INTEREST PURCHASE AGREEMENT
This Interest Purchase Agreement (this “
Agreement ”), dated as of February 13, 2007 to
be effective as of January 1, 2007 (the “ Effective
Date ”), is by and among Lithotripters, Inc., a North
Carolina corporation (“ Buyer ”),
HealthTronics, Inc., a Georgia corporation (“
HTRN ”), as to Sections 2.2 and 12.14
only, David Arsht, D.O. (“ Arsht ”), P.
Kenneth Brownstein, M.D. (“ Brownstein
”), Larry E. Goldstein, M.D. (“ Goldstein
”) and Michael Dernoga (“ Dernoga
”, and each such natural person, individually, a “
Seller ” and, collectively, “
Sellers ” and, together with Buyer, the “
Parties ”).
RECITALS
Sellers
desire to sell to Buyer, and Buyer desires to purchase from
Sellers, all of the limited partner interests owned by Sellers (the
“ Interests ”) in Keystone Mobile
Partners, L.P., a Pennsylvania limited partnership (the “
Partnership ”).
On
the date hereof, Buyer, HTRN, Keystone ABG Inc. (the “
General Partner ”), Keystone Kidney Associates,
PC (the “ PC ”), and Sellers have entered
into a stock purchase agreement (the “ Stock Purchase
Agreement ”) pursuant to which, subject to the terms
and conditions thereof, Buyer will acquire all of the outstanding
capital stock (the “ Stock ”) of the
General Partner and Buyer’s designee will acquire all of the
outstanding capital stock (the “ PC Stock
”) of the PC.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises, the respective
representations, warranties, covenants and agreements contained in
this Agreement, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the Parties agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF INTERESTS
1.1 Purchase and Sale of Interests . On and subject
to the terms and conditions of this Agreement, on the Closing Date
(as defined in Article 8 ), Buyer will purchase from
Sellers, and Sellers will sell to Buyer, the Interests for the
consideration specified in Section 1.2 , the amount of which
Interests shall be sold by each Seller as set forth in Schedule
1.1 .
1.2 Purchase Price . Buyer will pay to Sellers an
aggregate purchase price (the “ Purchase Price
”) equal to $1,222,000, all of which will be paid at the
Closing (as defined in Article 8 ) in cash by wire transfer
of immediately available funds in accordance with wire transfer
instructions given by Sellers in writing to Buyer at least two (2)
business days prior to the Closing Date, which such Purchase Price
will be apportioned among Sellers as set forth on Schedule
1.2 .
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES CONCERNING SELLERS AND
BUYER
2.1 Representations and Warranties of Sellers . Each
Seller, severally and not jointly, represents and warrants to Buyer
that the statements contained in this Section 2.1 as relates
to such Seller are true, correct and complete as of the date hereof
and as of the Closing Date.
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(a)
Power and Authority; Enforceability . Each Seller has the
requisite competence and authority to execute and deliver each
Contract (as defined in Section 2.1(b) ) or writing
executed or delivered as required under this Agreement and each
amendment or supplement to any of the foregoing (including this
Agreement, the “ Transaction Documents ”)
to which he is a party, and to perform and to consummate the
transactions contemplated hereby and thereby (the
“Transactions ”). Each Seller has taken
all action necessary to authorize the execution and delivery by
such Seller of each Transaction Document to which such Seller is
party, the performance of such Seller’s obligations hereunder
and thereunder, and the consummation by such Seller of the
Transactions. With respect to each Seller, this Agreement has been,
and as of the Closing each other Transaction Document to which such
Seller is a party will have been, duly authorized, executed and
delivered by such Seller, and, assuming the due authorization,
execution and delivery by the other Parties hereto and thereto,
this Agreement is, and as of the Closing each other Transaction
Document to which such Seller is a party will be, enforceable
against such Seller in accordance with its terms except as such
enforceability may be subject to the effects of bankruptcy,
insolvency, reorganization, moratorium or other Laws (as defined in
Section 2.1(b) ) relating to or affecting the rights of
creditors and general principles of equity (the “
Enforceability Exception ”).
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(b)
No Violation; Necessary Approvals . Except as set forth in
Schedule 2.1(b) , the execution and the delivery by each
Seller of this Agreement and the other Transaction Documents to
which such Seller is a party, the performance by such Seller of
such Seller’s obligations hereunder and thereunder, and
consummation of the Transactions by such Seller will not (i) with
or without notice or lapse of time, constitute, create or result in
a breach or violation of, default under, loss of benefit or right
under or acceleration of performance of any obligation required
under any (A) law (statutory, common or otherwise), constitution,
ordinance, rule, regulation, executive order or other similar
authority (“ Law ”) enacted, adopted,
promulgated or applied by any legislature, agency, bureau, branch,
department, division, commission, court, tribunal or other similar
recognized organization or body of any federal, state, county,
municipal, local or foreign government or other similar recognized
organization or body exercising similar powers or authority (a
“Governmental Body ”), (B) order, ruling,
decision, award, judgment, injunction or other similar
determination or finding by, before or under the supervision of any
Governmental Body or arbitrator (an “ Order
”), (C) contract, agreement, arrangement, commitment,
instrument, document or similar understanding (whether written or
oral), including a lease, sublease and rights thereunder (“
Contract ”) or permit, license, certificate,
waiver, notice and similar authorization (“
Permit ”) to which, in the case of (A), (B) or
(C), such Seller or any Company (as defined in Section 3.1 )
is a party or by which any of them is bound or any of their
respective assets are subject, or (D) any provision of the
organizational documents of such Seller or the Partnership,
Keystone Mobile Services, L.P., a Pennsylvania limited partnership
that is wholly owned by the Partnership (“ KMS
”), or Keystone Lehigh Valley Mobile Partners, LP, a
Pennsylvania limited partnership (“ Keystone
Lehigh ”) (each a “ Company
” and collectively the “Companies
”) as in effect on the Closing Date; (ii) result in the
imposition of any lien, claim or encumbrance (an “
Encumbrance ”) upon any assets (including the
Interests) owned by such Seller or any Company; (iii) require any
consent, approval, notification, waiver, or similar action that is
necessary (“ Consent ”) under any
Contract or organizational document to which such Seller or any
Company is a party or by which any of them is bound or any of their
respective assets are subject; (iv) require any Permit or Consent
under any Law or Order other than required filings, if any, with
the Securities and Exchange Commission (“ SEC
”); or (v) trigger any rights of first refusal, preferential
purchase or similar rights with respect to any of the
Interests.
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(c)
Brokers’ Fees . No Seller has any liability or
obligation to pay any compensation to any broker, finder or agent
with respect to the Transactions for which Buyer or a Company could
become directly or indirectly liable.
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(d)
Interests; Seller Information . Each Seller holds of record
and owns beneficially the limited partner interests in the
Partnership as set forth next to such Seller’s name in
Schedule 1.1 , free and clear of any Encumbrances (other
than any restrictions on transfer under the Securities Act of 1933,
as amended (the “ Securities Act”), and
state securities Laws). No Seller is a party to any Contract (other
than this Agreement) that could require such Seller to sell,
transfer, or otherwise dispose of any equity interests of the
Partnership. No Seller is a party to any other Contract with
respect to any equity interests of the Partnership (other than the
Second Amended and Restated Limited Partnership Agreement of the
Partnership, dated as of October 14, 2005 (the “
Partnership Agreement ”)). Immediately
following consummation of the Transactions, Buyer shall own the
Interests free and clear of any Encumbrances (other than any
restrictions on transfer under the Securities Act and state
securities Laws and Encumbrances created by Buyer).
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(e)
Litigation . No Action is pending against a Seller or, to
the knowledge of such Seller, threatened against such Seller
seeking to prohibit the consummation of the
Transactions.
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2.2 Representations and Warranties of Buyer and HTRN
. Each of Buyer and HTRN represents and warrants to Sellers that
the statements contained in this Section 2.2 are true,
correct and complete as of the date hereof and as of the Closing
Date.
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(a)
Organization of Buyer and HTRN . Each of Buyer and HTRN is
an entity duly organized, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation.
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(b)
Power and Authority; Enforceability . Each of Buyer and HTRN
has the power and authority necessary to execute and deliver each
Transaction Document to which it is a party and to perform and
consummate the Transactions. Each of Buyer and HTRN has taken all
action necessary to authorize its execution and delivery of each
Transaction Document to which Buyer or HTRN, as applicable, is a
party, the performance of its obligations hereunder and thereunder
and its consummation of the Transactions. This Agreement has been,
and as of the Closing each other Transaction Document to which
Buyer or HTRN is a party will have been, duly authorized, executed
and delivered by Buyer or HTRN, as applicable, and, assuming the
due authorization, execution and delivery by the other Parties
hereto and thereto, this Agreement is, and as of the Closing each
other Transaction document to which Buyer or HTRN is a party will
be, enforceable against Buyer or HTRN, as applicable, in accordance
with its terms, subject to the Enforceability Exception.
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(c)
No Violation; Necessary Approvals . The execution and the
delivery by Buyer and HTRN of this Agreement and the other
Transaction Documents to which Buyer or HTRN is a party, the
performance by Buyer or HTRN of its obligations hereunder and
thereunder and the consummation of the Transactions by Buyer or
HTRN will not (i) with or without notice or lapse of time,
constitute, create or result in a breach or violation of, default
under, loss of benefit or right under or acceleration of
performance of any obligation required under any Law, Order,
Contract or Permit to which Buyer or HTRN is a party or by which it
is bound or any of its assets are subject, or any provision of
Buyer’s or HTRN’s organizational documents as in effect
on the Closing Date, other than such breaches, violations,
defaults, losses or accelerations that would not prevent the
consummation of the Transactions; (ii) require any Consent under
any Contract or organizational document to which Buyer or HTRN is a
party or by which it is bound, other than such Consents that would
not prevent the consummation of the Transactions; or (iii) require
any Permit under any Law or Order other than (A) required filings,
if any, with the SEC, and (B) such Permits that would not prevent
the consummation of the Transactions.
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(d)
Litigation . No Action is pending against Buyer or HTRN or,
to the knowledge of Buyer or HTRN, threatened against Buyer or HTRN
seeking to prohibit the consummation of the
Transactions.
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(e)
Brokers’ Fees . Neither Buyer nor HTRN has any
liability or obligation to pay any compensation to any broker,
finder or agent with respect to the transactions for which any
Seller could become directly or indirectly liable.
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ARTICLE 3
INTENTIONALLY DELETED
ARTICLE 4
COVENANTS
4.1 Notification of Certain Matters . Sellers will
give prompt notice to Buyer of (a) the occurrence or non-occurrence
of any event which would cause any representation or warranty of
any Seller contained in this Agreement to be untrue or inaccurate
at or prior to the Closing Date and (b) any failure to comply
with or satisfy in any material respect any covenant, condition or
agreement hereunder. Buyer will give prompt notice to Sellers of
(i) the occurrence or non-occurrence of any event which would cause
any representation or warranty of Buyer contained in this Agreement
to be untrue or inaccurate at or prior to the Closing Date and
(ii) any failure to comply with or satisfy in any material
respect any covenant, condition or agreement hereunder.
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4.2 Right of First Refusal . Sellers will, and will
cause the General Partner to, comply with the terms of Section 8.05
of the Partnership Agreement and consummate all sales resulting
from exercises of the right of first refusal set forth in such
Section 8.05 prior to the Closing. Sellers will notify Buyer in
writing of any exercises of such right of first refusal and the
consummation of any sales as a result thereof and will provide such
information and documents related to such right of first refusal as
reasonably requested by Buyer.
4.3 Filings; Consents; Etc . Sellers will use their
commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary,
proper or advisable in compliance with applicable Laws to
consummate and make effective, as soon as reasonably practicable,
the Transactions. Without limiting the generality of the foregoing,
Sellers will give all notices and make all required filings with or
applications to Governmental Bodies required to be made by any
Seller or Company, and use commercially reasonable efforts to
obtain all Consents of all third parties, including Governmental
Bodies, that are necessary for the Parties to consummate the
Transactions. In addition, Sellers agree to use commercially
reasonable efforts to (a) oppose, lift or rescind any injunction or
restraining order or other Order adversely affecting the ability of
the Parties to consummate the Transactions, and (b) cause the
conditions set forth in Article 6 to be satisfied and to
consummate the Transactions. Buyer shall reasonably cooperate with
Sellers (i) in determining whether any action by or in respect of,
or filing with, any Governmental Body is required, or any Consents
are required to be obtained from any third parties, in connection
with the consummation of the Transactions and (ii) in taking such
actions or making any such filings, furnishing information required
in connection therewith and seeking timely to obtain any such
Consents.
4.4 Confidentiality. Prior to the Closing Date and
after any termination of this Agreement, Buyer will (and will cause
its Affiliates to) hold, and will use their commercially reasonable
efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in
confidence, unless compelled to disclose by judicial or
administrative process or by other requirements of Law, all
confidential documents and information concerning Sellers furnished
to Buyer or its Affiliates in connection with the Transactions,
except to the extent that such information (a) is or becomes
generally available to the public other than as a result of
disclosure by Buyer, (b) was within Buyer’s possession prior
to it being furnished to Buyer by or on behalf of any Seller or any
of their Affiliates, provided that the source of such information
was not known by Buyer to be bound by a confidentiality agreement
with or other contractual, legal or fiduciary obligation of
confidentiality to any Seller or any of their Affiliates, (c)
becomes available to Buyer on a non-confidential basis from a
source other than any Seller or any of their Affiliates, provided
that such source was not known by Buyer to be bound by a
confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to any Seller or any of
their Affiliates, (d) was independently developed by Buyer without
using any information furnished to Buyer by any Seller or any of
their Affiliates, or (e) is required to be disclosed by Buyer or
any of its Affiliates (by oral question or request for information
or documents in any legal proceeding, interrogatory, subpoena,
civil investigative demand, or similar process), provided that
Buyer or its Affiliates notify Sellers promptly of the request or
requirement so that Sellers may seek an appropriate protective
order or waive compliance with this Section 4.4 ; provided
that Buyer may disclose such information to its officers,
directors, employees, accountants, counsel, consultants, advisors
and agents in connection with the Transactions so long as such
Persons are informed by Buyer of the confidential nature of such
information and are directed by Buyer to treat such information
confidentially in accordance with this Agreement. The obligation of
Buyer and its Affiliates to hold any such information in confidence
shall be satisfied if they exercise the same care with respect to
such information as they would take to preserve the confidentiality
of their own similar information. If this Agreement is terminated,
Buyer will, and will use its commercially reasonable efforts to
cause its Affiliates, officers, directors, employees, accountants,
counsel, consultants, advisors and agents to, destroy or deliver to
Sellers, upon request, all documents and other materials, and all
copies thereof, obtained by Buyer or its Affiliates or on their
behalf concerning Sellers in connection with this Agreement that
are subject to such confidence. For purposes of this Agreement,
“ Affiliate ” with respect to a specified
Person means any other Person who, directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is
under common control with, the specified Person.
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ARTICLE 5
COVENANTS SURVIVING THE CLOSING
5.1 Further Assurances . If any time after the
Closing any further action is necessary or reasonably desirable to
carry out the purposes of this Agreement or any other Transaction
Document, each Party will take such further action (including
executing and delivering any further instruments and documents,
obtaining any Permits and Consents and providing any reasonably
requested information) as any other Party may reasonably request,
all at the requesting Party’s sole cost and expense (unless
the requesting Party is entitled to indemnification therefor under
Article 11 ).
5.2 Confidentiality . After the Closing Date, each
Seller will treat and hold as confidential any information
concerning the business of the Companies that is not already
generally available to the public (the “ Confidential
Information ”), refrain from using any of the
Confidential Information except in connection with this Agreement,
and at any time upon the reasonable request of Buyer deliver
promptly to Buyer or destroy, at the request and option of Buyer,
all tangible embodiments (and all copies) of the Confidential
Information which are in his or its possession or under his or its
control following the Closing Date. In the event that after the
Closing Date a Seller is required (by oral question or request for
information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, such Seller may so disclose
such Confidential Information, provided that such Seller will
notify Buyer promptly of the request or requirement so that Buyer
may seek an appropriate protective order or waive compliance with
the provisions of this Section 5.2 .
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Each
of the Parties acknowledges and agrees that Buyer’s remedies
at law for a breach or threatened breach of any of the provisions
of Section 5.2 hereof would be inadequate and, in
recognition of this fact, in the event of a b
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