|
<PAGE>
Exhibit 2.1
STOCK PURCHASE AGREEMENT
by and among
LAIDLAW INTERNATIONAL, INC., as "Parent,"
LAIDLAW MEDICAL HOLDINGS, INC.
as "Seller"
and
EMSC, INC.,
as "Purchaser"
Dated as of December 6, 2004
<PAGE>
TABLE OF CONTENTS
(Not part of this Agreement)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I. PURCHASE AND
SALE..........................................................................
1
1.01 Purchase and Sale of
Shares...............................................................
1
1.02 Purchase
Price............................................................................
1
1.03
Closing...................................................................................
1
1.04
Deliveries................................................................................
2
1.05 Post-Closing
Adjustment...................................................................
2
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF SELLER AND
PARENT....................................... 4
2.01 Ownership of
Shares.......................................................................
5
2.02
Organization..............................................................................
5
2.03 Authority and Binding
Effect..............................................................
5
2.04 No
Violations.............................................................................
5
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER RELATING
TO THE ACQUIRED COMPANY................ 6
3.01
Organization..............................................................................
6
3.02
Capitalization............................................................................
6
3.03
Subsidiaries..............................................................................
7
3.04 No
Violations.............................................................................
8
3.05 Consents and
Approvals....................................................................
8
3.06 Financial
Statements......................................................................
8
3.07 Absence of
Changes........................................................................
9
3.08 Sufficiency of and Title to Assets; Real Property and
Related Matters..................... 11
3.09 Insurance
Coverage........................................................................
12
3.10
Litigation................................................................................
12
3.11 Compliance With
Law.......................................................................
12
3.12 Governmental
Authorizations...............................................................
13
3.13 Environmental
Matters.....................................................................
13
3.14 Brokers and
Finders.......................................................................
14
3.15
Contracts.................................................................................
14
3.16 Intellectual
Property.....................................................................
17
3.17 Tax
Matters...............................................................................
18
3.18 Employment Matters - Personnel
Information................................................ 19
3.19 Employment Matters - Employee
Plans....................................................... 20
3.20 Certain
Transactions......................................................................
21
3.21 Books and Records; Internal
Controls......................................................
21
3.22 Health Care
Matters.......................................................................
22
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF
PURCHASER............................................... 23
4.01
Organization..............................................................................
23
4.02 Authority and Binding
Effect..............................................................
23
4.03 No
Violations.............................................................................
23
4.04 Consents and
Approvals....................................................................
23
4.05 Brokers and
Finders.......................................................................
23
4.06 Absence of
Proceedings....................................................................
24
4.07 Investment
Intent.........................................................................
24
4.08
Financing.................................................................................
24
4.09 Representations and
Warranties............................................................
24
ARTICLE V.
COVENANTS..................................................................................
25
5.01 Conduct of the Business Pending the
Closing............................................... 25
5.02 Access to Information;
Confidentiality....................................................
28
5.03 Consents and
Approvals....................................................................
29
5.04 Public
Announcements......................................................................
30
5.05 Employee Benefits
Matters.................................................................
30
5.06 Directors' and Officers' Indemnification; Release from
Liability.......................... 31
5.07 Intercompany
Accounts.....................................................................
32
5.08 Resignations of
Directors.................................................................
32
5.09 Notice of Certain
Matters.................................................................
32
5.10 Tax
Matters...............................................................................
33
5.11 Use of
Name...............................................................................
35
5.12 Post-Closing
Covenants....................................................................
36
5.13 No
Negotiation............................................................................
36
5.14 Certain
Payments..........................................................................
37
5.15 Riverside Road Lease
Guarantee............................................................
37
5.16
Offerings.................................................................................
37
5.17 Indemnification of Members of
Committee................................................... 38
5.18 Audited Financial
Statements..............................................................
38
5.19 Code Section
280(G).......................................................................
38
5.20 Purchaser
Financing.......................................................................
39
5.21 Lender
Consent............................................................................
39
5.22 Third-Party
Indebtedness..................................................................
39
ARTICLE VI. CONDITIONS TO
CLOSING.....................................................................
39
6.01 Conditions to Obligations of
Seller.......................................................
39
6.02 Conditions to Obligations of
Purchaser....................................................
40
ARTICLE VII.
TERMINATION..............................................................................
43
7.01
Termination...............................................................................
43
7.02 Effect of
Termination.....................................................................
43
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII.
INDEMNIFICATION.........................................................................
44
8.01 Indemnification by Seller and
Parent...................................................... 44
8.02 Indemnification by
Purchaser..............................................................
45
8.03 Tax
Indemnification.......................................................................
45
8.04 Indemnification
Process...................................................................
47
8.05 Limitations on
Claims.....................................................................
49
8.06 Exclusivity of Indemnification
Remedy..................................................... 51
ARTICLE IX. DEFINITIONS AND
TERMS.....................................................................
52
9.01 Specific
Definitions......................................................................
52
9.02 Other Definitional
Provisions.............................................................
63
ARTICLE X. GENERAL
PROVISIONS.........................................................................
64
10.01
Expenses..................................................................................
64
10.02 Further
Assurances........................................................................
64
10.03
Amendment/Non-Assignment..................................................................
64
10.04
Waiver....................................................................................
64
10.05
Notices...................................................................................
64
10.06 Headings and
Schedules....................................................................
66
10.07 Applicable
Law............................................................................
66
10.08 No Third Party
Rights.....................................................................
66
10.09 Counterparts; Facsimile
Signatures........................................................
66
10.10
Severability..............................................................................
66
10.11 Entire
Agreement..........................................................................
66
10.12 Consent to Jurisdiction; Jury Trial;
Venue................................................ 66
10.13 Fair
Construction.........................................................................
67
10.14 Construction of Certain
Provisions........................................................
67
10.15 Reasonable Consent
Required...............................................................
67
10.16 Specific
Enforcement......................................................................
68
</TABLE>
iii
<PAGE>
LIST OF SCHEDULES
Post-Closing Adjustment Schedule
Capitalization Schedule
Subsidiaries Schedule
No Violations Schedule
Consents and Approvals Schedule
Financial Statements Schedule
Certain Changes Schedule
Assets Schedule
Insurance Schedule
Litigation Schedule
Compliance Schedule
Environmental Matters Schedule
Contracts Schedule
Intellectual Property Schedule
Tax Matters Schedule
Personnel Information Schedule
Employee Plans Schedule
Certain Transactions Schedule
Internal Controls Schedule
Health Care Matters Schedule
Physician Corporations Schedule
LIST OF EXHIBITS
Exhibit 5.06(c) D&O Released Parties
Exhibit A Capital Budget
iv
<PAGE>
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), dated as
of
December 6, 2004, is by and among Laidlaw International, Inc., a
Delaware
corporation ("Parent"), Laidlaw Medical Holdings, Inc., a
Delaware corporation
("Seller") and EMSC, Inc., a Delaware corporation
("Purchaser").
RECITALS
WHEREAS, Seller owns all of the issued and outstanding shares
of
common stock, no par value per share (the "Shares"), of EmCare
Holdings Inc., a
Delaware corporation (the "Acquired Company");
WHEREAS, Seller desires to sell, and Purchaser desires to
purchase,
all of the Seller's right, title and interest in and to the
Shares on the terms
and conditions contained herein (the "Share Purchase").
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
PURCHASE AND SALE
1.01 Purchase and Sale of Shares. Upon the terms and conditions
of
this Agreement, at the Closing, Seller shall sell, transfer,
convey, assign and
deliver to Purchaser, and Purchaser shall purchase, acquire and
accept from
Seller, all of Seller's right, title and interest in and to the
Shares.
1.02 Purchase Price. Subject to the terms and conditions of
this
Agreement, on the Closing Date, Purchaser shall pay Seller, by
wire transfer of
immediately available funds, an amount equal to $253,000,000
(the "Purchase
Price"). This Purchase Price shall be subject to adjustment
pursuant to Section
1.05 following the Closing.
1.03 Closing. The closing of the Share Purchase (the "Closing")
will
take place at 10:00 a.m. local time on the fifth Business Day
after satisfaction
or waiver (as permitted by this Agreement and applicable Law) by
the appropriate
party of the conditions (excluding conditions that, by their
terms, cannot be
satisfied until the Closing Date, but subject to the fulfillment
or waiver of
those conditions) set forth in Article VI (the "Closing Date"),
unless another
time or date is agreed to in writing by the parties hereto;
provided, however,
Purchaser shall not be obligated to consummate the Contemplated
Transactions
prior to the Outside Date if Purchaser would be obligated to
draw down the
Bridge Facility (as defined in the BofA Financing Commitment) or
similar bridge
financing under a Substitute Financing Commitment rather than
issue and sell
Senior Subordinated Notes (as defined in the BofA Financing
Commitment) or
similar securities contemplated by a Substitute Financing
Commitment to complete
the financing contemplated by Section 4.08; provided, further,
that Purchaser
shall be obligated to consummate the Contemplated Transactions
no later than the
Closing Date if all of the conditions set forth in Section 6.02
(including,
Section 6.02(p)) have been satisfied or
<PAGE>
waived. The Closing shall be held at the offices of Kaye Scholer
LLP, 425 Park
Avenue, New York, New York 10022, unless another place is agreed
to in writing
by the parties hereto.
1.04 Deliveries. At the Closing:
(a) Seller shall deliver, or cause to be delivered, to
Purchaser, the certificates evidencing the Shares;
(b) Purchaser shall deliver the Purchase Price to Seller;
and
(c) The parties shall deliver such other certificates,
instruments or documents as required by Article VI or any other
provision of
this Agreement.
1.05 Post-Closing Adjustment.
(a) Within forty-five (45) days after the Closing Date,
Seller
shall prepare and deliver to Purchaser (i) an unaudited
consolidated balance
sheet of the Acquired Company and the Subsidiaries dated as of
the close of
business on the Closing Date (the "Closing Balance Sheet")
showing the Net Worth
of the Acquired Company and the Subsidiaries at the Closing Date
(the
"Preliminary Net Worth Amount") and (ii) a schedule (the
"Closing Debt
Schedule") of the amount of Long Term Debt at the Closing Date
(the "Preliminary
Debt Amount"). The Closing Balance Sheet shall be prepared in
accordance with
the definitions and procedures set forth on the Post-Closing
Adjustment
Schedule. In connection with the preparation of the Closing
Balance Sheet and
the Closing Debt Schedule, Purchaser shall give, and shall cause
the Acquired
Company and its representatives to give, to Seller and its
representatives full
access at all reasonable times to the books, records and other
materials of the
Acquired Company and the Subsidiaries and the personnel of, and
work papers
prepared by or for Purchaser, the Acquired Company and the
Subsidiaries or their
respective accountants, including, without limitation, to such
historical
financial information relating to the Acquired Company and the
Subsidiaries as
Seller may reasonably request in order to permit the timely
preparation and
delivery of the Closing Balance Sheet and the Closing Debt
Schedule in
accordance with this Section 1.05(a).
(b) Upon receipt of the Closing Balance Sheet and the
Closing
Debt Schedule, Purchaser shall have thirty (30) days (the
"Review Period") to
review such Closing Balance Sheet and the Closing Debt Schedule
and related
computations of the Net Worth of the Acquired Company and the
Subsidiaries and
the Closing Debt on the Closing Date. If Purchaser has accepted
such Closing
Balance Sheet Closing Debt Schedule in writing or has not given
written notice
to Seller setting forth in reasonable detail any objection of
Purchaser to such
Closing Balance Sheet or Closing Debt Schedule(a "Statement of
Objections")
prior to the expiration of the Review Period, then such Closing
Balance Sheet
and Closing Debt Schedule shall be final and binding upon the
parties, and the
Preliminary Net Worth Amount shall be deemed the Net Worth
amount of the
Acquired Company and the Subsidiaries as of the Closing Date
(the "Final Net
Worth Amount") and the Preliminary Debt Amount shall be deemed
to be the amount
of Long Term Debt as of the Closing Date (the "Final Debt
Amount"). In addition,
to the extent any portion of the Closing Balance Sheet or of the
calculation of
the Preliminary Net Worth Amount, of the Closing Debt Schedule
or of the
calculation of the Preliminary Debt
2
<PAGE>
Amount shall not be expressly objected to in the Statement of
Objections, such
matters shall be deemed to have been accepted and approved by
Purchaser and
shall be final and binding upon the parties for purposes hereof.
In the event
that Purchaser delivers a Statement of Objections during the
Review Period,
Purchaser and Seller shall use their commercially reasonable
efforts to agree on
the amount of Net Worth of the Acquired Company and the
Subsidiaries on the
Closing Date within thirty (30) days following the receipt by
Seller of the
Statement of Objections. If the parties are unable to reach an
agreement as to
such amounts within such thirty (30) day period, then the matter
shall be
submitted to Deloitte & Touche LLP, or such other accountant
as shall be
mutually agreed between the parties hereto (such accountant, the
"Settlement
Accountant"), who shall determine the matters still in dispute
and adjust the
Closing Balance Sheet to reflect such determination and
establish the Final Net
Worth Amount and adjust the Closing Debt Schedule and establish
the Final Debt
Amount. If issues in dispute are submitted to the Settlement
Accountant for
resolution, each party will furnish to the Settlement Accountant
such work
papers and other documents and information relating to the
disputed issues as
the Settlement Accountant may request, and will be afforded the
opportunity to
present to the Settlement Accountant any material relating to
the resolution of
the disputed items and to discuss the resolution of the disputed
items with the
Settlement Accountant; provided, that no party shall have any ex
parte
discussions with the Settlement Accountant (other than after
reasonable notice
to the other party and such party's refusal or failure to
participate). The
Settlement Accountant will be instructed in performing the
review that Purchaser
and Seller will each be provided with copies of any and all
correspondence and
drafts distributed to any party, and Purchaser and Seller will
be granted access
to information contained in the documents made available to the
Settlement
Accountant by the other party. The Settlement Accountant shall
determine only
those matters in dispute (and based solely on the materials and
other
information presented by Seller and Purchaser and not by
independent
investigation). The Settlement Accountant shall make its
determination within
thirty (30) days (or as soon as practicable thereafter if the
Settlement
Accountant notifies the parties that it requires additional time
to make such
determination) following the submission of the matter to the
Settlement
Accountant for resolution, and such determination shall be final
and binding
upon Purchaser and Seller. Purchaser and Seller will each bear
fifty percent
(50%) of the fees, charges and expenses of the Settlement
Accountant.
(c) In the event that the Final Net Worth Amount is greater
than the Target Net Worth Amount, such excess is referred to
herein as the
"Excess Net Worth Amount".
(d) In the event that the Final Net Worth Amount is less
than
the Target Net Worth Amount, such deficiency is referred to
herein as the "Net
Worth Deficiency".
(e) Calculation of Payments.
(i) If there is an Excess Net Worth Amount and an AMR
Excess Net Worth Amount, and such amounts in the aggregate are
equal to or less
than $20,000,000, then Purchaser shall be obligated to pay to
Seller the Excess
Net Worth Amount.
(ii) If there is an Excess Net Worth Amount and an AMR
Excess Net Worth Amount, and such amounts in the aggregate are
greater than
$20,000,000, then Purchaser shall be obligated to pay to Seller
an amount equal
to $20,000,000 multiplied by a
3
<PAGE>
fraction, of which the numerator is the Excess Net Worth Amount
and the
denominator is the sum of the Excess Net Worth Amount plus the
AMR Excess Net
Worth Amount.
(iii) If there is an Excess Net Worth Amount and an AMR
Net Worth Deficiency, then Purchaser shall be obligated to pay
to Seller an
amount equal to the lesser of (A) the Excess Net Worth Amount
and (B) the sum of
the AMR Deficiency plus $20,000,000.
(iv) If there is a Net Worth Deficiency, Seller shall be
obligated to pay to Purchaser an amount equal to the Net Worth
Deficiency.
(v) If there is an Excess Net Worth Amount and there is
neither an AMR Excess Net Worth Amount nor an AMR Net Worth
Deficiency, then
Purchaser shall be obligated to pay to Seller an amount equal to
the lesser of
the Excess Net Worth Amount and $20,000,000.
(f) Any amounts payable by Purchaser to Seller pursuant to
Section 1.05(e) shall be paid within five (5) Business Days
following the
determination of the Final Net Worth Amount pursuant to Section
1.05(b) and the
"Final Net Worth Amount" pursuant to Section 1.05(b) of the AMR
Stock Purchase
Agreement, together with interest thereon for the period from
the Closing Date
to (and including) the date of payment, at the prime rate as
quoted in the Money
Rates Section of The Wall Street Journal (the "Applicable
Rate"), by wire
transfer of immediately available funds to one or more accounts
designated by
Seller.
(g) Any amounts payable by Seller to Purchaser pursuant to
Section 1.05(e) shall be paid within five (5) Business Days
following the
determination of the Final Net Worth Amount pursuant to Section
1.05(b) and the
"Final Net Worth Amount" pursuant to Section 1.05(b) of the AMR
Stock Purchase
Agreement, together with interest thereon for the period from
the Closing Date
to (and including) the date of payment, at the Applicable Rate,
by wire transfer
of immediately available funds to one or more accounts
designated by Purchaser.
(h) Any amounts payable pursuant to Sections 1.05(f) or (g)
shall be deemed to increase or decrease the Purchase Price, as
applicable.
(i) In the event that the Final Debt Amount is greater than
zero (such excess, the "Excess Debt Amount"), the Purchase Price
shall be
decreased by, and Seller shall pay to Purchaser, within five (5)
Business Days
following the determination of the Final Debt Amount pursuant to
Section
1.05(b), an amount equal to such Excess Debt Amount, together
with interest
thereon for the period from the Closing Date to (and including)
the date of
payment, at the Applicable Rate, by wire transfer of immediately
available funds
to one or more accounts designated by Purchaser.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT
Each of Seller and Parent, as applicable, represents and
warrants to
Purchaser that the statements contained in this Article II are
true and correct,
except as set forth in the schedules provided by Seller and
Parent to Purchaser
dated the date hereof (the "Disclosure Schedules").
4
<PAGE>
Each disclosure set forth in the Disclosure Schedules is
identified by reference
to, or has been grouped under a heading referring to, a specific
individual
section of this Agreement and disclosure made pursuant to any
section thereof
shall be deemed to be disclosed on each of the other sections of
the Disclosure
Schedules to the extent the applicability of the disclosure to
such other
section is reasonably apparent from the disclosure made;
provided, that, except
as otherwise provided in this Agreement, Seller shall not be
required to
identify or refer to specific individual subsections of this
Agreement in the
Disclosure Schedules. The inclusion of any information in the
Disclosure
Schedules (or any update thereto) shall not be deemed to be an
admission or
acknowledgment, in and of itself, that such information is
required by the terms
hereof to be disclosed, is material to the Business, has
resulted in or would
result in a Material Adverse Effect or is outside the ordinary
course of
business.
2.01 Ownership of Shares. Seller is the record and beneficial
owner
of all of the Shares free and clear of all Encumbrances, other
than Encumbrances
pursuant to the Senior Secured Credit Facility, the PBGC
Settlement Agreement or
this Agreement. The sale of the Shares to Purchaser pursuant to
Article I will
be effective to transfer title to all of the Shares to Purchaser
free and clear
of any Encumbrances.
2.02 Organization. Each of Seller and Parent is a corporation
duly
organized, validly existing and in good standing under the laws
of the State of
Delaware. Each of Seller and Parent has requisite corporate
power and authority
to own its properties and to carry on its business as it is now
being conducted.
2.03 Authority and Binding Effect. Each of Seller and Parent has
all
requisite corporate power and authority to execute and deliver
this Agreement
and to consummate the Contemplated Transactions and at Closing,
each of Seller
and Parent will have all requisite corporate power and authority
to execute and
deliver the Other Seller Documents. The execution, delivery and
performance of
this Agreement has been, and the Other Seller Documents will be,
duly and
validly authorized by all necessary action of Seller, Parent and
their
respective Affiliates and no additional authorization on the
part of Seller,
Parent or their respective Affiliates is necessary in connection
with the
execution, delivery and performance of this Agreement. This
Agreement has been,
and the Other Seller Documents will be, duly executed and
delivered by Seller
and Parent, as applicable. This Agreement is, and the Other
Seller Documents
will be, a legal, valid and binding obligation of Seller and
Parent, as
applicable, enforceable against Seller and Parent, as
applicable, in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally
and to general principles of equity.
2.04 No Violations. The execution and delivery by Seller and
Parent
of this Agreement do not, and the performance and consummation
of the
Contemplated Transactions by Seller and Parent will not: (a)
conflict with or
violate any provision of the Organizational Documents of Seller
or Parent; (b)
other than the Senior Secured Credit Facility and the PBGC
Settlement Agreement,
conflict with, or result in the breach of, or constitute a
default under, or
result in the termination, cancellation or acceleration (whether
after the
giving of notice or the lapse of time or both) of any material
right or
obligation of Seller under, any material contract or agreement
to which Seller
or Parent is party or to which any of their respective assets is
subject, (c)
violate or result in a breach of or constitute a default under
any Law or Order
applicable to
5
<PAGE>
Seller or Parent or by which Seller of Parent or any of their
respective assets
is bound; (d) other than the Senior Secured Credit Facility and
the PBGC
Settlement Agreement, require any Consent of any Authority or
any party to any
material contract or agreement to which Seller or Parent is
party or by which
Seller or Parent is bound or to which any of Seller's or
Parent's assets is
subject; or (e) other than Permitted Liens or Encumbrances
created pursuant to
this Agreement, result in the creation or imposition of any
Encumbrance upon the
Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
SELLER RELATING TO THE ACQUIRED COMPANY
Seller represents and warrants to Purchaser that the
statements
contained in this Article III are true and correct, except as
set forth in the
Disclosure Schedules. Each disclosure set forth in the
Disclosure Schedules is
identified by reference to, or has been grouped under a heading
referring to, a
specific individual section of this Agreement and disclosure
made pursuant to
any section thereof shall be deemed to be disclosed on each of
the other
sections of the Disclosure Schedules to the extent the
applicability of the
disclosure to such other section is reasonably apparent from the
disclosure
made; provided, that, except as otherwise provided in this
Agreement, Seller
shall not be required to identify or refer to specific
individual subsections of
this Agreement in the Disclosure Schedules. The inclusion of any
information in
the Disclosure Schedules (or any update thereto) shall not be
deemed to be an
admission or acknowledgment, in and of itself, that such
information is required
by the terms hereof to be disclosed, is material to the
Business, has resulted
in or would result in a Material Adverse Effect or is outside
the ordinary
course of business.
3.01 Organization. The Acquired Company is a corporation
duly
organized, validly existing and in good standing under the laws
of Delaware and
has all requisite corporate power and authority to own, lease
and operate the
Assets and the Business and to carry on the Business as it is
now being
conducted. The Acquired Company is duly qualified to do business
and is in good
standing as a foreign corporation in each jurisdiction in which
the nature of
its business or the ownership, lease or operation of its Assets
makes such
qualification necessary, except where the failure to have such
power or
authority, to be in good standing or to be duly qualified to
transact business,
would not result in material monetary costs to Purchaser or a
forfeiture of
material rights by Purchaser.
3.02 Capitalization. The authorized capital of the Acquired
Company
consists solely of 1,500 shares of common stock, no par value
per share, of
which 1,031 shares are issued and outstanding and constitute the
Shares. Seller
is the record and beneficial owner of the Shares, free and clear
of all
Encumbrances, other than Encumbrances pursuant to the Senior
Secured Credit
Facility, the PBGC Settlement Agreement or this Agreement. The
Shares have been
duly authorized, validly issued and are fully paid,
non-assessable and free of
preemptive rights. Except for this Agreement and the
Contemplated Transactions
and except as set forth on the Capitalization Schedule, there
are no outstanding
options, warrants, purchase rights, subscription rights,
conversion rights,
exchange rights, or other Contracts with respect to the Shares
or that could
require the Acquired Company to issue, sell or otherwise cause
to become
outstanding any common stock or other equity securities or other
securities of
the Acquired Company. Except as set forth on the Capitalization
Schedule, there
are no outstanding or
6
<PAGE>
authorized stock appreciation, phantom stock, profit
participation, or similar
rights with respect to the Acquired Company. Except pursuant to
this Agreement,
no equity securities of the Acquired Company are subject to any
agreements or
understandings between or among any Persons with respect to the
voting or
transfer thereof. The Acquired Company does not have outstanding
any bonds,
debentures, notes or other obligations the holders of which have
the right to
vote (or are convertible into or exercisable for securities
having the right to
vote) on any matter.
3.03 Subsidiaries.
(a) The Subsidiaries Schedule sets forth a true and complete
list of the subsidiaries of the Acquired Company (each, a
"Subsidiary" and
collectively, the "Subsidiaries"), including the jurisdiction of
incorporation,
organization or formation of each such Subsidiary, the
jurisdictions in which
any such Subsidiary is qualified to do business as a foreign
entity, and the
authorized (if applicable) and outstanding stock of each such
Subsidiary and the
record owners of the issued capital of each Subsidiary. Except
as set forth on
the Subsidiaries Schedule, the Acquired Company is the
beneficial owner,
directly or indirectly, of all of the equity securities of each
Subsidiary
(other than any Affiliated Medical Group or any Billing
Partnership).
(b) Each Subsidiary (i) has been duly organized and is
validly
existing and in good standing under the laws of the jurisdiction
of its
incorporation or organization, (ii) has all necessary corporate,
partnership,
limited liability company or other power and authority to own,
lease and operate
its Assets and the Business and to carry on the Business as
currently conducted
by it and (iii) is duly qualified to do business and is in good
standing in each
jurisdiction in which the nature of its business and ownership,
lease or
operation of its Assets makes such qualification necessary,
except where the
failure to have such power or authority, to be in good standing
or to be duly
qualified to transact business, would not result in material
monetary costs to
Purchaser or a forfeiture of material rights by Purchaser, and
as set forth with
respect to each such Subsidiary on the Subsidiaries
Schedule.
(c) All of the outstanding equity securities of each such
Subsidiary (i) where the Subsidiary is a corporation, are duly
and validly
issued, fully paid and non-assessable, (ii) where the Subsidiary
is not a
corporation, are duly created pursuant to the laws of the
jurisdiction of such
Subsidiary's organization or formation, issued and paid for in
accordance with
such Subsidiary's Organizational Documents and are fully paid
and non-assessable
and (iii) are held of record by the Person or Persons set forth
on the
Subsidiaries Schedule. Except as set forth on the Subsidiaries
Schedule, the
Acquired Company owns, directly or indirectly through another
Subsidiary, all of
the equity securities and other securities in each Subsidiary,
free and clear of
all Encumbrances, other than Encumbrances pursuant to the Senior
Secured Credit
Facility, the PBGC Settlement Agreement or this Agreement.
Except as set forth
on the Subsidiaries Schedule, neither the Acquired Company nor
any Subsidiary
owns, or has any right to acquire, any equity securities or
other securities of
any Person (other than, in the case of the Acquired Company and
each Subsidiary,
a Subsidiary) or any direct or indirect equity interest in any
other Person.
Except as set forth in the applicable Organizational Documents
of each
Subsidiary, there are no options, warrants or rights of
conversion or any other
Contract relating to any Subsidiary obligating such Subsidiary,
directly or
indirectly, to issue additional equity securities or other
securities in such
Subsidiary. Except as set forth on the Subsidiaries
Schedule,
7
<PAGE>
no Person has the right to cause the redemption or repurchase of
any equity
securities or other securities of any Subsidiary, nor are any
equity securities
or other securities of any Subsidiary subject to, any Contracts
or
understandings between or among any Persons with respect to the
voting or
transfer thereof. No Subsidiary has outstanding bonds,
debentures, notes or
other obligations the holders of which have the right to vote
(or are
convertible into or exchangeable for securities having the right
to vote) on any
matter. Each Affiliated Medical Group is owned, directly or
indirectly, by a
Medical Professional with whom the Acquired Company or a
Subsidiary has entered
into a Contract of the type required to be disclosed pursuant to
Section
3.15(a)(x).
3.04 No Violations. The execution and delivery by Seller of
this
Agreement, and the performance and consummation of the
Contemplated
Transactions, do not and will not (a) conflict with or violate
any provision of
the Organizational Documents of the Acquired Company or any
Subsidiary, (b)
except as set forth on the No Violations Schedule and subject to
obtaining the
Required Consents, do not and will not violate, conflict with or
result in the
breach of, or constitute a default under, or result in the
termination,
cancellation or acceleration (whether after the giving of notice
or the lapse of
time or both) of, or cause the loss or material modification of
any material
right, or the imposition or material modification of any
material obligation, of
the Acquired Company or any Subsidiary under any Scheduled
Contract; (c) subject
to obtaining the Required Consents, violate or result in a
breach of or
constitute a default under any Law or Order; or (d) result in
the creation or
imposition of any Encumbrance upon the Shares or upon any
material Asset (other
than as created by the terms of this Agreement and, in the case
of Assets only,
a Permitted Lien).
3.05 Consents and Approvals. Except for any Consent required
under
the HSR Act and as set forth on the Consents and Approvals
Schedule (together
with the Consents set forth on the No Violations Schedule, the
"Required
Consents"), (a) no Consent is required by the Organizational
Documents of the
Acquired Company or any Subsidiary, (b) no Consent is required
by any applicable
Law or other binding action or requirement of an Authority, and
(c) no Consent
is required by the terms of any material Scheduled Contract,
which must be
obtained from any Person, or is required to be made, obtained or
otherwise
satisfied by Seller, the Acquired Company or any Subsidiary in
order for any
such party to execute and deliver this Agreement or the Other
Seller Documents,
to perform their respective obligations hereunder and thereunder
and to perform
and consummate the Contemplated Transactions.
3.06 Financial Statements.
(a) Seller has delivered to Purchaser copies of unaudited
consolidated balance sheets and statements of income, changes in
owners' equity,
and cash flow as of and for the fiscal years ended 2002, 2003
and 2004 and the
notes and schedules related thereto for the Acquired Company and
the
Subsidiaries. The financial statements as of and for the fiscal
year ended
August 31, 2004 are referred to as the "Most Recent Financial
Statements". Such
financial statements (including the notes thereto) have been
prepared in
accordance with GAAP, applied on a consistent basis throughout
the periods
covered thereby (except as may be indicated in the notes to such
financial
statements), are consistent with the books and records of the
Acquired Company
and the Subsidiaries and fairly present the financial condition
of the Acquired
Company and the
8
<PAGE>
Subsidiaries as of such dates and the results of operations of
the Acquired
Company and the Subsidiaries as of the dates and for periods
indicated.
(b) Except as set forth on the Financial Statements
Schedule,
the Acquired Company and the Subsidiaries have no Liabilities
that would be
required to be reflected on a balance sheet prepared in
accordance with GAAP,
except for Liabilities that (i) are reflected or reserved
against in the Most
Recent Financial Statements or (ii) have been incurred since the
date of the
balance sheet contained in the Most Recent Financial Statements
in the ordinary
course of business and which, individually or in the aggregate,
have not had and
would not reasonably be expected to have a Material Adverse
Effect. All amounts
payable to any Medical Professional under any profit sharing,
bonus or other
incentive compensation plan are accrued on a monthly basis and
have been fully
accrued by the time of payment.
3.07 Absence of Changes. Except as disclosed on the Certain
Changes
Schedule, since August 31, 2004 through the date of this
Agreement, the Acquired
Company and the Subsidiaries have conducted their businesses
only in the
ordinary course consistent with past practice and there has not
been any:
(a) declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock
of the Acquired
Company, or any repurchase, redemption, retirement or other
acquisition by the
Acquired Company of any outstanding shares of capital stock, or
other securities
of, or other equity or ownership interests in, the Acquired
Company or any other
capital contribution to or equity investment in the Acquired
Company;
(b) incurrence of any Encumbrance (other than any Permitted
Lien or the Encumbrance of Assets pursuant to the Senior Secured
Credit
Facility, the PBGC Settlement Agreement or this Agreement) or
the incurrence of
any Liability other than Liabilities incurred since the date of
the balance
sheet contained in the Most Recent Financial Statements in the
ordinary course
of business consistent with past practice;
(c) incurrence, assumption or guarantee by the Acquired
Company or any Subsidiary of any indebtedness for borrowed money
other than (i)
borrowings in the ordinary course of business pursuant to the
Senior Secured
Credit Facility; and (ii) the incurrence, assumption or
guarantee by the
Acquired Company or a Subsidiary of any indebtedness for
borrowed money on
behalf of or for the benefit of any Affiliate or any other
Subsidiary as
permitted (and forgiven, discharged, released, cancelled
(including by way of
capital contribution) or paid) pursuant to Section 5.07;
(d) making of any loan, advance or capital contribution to,
or
investment in, any Person other than (i) the making of any loan,
advance or
capital contribution to, or investment in, any Affiliated
Medical Group or other
third-party medical group contracting with the Acquired Company
or any
Subsidiary in the ordinary course of business consistent with
past practice,
(ii) the making of any loan, advance or capital contribution, or
investment in,
any Affiliate to the extent permitted pursuant to Section 5.07,
or (iii) the
making of any advance to any employee, consultant or independent
contractor of
the Acquired Company or any Subsidiary in the ordinary course of
business
consistent with past practice;
9
<PAGE>
(e) sale (other than sales or other dispositions of
equipment
deemed surplus or obsolete in the ordinary course of business),
lease, pledge,
transfer or other disposition of any material Asset or any Asset
having a
depreciated book value or estimated fair market value in excess
of $250,000,
individually, or $500,000, in the aggregate, other than the sale
of accounts
receivable in the ordinary course of business consistent with
past practice;
(f) (i) payment by the Acquired Company or any Subsidiary of
any bonus or other similar non-recurring compensation (including
severance or
termination pay)(other than the payment of annual bonuses or
other compensation
in the ordinary course of business or as otherwise previously
disclosed in
writing to Purchaser) or increase by the Acquired Company or any
Subsidiary of
any bonus, salary or other compensation (including severance or
termination pay)
to any Management Level Employee or director of the Acquired
Company or any
Subsidiary (other than as previously disclosed in writing to
Purchaser); (ii)
increase by the Acquired Company or any Subsidiary of any bonus
(other than such
increases made on an annual basis in the ordinary course of
business), salary or
other compensation (including severance or termination pay) to
any employee
(other than any Medical Professional) of the Acquired Company or
any Subsidiary
(other than any increases to employees (other than Management
Level Employees)
which do not exceed 0.5% in the aggregate to all employees of
the Acquired
Company and the Subsidiaries); and (iii) entry into any
employment, severance,
management, consulting, deferred compensation or similar
Contract with any
employee of the Acquired Company or any Subsidiary (other than
the entry into
any Medical Professional Contract entered into in the ordinary
course of
business consistent with past practice or any Contract disclosed
pursuant to
Sections 3.15(a)(iv) and (v), which subsections are identified
on the Contracts
Schedule);
(g) adoption of any Benefit Plan, or any increase in the
benefits to or payments under, any Benefit Plan that has
resulted or would be
reasonably expected to result in an increase in the aggregate
costs of such
benefits;
(h) change in the accounting methods or principles used by
the
Acquired Company or any Subsidiary other than as required under
any applicable
Law or GAAP;
(i) settlement or compromise of any Proceeding with any
Governmental Authority pursuant to which (A) there is a finding
or admission of
violation of Law, or (B) the settlement or compromise involves
the imposition,
through a corporate integrity agreement or otherwise, of any
ongoing auditing,
disclosure or reporting obligations or material changes in the
conduct of the
Business on the part of the Acquired Company or any
Subsidiary;
(j) capital expenditure made, authorized or committed,
except
for such expenditures that are substantially consistent with and
do not exceed
the quarterly allocations in the Capital Budget for the period
commencing
September 1, 2004 through the date of this Agreement;
(k) change in the current assets or current liabilities of
the
Acquired Company and the Subsidiaries, taken as a whole, other
than in the
ordinary course of business consistent with past practice;
10
<PAGE>
(l) change in profit sharing, bonus or other incentive
compensation plans with Medical Professionals, except in the
ordinary course of
business consistent with past practice; or
(m) agreement, whether oral or written, by the Acquired
Company or a Subsidiary to do any of the foregoing.
3.08 Sufficiency of and Title to Assets; Real Property and
Related
Matters.
(a) Except as set forth on the Assets Schedule, the Assets
are
sufficient for the continued conduct of the Business after the
Closing in
substantially the same manner as currently conducted.
(b) Except as set forth on the Assets Schedule, the Acquired
Company and the Subsidiaries have good and marketable title to,
or leasehold
title or a valid license to, or a valid and enforceable right to
use, all of the
material Assets used, or held for use, in connection with the
Business. All of
such Assets owned or purported to be owned by the Acquired
Company or a
Subsidiary, including all of the Assets reflected on the Most
Recent Financial
Statements or acquired after the date thereof, are owned by them
free and clear
of all Encumbrances, except for (i) Permitted Liens, and (ii)
Assets which were
disposed of in the ordinary course of business since the date of
the Most Recent
Financial Statements. Neither the Acquired Company nor any
Subsidiary has
received any notice from any Authority with respect to any
taking of any
material Assets or any portion thereof or interest therein by
eminent domain or
otherwise, and there is no proceeding pending or, to the
Knowledge of Seller,
threatened, with respect thereto.
(c) The Assets Schedule lists all real property leases and
subleases, and any amendments or modifications thereof, with an
annual base
rental obligation of more than $500,000 as to which the Acquired
Company or a
Subsidiary is a party or that are material to the operation of
the Business
(each, a "Lease," and the real property leased pursuant to the
Leases, the
"Leased Real Property"). The Acquired Company or the relevant
Subsidiary holds
good and valid leasehold title to the Leased Real Property, in
each case in
accordance with the provisions of the applicable Lease and free
of all Liens,
except for Permitted Liens. Except as set forth in the Assets
Schedule, all of
the Leases are in full force and effect and grant in all
material respects the
leasehold estates or rights of occupancy or use they purport to
grant. Except as
identified in the Assets Schedule, there are no existing
material defaults on
the part of the Acquired Company or any Subsidiary or, to the
Knowledge of
Seller, any other party under any Lease, and no event has
occurred which, with
notice, lapse of time or both, would constitute a material
default on the part
of the Acquired Company or any Subsidiary or, to the Knowledge
of Seller, any
other party under any Lease or would result in the termination,
cancellation or
acceleration (whether after the giving or notice or the lapse of
time or both)
of, or cause the loss or material modification of any right, or
the imposition
or material modification of any material obligation, of the
Acquired Company or
any Subsidiary under any Lease. Neither the Acquired Company nor
any Subsidiary
has any obligation to perform any construction of material
tenant improvements
involving material monetary costs under any Lease.
11
<PAGE>
(d) Neither the Acquired Company nor any Subsidiary owns any
real property and neither the Acquired Company nor any
Subsidiary has owned any
real property in the ten years preceding the date of this
Agreement.
3.09 Insurance Coverage.
(a) The Insurance Schedule contains a true and complete list
of all of the insurance policies covering the Assets,
operations, employees,
officers and directors of the Acquired Company and the
Subsidiaries. The Seller
has furnished to Purchaser true and complete copies of all
insurance policies,
performance bonds and related agreements listed in the Insurance
Schedule (each
a "Policy").
(b) All premiums payable under each Policy have been paid
and
the Acquired Company and the Subsidiaries are otherwise in full
compliance in
all material respects with the terms and conditions of each
Policy. Each Policy
is enforceable, remains in full force and effect and is of such
types and in
such amount and for risks, casualties and contingencies as may
be required under
applicable Laws and as customary for Persons who carry on
businesses similar in
scope and substance to the Business. Neither the Acquired
Company nor any
Subsidiary has received, or has any Knowledge of, any threatened
notice or other
communication regarding any actual or possible (i) termination,
cancellation or
invalidation of any of Policy or (ii) refusal of any coverage or
rejection of
any material claims under any Policy, or (iii) any retroactive,
retrospective or
other premium adjustments under any Policy.
3.10 Litigation. Except as set forth on the Litigation
Schedule,
there is no action, lawsuit or proceeding ("Action") pending or,
to the
Knowledge of Seller, threatened, whether by or before any
Governmental Authority
or otherwise, against the Acquired Company or any of the
Subsidiaries that (a)
would reasonably be expected to, individually or in the
aggregate, materially
affect the operation or conduct of the Business or the use of
the Assets in any
jurisdiction where the Acquired Company or any Subsidiary
conducts material
business or, unless involving any medical malpractice claim or
other claim
covered by any Policy (but only to the extent of such coverage),
if determined
adversely, would reasonably be expected to result in Damages to
the Acquired
Company or any Subsidiary in excess of $2,000,000, or (b) would
reasonably be
expected to prevent or materially delay the performance of this
Agreement by
Seller. Except as set forth on the Litigation Schedule, there
are no judgments
or outstanding Orders material to the conduct of the Business or
that impose
material financial obligations on the part of the Acquired
Company or any
Subsidiary, rendered by a Governmental Authority against the
Acquired Company or
any of the Subsidiaries or any of their properties or businesses
or that would
reasonably be expected to prevent or materially delay the
performance of this
Agreement by Seller.
3.11 Compliance With Law.
(a) Except as set forth on the Compliance Schedule, to the
Knowledge of Seller, the Acquired Company and each Subsidiary
has complied in
all material respects and is in compliance in all material
respects with all
Laws applicable to the Business, except for such failures to
comply that would
not reasonably be expected to have a material and adverse effect
on the
financial condition or results of operations of the Acquired
Company and the
Subsidiaries,
12
<PAGE>
taken as a whole, or on the operation or conduct of the Business
or the use of
the Assets in any jurisdiction where the Acquired Company or any
Subsidiary
conducts material business. To the Knowledge of Seller, no
investigation,
inquiry, audit or review by any Governmental Authority with
respect to the
Acquired Company, any Subsidiary or the Business is pending or,
threatened
against the Acquired Company or any Subsidiary alleging any
failure to so
comply, nor has any Governmental Authority indicated in writing
an intention to
conduct the same, except for such failures to comply that would
not reasonably
be expected to be material to the financial condition or results
of operations
of the Acquired Company and the Subsidiaries, taken as a whole,
or to the
operation or conduct of the Business or the use of the Assets in
any
jurisdiction where the Acquired Company or any Subsidiary
conducts material
business. This Section 3.11(a) shall not apply to compliance
matters which are
the subject of Sections 3.13, 3.18, 3.19 and 3.22.
(b) The Acquired Company and each Subsidiary is, and at all
times since the issuance of any Order to which the Acquired
Company, any
Subsidiary or any of their Assets is subject, has been, in full
compliance with
all of the terms and requirements of each such Order, except for
such failure to
comply that would not reasonably be expected to be material to
the financial
condition or results of operations of the Acquired Company and
the Subsidiaries,
taken as a whole, or to the operation or conduct of the Business
or the use of
the Assets in any jurisdiction where the Acquired Company or any
Subsidiary
conducts material business. This Section 3.11(b) shall not apply
to compliance
matters which are the subject of Sections 3.13, 3.18, 3.19 and
3.22.
3.12 Governmental Authorizations.
(a) The Acquired Company and the Subsidiaries possess all
Governmental Authorizations that are required by any
Governmental Authority to
conduct the Business as presently conducted by the Acquired
Company and the
Subsidiaries, except for each such Governmental Authorization
the failure of
which to obtain, individually or in the aggregate, has not had
and would not
reasonably be expected to have, individually or in the
aggregate, a Material
Adverse Effect. Each Governmental Authorization is valid and in
full force and
effect. The Acquired Company and each Subsidiary is in
compliance with all
applicable terms and requirements of each Governmental
Authorization, except for
any such non-compliance that, individually or in the aggregate,
has not had and
is not reasonably expected to have a Material Adverse Effect. To
the Knowledge
of Seller, there is no threatened suspension, cancellation or
termination of any
Governmental Authorization that is reasonably expected to have a
Material
Adverse Effect.
(b) Except as would not, individually or in the aggregate,
reasonably be expected to materially and adversely affect the
Business,
financial condition or results of operations of the Acquired
Company and the
Subsidiaries, taken as a whole, to the extent required under
applicable Law, the
Acquired Company and each Subsidiary is certified for
participation under the
Governmental Programs.
3.13 Environmental Matters. Except as disclosed in the
Environmental
Matters Schedule:
13
<PAGE>
(a) To the Knowledge of Seller, the real property that the
Acquired Company or any Subsidiary leases and the operations of
the Business are
in compliance in all material respects with all applicable
Environmental Laws.
(b) To the Knowledge of Seller, there are no aboveground or
underground storage tanks containing Hazardous Substances
located on real
property leased by the Acquired Company or any Subsidiary. To
the Knowledge of
Seller, neither the Acquired Company nor any of the Subsidiaries
has released,
treated or disposed of any Hazardous Substance, except in such
amounts or such a
manner that would not reasonably be expected to result in the
need for material
remediation under Environmental Laws. There are no pending or,
to the Knowledge
of Seller, threatened Actions against the Acquired Company or
any of the
Subsidiaries arising from or relating to any Environmental
Conditions. There has
been no release of a Hazardous Substance at a real property
formerly leased or
operated by the Acquired Company or any Subsidiary, which could
result in
material Liability under Environmental Laws to the Acquired
Company or any
Subsidiary.
(c) Seller has provided to Purchaser true and complete
copies
of all environmental investigations, reports, assessments or
studies in the
possession of Seller, the Acquired Company or any Subsidiary
relating to the
real property currently or formerly owned or leased by the
Acquired Company or
any Subsidiary which have been conducted in the ten years
preceding the date of
this Agreement.
(d) For the avoidance of doubt, the representations and
warranties with respect to property formerly owned or leased
shall apply to
property owned or leased by a predecessor of the Acquired
Company or any
Subsidiary, but only if such property was actually owned or
leased by the
predecessor entity when the stock or assets of the predecessor
were acquired by
the Acquired Company or any Subsidiary or any other Affiliate of
Seller or
Parent.
3.14 Brokers and Finders. Other than Morgan Stanley &
Co.
Incorporated, whose fees shall be paid by Seller, no investment
banker, broker,
finder or other intermediary (a) has acted for or on behalf of
Seller or the
Acquired Company or any Subsidiary in connection with this
Agreement or the
Contemplated Transactions or (b) is entitled to any fee or
commission from
Seller or the Acquired Company or any Subsidiary in connection
with this
Agreement or the Contemplated Transactions.
3.15 Contracts.
(a) Except for the Contracts set forth on the Contracts
Schedule (the "Scheduled Contracts") or as specifically
contemplated by this
Agreement, neither the Acquired Company nor any Subsidiary is a
party to any:
(i) Contract pursuant to which the Acquired Company or
any Subsidiary provides emergency department or hospitalist
program staffing
services to or for any hospital or other health care
facility;
(ii) Contract pursuant to which the Acquired Company or
any Subsidiary provides management, consulting, billing or
other
administrative-type services to or
14
<PAGE>
for any hospital, other health care facility or other Person
(other than any
Contracts of the type described in clause (iii) below);
(iii) Contract pursuant to which the Acquired Company or
any Subsidiary provides management, consulting, billing or
other
administrative-type services to any physician or medical group
(excluding
Affiliated Medical Groups);
(iv) Contract of employment, consulting, management,
separation, severance or similar agreement with any stockholder,
director, or
Management Level Employee (other than any Medical Professional)
of the Acquired
Company or any Subsidiary (which shall be separately identified
on the Contracts
Schedule);
(v) Contract of employment, consulting, management,
separation, severance or similar agreement with any consultant
or independent
contractor (other than any Medical Professional) providing for
annual
compensation from the Acquired Company or any Subsidiary in
excess of $100,000
and is not terminable by the Acquired Company or any Subsidiary
upon less than
120 days' notice without severance obligations other than under
any applicable
Law (which shall be separately identified on the Contracts
Schedule);
(vi) stock option, share purchase, profit sharing,
deferred compensation, bonus or other incentive compensation
contract, plan or
arrangement, except for any profit sharing, bonus or other
incentive
compensation contract with any Medical Professional;
(vii) note, mortgage, indenture, letter of credit or
other obligation or agreement or other instrument entered into
by the Acquired
Company or any Subsidiary for or relating to indebtedness for
borrowed money
(including, without limitation, capitalized lease obligations),
or any guarantee
by the Acquired Company or any Subsidiary of third-party
obligations;
(viii) collective bargaining agreement with any labor
union or association representing employees of the Acquired
Company or any
Subsidiary;
(ix) Contract for the lease of personal property with an
annual base rental obligation of more than $100,000 or a total
remaining rental
obligation of more than $100,000;
(x) Contract with any Person who owns or holds any
equity securities or other ownership interest of any Affiliated
Medical Group
(which shall be separately identified on the Contracts
Schedule);
(xi) Contract between the Acquired Company or any
Subsidiary (excluding Affiliated Medical Groups) and any
Affiliated Medical
Group;
(xii) joint venture, partnership or limited liability
company agreement with any other Person, other than any Billing
Partnership;
15
<PAGE>
(xiii) Contract limiting the type of business activity
of the Acquired Company or any Subsidiary (excluding any
Contract that limits
the business activities of any Affiliated Medical Group other
than the type of
business activities it performs for the Acquired Company or any
Subsidiary and
excluding any Contract that is solely for the benefit of the
Acquired Company or
any Subsidiary) or any stockholder, officer or director thereof
or limiting the
freedom of the Acquired Company or any Subsidiary or any
stockholder, officer or
director (other than any stockholder, officer or director of an
Affiliated
Medical Group in their capacity as such) thereof to engage in
any line of
business in any geographic area or to compete with any Person
(other than the
Acquired Company or any Subsidiary);
(xiv) Contract with a group purchasing organization;
(xv) material Contract containing capitated payment
arrangements;
(xvi) Contract (other than any Contracts of the type
described in clauses (i) - (xv) above and other than real or
personal property
leases) requiring payments by the Acquired Company or any
Subsidiary in excess
of $250,000 per year and which are not terminable by the
Acquired Company or
such Subsidiary upon less than 180 days' notice; or
(xvii) material written amendment, supplement or
modification in respect of any of the foregoing.
(b) Except as set forth in the Contracts Schedule:
(i) each Scheduled Contract is the valid and binding
obligation of the Acquired Company or a Subsidiary and, to the
Knowledge of
Seller, each other Person or party thereto, enforceable in
accordance with its
terms and is in full force and effect, subject to applicable
bankruptcy,
insolvency, reorganization, moratorium and similar laws
affecting creditors'
rights and the effect of general principles of equity, whether
enforcement is
considered in a proceeding in equity or at law and except to the
extent that the
failure to be enforceable or in full force and effect would not
reasonably be
expected to be material.
(ii) to the Knowledge of Seller, with respect to the
material Scheduled Contracts (a) there exists no material breach
of or default
by the Acquired Company or any Subsidiary, as the case may be,
and (b) there has
not occurred any event or events that, with the lapse of time or
the giving of
notice or both, would violate, conflict with or result in the
material breach
of, or constitute a material default under or result in the
termination,
cancellation or acceleration of, or cause the loss or material
modification of
any right, or the imposition or material modification of any
obligation under,
any such Contract;
(iii) to the Knowledge of Seller, no other Person party
to any material Scheduled Contract is now in breach of or
default under any
material term thereof (which breach or default remains uncured
as of the date
hereof) and there has not occurred any event or events that,
with the lapse of
time or the giving of notice or both, would constitute a
material default by any
other party under any material Scheduled Contract; neither the
Acquired Company
nor any Subsidiary has received any notice of any anticipated
breach of or
default under any material term thereof by any Person party to
any material
Scheduled Contract; and
16
<PAGE>
(iv) neither the Acquired Company nor any Subsidiary has
received any written notice that any Person party to any
Scheduled Contract
currently intends to cancel, terminate or, except in the
ordinary course of
business, renegotiate such Scheduled Contract or to exercise or
not to exercise
any option thereunder.
(c) Except as set forth on the Contracts Schedule, true and
complete copies of each of the written Scheduled Contracts,
together with all
material amendments, modifications or other changes thereto,
have been made
available to Purchaser.
3.16 Intellectual Property.
(a) The Intellectual Property Schedule lists all patents,
registered trademarks, domain names, registered service marks
and registered
copyrights and all applications for registration for any of the
foregoing owned
by the Acquired Company and the Subsidiaries as of the date of
this Agreement
and that are used or for use in the Business of the Acquired
Company and the
Subsidiaries (collectively, the "Registered Intellectual
Property"). Except as
set forth on the Intellectual Property Schedule, (i) the right,
title or
interest of the Acquired Company and the Subsidiaries, as
applicable, in each
item of Registered Intellectual Property is free and clear of
Liens, except for
Permitted Liens, (ii) there is no claim by any Person or any
Proceeding pending
or, to the Knowledge of Seller, threatened which relates to the
use of any of
the Registered Intellectual Property by the Acquired Company or
any of the
Subsidiaries, or the validity or enforceability of the
Registered Intellectual
Property or the rights of the Acquired Company or any of the
Subsidiaries to
continued use of the Registered Intellectual Property; (iii)
Seller has no
Knowledge of any infringement or improper use by any third party
of the
Registered Intellectual Property; (iv) all registrations and
applications for
registration of Registered Intellectual Property are in full
force and effect;
and (v) none of the Registered Intellectual Property is subject
to any
outstanding Order limiting the scope or use thereof or declaring
any of the
Registered Intellectual Property abandoned.
(b) Except as set forth on the Intellectual Property
Schedule,
with respect to any material non-registered trademarks, service
marks, trade
secrets or copyrights (including copyrights in proprietary
software and related
documentation) owned by the Acquired Company and the
Subsidiaries and used in
the Business (the "Non-Registered Intellectual Property"), (i)
the right, title
or interest of the Acquired Company and the Subsidiaries, as
applicable, in each
item of Non-Registered Intellectual Property is free and clear
of Liens, except
for Permitted Liens, (ii) there is no material claim by any
Person or any
Proceeding pending or, to the Knowledge of Seller, threatened
which relates to
the use of any of the Non-Registered Intellectual Property by
the Acquired
Company or any of the Subsidiaries, or the rights of the
Acquired Company or any
of the Subsidiaries to continued use of the Non-Registered
Intellectual
Property; and (iii) Seller has no Knowledge of any infringement
or improper use
by any third party of the Non-Registered Intellectual Property.
To the Knowledge
of Seller, neither the Acquired Company nor any of the
Subsidiaries has taken or
omitted to take any action which action or omission to act would
have the effect
of waiving any material rights in or to any item of
Non-Registered Intellectual
Property.
(c) Except as set forth on the Intellectual Property
Schedule,
with respect to any material intellectual property licensed to
the Acquired
Company or any Subsidiary
17
<PAGE>
and used in the Business (the "Licensed Intellectual Property"),
to the
Knowledge of Seller, the Acquired Company and the Subsidiaries,
as applicable,
possess rights in each item of Licensed Intellectual Property
sufficient to use
such Licensed Intellectual Property in the conduct of the
Business in
substantially the manner in which such Licensed Intellectual
Property is
currently used, free and clear of all Liens, except for
Permitted Liens.
3.17 Tax Matters.
(a) The Acquired Company and the Subsidiaries have timely
filed with the appropriate taxing or other Governmental
Authorities all material
Tax Returns required to be filed through the date hereof
(pursuant to an
extension of time or otherwise), and each such Tax Return was
complete and
accurate in all material respects. All Taxes that have become
due and payable
have been paid, regardless of whether or not shown on any Tax
Return. Except as
set forth on the Tax Matters Schedule, Seller has made available
to Purchaser
true and correct copies of those portions of such Tax Returns
relating to the
Acquired Company and the Subsidiaries for its last three fiscal
years. State
Income Tax Returns for the Acquired Companies and its
Subsidiaries for tax year
2001 are available upon request.
(b) All Taxes that the Acquired Company and the Subsidiaries
have been required to collect or withhold have been duly
collected or withheld
and, to the extent required when due, have been or will be duly
paid to the
proper taxing or other Governmental Authority.
(c) Except as set forth in the Tax Matters Schedule, no
deficiencies for Taxes of the Acquired Company or the
Subsidiaries have been
claimed, proposed or assessed by any taxing or other
Governmental Authority.
Except as set forth in the Tax Matters Schedule, there are no
pending or, to the
Knowledge of Seller, threatened audits, suits, proceedings,
actions or claims
for or relating to any liability in respect of Taxes of the
Acquired Company or
the Subsidiaries. Except as set forth in the Tax Matters
Schedule, neither the
Acquired Company nor any of the Subsidiaries have been notified
that any taxing
or other Governmental Authority intends to audit a Tax Return of
the Acquired
Company or the Subsidiaries for any other period. Except as set
forth in the Tax
Matters Schedule, no extension of a statute of limitations
relating to Taxes is
in effect with respect to the Acquired Company or the
Subsidiaries. Parent's
U.S. federal consolidated income tax return for tax year 1997 is
currently under
examination.
(d) There are no Liens for Taxes (other than Permitted
Liens)
upon the assets of the Acquired Company or the Subsidiaries.
(e) Except as set forth in the Tax Matters Schedule, neither
the Acquired Company nor any of the Subsidiaries is a party to
or bound by any
binding tax sharing, tax indemnity or tax allocation agreement
or other similar
arrangement with any other party. From the date of their
acquisition until June
22, 2003, the Acquired Company and its Subsidiaries were parties
to that certain
tax sharing agreement by and among Laidlaw Transportation, Inc.
and its
subsidiaries.
(f) Seller is not a foreign person within the meaning of
Section 1445 of the Code.
18
<PAGE>
3.18 Employment Matters - Personnel Information.
(a) The Personnel Information Schedule sets forth, with
respect to each Management Level Employee (including any
Management Level
Employee of the Acquired Company or a Subsidiary who is on a
leave of absence or
on layoff status subject to recall), (i) the name of such
employee and the date
as of which such employee was originally hired by the Acquired
Company or a
Subsidiary, and whether the employee is on an active or inactive
status; (ii)
such employee's title or position; and (iii) such employee's
annualized
compensation as of the date of this Agreement, including base
salary.
(b) The Personnel Information Schedule lists (i) all Persons
who are currently performing services for the Acquired Company
or a Subsidiary
who are classified as "consultants" or "independent contractors"
and to whom the
Acquired Company or a Subsidiary is obligated to compensate in
excess of
$100,000 per annum (other than Medical Professionals) and (ii)
the compensation
of each such Person.
(c) Seller has made available to Purchaser true and complete
copies of all current employee manuals and handbooks relating to
the employment
of the current employees (other than Medical Professionals) of
the Acquired
Company and the Subsidiaries (other than any Affiliated Medical
Group).
(d) Except as disclosed in the Personnel Information
Schedule,
no Management Level Employee has notified the Acquired Company
or a Subsidiary
in writing that he or she intends to terminate his or her
employment with the
Acquired Company or a Subsidiary, as the case may be.
(e) Except as disclosed in the Personnel Information
Schedule,
(i) neither the Acquired Company nor any Subsidiary has any
severance pay
practice or policy; and (ii) no employee of the Acquired Company
or any
Subsidiary is entitled to any severance pay, bonus compensation,
acceleration of
payment or vesting of any equity interest or other payment from
the Acquired
Company or any Subsidiary (other than accrued salary, vacation
or other paid
time off in accordance with the policies of the Acquired Company
and the
Subsidiaries) or Purchaser as a result of or in connection with
the Contemplated
Transactions or as a result of any termination by the Acquired
Company or any
Subsidiary on or after the Closing of any Person employed by the
Acquired
Company or any Subsidiary on or prior to the Closing Date.
(f) Except as disclosed in the Personnel Information
Schedule,
the Acquired Company and the Subsidiaries have been and are each
in compliance
in all material respects with all currently applicable Laws
respecting
employment and hiring practices, terms and conditions of
employment,
immigration, occupational health and safety, wages and hours.
Except as
disclosed in the Personnel Information Schedule, the employees
of the Acquired
Company and the Subsidiaries have been, and currently are,
properly classified
under the Fair Labor Standards Act of 1938, as amended, and
under any applicable
state law.
(g) Neither the Acquired Company nor any Subsidiary has
agreed
to recognize any union or other collective bargaining unit, nor
has any union or
other collective bargaining unit been certified as representing
any of the
Acquired Company's or a Subsidiary's
19
<PAGE>
employees in their businesses. To the Knowledge of Seller, there
are no
organizational efforts currently being made or threatened by or
on behalf of any
labor union with respect to employees of the Acquired Company or
any Subsidiary.
There is no labor strike, slowdown, work stoppage or lockout
actually pending
or, to the Knowledge of Seller, threatened against the Acquired
Company or any
Subsidiary.
(h) Except as listed or described on the Personnel
Information
Schedule and except as is not, individually or in the aggregate,
material and
except as would not, individually or in the aggregate,
reasonably be expected to
be material, neither the Acquired Company nor any Subsidiary (i)
is engaged, or
has been engaged in the past twelve months, in any unfair labor
practice; (ii)
has any unfair labor practice charges or complaints pending or,
to the Knowledge
of Seller, threatened against it before any Authority, (iii) has
any grievances
pending or, to the Knowledge of Seller, threatened against it,
or (iv) has any
charges pending before agencies of any province or locality
responsible for the
prevention of unlawful employment practices.
3.19 Employment Matters - Employee Plans.
(a) The Employee Plans Schedule lists each employee benefit
plan (as defined in Section 3(3) of ERISA) and all plans,
programs, policies or
arrangements, including, but not limited to, bonus, deferred
compensation,
incentive compensation, severance or termination pay, salary
continuation,
vacation and supplemental unemployment benefit plans, programs
or arrangements
maintained, or contributed to (or required to be contributed
to), by the
Acquired Company or any Subsidiary or on behalf of employees of
the Acquired
Company or any Subsidiary ("Acquired Company Employees") whether
or not funded,
formal or informal, or legally binding or not (collectively, the
"Benefit
Plans").
(b) Except as set forth on the Employee Plans Schedule, none
of the Benefit Plans is a "defined benefit plan" within the
meaning of Section
3(35) of ERISA (a "Pension Plan") or a "multiemployer plan"
within the meaning
of Section 3(37) of ERISA. None of the Pension Plans is subject
to the
requirements of Title IV of ERISA (a "Title IV Plan") or is a
funded welfare
plan as defined in Section 419 of the Code. Except as set forth
on the Employee
Plans Schedule, neither the Acquired Company, any Subsidiaries
of the Acquired
Company, nor any ERISA Affiliate has any material liability to
the Pension
Benefit Guaranty Corporation under Title IV of ERISA or Section
412 of the Code.
Each Pension Plan that is intended to be "qualified" within the
meaning of
Section 401(a) of the Code has received a determination letter
from the United
States Internal Revenue Service that it is so qualified, and no
fact or event
has occurred since the date of such determination letter that
should adversely
affect the qualified status of any such Pension Plan.
(c) Each Benefit Plan has been operated and administered in
all material respects in accordance with its terms and all
applicable Laws,
including ERISA and the Code and all contributions required to
be made on behalf
of Acquired Company Employees under the terms of any of Benefit
Plans which are
due as of the date of this Agreement have been timely made or,
if not yet due,
the Acquired Company or the applicable Subsidiary has made
adequate reserves for
such contributions.
20
<PAGE>
(d) Each of the Benefit Plans that is a "group health plan"
(as defined in Section 5000(b) of the Code) has at all times
been in material
compliance with the provisions of Section 4980B of the Code and
Part 6 of Title
I of ERISA and any similar applicable state laws. No Benefit
Plan that is a
"welfare plan" (as defined in Section 3(1) of ERISA) (the
"Welfare Plans")
provides or promises post-retirement health or life benefits to
current
employees or retirees of the Acquired Company or any Subsidiary,
except to the
extent required under any applicable state Law or under Section
4980B of the
Code.
(e) Neither the Company nor any Subsidiary, nor any other
"disqualified person" or "party in interest," as defined in
Section 4975 of the
Code and Section 3(14) of ERISA, respectively, has engaged in
any "prohibited
transaction," as defined in Section 4975 of the Code or Section
406 of ERISA,
with respect to any Benefit Plan, nor have there been any
fiduciary violations
under ERISA which could subject the Acquired Company or any
Subsidiary (or any
officer, director or employee thereof) to any material penalty
or tax under
Section 502(i) of ERISA or Sections 4971 and 4975 of the
Code.
(f) Except as set forth in the Employee Plans Schedule, with
respect to any Benefit Plan: (i) no filing, application or other
matter is
pending with the Internal Revenue Service, the PBGC, the United
States
Department of Labor or any other Governmental Body, (ii) there
is no Proceeding
pending (nor, to the Knowledge of the Seller, any basis for such
a Proceeding),
other than routine claims for benefits, and (iii) there are no
outstanding
Liabilities for taxes, penalties or fees.
(g) Except as set forth in the Employee Plans Schedule,
neither the execution and delivery of this Agreement nor the
consummation of any
or all of the Contemplated Transactions will: (i) entitle any
current employee
of the Acquired Company or any Subsidiary to severance pay,
unemployment
compensation or any similar payment; (ii) accelerate the time of
payment or
vesting or increase the amount of any compensation due to any
such employee or
former employee; or (iii) directly or indirectly result in any
payment made or
to be made to or on behalf of any Person to constitute an
"excess parachute
payment" within the meaning of Section 280G of the Code.
(h) The disclosure set forth in the SchwabPlan Management
Summary provided to Purchaser represents all Liabilities of the
Acquired Company
and the Subsidiaries with respect to the EmCare, Inc.
Supplemental Retirement
Plan.
3.20 Certain Transactions. Except as set forth in the
Certain
Transactions Schedule, no Related Person is presently a party
to, or was since
June 23, 2003 a party to, any Contract with the Acquired Company
or any
Subsidiary that is not terminable upon sixty (60) days'
notice.
3.21 Books and Records; Internal Controls.
(a) The books of account, minute books, stock record books
and
other books and records of the Acquired Company and the direct
or indirect
wholly owned Subsidiaries (i) are complete in all material
respects, (ii) are
kept in the ordinary course of business in accordance with sound
business
practices and applicable Laws and (iii) fairly reflect the
21
<PAGE>
transactions and dispositions of the Assets of the Acquired
Company and the
Subsidiaries. Seller has made available to Purchaser the books
of account,
minute books, stock record books and other books and records of
the Acquired
Company.
(b) Except as set forth on the Internal Controls Schedule,
at
the Closing, the Acquired Company or a Subsidiary will have
exclusive ownership
and direct control of its records, systems, controls, data and
information.
(c) Since August 31, 2003, to the Knowledge of Seller, (i)
none of the Acquired Company or any Subsidiary has received or
otherwise had or
obtained Knowledge, nor has any stockholder, director, officer
or employee of
the Acquired Company or any Subsidiary received or otherwise had
or obtained
Knowledge of any written complaint, allegation, assertion or
claim of any type
that the Acquired Company or any Subsidiary has, since August
31, 2003, engaged
in material accounting or auditing practices not permitted
pursuant to GAAP, and
(ii) no attorney representing Laidlaw International, Inc. with
respect to the
Acquired Company or any Subsidiary or representing the Acquired
Company or any
Subsidiary, whether or not employed by the Acquired Company or
any Subsidiary,
as the case may be, has reported evidence of a material
violation of tax Laws or
breach of fiduciary duty by the Acquired Company or any
Subsidiary or any of
their respective officers, directors or employees (in their
capacity as such) of
the type that would be required to be reported pursuant to
Section 307 of the
Sarbanes-Oxley Act of 2002 to the board of directors of the
Acquired Company or
any Subsidiary or any committee thereof or to any director or
executive officer
of the Acquired Company or any Subsidiary. Since August 31,
2003, there have
been no internal investigations regarding accounting initiated
at the direction
of the board of directors of the Acquired Company or any
Subsidiary or any
committee thereof.
3.22 Health Care Matters.
(a) Except as set forth on the Health Care Matters Schedule,
to the Knowledge of Seller, the Acquired Company and each
Subsidiary is in
compliance with 42 U.S.C. Section 1320a-7a, 42 U.S.C. Section
1320a-7b, 42
U.S.C. Section 1395nn, 31 U.S.C. Section 3729, and the
regulations promulgated
pursuant to such federal statutes, and all other federal or
state Laws
prohibiting the making of false statements or representations in
connection with
governmental reimbursement or the provision or receipt of any
kickback, bribe,
rebate or other remuneration in exchange for the referral of
patients or
business, except for such failures to comply that would not
reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
(b) Except as set forth on the Health Care Matters Schedule,
no member of the Acquired Company or any Subsidiary or, to the
Knowledge of
Seller, any stockholder, director, officer, agent or employee of
the Acquired
Company or any Subsidiary or other party to any Contract between
such party and
the Acquired Company or any Subsidiary who furnishes services or
supplies which
may be reimbursed in whole or in part under any Governmental
Program is
excluded, suspended or debarred from participation, or is
otherwise ineligible
to participate, in Medicare, Medicaid, or any other Governmental
Program.
22
<PAGE>
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as of the date of
this
Agreement, the following:
4.01 Organization. Purchaser is a corporation validly existing
and
in good standing under the laws of the State of Delaware and has
requisite power
and authority to own its properties and to carry on its business
as it is now
being conducted.
4.02 Authority and Binding Effect. Purchaser has requisite power
and
authority to execute and deliver this Agreement and to
consummate the
Contemplated Transactions and at Closing will have all requisite
power and
authority to execute and deliver the Other Purchaser Documents.
The execution,
delivery and performance of this Agreement by Purchaser has
been, and the Other
Purchaser Documents will be, duly and validly authorized by all
necessary action
of Purchaser and its Affiliates and no additional authorization
on the part of
Purchaser is necessary in connection with the execution,
delivery and
performance of this Agreement. This Agreement has been, and the
Other Purchaser
Documents will be, duly executed and delivered by Purchaser.
This Agreement is,
and the Other Purchaser Documents will be, a legal, valid and
binding obligation
of Purchaser, enforceable against Purchaser in accordance with
its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium and
similar laws affecting creditors' rights and remedies generally
and to general
principles of equity.
4.03 No Violations. The execution and delivery by Purchaser of
this
Agreement do not, and the performance and consummation of the
Contemplated
Transactions will not: (a) conflict with or violate any
provision of the
Organizational Documents of Purchaser; (b) conflict with, or
result in the
breach of, or constitute a default under, or result in the
termination,
cancellation or acceleration (whether after the giving of notice
or the lapse of
time or both) of any right or obligation of Purchaser under, any
contract or
agreement to which Purchaser is party or to which any of its
assets is subject;
or (C) violate or result in a breach of or constitute a default
under any Law or
Order applicable to Purchaser or by which Purchaser or any of
its assets is
bound or affected, except, in the cases of clauses (b) and (c),
for any
conflict, breach, default, termination, cancellation,
acceleration, loss or
violation which, individually or in the aggregate, would not
materially impair
Purchaser's ability to effect the Closing.
4.04 Consents and Approvals. Except for any Consent required
under
the HSR Act, no Consent is required to be obtained by Purchaser
or any Affiliate
from, and no notice or filing is required to be given by
Purchaser or any
Affiliate to or made by Purchaser or any Affiliate with, any
Authority or other
Person in connection with the execution, delivery and
performance by Purchaser
of this Agreement, other than in all cases where the failure to
obtain such
Consent or to give or make such notice or filing would not,
individually or in
the aggregate, materially impair Purchaser's ability to effect
the Closing.
4.05 Brokers and Finders. No investment banker, broker, finder
or
other intermediary (a) has acted for or on behalf of Purchaser
in connection
with this Agreement or the
23
<PAGE>
Contemplated Transactions or (b) is entitled to any fee or
commission from
Purchaser in connection with this Agreement or the Contemplated
Transactions.
4.06 Absence of Proceedings. There are no lawsuits, actions,
or
administrative or other proceedings pending nor, to the
Knowledge of Purchaser,
are any such proceedings threatened or any governmental
investigations pending,
against Purchaser that would reasonably be expected to restrict
Purchaser's
ability to consummate the transactions contemplated in this
Agreement.
4.07 Investment Intent. Purchaser has such knowledge and
experience
in financial matters that it is capable of evaluating the merits
and risks of
its purchase of the Shares. Purchaser has been provided the
opportunity to ask
questions of the officers and management employees of Seller and
the Acquired
Company and the Subsidiaries and to acquire additional
information about the
business and financial condition of the Acquired Company and the
Subsidiaries.
Purchaser is acquiring the Shares for investment and not with a
view toward or
for sale in connection with any distribution thereof, or with
any present
intention of distributing or selling the Shares. Purchaser
acknowledges that the
Shares may not be sold, transferred, offered for sale, pledged,
hypothecated or
otherwise disposed of without registration under the Securities
Act, except
pursuant to an exemption from such registration available under
the Securities
Act, and without compliance with foreign securities laws in each
case, to the
extent applicable. Nothing in this Section 4.07 will preclude
Purchaser from
relying on the representations, warranties, covenants and
agreements of Seller
herein or from pursuing its remedies with respect to a breach
thereof.
4.08 Financing. Purchaser has delivered to Seller a true and
complete copy of (a) a fully executed commitment letter from
Banc of America
Securities LLC, Banc of America Bridge LLC, Bank of America,
N.A., JPMorgan
Chase Bank, N.A. and J.P. Morgan Securities Inc. (the "Lenders")
whereby such
Lenders have committed, upon the terms and conditions set forth
therein, to
provide senior debt financing in an amount of $700,000,000 in
connection with
the Contemplated Transactions (the "BofA Financing Commitment"),
and (b) a fully
executed commitment letter from Onex Partners L.P. whereby Onex
Partners L.P.
has committed (the "Onex Equity Commitment"), on the terms and
subject to the
conditions set forth therein, to provide equity financing in the
aggregate
amount of $215,000,000 in connection with the Contemplated
Transactions. As of
the date hereof, each of the BofA Financing Commitment and the
Onex Equity
Commitment has not been amended or modified and is in full force
and effect.
Purchaser is not aware of any fact which would cause it to
believe (i) that the
debt financing contemplated by the BofA Financing Commitment
will not be
available to Purchaser as contemplated therein, subject to the
conditions set
forth in such BofA Financing Commitment; or (ii) that the equity
financing
contemplated by the Onex Equity Commitment will not be
consummated as
contemplated therein, subject to the conditions set forth in
such Onex Financing
Commitment.
4.09 Representations and Warranties. Purchaser acknowledges that
the
representations and warranties set forth in Article II and
Article III,
including the related Disclosure Schedules, constitute the sole
and exclusive
representations and warranties of Seller to Purchaser in
connection with the
Contemplated Transactions, and Purchaser acknowledges and agrees
that Seller is
not making any representation or warranty whatsoever, express
or
24
<PAGE>
implied, including any implied warranty as to condition,
merchantability, or
suitability as to any of the Assets of the Acquired Company and
the Subsidiaries
beyond those expressly given in this Agreement, and it is
understood that
Purchaser takes such Assets and the Assets related thereto as is
and where is
(subject to the benefit of the representations and warranties
set forth in this
Agreement). Purchaser further acknowledges and agrees that any
estimates,
projections, forecasts or other predictions that may have been
provided to
Purchaser or any of its employees, agents or representatives are
not
representations or warranties of Seller or its Affiliates.
ARTICLE V.
COVENANTS
5
| 
