Common use of Facility Operator or Facility Divestiture Clause in Contracts

Facility Operator or Facility Divestiture. The following provisions shall apply to any Facility Operator Divestiture or Facility Divestiture (including, without limitation, any Facility Operator Divestiture or Facility Divestiture arising from a sale of all or substantially all of the assets of a Ceres Party, but specifically excluding any transaction under Section 21(a)(vii) below): (i) Ceres shall provide PharMerica advance notice (“Facility Divestiture Notice”) of any contemplated Facility Operator Divestiture or Facility Divestiture promptly (and in no event later than * days prior to the anticipated Divestiture Date) and each Facility Divestiture Notice shall provide (A) the name of each Facility Operator and/or Facility that is the subject of, or encompassed within, the contemplated Facility Operator Divestiture or Facility Divestiture, (B) the number of SNF Beds that are encompassed by the contemplated Facility Operator Divestiture or Facility Divestiture, (C) the name and address of the contemplated Successor Facility Operator immediately after the Divestiture Date, (D) the anticipated Divestiture Date, and (E) the type of transaction giving rise to the Facility Operator Divestiture or Facility Divestiture (e.g., stock or asset purchase, lease, sublease, management agreement or other arrangement). (ii) After the Facility Divestiture Notice is given to PharMerica, Ceres shall update PharMerica from time-to-time through the Divestiture Date as necessary to keep PharMerica reasonably informed regarding the contemplated Facility Operator Divestiture or Facility Divestiture and any changes to the anticipated Divestiture Date. (iii) If, during the Initial Term, the number of SNF Beds that would be served by PharMerica pursuant to this Agreement after a Facility Operator Divestiture or Facility Divestiture (including all SNF Beds in the New Facilities and Newly-Constructed Facilities that are deemed and considered as Facilities under the terms of this Agreement) would be * or more of the number of the Original SNF Beds, the Facility Operator Divestiture or Facility Divestiture may be completed only if the applicable Ceres Party uses commercially reasonable efforts to ensure that the Successor Facility Operator, prior to the Facility Operator Divestiture or Facility Divestiture, enters into a Successor Pharmacy Services Agreement. (iv) If, during the Initial Term, the number of SNF Beds that would be served by PharMerica pursuant to this Agreement after a Facility Operator Divestiture or Facility Divestiture (including all SNF Beds in the New Facilities and Newly-Constructed Facilities that are deemed and considered as Facilities under the terms of this Agreement) would be less than * of the number of the Original SNF Beds, the Facility Operator Divestiture or Facility Divestiture may be completed only if, prior to the Facility Operator Divestiture or Facility Divestiture (A) the Successor Facility Operator enters into a Successor Pharmacy Services Agreement, or (B) the Ceres Parties pay PharMerica, in immediately available funds, an amount equal to the product of (I) * , multiplied by (II) the monthly average number of total beds served by a Pharmacy Operator in the Facility or Facilities subject to the Facility Operator Divestiture or Facility Divestiture in the * months prior to the date on which any of the Ceres Parties or any of their Affiliates first initiated negotiations with the Successor Facility Operator regarding the Facility Operator Divestiture or Facility Divestiture, multiplied by (III) the number of calendar months from the Divestiture Date through April 30, 2009 (with partial months being pro rated based on the number of days in the month). For purposes of this Section 21(a)(iv), it shall be a rebuttable presumption that the start date of a Ceres Party’s negotiations with the Successor Facility Operator shall be the date on which a confidentiality agreement is signed by the applicable parties with respect to such Facility Operator Divestiture or Facility Divestiture. (v) Provided the conditions set forth in the preceding paragraphs are satisfied as provided therein, upon consummation of the Facility Operator Divestiture or Facility Divestiture, each Facility that is the subject of the Facility Operator Divestiture or Facility Divestiture shall be a Withdrawn Facility as of the Divestiture Date. (vi) Each Party shall cooperate in all reasonable respects with the other Party up to the Divestiture Date to assure that the transition of each Facility that is the subject of the Facility Operator Divestiture or Facility Divestiture to a new alternative pharmacy provider is undertaken in an orderly manner that maximizes patient safety and care. (vii) Notwithstanding any other provision of this Agreement to the contrary, no term, condition, or obligation set forth in this Agreement shall restrict or be deemed to restrict any sale, lease or other transfer of the real estate comprising a Facility provided that such sale, lease or other transfer does not (A) require or result in an assignment, transfer or re-issuance of any of the operating licenses or Medicaid or Medicare provider agreement for such Facility into the name of a Person that is not Controlled by one or more of the Companies or their Affiliates, (B) result in the termination or surrender of any of the operating licenses or Medicaid or Medicare provider agreement for such Facility, (C) otherwise result in the Control of the management and/or operations of such Facility being transferred to a Person that is not Controlled by one or more of the Companies or their Affiliates, or (D) result in the such Facility not being operated on a continuous basis by a Company or any of its Affiliates.

Facility Operator or Facility Divestiture. The following provisions shall apply to any Facility Operator Divestiture or Facility Divestiture (including, without limitation, any Facility Operator Divestiture or Facility Divestiture arising from a sale of all or substantially all of the assets of a Ceres Party, but specifically excluding any transaction under Section 21(a)(vii) below): (i) Ceres shall provide PharMerica advance notice (“Facility Divestiture Notice”) of any contemplated Facility Operator Divestiture or Facility Divestiture promptly (and in no event later than * days prior to the anticipated Divestiture Date) and each Facility Divestiture Notice shall provide (A) the name of each Facility Operator and/or Facility that is the subject of, or encompassed within, the contemplated Facility Operator Divestiture or Facility Divestiture, (B) the number of SNF Beds that are encompassed by the contemplated Facility Operator Divestiture or Facility Divestiture, (C) the name and address of the contemplated Successor Facility Operator immediately after the Divestiture Date, (D) the anticipated Divestiture Date, and (E) the type of transaction giving rise to the Facility Operator Divestiture or Facility Divestiture (e.g., stock or asset purchase, lease, sublease, management agreement or other arrangement). (ii) After the Facility Divestiture Notice is given to PharMerica, Ceres shall update PharMerica from time-to-time through the Divestiture Date as necessary to keep PharMerica reasonably informed regarding the contemplated Facility Operator Divestiture or Facility Divestiture and any changes to the anticipated Divestiture Date. (iii) If, during the Initial Term, the number of SNF Beds that would be served by PharMerica pursuant to this Agreement after a Facility Operator Divestiture or Facility Divestiture (including all SNF Beds in the New Facilities and Newly-Constructed Facilities that are deemed and considered as Facilities under the terms of this Agreement) would be * or more of the number of the Original SNF Beds, the Facility Operator Divestiture or Facility Divestiture may be completed only if the applicable Ceres Party uses commercially reasonable efforts to ensure that the Successor Facility Operator, prior to the Facility Operator Divestiture or Facility Divestiture, enters into a Successor Pharmacy Services Agreement. (iv) If, during the Initial Term, the number of SNF Beds that would be served by PharMerica pursuant to this Agreement after a Facility Operator Divestiture or Facility Divestiture (including all SNF Beds in the New Facilities and Newly-Constructed Facilities that are deemed and considered as Facilities under the terms of this Agreement) would be less than * of the number of the Original SNF Beds, the Facility Operator Divestiture or Facility Divestiture may be completed only if, prior to the Facility Operator Divestiture or Facility Divestiture (A) the Successor Facility Operator enters into a Successor Pharmacy Services Agreement, or (B) the Ceres Parties pay PharMerica, in immediately available funds, an amount equal to the product of (I) * , multiplied by (II) the monthly average number of total beds served by a Pharmacy [*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Operator in the Facility or Facilities subject to the Facility Operator Divestiture or Facility Divestiture in the * months prior to the date on which any of the Ceres Parties or any of their Affiliates first initiated negotiations with the Successor Facility Operator regarding the Facility Operator Divestiture or Facility Divestiture, multiplied by (III) the number of calendar months from the Divestiture Date through April 30, 2009 (with partial months being pro rated based on the number of days in the month). For purposes of this Section 21(a)(iv), it shall be a rebuttable presumption that the start date of a Ceres Party’s negotiations with the Successor Facility Operator shall be the date on which a confidentiality agreement is signed by the applicable parties with respect to such Facility Operator Divestiture or Facility Divestiture. (v) Provided the conditions set forth in the preceding paragraphs are satisfied as provided therein, upon consummation of the Facility Operator Divestiture or Facility Divestiture, each Facility that is the subject of the Facility Operator Divestiture or Facility Divestiture shall be a Withdrawn Facility as of the Divestiture Date. (vi) Each Party shall cooperate in all reasonable respects with the other Party up to the Divestiture Date to assure that the transition of each Facility that is the subject of the Facility Operator Divestiture or Facility Divestiture to a new alternative pharmacy provider is undertaken in an orderly manner that maximizes patient safety and care. (vii) Notwithstanding any other provision of this Agreement to the contrary, no term, condition, or obligation set forth in this Agreement shall restrict or be deemed to restrict any sale, lease or other transfer of the real estate comprising a Facility provided that such sale, lease or other transfer does not (A) require or result in an assignment, transfer or re-issuance of any of the operating licenses or Medicaid or Medicare provider agreement for such Facility into the name of a Person that is not Controlled by one or more of the Companies or their Affiliates, (B) result in the termination or surrender of any of the operating licenses or Medicaid or Medicare provider agreement for such Facility, (C) otherwise result in the Control of the management and/or operations of such Facility being transferred to a Person that is not Controlled by one or more of the Companies or their Affiliates, or (D) result in the such Facility not being operated on a continuous basis by a Company or any of its Affiliates.

Facility Operator or Facility Divestiture. The following provisions shall apply to any Facility Operator Divestiture or Facility Divestiture (including, without limitation, any Facility Operator Divestiture or Facility Divestiture arising from a sale of all or substantially all of the assets of a Ceres Party, but specifically excluding any transaction under Section 21(a)(vii) below): (i) Ceres shall provide PharMerica advance notice (“Facility Divestiture Notice”) of any contemplated Facility Operator Divestiture or Facility Divestiture promptly (and in no event later than * thirty (30) days prior to the anticipated Divestiture Date) and each Facility Divestiture Notice shall provide (A) the name of each Facility Operator and/or Facility [*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. that is the subject of, or encompassed within, the contemplated Facility Operator Divestiture or Facility Divestiture, (B) the number of SNF Beds that are encompassed by the contemplated Facility Operator Divestiture or Facility Divestiture, (C) the name and address of the contemplated Successor Facility Operator immediately after the Divestiture Date, (D) the anticipated Divestiture Date, and (E) the type of transaction giving rise to the Facility Operator Divestiture or Facility Divestiture (e.g., stock or asset purchase, lease, sublease, management agreement or other arrangement). (ii) After the Facility Divestiture Notice is given to PharMerica, Ceres shall update PharMerica from time-to-time through the Divestiture Date as necessary to keep PharMerica reasonably informed regarding the contemplated Facility Operator Divestiture or Facility Divestiture and any changes to the anticipated Divestiture Date. (iii) If, during the Initial Term, the number of SNF Beds that would be served by PharMerica pursuant to this Agreement after a Facility Operator Divestiture or Facility Divestiture (including all SNF Beds in the New Facilities and Newly-Constructed Facilities that are deemed and considered as Facilities under the terms of this Agreement) would be * or more of the number of the Original SNF Beds, the Facility Operator Divestiture or Facility Divestiture may be completed only if the applicable Ceres Party uses commercially reasonable efforts to ensure that the Successor Facility Operator, prior to the Facility Operator Divestiture or Facility Divestiture, enters into a Successor Pharmacy Services Agreement. (iv) If, during the Initial Term, the number of SNF Beds that would be served by PharMerica pursuant to this Agreement after a Facility Operator Divestiture or Facility Divestiture (including all SNF Beds in the New Facilities and Newly-Constructed Facilities that are deemed and considered as Facilities under the terms of this Agreement) would be less than * of the number of the Original SNF Beds, the Facility Operator Divestiture or Facility Divestiture may be completed only if, prior to the Facility Operator Divestiture or Facility Divestiture (A) the Successor Facility Operator enters into a Successor Pharmacy Services Agreement, or (B) the Ceres Parties pay PharMerica, in immediately available funds, an amount equal to the product of (I) * , multiplied by (II) the monthly average number of total beds served by a Pharmacy Operator in the Facility or Facilities subject to the Facility Operator Divestiture or Facility Divestiture in the * twelve (12) months prior to the date on which any of the Ceres Parties or any of their Affiliates first initiated negotiations with the Successor Facility Operator regarding the Facility Operator Divestiture or Facility Divestiture, multiplied by (III) the number of calendar months from the Divestiture Date through April 30, 2009 (with partial months being pro rated based on the number of days in the month). For purposes of this Section 21(a)(iv), it shall be a rebuttable presumption that the start date of a Ceres Party’s negotiations with the Successor Facility Operator shall be the date on which a confidentiality agreement is signed by the applicable parties with respect to such Facility Operator Divestiture or Facility Divestiture. (v) Provided the conditions set forth in the preceding paragraphs are satisfied as provided therein, upon consummation of the Facility Operator Divestiture or Facility Divestiture, each Facility that is the subject of the Facility Operator Divestiture or Facility Divestiture shall be a Withdrawn Facility as of the Divestiture Date. [*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (vi) Each Party shall cooperate in all reasonable respects with the other Party up to the Divestiture Date to assure that the transition of each Facility that is the subject of the Facility Operator Divestiture or Facility Divestiture to a new alternative pharmacy provider is undertaken in an orderly manner that maximizes patient safety and care. (vii) Notwithstanding any other provision of this Agreement to the contrary, no term, condition, or obligation set forth in this Agreement shall restrict or be deemed to restrict any sale, lease or other transfer of the real estate comprising a Facility provided that such sale, lease or other transfer does not (A) require or result in an assignment, transfer or re-issuance of any of the operating licenses or Medicaid or Medicare provider agreement for such Facility into the name of a Person that is not Controlled by one or more of the Companies or their Affiliates, (B) result in the termination or surrender of any of the operating licenses or Medicaid or Medicare provider agreement for such Facility, (C) otherwise result in the Control of the management and/or operations of such Facility being transferred to a Person that is not Controlled by one or more of the Companies or their Affiliates, or (D) result in the such Facility not being operated on a continuous basis by a Company or any of its Affiliates.