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EXHIBIT 2
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated October 14,
1998, is by and among AmSurg Holdings, Inc., a Tennessee corporation ("AmSurg"),
Gastrointestinal Diagnostic Center, LLC, a Maryland limited liability company
("Seller"), and the individuals set forth on the signature pages attached hereto
(individually "Doctor" and collectively "Doctors").
WHEREAS, AmSurg desires to purchase and Seller desires to sell certain
of its assets, as more fully described herein, upon and subject to the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties and covenants of the parties hereinafter set forth,
the parties agree as follows:
ARTICLE 1. PURCHASE AND SALE OF ASSETS
1.1. PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of this
Agreement, at the Closing, Seller shall sell, transfer, convey, assign and
deliver to AmSurg and AmSurg shall purchase, acquire and accept from Seller an
undivided 60% interest in the assets comprising the business operations of the
ambulatory surgery center (the "Center") owned and operated by Seller and
located in Baltimore County, Maryland, tangible or intangible, recorded or
unrecorded, known or unknown, of whatsoever type, kind, description, or nature
owned, leased, held, possessed, vested in or claimed in whole or in part by
Seller on the Closing Date (the "Purchased Assets"), which Purchased Assets
shall specifically include the accounts receivable of the Center, but which
shall specifically exclude cash. All of the Purchased Assets which AmSurg is
acquiring pursuant to this Agreement are listed on Schedule 4.5.
1.2. ASSUMPTION OF LIABILITIES. Except as described herein, AmSurg will not
assume any debts, liabilities, obligations, expenses, taxes (excluding, however,
any sales tax due in connection with AmSurg's purchase of the Purchased Assets),
contracts or commitments of Seller or the Center of any kind, character or
description, whether accrued, absolute, contingent or otherwise ("Liabilities"),
no matter whether arising before or after the Closing, and whether or not
reflected or reserved against in Seller's or the Center's financial statements,
books of account or records. Seller will indemnify AmSurg against and hold it
harmless from any such Liabilities. AmSurg will cause The Baltimore Endoscopy
ASC, LLC, a Tennessee limited liability company (the "LLC"), to assume all
Liabilities arising after the effective date of the transaction which relate to
supplies received by the Center or services rendered to the Center after the
effective date of the transaction, regardless of the date such Liabilities
arose.
ARTICLE 2. PURCHASE PRICE
The initial purchase price of the Purchased Assets (the "Initial
Purchase Price") shall be $1,995,318.00, payable in cash. The Initial Purchase
Price was determined based on an assumption that the current expenses of
operating the Center and on a going forward basis are and will be as set forth
on Exhibit 2.
AmSurg and Seller acknowledge that the rule proposed in June 1998 by
the Health Care Financing Administration ("HCFA") providing in part for a change
in the payment methodology and payment rates utilized by HCFA to reimburse
ambulatory surgery centers as it may be adopted or amended (the "Proposed
Rule"), could have a negative effect on the future revenues and earnings of the
Center. In order to address the uncertainty regarding the Proposed Rule and its
effect on the Center, the Initial Purchase Price has been calculated based on
the financial statements for the Center from January 1, 1998 through August 31,
1998 and the annualized procedure volume for Medicare cases performed in the
Center from December 1, 1997 through May 30, 1998. The Medicare procedure volume
and the potential percentage reduction in Medicare reimbursement rates are set
forth on Exhibit 2(a). Exhibit 2(b) sets forth what the purchase price would
have been without any adjustment for the proposed Medicare reimbursement rate
changes (the "Potential Purchase Price"), and the difference between the Initial
Purchase Price and the Potential Purchase Price (the "Purchase Price
Differential").
Of the Purchase Price Differential, on the Closing Date AmSurg will pay
the amount of $59,124.33. During the six (6) years following the Closing,
commencing 12 months after the Closing, at the end of each six (6) month period
thereafter, if a final version of the Proposed Rule has not been adopted during
such period, then AmSurg will pay as additional consideration ("Additional
Purchase Price") an amount in cash equal to one-twelfth (1/12) of the Purchase
Price Differential as set forth on Exhibit 2(b), together with interest thereon
at the rate equal to the prime rate as published from time to time by SunTrust
Bank in Nashville, Tennessee, accruing from the Closing Date. In the event that
a final version of the Proposed Rule is adopted during the six (6) years
following the Closing, then the purchase price will be recalculated and adjusted
utilizing the formula set forth on Exhibits 2(a)
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and 2(b) and substituting the final Medicare reimbursement rates for the
proposed Medicare reimbursement rates set forth therein (the "Adjusted Purchase
Price"). If the Adjusted Purchase Price exceeds the sum of (a) the Initial
Purchase Price and (b) any Additional Purchase Price previously paid by AmSurg
(including the payment made at Closing out of the Purchase Price Differential),
AmSurg will pay in cash such amount as additional consideration within sixty
(60) days after such determination. In no event will the purchase price
recalculation cause (x) Seller to return any portion of the purchase price
previously paid to Seller by AmSurg or (y) the aggregate consideration paid by
AmSurg to exceed the Potential Purchase Price.
ARTICLE 3. CLOSING
3.1. CLOSING. The closing ("Closing") of the sale and purchase of the Purchased
Assets shall take place at the offices of McGuire, Woods, Battle & Xxxxxx LLP,
Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, within ten (10) business days
after the satisfaction of all conditions to the parties' obligations to
consummate the transactions contemplated hereby, which shall in no event be
later than October 30, 1998, or at such other time as shall be agreed upon by
all the parties hereto (the "Closing Date"). The Closing shall be effective 8:00
a.m. on November 2, 1998.
3.2. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, AmSurg shall deliver to Seller:
(i) the consideration as specified in Article 2;
(ii) a copy of resolutions of the Board of Directors of AmSurg,
certified by its Secretary, authorizing the execution, delivery and
performance of this Agreement and the other documents referred to herein to
be executed by AmSurg, and the consummation of the transactions
contemplated hereby;
(iii) a certificate of AmSurg certifying as to the accuracy of
the representations and warranties of AmSurg at and as of the Closing and
that AmSurg has performed or complied with all of the covenants,
agreements, terms, provisions and conditions to be performed or complied
with by AmSurg at or before the Closing;
(iv) the opinion of Bass, Xxxxx & Xxxx PLC, legal counsel for
AmSurg, the terms of which are substantially as set forth in Exhibit 10.4;
and
(v) such other certificates and documents as Seller or its counsel
may reasonably request.
(b) At the Closing, Seller and the Doctors will deliver to AmSurg:
(i) a copy of resolutions of the Members of Seller, certified by
its General Manger, authorizing the execution, delivery and performance of
this Agreement and the other documents referred to herein to be executed by
Seller, and the consummation of the transactions contemplated hereby;
(ii) such bills of sale, endorsements, assignments and other
good and sufficient instruments of conveyance and transfer, in form and
substance reasonably satisfactory to AmSurg, as shall be effective to vest
in AmSurg all of Seller's title to and interest in the Purchased Assets,
all of Seller's books, records and other data relating to the Purchased
Assets (except company records and any other documents and records which
Seller is required by law to retain in its possession), and, simultaneously
with such delivery, will take such steps as may be necessary to put AmSurg
in actual possession and operating control of the Purchased Assets;
(iii) a certificate of the Seller certifying as to the accuracy of
Seller's representations and warranties at and as of the Closing and that
it has performed or complied with all of the covenants, agreements, terms,
provisions and conditions to be performed or complied with by Seller at or
before the Closing;
(iv) a certificate of each of the Doctors certifying as to the
accuracy of the Doctors' representations and warranties at and as of the
Closing and that they have performed or complied with all of the covenants,
agreements, terms, provisions and conditions to be performed or complied
with by each of them at or before the Closing;
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(v) the opinion of McGuire, Woods, Battle & Xxxxxx LLP, legal
counsel to Seller and the Doctors, in substantially the form of Exhibit
9.6; and
(vi) such other certificates and documents as AmSurg or its
counsel may reasonably request.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY SELLER
Seller represents and warrants as follows:
4.1. ORGANIZATION. Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Maryland with full
power and authority to conduct its business as now conducted and to own, lease
or operate its properties and assets as now owned, leased or operated.
4.2. AUTHORIZATION. Seller has full company power and company authority to enter
into this Agreement and perform its obligations hereunder and carry out the
transactions contemplated hereby. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby, including the conveyance, assignment, transfer and delivery of the
Purchased Assets, have been duly authorized and approved by all necessary
company action, and this Agreement, when executed, will constitute a valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms.
4.3. NO VIOLATION. The execution and delivery of this Agreement by Seller does
not, and the consummation of the transactions contemplated hereby will not, (a)
violate any provision of, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage or lien to which Seller is a party or by which any of Seller's assets
or properties are bound which violation or lien would have a material adverse
effect on the business or operations of Seller or the Center; (b) violate any
provision of the articles of organization or operating agreement of Seller; (c)
violate any order, arbitration award, judgment, writ, injunction, decree,
statute, rule or regulation applicable to Seller which violation would have a
material adverse effect on the business or operations of Seller or the Center;
or (d) violate any other contractual or legal obligation or restriction to which
Seller is subject which violation would have a material adverse effect on the
business or operations of Seller or the Center.
4.4. FINANCIAL INFORMATION. Seller has delivered to AmSurg: (a) statements of
Center charges and cash receipts by month for the period ended August 31, 1998
and the years ended December 31, 1997 and December 31, 1996, (b) cash basis
unaudited statements of income for the Center for the period ended August 31,
1998 and the years ended December 31, 1997 and December 31, 1996, (c) a cash
basis unaudited balance sheet of the Center at December 31, 1997 and December
31, 1996, and (d) details of patient accounts receivable for the Center at
November 2, 1998 (hereinafter collectively referred to as "Financial
Information"), copies of all of which are attached hereto as Schedule 4.4. The
Financial Information fairly presents the assets, liabilities, financial
condition and results of operation of the Center as at the respective dates
thereof and for the periods therein referred to, prepared on a cash basis and
accurately reflects the revenues and expenses of the Center for the periods
covered thereby and, in particular, reflects all expenses necessary for the
efficient operation of the Center as a stand-alone entity. The Financial
Information reflects the consistent application of such accounting principles
throughout the periods involved.
4.5. OWNERSHIP OF PURCHASED ASSETS. Other than as set forth on Schedule 4.5,
Seller owns and has good title to all of the Purchased Assets, free and clear of
all mortgages, pledges, liens, security interests, conditional sale agreements,
charges, encumbrances and rights of third parties, and no conditions exist which
could give rise to any such mortgage, pledge, lien, security interest, defect,
charge, encumbrance on, or right of any such third party to, the Purchased
Assets.
Schedule 4.5 contains an accurate and complete description of the Purchased
Assets, which include, but are not limited to, supplies, inventory, uncollected
accounts receivable and equipment owned by Seller, and which are all of the
assets which are in any way necessary to the continued operation of the Center
as it is now being conducted. All of the Purchased Assets are in good working
condition and repair, normal wear and tear excepted, and are adequate for the
uses for which they are intended. Schedule 4.5 also sets forth the current book
value of all equipment included in the Purchased Assets.
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4.6. NO LIABILITIES OR ADVERSE CONDITIONS. To Seller's knowledge, except as and
to the extent of the amounts specifically reflected in the Financial
Information, Seller does not have any material liabilities or obligations of any
nature with respect to the Center, whether, absolute, accrued, contingent or
otherwise and whether due or to become due (including, without limitation,
liabilities for taxes and interest, penalties and other charges payable with
respect thereto).
Furthermore, Seller does not know or have reason to know of any basis for
the assertion against Seller of any such liability or obligation of any nature
not fully reflected in the Financial Information. There are no conditions
existing with respect to any of Seller's facilities, properties, assets or
personnel, which would materially and adversely affect any of the Center's
properties, business or prospects.
4.7. ABSENCE OF CERTAIN CHANGES. Since December 31, 1997, except as set forth on
Schedule 4.7, with respect to the Center, Seller has not:
(a) suffered any material adverse change in its working capital,
financial condition, assets, liabilities, business or prospects, or suffered any
material casualty loss (whether or not insured);
(b) made any change in its business or operations or in the manner of
conducting its business, other than changes in the ordinary course of business;
(c) incurred any obligations or liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except items incurred
in the ordinary course of business and consistent with past practice, or
experienced any change in any assumptions or methods of calculating any bad
debt, contingency or other reserve;
(d) paid, discharged or satisfied any claim, lien, encumbrance or
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), other than claims, liens, encumbrances, or liabilities:
(i) which are reflected in the Financial Information and which were
paid, discharged or satisfied since the date thereof in the ordinary course
of business consistent with past practice, or
(ii) which were incurred and paid, discharged or satisfied since
December 31, 1997 in the ordinary course of business consistent with past
practice;
(e) written off as uncollectible any notes or accounts receivable or any
portion thereof, except for immaterial write-offs made in the ordinary course of
business consistent with past practice;
(f) canceled any other debts or claims of substantial value;
(g) sold, transferred or conveyed any of its properties or assets, except
in the ordinary course of business consistent with past practice;
(h) made any capital expenditures or commitments in excess of $10,000 in
the aggregate for replacements or additions to property, plant, equipment or
intangible capital assets;
(i) declared, paid or made or set aside for payment of, any distribution
in respect of its outstanding membership interests, other than distributions
made in the ordinary course of business consistent with past practice, or
directly or indirectly redeemed, purchased or otherwise acquired any of its
membership interests;
(j) made any material change in any method of accounting or accounting
practice;
(k) granted any increase in the compensation of any officer, employee or
agent of Seller who performs services for or on behalf of the Center, (including
without limitation any increase pursuant to any bonus, pension, profit sharing
or other plan or commitment), other than increases in the ordinary course of
business consistent with past practice, or adopted any such plan or other
arrangement; and no such increase or the adoption of any such plan or
arrangement, is planned or required; and
(l) agreed, whether in writing or otherwise, to take any action described
in this Section 4.7.
4.8. TAXES. Seller has filed all federal, state and local tax returns required
to be filed by it through the date hereof and has paid all taxes and assessments
(including, without limitation, income, excise, unemployment, social security,
occupation, franchise, property, sales and use taxes, services taxes, import
duties or charges, and all penalties and interest with respect thereto) due and
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payable therefrom, unless the same are subject to a timely filed extension
request. Seller has not signed any extension agreement with any taxing authority
and knows of no open or questionable matters for any prior periods. All taxes
and assessments relating to or affecting the operations of the Center through
the date hereof have been paid, unless the same are subject to a timely filed
extension request.
4.9. LITIGATION. Except as set forth on Schedule 4.9, there is no claim,
litigation, investigation or proceeding pending or, to Seller's knowledge,
threatened at law or in equity or before any court, legislative or
administrative tribunal or governmental agency which questions the validity of
this Agreement or which, if adversely determined or publicly disclosed, would
have a material adverse effect on the business or operations of the Center.
Schedule 4.9 sets forth a true and accurate description of all claims, actions,
investigations or proceedings relating to the Center and its operations
initiated since March 1, 1995.
4.10. COMPLIANCE WITH LAWS AND OTHER REGULATIONS. Seller is in compliance in all
material respects with all requirements of applicable laws, rules, regulations,
orders, ordinances, judgments and decrees of all governmental bodies or agencies
(federal, state or local) (collectively, "Laws") relating to or affecting the
operations of the Center. Seller has not received any notice of, or notice of
any investigation of, a possible violation of any applicable Laws, or any other
Law or requirement relating to or affecting the operations of the Center.
Seller has all required licenses, permits, certificates, authorizations
and agreements needed for the ownership and efficient operation of the Center,
all of which are listed on Schedule 4.10. Seller knows of no act or omission
occurring on or before the date hereof which would subject Seller or the Center
to the likelihood of any fine or suspension of any license, permit, certificate,
authorization or agreement.
4.11. CONTRACTS; SIGNIFICANT PAYORS. Schedule 4.11 is a complete and accurate
list of all individual payors, or group of affiliated payors, that accounted for
more than 2% of the Center's revenues in any two of the previous three years or
is expected to account for more than 2% of the Center's revenues in the current
year or the next year ("Significant Payors").
All material contracts, agreements and instruments, including, but not
limited to, material third party provider agreements and agreements with
Significant Payors, to which Seller is a party and which are necessary for the
ownership and operation of the Center, are in full force and effect; Seller has
not received notice of any threatened cancellations thereof nor outstanding
disputes thereunder, and Seller has not breached any provision of, nor, to
Seller's knowledge, does there exist any default in any material respect under,
or event (including the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby) which is, or with the
giving of notice or the passage of time or both would become, a breach or
default in any material respect under the terms of any such contract, instrument
or agreement. Seller has no reason to believe that any Significant Payor intends
to terminate any such contract, instrument or agreement, or intends to withhold
its consent to the assignment thereof, to the LLC by Seller.
4.12. ACCOUNTS RECEIVABLE. All accounts and notes receivable of the Center,
whether reflected in the Financial Information or otherwise, represent services
actually provided in the ordinary course of business; to Seller's knowledge, all
such receivables are current and collectible in accordance with their respective
terms; and none of such receivables is subject to any counterclaim or set-off,
other than normal discounts, allowances and bad debts consistent with past
practice.
4.13. REPORTS AND RETURNS. All reports and returns heretofore required by
federal, state or municipal authorities with respect to the operations of the
Center have been filed and all sums heretofore due with respect to such reports
and returns have been paid.
4.14. DEFAULTS. Seller is not in default under, and no event has occurred which,
with the giving of notice or the passage of time, or both, would result in a
default under, any outstanding indenture, mortgage, contract, agreement or other
instrument with respect to the Center to which Seller is a party which default
would have a material adverse effect on the business or operations of the
Center. The execution, delivery and performance by Seller of this Agreement and
the transactions contemplated hereby will not violate any provision of, or
result in the breach of, or constitute a default under, or require any consent
under, any law, or any order, writ, injunction or decree of any court,
governmental agency or arbitration tribunal, or any material contract, agreement
or instrument with respect to the Center to which Seller is a party or by which
Seller is bound.
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4.15. EMPLOYEES; INDEPENDENT CONTRACTORS.
(a) Schedule 4.15(a) sets forth the names and titles of all employees of
Seller who perform services in or on behalf of the Center, and the annual rate
of compensation (including bonuses) being paid to each such employee as of the
most recent practicable date. The employees listed on Schedule 4.15(a),
constitute all of the employees who are in any way necessary to the continued
operation of the Center as it is now being conducted.
(b) Schedule 4.15(b) hereto contains a list of each employment, bonus,
deferred compensation, pension, stock option, stock appreciation right, profit
sharing or retirement plan, arrangement or practice and each other agreement or
fringe benefit plan, arrangement or practice of Seller, whether formal or
informal, whether legally binding or not and whether affecting one or more of
its employees who perform services in or on behalf of the Center. Copies of each
such agreement or plan have heretofore been delivered to AmSurg. Seller does not
have any commitment, whether formal or informal, and whether legally binding or
not (i) to create any additional such agreement, plan, arrangement or practice;
(ii) to modify or change any such agreement, arrangement, plan or practice; or
(iii) to maintain for any period of time any such agreement, arrangement, plan
or practice, except as described on Schedule 4.15(b).
(c) Schedule 4.15(c) hereto contains a list of all services provided to
the Center for which Seller contracts with third parties. Copies of each written
agreement listed on Schedule 4.15(c) previously have been provided to AmSurg.
Schedule 4.15(c) contains a description of each such oral agreement.
4.16. CONSENTS AND APPROVALS. Seller has obtained all consents, approvals,
authorizations and orders of third parties, including governmental authorities,
necessary for the authorization, execution and performance of this Agreement by
Seller, which consents, approvals, authorizations and orders are listed on
Schedule 4.16.
4.17. FULL DISCLOSURE. Neither this Agreement, nor any schedule, exhibit, list,
certificate or other instrument or document delivered to AmSurg pursuant to this
Agreement by or on behalf of Seller, contains any untrue statement of a material
fact or omits to state any material fact required to be stated herein or therein
or necessary to make the statements, representations or warranties and
information contained herein or therein not misleading. Seller has not withheld
from AmSurg disclosure of any event, condition or fact which Seller knows, or
has reasonable grounds to know, may materially adversely affect the Purchased
Assets or the operations of the Center.
4.18. NO BROKER'S FEES. Seller has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and Seller has no actual knowledge of any
claim by anyone for such a fee, commission, expense or charge.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE DOCTORS
Each of the Doctors, severally and not jointly, represents and warrants as
follows:
5.1. AUTHORITY. Such Doctor has full authority to enter into and carry out the
provisions of this Agreement, and this Agreement, when executed, will constitute
a valid and binding legal obligation enforceable against him in accordance with
its terms.
5.2. NO VIOLATION. The execution and delivery of this Agreement by the Doctors
does not, and the consummation of the transactions contemplated hereby will not,
(a) violate any material provision of, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which such Doctor is a party or by which any of
such Doctors's assets or properties are bound; (b) violate any provision of the
articles of organization or operating agreement of Seller; (c) violate any
order, arbitration award, judgment, writ, injunction, decree, statute, rule or
regulation applicable to such Doctor that would have a material adverse effect
on the Center; or (d) violate any other contractual or legal obligation or
restriction to which such Doctor is subject that would have a material adverse
effect on the Center.
5.3. MEMBERS OF SELLER. The Doctors constitute all of the members of Seller.
5.4. RESTRICTIVE COVENANTS; CONFIDENTIALITY. Each Doctor agrees that he will not
be an officer, director or employee or consultant of or have any direct or
indirect ownership interest in, or receive any compensation from any business or
entity competing with the LLC within 7.5 miles of the Center (the "Restricted
Area") until the later of (a) one (1) year after the Doctor ceases to be a
member of Seller or (b) five (5) years after the Closing Date. The
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foregoing shall not prohibit the Doctors from (x) owning shares of capital stock
constituting less than 1% of the outstanding capital stock of any corporation
whose common stock is traded on a national securities exchange or on The Nasdaq
Stock Market, (y) leasing, owning or holding an interest in real property in
which a surgery center operates located within the Restricted Area, or (z)
owning an equity interest in a proposed surgery center in the Xxxxxxxxx Xxxx
xxxx xx Xxxxxxxxx Xxxx, Xxxxxxxx. The foregoing also shall not prohibit any
Doctor from serving as Chief of Gastroenterology of any Baltimore area hospital.
The Doctors recognize and acknowledge that the ascertainment of damages in the
event of a breach of this Section 5.4 would be difficult, and agree that AmSurg,
in addition to all other remedies it may have, shall have the right to
injunctive relief if there is such a breach.
Notwithstanding the foregoing, the parties acknowledge and agree that
Section 5.4 does not require the Doctors to perform endoscopy procedures at the
Center or to refer patients to the Center, and imposes no restrictions on where
such procedures are performed or where referrals are made. Furthermore, Section
5.4 does not prohibit the Doctors from performing surgical procedures in the
offices of their practice for which no facility fee may be charged.
5.5. NO BROKER'S FEES. Such Doctor has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this agreement or the consummation of
the transactions contemplated hereby, and Doctor does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF AMSURG
AmSurg represents and warrants as follows:
6.1. ORGANIZATION. AmSurg is a corporation duly organized, validly existing and
in good standing under the laws of the state of Tennessee. AmSurg has full
corporate power and corporate authority to carry on its business as now
conducted and to own, lease or operate its properties and assets as now owned,
leased or operated.
6.2. AUTHORIZATION. AmSurg has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
AmSurg of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
This Agreement, when executed, will constitute a legal, valid and binding
obligation of AmSurg enforceable against it in accordance with its terms.
6.3. NO VIOLATION. The execution and delivery of this Agreement by AmSurg does
not, and the consummation of the transactions contemplated hereby will not, (a)
violate any provision of, or result in the creation of any lien or security
interest under, any material agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which AmSurg is a party or by which any of
AmSurg's assets or properties are bound which violation or lien would have a
material adverse effect on the business or operations of AmSurg; (b) violate any
provision of the Charter or Bylaws of AmSurg; (c) violate any order, arbitration
award, judgment, writ, injunction, decree, statute, rule or regulation
applicable to AmSurg which violation would have a material adverse effect on the
business or operations of AmSurg; or (d) violate any other contractual or legal
obligation or restriction to which AmSurg is subject which violation would have
a material adverse effect on the business or operations of AmSurg.
6.4. TAXES. AmSurg has filed all federal, state and local tax returns required
to be filed by it through the date hereof (or has obtained an extension for such
filing) and has paid all taxes and assessments (including without limitation
income, excise, unemployment, social security, occupation, franchise, property,
sales and use taxes, import duties or charges, and all penalties and interest in
respect thereof) due and payable therefrom. AmSurg has not signed any extension
agreement with any taxing authority and knows of no open or questionable matters
for any prior periods.
6.5. LITIGATION. There is no claim, litigation, investigation or proceeding
pending or, to AmSurg's knowledge, threatened against AmSurg at law or in equity
or before any court, legislative or administrative tribunal or governmental
agency which questions the validity of this Agreement or which, if adversely
determined or publicly disclosed, would have a material adverse effect on the
business or operations of AmSurg.
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6.6. COMPLIANCE WITH LAW AND OTHER REGULATIONS. AmSurg is in compliance in all
material respects with all requirements of applicable Laws. AmSurg possesses all
required licenses, permits, certificates, and authorizations needed for the
conduct of its business as presently conducted the failure of which to have
would have a material adverse effect on the business or operations of AmSurg.
AmSurg knows of no act or omission occurring on or before the date hereof which
would subject AmSurg to the likelihood of any material fine or suspension of any
material license, permit, certificate or authorization.
6.7. REPORTS AND RETURNS. AmSurg has filed all material reports and returns
heretofore required by federal, state or municipal authorities and all material
reports and returns to the various governmental authorities which control,
directly or indirectly, any of its activities, and has paid all sums heretofore
due with respect to such reports and returns.
6.8. DEFAULTS. AmSurg is not in default under, and no event has occurred which,
with the giving of notice or the passage of time, or both, would result in a
default under, any outstanding indenture, mortgage, contract or agreement to
which AmSurg is a party, which default would have a material adverse effect on
the business or operations of AmSurg.
The execution, delivery and performance by AmSurg of this Agreement and the
transactions contemplated hereby will not violate any provision of, or result in
the breach of, or constitute a default under, or require any consent under, any
law, or any order, writ, injunction or decree of any court, governmental agency
or arbitration tribunal, or any material contract, agreement or instrument to
which AmSurg is a party or by which AmSurg is bound.
6.9. CORPORATE DOCUMENTS. AmSurg has made available to Seller and the Doctors
for inspection by Seller and its authorized representatives, a copy of its
Charter, as amended to the date hereof, certified to be a true and correct copy
thereof by the Secretary of State of Tennessee, and the minute books of AmSurg
containing the bylaws and all records of the proceedings, meeting, actions and
consents of the shareholders and the board of directors (and any committees
thereof) of AmSurg.
6.10. FULL DISCLOSURE. Neither this Agreement, nor any Schedule, exhibit, list,
certificate or other instrument or document delivered to Seller and the Doctors
pursuant to this Agreement by or on behalf of AmSurg contains any untrue
statement of a material fact or omits to state any material fact required to be
stated herein or therein in order to make the statements, representations or
warranties contained herein or therein not misleading.
6.11. NO BROKER'S FEES. AmSurg has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and AmSurg does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 7. COVENANTS AND AGREEMENTS OF SELLER AND THE DOCTORS
Seller and the Doctors further covenant and agree that from the date hereof
until the Closing, and thereafter if so specified, they will fulfill the
following covenants and agreements unless otherwise consented to by AmSurg in
writing:
7.1. ACCESS; FURTHER ASSURANCES.
(a) Seller will accord to AmSurg, its counsel, accountants, and other
representatives, from the date hereof and at all reasonable times after the
Closing, full access to all of the properties, books, contracts, commitments,
financial information and records of the Center, and will furnish AmSurg during
such period with all such information concerning the business and operations of
the Center, as AmSurg reasonably may request. At any time and from time to time
after the Closing, at AmSurg's request and without further consideration, Seller
and the Doctors agree to execute and deliver such certificates and documents as
may be required in connection with any audit of the Center or its operations.
(b) From the date hereof until the Closing, as soon as reasonably
practicable after the end of each quarter, but not later than the 15th day of
the next succeeding month, Seller will deliver to AmSurg an unaudited statement
of income for the Center for the quarter and the period then ended, and an
unaudited balance sheet and a detail of patient accounts receivable for the
Center as at the quarter then ended ("Ongoing Quarterly Financial Information").
In addition, as soon as reasonably practicable after the end of each month, but
not later than the 15th day of the next succeeding month, Seller will deliver to
AmSurg a statement of (i) the number of procedures performed, (ii) the billed
charges, and (iii) the cash collections, all with respect to the prior
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Asset Purchase Agreement/Page 8
9
month ("Ongoing Monthly Financial Information") (the Ongoing Quarterly Financial
Information and the Ongoing Monthly Financial Information are collectively
referred to as the "Ongoing Financial Information"). All such Ongoing Financial
Information shall be prepared in accordance with generally accepted accounting
principles consistent with prior practice.
(c) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, Seller will execute and deliver such
other instruments of sale, transfer, conveyance, assignment and delivery and
confirmation and take such action as AmSurg may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to AmSurg and
to place AmSurg in possession and control of and to confirm AmSurg's title to,
the Purchased Assets, and to assist AmSurg in exercising all rights and enjoying
all benefits with respect thereto.
(d) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, the Doctors will execute and deliver
such other instruments of sale, transfer, conveyance, assignment and delivery
and confirmation and take such action as AmSurg may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to AmSurg and
to place AmSurg in possession and control of and to confirm AmSurg's title to,
the Purchased Assets, and to assist AmSurg in exercising all rights and enjoying
all benefits with respect thereto.
7.2. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are not
consummated for any reason, Seller and the Doctors promptly will return to
AmSurg all records and information provided to Seller from AmSurg, and Seller
and the Doctors will treat all such records and information as confidential.
(b) Except as otherwise required by law, Seller and the Doctors will not
disclose at any time to any other person not an employee of AmSurg or Seller (or
a person otherwise involved in the carrying out of the transactions contemplated
by this Agreement), nor make any public announcement of, the transactions or
terms of the transactions contemplated by this Agreement.
7.3. CONDUCT OF BUSINESS PENDING THE CLOSING. From the date hereof until the
Closing, and except as otherwise consented to by AmSurg in writing, Seller shall
not:
(a) fail to maintain in effect adequate insurance coverage of the Purchased
Assets; or
(b) fail to use its best efforts to (i) maintain the Purchased Assets in
their present condition, (ii) comply with all applicable laws, rules and
regulations of governmental agencies or authorities, and (iii) operate its
business in the manner necessary to maintain the good will of its patients and
physicians and its reputation.
7.4. INSURANCE. Seller will use its best efforts to include AmSurg and the LLC
as additional insureds on Seller's professional liability, general property and
workers' compensation insurance policies, and will provide AmSurg with written
evidence of such coverage. AmSurg and the LLC will pay the additional cost, if
any, for such insurance coverage.
7.5. TRANSFER OF SIGNIFICANT PAYOR AGREEMENTS. Seller and the Doctors will use
their reasonable best efforts to effect the valid assignment to the LLC of all
agreements with Significant Payors effective as of the Closing Date or within a
reasonable time thereafter.
7.6. NOTICE OF ADVERSE CHANGE. Seller will advise AmSurg in writing of any
material adverse change in the Purchased Assets from the date of this Agreement
to the Closing Date.
7.7. SCHEDULES. Seller shall have the continuing obligation to supplement or
amend promptly the Schedules being delivered by Seller pursuant to this
Agreement with respect to any matter hereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been required to be
set forth or described in these Schedules.
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Asset Purchase Agreement/Page 9
10
ARTICLE 8. COVENANTS AND AGREEMENTS OF AMSURG
AmSurg further covenant and agree that from the date hereof until the
Closing, unless otherwise consented to by Seller in writing, they will fulfill
the following covenants and agreements:
8.1. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are not
consummated for any reason, AmSurg promptly will return to Seller all records
and information provided to AmSurg from Seller, and AmSurg will treat all such
records and information as confidential.
(b) Except as otherwise required by law, AmSurg will not disclose at any
time to any other person not an employee of AmSurg or Seller (or a person
otherwise involved in the carrying out of the transactions contemplated by this
Agreement), nor make any public announcement of, the transactions or terms of
the transactions contemplated by this Agreement.
8.2. NOTICE OF ADVERSE CHANGE. AmSurg will notify Seller and the Doctors in
writing of any material adverse change in the business, assets, operations,
conditions or prospects of AmSurg from the date of this Agreement to the
Closing Date.
8.3. SCHEDULES. AmSurg shall have the continuing obligation to supplement or
amend promptly the Schedules being delivered by AmSurg pursuant to this
Agreement with respect to any matter hereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been required to be
set forth or described in these Schedules.
ARTICLE 9. CONDITIONS TO AMSURG'S OBLIGATIONS
AmSurg shall not be obligated to consummate the transactions contemplated
hereby, unless each of the following conditions is fulfilled or performed
(unless expressly waived in writing by AmSurg) prior to or at the Closing:
9.1. COMPLIANCE. The representations and warranties made by Seller and the
Doctors in this Agreement and the statements contained in the Schedules attached
hereto or in any instrument, list, certificate or writing delivered by Seller or
the Doctors pursuant to this Agreement shall be true when made and at and as of
the time of the Closing as though such representations and warranties were made
at and as of the Closing.
9.2. PERFORMANCE BY SELLER AND THE DOCTORS. Seller and the Doctors shall have
performed and complied with all covenants, agreements, obligations and
conditions required by this Agreement to be so complied with or performed by
each of them.
9.3. CERTIFICATE OF SELLER. Seller shall have delivered to AmSurg a certificate,
dated the Closing Date, certifying as to the fulfillment by Seller of the
conditions specified in Sections 9.1 and 9.2 hereof.
9.4. CERTIFICATE OF DOCTORS. Each of the Doctors shall have delivered to AmSurg
a certificate, dated the Closing Date, certifying as to the fulfillment by such
Doctor of the conditions specified in Sections 9.1 and 9.2 hereof.
9.5. CONSENTS AND LICENSES. All necessary consents, licenses, permits,
approvals, authorizations, orders and agreements from federal, state and local
governmental units and any other entity which are listed on Schedule 4.16,
including approval by the Maryland Department of Health and by applicable
Medicare and state Medicaid agencies, for the continued operation and
third-party reimbursement of the Center by the LLC following the consummation of
the transactions contemplated hereby, shall have been issued to the LLC or
notice of issuance shall have been provided.
9.6. OPINION OF COUNSEL. AmSurg shall have been furnished with the opinion of
McGuire, Woods, Battle & Xxxxxx LLP, counsel to Seller and the Doctors, in
substantially the form of Exhibit 9.6.
9.7. LEASE. The LLC and Kensington Associates shall have entered into an
amendment to the existing lease ("Lease") for the Center, in substantially the
form of Exhibit 9.7(a), and an Assignment and Assumption Agreement, in
substantially the form of Exhibit 9.7(b). In addition, AmSurg will execute a
guaranty ("Guaranty") of the Lease substantially similar to the guaranties of
the Doctors.
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Asset Purchase Agreement/Page 10
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9.8. SIGNIFICANT PAYOR AGREEMENTS. All of the Significant Payor agreements shall
have been validly assigned to the LLC or Seller and AmSurg shall have no reason
to believe that any such agreement with a Significant Payor will not be approved
or that such Significant Payor will not execute a new agreement with the LLC on
terms reasonably acceptable to AmSurg.
9.9. MEMBER APPROVAL. All of the members of Seller shall have approved the
transactions contemplated by this Agreement, and Seller shall have furnished
AmSurg with a certificate of the Chief Manager of Seller evidencing such
approval.
9.10. FORM 8594. AmSurg initially will allocate the Purchase Price using the
methodology reflected on Exhibit 9.10. In the course of completing the
consolidated federal income tax return, AmSurg shall provide Seller with an IRS
Form 8594.
ARTICLE 10. CONDITIONS TO SELLER'S AND THE DOCTORS' OBLIGATIONS
Seller and the Doctors shall not be obligated to consummate the
transactions contemplated hereby unless each of the following conditions is
fulfilled or performed (unless expressly waived in writing by Seller) prior to
or at the Closing:
10.1. COMPLIANCE. The representations and warranties made by AmSurg in this
Agreement and the statements contained in the Schedules attached hereto or in
any instrument, list, certificate or writing delivered by AmSurg pursuant to
this Agreement shall be true when made and at and as of the time of the Closing
as though such representations and warranties were made at and as of the
Closing.
10.2. PERFORMANCE BY AMSURG. AmSurg shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be so
complied with or performed by AmSurg.
10.3. CERTIFICATE OF AMSURG. AmSurg shall have delivered to Seller and the
Doctors a certificate, dated the Closing Date, certifying as to the fulfillment
of the conditions specified in Sections 10.1 and 10.2 hereof.
10.4. OPINION OF COUNSEL. Seller and the Doctors shall have been furnished the
opinion of Bass, Xxxxx & Xxxx PLC, counsel to AmSurg, in substantially the form
of Exhibit 10.4.
10.5. LEASE. The LLC and Kensington Associates shall have entered into the
amendment to the Lease and the Assignment and Assumption Agreement. AmSurg shall
have executed the Guaranty.
ARTICLE 11. INDEMNIFICATION
11.1. INDEMNIFICATION BY SELLER AND THE DOCTORS. Seller and the Doctors, jointly
and severally, hereby agree to defend, indemnify and hold harmless AmSurg and
shall reimburse AmSurg for, from and against each claim, loss, liability, cost
and expense (including without limitation, interest, penalties, costs of
preparation and investigation, and the reasonable fees, disbursements and
expenses of attorneys, accountants and other professional advisors)
(collectively, "Losses"), directly or indirectly relating to, resulting from or
arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by or of Seller or
any Doctor contained herein, any Schedule hereto or in any certificate, document
or instrument delivered to AmSurg pursuant hereto.
(b) Any tax liability of Seller or the Center not previously paid, which
may at any time be asserted or assessed against Seller or the Center for any
event or period prior to the Closing Date (regardless of whether the possibility
of the assertion or assessment of any such tax liability shall have been
disclosed to AmSurg at or prior to the Closing).
(c) Liability for any amounts owed by Seller or the Center to any
governmental third party or private payors because of overpayments to Seller or
the Center prior to the Closing for services rendered to patients, which
liability is due to a recomputation of rates, field audit adjustments,
overpayments or otherwise.
(d) Any other Loss incidental to any of the foregoing.
11.2. INDEMNIFICATION BY AMSURG. AmSurg hereby agrees to defend, indemnify and
hold harmless Seller and the Doctors, and shall reimburse Seller and the Doctors
for, from and against Losses directly or indirectly relating to, resulting from
or arising out of:
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Asset Purchase Agreement/Page 11
12
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by AmSurg
contained herein or in any certificate, document or instrument delivered to
Seller and the Doctors pursuant hereto.
(b) Any other Loss incidental to the foregoing.
11.3. PROCEDURE.
(a) The indemnified party shall promptly notify the indemnifying party of
any claim, demand, action or proceeding for which indemnification will be sought
under Sections 11.1 or 11.2 of this Agreement, and, if such claim, demand,
action or proceeding is a third party claim, demand, action or proceeding, the
indemnifying party will have the right at its expense to assume the defense
thereof using counsel reasonably acceptable to the indemnified party. The
indemnified party shall have the right to participate, at its own expense, with
respect to any such third party claim, demand, action or proceeding. In
connection with any such third party claim, demand, action or proceeding,
AmSurg, Seller and the Doctors shall cooperate with each other and provide each
other with access to relevant books and records in their possession. No such
third party claim, demand, action or proceeding shall be settled without the
prior written consent of the indemnified party. If a firm written offer is made
to settle any such third party claim, demand, action or proceeding and the
indemnifying party proposes to accept such settlement and the indemnified party
refuses to consent to such settlement, then: (i) the indemnifying party shall be
excused from, and the indemnified party shall be solely responsible for, all
further defense of such third party claim, demand, action or proceeding; and
(ii) the maximum liability of the indemnifying party relating to such third
party claim, demand, action or proceeding shall be the amount of the proposed
settlement if the amount thereafter recovered from the indemnified party on such
third party claim, demand, action or proceeding is greater than the amount of
the proposed settlement.
(b) Any claim of indemnity of AmSurg against Seller with respect to
Section 11.1 hereof may in AmSurg's discretion be discharged by set-off against
any amounts owed or owing to Seller or any affiliate thereof under the Operating
Agreement between Seller and AmSurg.
(c) Notwithstanding the foregoing, no Doctor shall be required to
indemnify AmSurg for any amount in excess of his pro rata portion of the
Purchase Price.
(d) Notwithstanding the foregoing, Seller and the Doctors shall not be
obligated to make any indemnification under Section 11.1 unless the aggregate
amount of Losses exceeds $15,000 (the "Basket"), and such indemnification with
respect to such Losses shall be made by Seller and the Doctors only to the
extent of such excess over the Basket.
ARTICLE 12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
12.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein shall survive the Closing Date and any investigation
made by or on behalf of any party hereto, and shall survive for a period of
eighteen (18) months after the Closing Date (except for any Losses described in
Section 11.1(b), which shall survive for the applicable statute of limitations,
including any waivers thereof, Section 11.1(c), which shall not terminate, and
any breach of the representations and warranties contained in Sections 4.6 and
4.9 with respect to professional malpractice claims arising before the Closing
Date, which shall not terminate).
In addition, in the event that all of the LLC, AmSurg, or their successors
or assigns, dissolves, liquidates or otherwise ceases to exist, the provisions
of Section 5.4 hereof shall terminate as of the date of such dissolution,
liquidation or cessation of existence and be of no further force or effect.
12.2. REMEDIES CUMULATIVE. The remedies provided herein shall be cumulative and
shall not preclude the assertion by any party hereto of any other rights or the
seeking of any other remedies against the other party hereto.
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Asset Purchase Agreement/Page 12
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ARTICLE 13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing:
(a) by mutual agreement of Seller and AmSurg;
(b) by AmSurg, if there has been a material violation or breach by Seller
or the Doctors of any of the agreements, representations or warranties contained
in this Agreement which has not been waived in writing, or if any of the
conditions set forth in Article 9 hereof have not been satisfied by the Closing
or have not been waived in writing by AmSurg;
(c) by Seller, if there has been a material violation or breach by AmSurg
of any of the agreements, representations or warranties contained in this
Agreement which has not been waived in writing, or if any of the conditions set
forth in Article 10 hereof have not been satisfied by the Closing or have not
been waived in writing by Seller;
(d) By either AmSurg or Seller if the transactions contemplated by this
Agreement shall not have been consummated on or before November 30, 1998; or
(e) By either AmSurg or Seller if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving the other.
ARTICLE 14. MISCELLANEOUS
14.1. EXPENSES. All fees and expenses incurred by Seller and the Doctors,
including without limitation, legal fees and expenses, in connection with this
Agreement will be borne by Seller and the Doctors and all fees and expenses
incurred by AmSurg, including without limitation, legal fees and expenses, in
connection with this Agreement will be borne by AmSurg.
14.2. ASSIGNABILITY; PARTIES IN INTEREST.
(a) Upon prior written notice to Seller, AmSurg may assign any or all of
its rights hereunder to any affiliate or any direct or indirect subsidiary of
AmSurg, and shall designate such party as the assignee and transferee of the
Purchased Assets. Any such assignee shall assume all of AmSurg's duties,
obligations and undertakings hereunder.
(b) Seller and the Doctors may not assign, transfer or otherwise
dispose of any of their respective rights hereunder without the prior written
consent of AmSurg.
(c) All the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective heirs,
successors, assigns and legal or personal representatives of the parties hereto.
14.3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the exhibits,
Schedules, lists and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by all parties or their respective heirs, successors, assigns or legal
personal representatives. Any condition to a party's obligations hereunder may
be waived but only by a written instrument signed by the party entitled to the
benefits thereof. The failure or delay of any party at any time or times to
require performance of any provision or to exercise its rights with respect to
any provision hereof, shall in no manner operate as a waiver of or affect such
party's right at a later time to enforce the same.
14.4. SEVERABILITY. The invalidity of any term or terms of this Agreement shall
not affect any other term of this Agreement, which shall remain in full force
and effect.
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Asset Purchase Agreement/Page 13
14
14.5. NOTICES. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed (registered or certified mail, postage prepaid, return
receipt requested or by overnight courier service) as follows:
If to Seller:
Gastrointestinal Diagnostic Center, LLC
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, M.D.
with a copy to:
Xxxxxx Xxxx, Esq.
McGuire, Woods, Battle & Xxxxxx LLP
Xxx Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
If to AmSurg:
AmSurg Holdings, Inc.
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Bass, Xxxxx & Xxxx PLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
14.6. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
14.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, provided, however, that
the several executed counterparts shall together have been signed by AmSurg,
Seller and each of the Doctors. All of such executed counterparts shall
constitute one and the same instrument.
14.8. PARTIES IN INTEREST. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns. The parties acknowledge that they have
independently negotiated the provisions of this Agreement, that they have relied
upon their own counsel as to matters of law and application and that neither
party has relied on the other party with regard to such matters. The parties
expressly agree that there shall be no presumption created as a result of either
party having prepared in whole or in part any provisions of this Agreement.
14.9. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Tennessee, without regard
to its conflict of laws rules.
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Asset Purchase Agreement/Page 14
15
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
AMSURG HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Title: Secretary
----------------------------------------
GASTROINTESTINAL DIAGNOSTIC CENTER, LLC
By: /s/ Xxxxx Xxxxxxx, M.D.
-------------------------------------------
Title: General Manager
----------------------------------------
By their execution of this Agreement, the Doctors hereby consent to the
execution hereof by Seller and agree to be bound by the provisions of Section
5.4 hereof:
DOCTORS:
/s/ Xxxxxxxx Xxxxx, M.D.
--------------------------------------
Xxxxxxxx Xxxxx, M.D.
/s/ Xxxxx Xxxx, M.D.
--------------------------------------
Xxxxx Xxxx, M.D.
/s/ Xxxxx Xxxxxxx, M.D.
--------------------------------------
Xxxxx Xxxxxxx, M.D.
/s/ Xxxxxxxxx Xxxxxxxxxx, M.D.
--------------------------------------
Xxxxxxxxx Xxxxxxxxxx, M.D.
/s/ Xxxxx Xxxxx, M.D.
--------------------------------------
Xxxxx Xxxxx, M.D.
/s/ Xxxxxxx Xxxxxxx, M.D.
--------------------------------------
Xxxxxxx Xxxxxxx, M.D.
/s/ Xxxxxxx Xxxxxxxxxx, M.D.
--------------------------------------
Xxxxxxx Xxxxxxxxxx, M.D.
/s/ Xxxxx Xxxxxx, M.D.
--------------------------------------
Xxxxx Xxxxxx, M.D.
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Asset Purchase Agreement/Page 15
16
The Schedules and Exhibits to the Asset Purchase Agreement have been omitted
in accordance with Item 601(b)(2) of Regulation S-K, but will be furnished to
the Commission supplementally upon request. The contents of the omitted
Schedules and Exhibits are described in the Asset Purchase Agreement.
