<PAGE>
Exhibit 2.3
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
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TABLE OF CONTENTS
(Not part of this Agreement)
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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........................................................
14
3.14 Brokers and
Finders..........................................................
14
3.15
Contracts....................................................................
15
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.........................................................
22
3.21 Books and
Records; Internal Controls.........................................
22
3.22 Health Care
Matters..........................................................
23
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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.......................................................
24
4.05 Brokers and
Finders..........................................................
24
4.06 Absence of
Proceedings.......................................................
24
4.07 Investment
Intent............................................................
24
4.08
Financing....................................................................
24
4.09 Representations
and Warranties...............................................
25
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....................................................
31
5.06 Directors' and
Officers' Indemnification; Release from Liability.............
31
5.07 Letters of
Credit............................................................
32
5.08 Intercompany
Accounts........................................................
33
5.09 Performance
Bonds Collateral.................................................
33
5.10 Resignations of
Directors....................................................
35
5.11 Notice of
Certain Matters....................................................
35
5.12 Tax
Matters..................................................................
36
5.13 Use of
Name..................................................................
38
5.14 Post-Closing
Covenants.......................................................
38
5.15 No
Negotiation...............................................................
39
5.16 Certain
Payments.............................................................
39
5.17
Offerings....................................................................
39
5.18 Indemnification
of Members of Committee......................................
40
5.19 Code Section
280(G)..........................................................
40
5.20 Purchaser
Financing..........................................................
40
5.21 Lender
Consent...............................................................
40
5.22 GE Master
Lease..............................................................
41
5.23
Leases.......................................................................
41
ARTICLE VI. CONDITIONS TO
CLOSING........................................................
41
6.01 Conditions to
Obligations of Seller..........................................
41
6.02 Conditions to
Obligations of Purchaser.......................................
42
ARTICLE VII.
TERMINATION.................................................................
45
7.01
Termination..................................................................
45
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7.02 Effect of
Termination........................................................
45
ARTICLE VIII.
INDEMNIFICATION............................................................
46
8.01 Indemnification
by Seller and Parent.........................................
46
8.02 Indemnification
by Purchaser.................................................
47
8.03 Tax
Indemnification..........................................................
48
8.04 Indemnification
Process......................................................
49
8.05 Special
Environmental Inspection
Provision................................... 53
8.06 Limitations on
Claims........................................................
54
8.07 Exclusivity of
Indemnification Remedy........................................
56
ARTICLE IX. DEFINITIONS AND
TERMS........................................................
57
9.01 Specific
Definitions.........................................................
57
9.02 Other
Definitional
Provisions................................................
69
ARTICLE X. GENERAL
PROVISIONS............................................................
69
10.01
Expenses.....................................................................
69
10.02 Further
Assurances...........................................................
69
10.03
Amendment/Non-Assignment.....................................................
69
10.04
Waiver.......................................................................
70
10.05
Notices......................................................................
70
10.06 Headings and
Schedules.......................................................
71
10.07 Applicable
Law...............................................................
72
10.08 No Third Party
Rights........................................................
72
10.09 Counterparts;
Facsimile Signatures...........................................
72
10.10
Severability.................................................................
72
10.11 Entire
Agreement.............................................................
72
10.12 Consent to
Jurisdiction; Jury Trial; Venue...................................
72
10.13 Fair
Construction............................................................
73
10.14 Construction of
Certain Provisions...........................................
73
10.15 Reasonable Consent
Required..................................................
73
10.16 Specific
Enforcement.........................................................
73
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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
Inspection Properties Schedule
LIST OF EXHIBITS
Exhibit 5.01(f)
Labor Matters
Exhibit 5.06(c)
D&O Released Parties
Exhibit 5.07
List of Letters of Credit
Exhibit 5.09
List of Performance Bonds
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, par value $0.01 per share
(the "Shares"), of American Medical
Response, 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 $565,000,000 (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(n)) have been satisfied or
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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
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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 EmCare
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
EmCare 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
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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 EmCare Excess Net
Worth Amount.
(iii) If there is an Excess Net Worth Amount and an
EmCare 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 EmCare 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 EmCare Excess Net Worth Amount
nor an EmCare 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 EmCare 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 EmCare 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
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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 3,000 shares of common
stock, par value $0.01 per share, of
which 199 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
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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.
(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
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Schedule, 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.
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 audited
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 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.
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(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.
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 5.08;
(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, or investment in, any
Affiliate to the extent permitted
pursuant to Section 5.08, or (ii) 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;
(e) sale (other than sales or other dispositions of equipment
deemed surplus or obsolete in the ordinary
course of business or sales of
ambulances or other medical vehicles 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;
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<PAGE>
(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 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 Contract disclosed pursuant to
Sections 3.15(a)(v) and (vi), 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 monthly allocations in the Capital
Budget when aggregated 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;
(l) agreement, whether oral or written, by the Acquired
Company or a Subsidiary to do any of the
foregoing; or
(m) labor dispute or any activity or Proceeding by a labor
union or representative thereof to organize
any employees of the Acquired
Company or a Subsidiary, or any lockouts,
strikes, slowdowns, work stoppages,
grievances or threats thereof by or with
respect to any employees of the
Acquired Company or any Subsidiary.
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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 contains a true and complete list, by
address, of all real property owned by the
Acquired Company and the Subsidiaries
(each an "Owned Real Property"). Except as
set forth on the Assets Schedule and
except for (i) such exceptions which,
individually or in the aggregate, have not
had and would not reasonably be expected to
have a Material Adverse Effect and
(ii) Permitted Liens, (x) the Acquired
Company or a Subsidiary have good and
marketable title to the Owned Real
Properties; and (y) the Owned Real Properties
are free and clear of all Encumbrances
(other than pursuant to the Senior
Secured Credit Facility and the PBGC
Settlement Agreement). The Assets Schedule
lists all real property leases and
subleases, and any amendments or
modifications thereof, (x) for premises in
excess of 15,000 square feet (other
than leases or subleases for crew quarters)
as to which the Acquired Company or
a Subsidiary is a party or (y) 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.
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(d) All ambulances and other medical vehicles owned by the
Acquired Company or any Subsidiary have
been maintained in the ordinary course
of business consistent with industry
standards. The average age of the ambulance
fleet is 4.9 years.
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,
and
except for any qui tam or other Action (as
defined below) that Seller, the
Acquired Company or any Subsidiary is
prohibited from disclosing to Purchaser
pursuant to an applicable Order, 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,
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,
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<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. For the avoidance of
doubt, the representations and
warranties set forth in this Section 3.12
do not supersede any representations
or warranties in any other section of this
Agreement as they relate to Contracts
required to be disclosed pursuant to
Section 3.15(a)(i).
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3.13 Environmental Matters. Except as disclosed in the
Environmental
Matters Schedule:
(a) To the Knowledge of Seller, the real property that the
Acquired Company or any Subsidiary owns or
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 owned or 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 owned, 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) The Acquired Company and the Subsidiaries have been and
are in compliance in all material respects
with the Medical Waste Tracking Act
42 U.S.C. Section 6992 et seq., or any
other applicable federal, state or local
Law dealing with the disposal of medical
wastes ("Medical Waste 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
Medical Waste Laws.
(e) 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.
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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 with any municipality or other local agency
pursuant to which the Acquired Company or
any Subsidiary provides emergency 911
response services to such municipality or
other local agency;
(ii) Contract with any hospital, skilled nursing
facility or other health care facility
pursuant to which the Acquired Company or
any Subsidiary provides emergency or
non-emergency transportation services to
such hospital, skilled nursing facility or
other health care facility that is
not terminable by the Acquired Company or
any Subsidiary, as applicable, upon
less than 120 days' notice;
(iii) Contract with any HMO, PPO or other third-party
payor pursuant to which the Acquired
Company or any Subsidiary provides
emergency or non-emergency transportation
services involving payments in excess
of $2,000,000 per annum in the aggregate by
such HMO, PPO or other third-party
payor to the Acquired Company or any
Subsidiary;
(iv) Contract pursuant to which the Acquired Company or
any Subsidiary provides management,
consulting, billing or other administrative
type services or other services to or on
behalf of any third-party (other than
any HMO, PPO or other third-party payor)
that is not terminable by the Acquired
Company or any Subsidiary, as applicable,
upon less than 120 days' notice;
(v) Contract of employment, consulting, management,
separation, severance or other similar
agreement with any stockholder, director,
or Management Level Employee of the
Acquired Company or any Subsidiary (which
shall be separately identified on the
Contracts Schedule);
(vi) Contract of employment, consulting, management,
separation, severance or similar agreement
with any consultant or independent
contractor 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);
(vii) stock option, share purchase, profit sharing,
deferred compensation, bonus or other
incentive compensation contract, plan or
arrangement;
(viii) 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
(other than capitalized lease obligations),
or any guarantee by the Acquired
Company or any Subsidiary of third-party
obligations;
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(ix) collective bargaining agreement with any labor
union or association representing employees
of the Acquired Company or any
Subsidiary;
(x) Contract for the lease of personal property with an
annual base rental obligation of more than
$250,000 or a total remaining rental
obligation of more than $250,000;
(xi) joint venture, partnership or limited liability
company agreement with any other
Person;
(xii) Contract limiting the type of business activity of
the Acquired Company or any Subsidiary
(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 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);
(xiii) Contract with a group purchasing organization;
(xiv) material Contract containing capitated payment
arrangements;
(xv) Contract (other than any Contracts of the type
described in clauses (i) - (xiv) 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
(xvi) 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;
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(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
(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
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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 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.
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<PAGE>
(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.
(g) The Acquired Company and the Subsidiaries do not have, and
as of the end of Parent's tax year that
includes the Closing Date will not have,
"net unrealized built-in loss" (as such
term is defined in Section 382(h)(2) of
the Code) that would be required to be
allocated to them under Treasury
Regulation Section 1.1502-95(e).
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 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 of the Acquired
Company and the Subsidiaries.
(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
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<PAGE>
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) Except as set forth on the Personnel Information Schedule,
with respect to all agreements between the
Acquired Company or any Subsidiary,
on the one hand, and any union or
collective bargaining unit or similar entity
or organization, on the other: (a) such
agreements are currently in full force
and effect and will continue in effect in
accordance with their respective terms
for at least twelve (12) months from the
date hereof; (b) the Acquired Company
and each Subsidiary has provided or will
provide timely notice, or take any
other action required, under the applicable
renewal provisions of each such
agreement and has provided or will provide
any notice required as a result of
the execution and delivery of this
Agreement or the consummation of the
Contemplated Transactions; and (c) the
Acquired Company and each Subsidiary has
satisfied or will satisfy all of its
bargaining obligations under the applicable
collectively bargaining agreements and
under applicable Law. 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").
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(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. Except as set
forth on the Employee Plans Schedule,
none of the Pension Plans is subject to the
requirements of Title IV of ERISA,
Section 302 of ERISA or Section 412 of the
Code (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. With respect to any Title IV
Plan, (i) no reportable event under
Section 4043 of ERISA for which the notice
requirement has not been waived has
occurred; (ii) no accumulated funding
deficiency, whether or not waived under
Code Section 412, has been incurred; and
(iii) the assets of each Title IV Plan
equal or exceed the benefit liabilities of
such Title IV Plan determined as if
such plan were terminating. 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) Except as set forth on the Employee Plans Schedule, 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.
(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. Except as set forth on the
Employee Plans Schedule, 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) Except as set forth on the Employee Plans Schedule,
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
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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.
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 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
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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.
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
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<PAGE>
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 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
24
<PAGE>
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 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
5.01 Conduct of the Business Pending the Closing. During the
period
from the date of this Agreement to the
Closing, except as otherwise specifically
contemplated by this Agreement or, with
respect to Sections 5.01(a), (b), (c),
(d), (f), (g), (j), (n), (o), (p), (q), (t)
or (u) (but only with respect to the
foregoing subsections), with the consent of
a majority of the members of the
Committee, Seller and Parent shall cause
the Acquired Company and the
Subsidiaries to (i) conduct their business
and operations in the ordinary course
consistent with past practice, and (ii) use
commercially reasonable efforts to
preserve intact the Acquired Company's and
each Subsidiary's present business
organization and to preserve the good will
and relationships with current
customers, suppliers and others having
significant business dealings with the
Acquired Company and the Subsidiaries.
Without limiting the generality of the
foregoing, during the period from the date
of this Agreement to the Closing or
termination of this Agreement, except as
otherwise specifically provided for in
this Agreement or, with respect to Sections
5.01(a), (b), (c), (d), (f), (g),
(j), (n), (o), (p), (q), (t) or (u) (but
only with respect to the foregoing
subsections), with the consent of a
majority of the members of the Committee,
Seller and Parent shall cause the Acquired
Company and the Subsidiaries not to:
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(a) commence or enter into arrangements for any capital
expenditure, except for such expenditures
that are substantially consistent with
and do not exceed the monthly allocations
in the Capital Budget when aggregated
over any rolling three month period
commencing September 1, 2004;
(b) dispose of any Assets, except in the ordinary course of
business consistent with past practice and
in any event not having a book value
or fair market value, individually or in
the aggregate, in excess of $5,000,000
and except for ambulances or other medical
vehicles in the ordinary course of
business consistent with past practice, or
incur, create or assume any Lien on
any Asset, other than Permitted Liens;
(c) enter into any hedging arrangement or derivative
transaction;
(d) enter into any Contract except in the ordinary course of
business consistent with past practice and
in any event not in excess of
$5,000,000 or that has a term of, or
requires the performance of any obligations
over a period in excess of, three years;
provided, however, that the Acquired
Company and the Subsidiaries shall not be
prohibited from participating in
bidding for or entering into Contracts with
any Authority or other third-party
for the provision of services of the type
currently provided by the Acquired
Company and the Subsidiaries in the conduct
of the Business;
(e) incur or assume indebtedness for borrowed money other than
pursuant to the Senior Secured Credit
Facility and in any event not in excess of
$500,000 in the aggregate, other than the
incurrence of indebtedness permitted
(and forgiven, discharged, released,
cancelled (including by way of capital
contribution) or paid) pursuant to Section
5.08 hereof, or incur, create or
assume any Lien on any Asset, other than
Permitted Liens;
(f) except as required by Law or the terms of any existing
Contract, (i) increase the salary, wage,
rate of compensation, bonus or other
direct or indirect remuneration payable to,
or other compensation of, any
Management Level Employee or enter into any
Contract or other binding commitment
in respect of any such increase; (ii)
increase the salary, wage, rate of
compensation, bonus or other direct or
indirect remuneration payable to, or
other compensation of, any employee
(excluding any Management Level Employee) 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
since August 31, 2004 for all such
employees) or enter into any Contract or
other binding commitment in respect of any
such increase; (iii) amend, adopt or
terminate any Benefit Plan or any other
benefit plan; or (iv) except with
respect to those matters identified on
Exhibit 5.01(f), enter into any
negotiation in respect of or enter into any
collective bargaining agreement
covering employees of the Acquired Company
or any Subsidiary;
(g) amend, modify or otherwise change the terms in any
material respect of any Scheduled Contract
(other than pursuant to
renegotiations in the ordinary course of
business consistent with past practice
of any Scheduled Contract pursuant to which
the Acquired Company or any
Subsidiary received revenue during the
fiscal year ended August 31, 2004 of less
than $5,000,000), or terminate any
Scheduled Contract (except with respect to
termination of a Scheduled Contract caused
by the termination by, or default of,
any other party
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thereto), or default in the performance of
any material covenant or obligation
under any Scheduled Contract which default
is not cured within any applicable
grace period;
(h) merge with or into or consolidate with any other Person
(other than the Acquired Company or any
Subsidiary) or acquire any business or
assets of any other Person (other than any
Subsidiary of the Acquired Company)
except in the ordinary course of business
consistent with past practice and in
any event not having a depreciated book
value or estimated fair market value
exceeding $5,000,000 in the aggregate;
(i) amend or propose to amend or otherwise change its
Organizational Documents;
(j) purchase or acquire an option to purchase or enter into
any other agreement or obligation to
purchase any securities of any Person
(other than any Subsidiary), or make any
loan or advance to, or any investment
in, any Person other than a direct or
indirect wholly owned Subsidiary or
advances to employees, consultants or
independent contractors of the Acquired
Company or any Subsidiary in the ordinary
course of business consistent with
past practice;
(k) (i) other than pursuant to the Senior Secured Credit
Facility or the PBGC Settlement Agreement,
issue, sell, pledge, dispose of,
grant, transfer or encumber any capital
stock or other equity securities, or
securities convertible or exchangeable or
exercisable for any shares of capital
stock or other equity securities, or any
other securities, options, warrants,
calls or other rights to acquire such
securities, or authorize any of the
foregoing; (ii) reclassify, combine, split,
subdivide or amend the terms of any
c
