject to any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other laws, now or hereafter in effect, relating to or
limiting creditors’ rights generally and (b) the remedy
of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding
therefor may be brought.
Section
5.03 No Breach. Except
for the Amended and Restated Credit Agreement dated as of May
26, 2005 among UHS and General Electric Capital
Corpor
