1
EXHIBIT 2.1
AGREEMENT OF DISSOLUTION OF PARTNERSHIP
AND
ASSET PURCHASE
THIS AGREEMENT (the "Agreement") is made and entered into on the 21st
day of January, 2000, by and among R. Xxxxxxx Xxxx, a resident of the State of
California (the "General Partner"), Xxxxxxx Xxxxx, Xxxxx XxXxxxxxx, Xxxxx
Xxxxxx, the Xxxxxx Investment Club, Xxxxxxx Xxxxx, Xxxxxx Xxxx and Xxxxxx
Xxxxxxxxx (collectively, the "Limited Partners") and AmSurg Glendale, Inc., a
Tennessee corporation ("AmSurg").
INTRODUCTION
1. The General Partner is the sole general partner and the Limited
Partners are all the limited partners of the American Surgery Centers of
Glendale, Ltd., a California limited partnership (the "Partnership").
2. This Agreement sets forth the terms and conditions upon which (a)
the Partnership shall wind up its affairs and distribute the remaining balance
of its assets in-kind to the General Partner and the Limited Partners in
complete dissolution and liquidation of the Partnership, and (b) the General
Partner shall sell to AmSurg and AmSurg shall purchase from the General Partner,
an undivided interest in assets that the General Partner receives from the
Partnership in connection with its dissolution and liquidation, as hereinafter
described.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. BASIC TRANSACTION.
1.1 DISSOLUTION AND LIQUIDATION. Subject to the terms and conditions of
this Agreement, the Partnership shall dissolve and commence winding up
and liquidating, and the Partnership shall continue solely for the
purpose of winding up its affairs in an orderly manner, satisfying the
claims of its creditors other than its Partners or their "Affiliates"
(as hereinafter defined) and distributing its assets in-kind to its
Partners. Neither the General Partner nor the Limited Partners shall
take any action that is inconsistent with, or not necessary to or
appropriate for, winding up the Partnership's business and affairs. The
General Partner, as the general partner of the Partnership, shall be
responsible for overseeing the winding up and dissolution of the
Partnership and shall take full account of the Partnership's assets and
liabilities.
1.1.1 PAYMENT OF DEBTS AND LIABILITIES. The Partnership shall pay
and discharge all of its debts and liabilities payable to
creditors other than Partners or their "Affiliates." To the
extent that the Partnership's cash is insufficient to pay and
discharge all of the Partnership's debts and liabilities payable
to creditors other than
2
Partners, General Partner shall contribute to the Partnership the
capital required to pay and discharge all such debts and
liabilities. All debts and liabilities of the Partnership payable
to Partners with respect to loans made to or unreimbursed
expenses incurred on behalf of the Partnership by a Partner shall
be canceled and treated as additional capital contributions to
the Partnership.
1.1.2 DISTRIBUTIONS TO PARTNERS. After all of the debts and
liabilities of the Partnership to creditors other than Partners
or their Affiliates have been fully paid and discharged, the
balance of the Partnership's assets of every type, kind,
description and nature whatsoever, wherever located, whether
real, personal or mixed, whether tangible or intangible, whether
leasehold improvements, whether recorded or unrecorded, whether
known or unknown, or whether leased, held, possessed, vested in
or claimed, in whole or in part, by the Partnership (the
"Distributed Assets") shall be distributed in-kind to the General
Partner and the Limited Partners in proportion to their respective
ownership percentages in the Partnership. Without limiting the
generality of the foregoing, the Distributed Assets shall include,
without limitation, the following:
(a) All cash remaining after the payment of debts and
liabilities of the Partnership to creditors other than the
Partners or their Affiliates, and all cash deposits and
accounts receivable;
(b) All medical and pharmaceutical supplies, medicines and
drugs;
(c) All furniture, fixtures, equipment, computers, computer
software programs, spare parts, tools, supplies, leasehold
improvements and all other tangible assets that the
Partnership owns, to the extent the same are assignable;
(d) All books, files, operating records, medical records and
other documents of any kind whatsoever, whether in hard copy
or on computer tapes, computer disks, or any other medium or
form that the Partnership owns;
(e) All licenses, permits, approvals, qualifications,
registrations and rights to the use of fictitious names, to
the extent the same are assignable; and
(f) All assignable contracts and third party payor
agreements other than the Partnership's Medicare provider agreement
and provider number and Medicaid participation Agreement.
The Distributed Assets shall include, but shall not be limited
to, the assets listed on Exhibit A attached hereto.
2
3
1.1.3 WAIVER OF PURCHASE RIGHTS. The General Partner and each
Limited Partner hereby irrevocably waive any and all rights he or
it may have pursuant to the terms of the Partnership Agreement or
otherwise to purchase any or all of the assets of the
Partnership.
1.1.4 CERTIFICATES. As soon as practical after the termination of
the Interim Management Agreement referred to in Section 12.10 or
such earlier time as AmSurg shall specify, the General Partner
and the Limited Partners covenant and agree that they shall
execute and file or cause to be filed with the office of the
California Secretary of State a certificate of dissolution and
certificate of cancellation with respect to the Partnership in
accordance with the applicable provisions of the California
Revised Limited Partnership Act, and the General Partner, as the
general partner of the Partnership, shall take such other actions
and shall execute, deliver, and cause to be filed such other
certificates, instruments and documents as shall be necessary to
effect a dissolution and liquidation of the Partnership under the
laws of each state or jurisdiction in which the Partnership is
engaged or authorized to engage in business.
1.1.5 EFFECTIVE TIME OF LIQUIDATION. The dissolution and
liquidation of the Partnership shall become effective upon the
filing of the certificate of cancellation in accordance with the
California Revised Limited Partnership Act.
1.2 PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of
this Agreement, as of the Closing Date (as hereinafter defined), (a)
the General Partner shall sell, transfer, assign, convey and deliver to
AmSurg,, and AmSurg shall purchase, acquire and accept from the General
Partner, all of the right, title, and interest of the General Partner
in and to an undivided fifty one percent (51%) interest in the
Distributed Assets, free and clear of all liens, liabilities, claims,
security interests, charges, mortgages, obligations or other
encumbrances of any kind or nature whatsoever (the "Purchased Assets").
The Purchased Assets include, but are not limited to the assets listed
on Exhibit A attached hereto.
1.2.1 PURCHASE PRICE. The purchase price (the "Purchase Price")
for the Purchased Assets to be purchased by AmSurg shall be
$4,628,335, which the parties agree is the Total Initial Purchase
Price shown on Exhibit B.
The General Partner and AmSurg acknowledge that the Initial
Purchase Price has been reduced by $123,016 (the "Purchase Price
Differential") to take into account the potential affect of 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").
During the six years following the Closing, commencing July 1,
2000, and at the end of each six-month period thereafter, if a
final version of the Proposed Rule has not
3
4
been adopted during such period, then AmSurg will pay as
additional consideration ("Additional Purchase Price") an amount
in cash equal to one-twelfth of the Purchase Price Differential,
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 years following the Closing, the Purchase Price will be
recalculated and adjusted utilizing the formula set forth on
Exhibits B and substituting the final Medicare reimbursement rates
for the proposed Medicare reimbursement rates (the "Adjusted
Purchase Price"). If the Adjusted Purchase Price exceeds the sum
of (a) the Total Initial Purchase Price shown on Exhibit B and
(b) any Additional Purchase Price previously paid by AmSurg,
AmSurg will pay in cash such amount as additional consideration
within sixty days after such determination. In no event will the
purchase price recalculation cause (x) the General Partner to
return any portion of the Purchase Price previously paid the
General Partner by AmSurg or (y) the aggregate consideration paid
by AmSurg to exceed $4,751,351.
1.2.2 INSTRUMENTS OF CONVEYANCE. To effect the distribution of
the Distributed Assets to the General Partner and the Limited
Partners as contemplated in Section 1.1.2 hereof, and to effect
the sale, transfer, assignment, conveyance and delivery of the
Purchased Assets to AmSurg as contemplated in Section 1.2 hereof,
the General Partner shall direct and cause the Partnership to
execute and deliver, on behalf of the Partnership and on behalf
of the General Partner, the following instruments of assignment,
transfer, and conveyance, in each case to take effect as of the
Closing Date:
(a) A xxxx of sale in substantially the same form attached
hereto as Exhibit C (the "Xxxx of Sale"), wherein the
Partnership shall assign all of its right, title, and
interest in and to (i) all cash, cash deposits and accounts
receivable of the Partnership, (ii) all medical and
pharmaceutical supplies, medicines and drugs, (iii) all
furniture, fixtures, equipment, computers, computer software
programs, spare parts, tools, supplies, leasehold
improvements and all other tangible assets; and (iv) all
books, files, operating records, medical records and other
documents of any kind whatsoever, whether in hard copy or on
computer tapes, computer disks, or any other medium or form;
(b) An assignment of contracts in substantially the same
form attached hereto as Exhibit D (the "Assignment of
Contracts"), wherein the Partnership shall assign all of its
right, title, and interest in and to any existing contract
between it and any third party, of any type whatsoever other
than the Partnership's Medicare provider agreement or
provider number or Medicaid participation agreement; and
(c) An assignment of licenses, permits and approvals in
substantially the same form attached hereto as Exhibit E
(the "Assignment of Licenses,
4
5
Permits and Approvals"), wherein the Partnership shall
assign all of its right, title, and interest in and to all
assignable licenses, permits, approvals, qualifications or
registrations of any nature whatsoever.
1.2.3 ASSUMPTION OF LIABILITIES. AmSurg shall not assume, incur,
or become liable or responsible for any debt, liability or
obligation of the Partnership, the General Partner or the Limited
Partners of any kind or nature whatsoever, whether accrued or
unaccrued, whether known or unknown, whether absolute or
contingent, whether liquidated or unliquidated, or whether due or
to become due, including, without limitation, any liability for
federal, state, local or foreign taxes of any kind or nature
whatsoever.
1.3 CLOSING. The closing ("Closing") of the transactions contemplated
herein shall take place, as soon as possible after the satisfaction or
waiver of all conditions to the obligations of the parties hereto to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective parties hereto shall take at the
Closing itself), but in no event later than January 21, 2000, or at
such other place as the parties hereto may mutually determine (the
"Closing Date").
2. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING THE PARTNERSHIP. The
General Partner represents and warrants to AmSurg that the following statements
contained in this Section 2 are correct and complete as of the date of this
Agreement and shall be correct and complete as of the Closing Date:
2.1 FINANCIAL STATEMENTS. Attached hereto as Exhibit F are the
following financial statements (collectively the "Financial
Statements"): unaudited balance sheets and statements of income as of
and for the fiscal year ended December 31, 1997, and December 31, 1998
(the "Most Recent Fiscal Year End") for the Partnership; and unaudited
balance sheets and statements of income (the "Most Recent Financial
Statements") as of and for the eleven (11) months ended November 30,
1999 (the "Most Recent Fiscal Month End") for the Partnership. The
Financial Statements have been prepared in accordance with accounting
principles on a consistent basis throughout the periods covered
thereby, are correct and complete in all material respects, and are
consistent with the books and records of the Partnership (which books
and records are materially correct and complete).
2.2 TITLE. The Partnership has good and marketable title to all of the
assets it uses in connection with the operation of its business, free
and clear of all liens, liabilities, claims, security interests,
charges, mortgages, obligations, or other encumbrances of any kind or
nature whatsoever, whether accrued or unaccrued, whether known or
unknown, whether absolute or contingent, whether liquidated or
unliquidated, or whether due or to become due.
2.3 LITIGATION. There is no suit, proceeding, or other investigation
pending or, to the knowledge of the General Partner, threatened against
the Partnership, that would affect the validity, propriety, or the
performance of this Agreement by the parties hereto.
5
6
2.4 ABSENCE OF CERTAIN CHANGES. Since November 30, 1999, the
Partnership has not:
2.4.1 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);
2.4.2 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;
2.4.3 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;
2.4.4 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:
(a) which are reflected in the Financial Statements and
which were paid, discharged or satisfied since the date
thereof in the ordinary course of business consistent with
past practice, or
(b) which were incurred and paid, discharged or satisfied
since October 31, 1999 in the ordinary course of business
consistent with past practice;
2.4.5 written off as uncollectible any notes or accounts
receivable or any portion thereof, except for write-offs made in
the ordinary course of business consistent with past practice;
2.4.6 canceled any other debts or claims, or waived any rights,
of substantial value;
2.4.7 sold, transferred or conveyed any of its properties or
assets, except in the ordinary course of business consistent with
past practice;
2.4.8 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;
2.4.9 declared, paid or made or set aside for payment of, any
distribution in respect of its outstanding partnership 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 partnership
interests;
6
7
2.4.10 made any change in any method of accounting or accounting
practice;
2.4.11 granted any increase in the compensation of any officer,
employee or agent of the Partnership, (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
2.4.12 agreed, whether in writing or otherwise, to take any
action described in this Section 2.4.
2.5 COMPLIANCE WITH LAWS AND OTHER REGULATIONS. The Partnership 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 its operations. The
Partnership 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 its operations.
Partnership has all required licenses, permits, certificates,
authorizations and agreements needed for the ownership of its assets
and operation of its business.
2.6 ACCOUNTS RECEIVABLE. All notes and accounts receivable of the
Partnership have arisen from bona fide transactions by the Partnership
in the ordinary course of business and are valid as receivables.
2.7 REPORTS AND RETURNS. Except as would not reasonably be expected to
have a material adverse effect on the business or operations of the
Partnership, all reports and returns heretofore required by federal,
state or municipal authorities with respect to the Partnership's
operations and all reports and returns to the various governmental
authorities which control, directly or indirectly, any of the
Partnership's activities, have been filed and all sums heretofore due
with respect to such reports and returns have been paid.
2.8 CORRECT AND COMPLETE. The representations and warranties contained
in Section 2.1 through 2.7 are correct and complete as of the date of
this Agreement and shall be correct and complete as of the Closing Date
(as though made then and as if the Closing Date were substituted for
the date of this Agreement).
2.9 METHOD OF ACCOUNTING. From the date of its inception through the
Closing Date, the Partnership used the accrual method of accounting for
federal income tax purposes.
2.10 TAX RETURN. The General Partner shall, at its expense, cause all
required federal, state and local tax returns and reports for the
periods prior to and including the Closing Date to be timely prepared
and filed, including, without limitation, all such tax returns and
reports
7
8
that are required to be prepared and filed as a result of the
dissolution and liquidation of the Partnership. The General Partner
shall provide to AmSurg at no cost copies of such tax returns and
reports, together with any schedules or other information that AmSurg
may require in connection with their own tax affairs.
3. REPRESENTATIONS AND WARRANTIES RELATING TO THE GENERAL PARTNER. The General
Partner represents and warrants to AmSurg that the following statements
contained in this Section 3 are correct and complete as of the date of this
Agreement and shall be correct and complete as of the Closing Date:
3.1 BINDING OBLIGATION. This Agreement constitutes the valid and
legally binding obligation of the General Partner, enforceable in
accordance with its terms.
3.2 NON-CONTRAVENTION. Neither the execution, delivery or performance
of this Agreement, the consummation of the transactions contemplated
hereby, nor the compliance with or fulfillment of the conditions hereof
shall (a) conflict with, violate, result in a breach of or constitute a
default (or an event which, with the lapse of time, or the giving of
notice, or both, will constitute a default) under any charter,
contract, agreement, indenture, mortgage, deed of trust, lease or other
agreement or document to which the General Partner is a party or by
which it is bound, or result in the creation of any lien, charge or
encumbrance upon the Distributed Assets or the Purchased Assets
pursuant to the terms of any such instrument; or (b) conflict with or
violate any law, ruling, regulation, judgment, order, writ, injunction
or decree of any tribunal, court or governmental authority of any
jurisdiction which is binding upon the General Partner.
3.3 LITIGATION. There is no suit, proceeding or other investigation
pending or, to the knowledge of the General Partner, threatened against
the General Partner, that would affect the validity, propriety or the
performance of this Agreement by the General Partner.
3.4 DISCLOSURE. No representation or warranty by the General Partner in
this Agreement, nor any statement, document, agreement, instrument or
certificate furnished or to be furnished to AmSurg pursuant hereto, or
in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of material fact, or omits or will
omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
4. REPRESENTATIONS AND WARRANTIES RELATING TO AMSURG. AmSurg represents and
warrants to the General Partner that the following statements contained in this
Section 4 are correct and complete as of the date of this Agreement and shall be
correct and complete as of the Closing Date:
4.1 ORGANIZATION. AmSurg is a corporation duly organized, validly
existing and in good standing under the laws of the state of Tennessee,
and has the corporate power and authority to carry on its business as
it is now being conducted.
8
9
4.2 AUTHORITY; BINDING OBLIGATION. AmSurg has full corporate power and
corporate authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes the valid
and legally binding obligation of AmSurg, enforceable in accordance
with its terms. AmSurg need not give any notice to, make any filing
with, or obtain any authorization, consent or approval of any
governmental agency in order to consummate the transactions
contemplated by this Agreement except as otherwise provided herein.
4.3 NON-CONTRAVENTION. Neither the execution, delivery or performance
of this Agreement, the consummation of the transactions contemplated
hereby, nor the compliance with or fulfillment of the conditions hereof
shall (a) conflict with or violate any provision of the Charter or
Bylaws of AmSurg; (b) conflict with, violate, result in a breach of, or
constitute a default (or an event which, with the lapse of time, or the
giving of notice, or both, will constitute a default) under any
charter, contract, agreement, indenture, mortgage, deed of trust, lease
or other agreement or document to which AmSurg is a party or by which
it is bound, or result in the creation of any lien, charge or
encumbrance upon any of its assets pursuant to the terms of any such
instrument; or (c) conflict with or violate any law, ruling,
regulation, judgment, order, writ, injunction or decree of any
tribunal, court or governmental authority of any jurisdiction which is
binding upon AmSurg
4.4 LITIGATION. There is no suit, proceeding or other investigation
pending or, to the knowledge of AmSurg, threatened against AmSurg, that
would affect the validity, propriety, or the performance of this
Agreement by AmSurg
4.5 DISCLOSURE. No representation or warranty by AmSurg in this
Agreement, nor any statement, document, agreement, instrument or
certificate furnished or to be furnished to the General Partner
pursuant hereto, or in connection with the transactions contemplated
hereby, contains or will contain any untrue statement of material fact,
or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
5. OTHER AGREEMENTS AND COVENANTS.
5.1 FURTHER ASSURANCES. From time to time after the Closing, each party
hereto at the request of any other party and without further
consideration, shall execute and deliver such other and further
instruments, including, without limitation, such other and further
instruments of sale, transfer and conveyance and take such other and
further action as such other party may reasonably request, at the sole
cost and expense of the requesting party (unless such requesting party
is entitled to indemnification therefor under Section 5.2 hereof), to
carry out the purposes of this Agreement, to more effectively vest in
AmSurg or its successors and put AmSurg or its successors in possession
of the Purchased Assets and assure to AmSurg or its successors the
beneficial use thereof, and to otherwise consummate the transactions
contemplated hereunder.
5.2 INDEMNIFICATION.
9
10
5.2.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. All
of the representations, warranties, covenants and indemnities
made by the parties in this Agreement, or in any document,
instrument, agreement, certificate, schedule or exhibit delivered
in connection herewith, shall survive the Closing and shall
continue in full force and effect for a period of twelve (12)
months thereafter.
5.2.2 INDEMNIFICATION PROVISIONS FOR THE BENEFIT OF AMSURG. Subject
to the limitation set forth in this Section 5, the General Partner
agrees to defend, indemnify and hold AmSurg harmless from and
against any and all claims, demands, actions, causes of action,
suits (in law or in equity), proceedings, losses, damages,
liabilities, costs and expenses, including, without limitation,
legal and accounting fees and other expenses, arising out of,
resulting from, or relating to (a) any breach of warranty or
misrepresentation by the General Partner contained herein or in
any document, instrument, agreement, certificate, schedule or
exhibit delivered in connection herewith; or (b) the
non-performance of any covenant or obligation to be performed by
the General Partner pursuant to the terms hereof or any document,
instrument, agreement, certificate, schedule or exhibit delivered
in connection herewith.
5.2.3 INDEMNIFICATION PROVISIONS FOR THE BENEFIT OF THE GENERAL
PARTNER. Subject to the limitation set forth in this Xxxxxxx 0,
XxXxxx agrees to defend, indemnify and hold the General Partner
harmless from and against any and all claims, demands, actions,
causes of action, suits (in law or in equity), proceedings, losses,
damages, liabilities, costs and expenses, including, without
limitation, legal and accounting fees and other expenses, arising
out of, resulting from, or relating to (a) any breach of warranty
or misrepresentation by AmSurg contained herein or in any
document, instrument, agreement, certificate, schedule or exhibit
delivered in connection herewith; or (b) the non-performance of
any covenant or obligation to be performed by AmSurg pursuant to
the terms hereof or any document, instrument, agreement,
certificate, schedule or exhibit delivered in connection
herewith.
5.2.4 INDEMNIFICATION PROCEDURES FOR THIRD PARTY CLAIMS. If any
third party asserts any claim or demand (the "Third Party Claim")
against a party hereto with respect to any matter to which the
obligation to indemnify may arise under the provisions of this
Section 5, the party against whom the Third Party Claim is asserted
(the "Indemnified Party") shall give or cause to be given to the
party who is obligated to indemnify such Indemnified Party
pursuant to the provisions of this Section 5 (the "Indemnifying
Party") written notice thereof within thirty (30) days, which
shall describe such Third Party Claim in reasonable detail,
including the amount thereof or an estimate thereof if necessary
and to the extent feasible. The failure of any Indemnified Party
to give any Indemnifying Party such written notice within thirty
(30) days shall not preclude such Indemnified Party from
obtaining indemnification under this Section 5, except to the
extent that such Indemnified Party's failure has materially
prejudiced the Indemnifying Party's rights or materially
increased its liabilities and obligations hereunder. If a Third
Party Claim is asserted that is subject
10
11
to indemnification hereunder, the Indemnifying Party shall within
fifteen (15) days defend such Third Party Claim by counsel of its
choice, subject to the approval of the Indemnified Party, which
approval shall not be unreasonably withheld or delayed, and the
Indemnified Party shall cooperate with the Indemnifying Party in
the defense of such Third Party Claim, including the settlement
of the matter on the basis stipulated by the Indemnifying Party
(with the Indemnifying Party being responsible for all costs and
expenses of such settlement). If the Indemnifying Party within
fifteen (15) days after notice of such Third Party Claim fails to
defend the Indemnified Party, the Indemnified Party shall be
entitled to undertake the defense, compromise, or settlement of
such Third Party Claim, at the expense of and for the account and
risk of the Indemnifying Party.
5.3 COSTS OF ENFORCEMENT. If any action at law or in equity (including
any appellate proceeding) is brought to enforce or interpret any
provision of this Agreement, the prevailing party shall be entitled to
recover all costs and expense that it incurs in connection with such
action, including all legal and accounting fees, costs, expenses and
disbursements.
5.4 REMEDIES CUMULATIVE. No right or remedy granted herein is exclusive
of any other right or remedy, but every such right or remedy shall be
cumulative and shall be in addition to every other right or remedy
herein, or now or hereafter existing at law or in equity.
6. CONDITIONS TO OBLIGATIONS TO CLOSE.
6.1 CONDITIONS TO OBLIGATIONS OF THE GENERAL PARTNER TO CLOSE. The
obligations of the General Partner to take the actions and provide the
documents to be taken and provided, respectively, by it in connection
with the Closing shall be subject to the satisfaction or waiver by it
in writing at or prior to the Closing of each of the following
conditions:
6.1.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of AmSurg contained herein shall
be true and correct in all material respects at and as of the
Closing.
6.1.2 PERFORMANCE OF OBLIGATIONS. AmSurg shall have performed and
complied in all material respects with all of their agreements
and obligations undertaken by them herein to be performed at or
prior to the Closing.
6.1.3 NO LITIGATION. There shall not be pending or threatened any
litigation, proceeding or claim seeking to restrain, prohibit or
prevent, or change the terms of, or obtain damages, or to obtain
any other remedy in connection with the transactions contemplated
by this Agreement.
6.1.4 FURTHER ASSURANCES. The General Partner shall have received
such further instruments and documents as it or its counsel may
reasonably require to carry out the transactions contemplated
herein and to evidence the fulfillment of the agreements
11
12
contained herein and the performance and satisfaction of all of
the conditions to the consummation of such transactions.
6.1.5 APPROVAL OF COUNSEL. All actions to be taken by AmSurg in
connection with the consummation of the transactions contemplated
hereby and all documents, instruments, agreements or certificates
required to effect the transactions contemplated hereby shall be
reasonably satisfactory in form and substance to counsel for the
General Partner.
6.1.6 SUBLEASE. Glendale Ophthalmology ASC, L.P. (the "LP"), as
subtenant, shall have entered into a sublease with Glendale Eye
Medical Group, Inc., as sublandlord, relative to the real
property located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
and currently utilized by the Partnership in connection with the
operation of its business.
6.2 CONDITIONS TO OBLIGATIONS OF AMSURG TO CLOSE. The obligations of
AmSurg to take the actions and provide the documents to be taken and
provided by it in connection with the Closing shall be subject to the
satisfaction or waiver by them in writing at or prior to the Closing of
each of the following conditions:
6.2.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the General Partner contained
herein shall be true and correct in all material respects at and
as of the Closing.
6.2.2 PERFORMANCE OF OBLIGATIONS. The General Partner shall have
performed and complied in all material respects with all of its
agreements and obligations undertaken by it herein to be
performed at or prior to the Closing.
6.2.3 NO LITIGATION. There shall not be pending or threatened any
litigation, proceeding or claim seeking to restrain, prohibit or
prevent, or change the terms of, or obtain damages, or to obtain
any other remedy in connection with, the transactions
contemplated by this Agreement.
6.2.4 FURTHER ASSURANCES. AmSurg shall have received such further
instruments and documents as it or its counsel may reasonably
require to carry out the transactions contemplated herein and to
evidence the fulfillment of the agreements contained herein and
the performance and satisfaction of all of the conditions to the
consummation of such transactions.
6.2.5 APPROVAL OF COUNSEL. All actions to be taken by the General
Partner in connection with the consummation of the transactions
contemplated hereby and all documents, instruments, agreements,
or certificates required to effect the transactions contemplated
hereby shall be reasonably satisfactory in form and substance to
counsel for AmSurg.
12
13
6.2.6 DISTRIBUTION TO PARTNERS. The Distributed Assets shall have
been distributed to the General Partner and the Limited Partners
in accordance with their ownership percentages in the
Partnership, free and clear of all liens, liabilities, claims,
security interests, charges, mortgages, obligations or other
encumbrances of any kind or nature whatsoever, whether accrued or
unaccrued, whether known or unknown, whether absolute or
contingent, whether liquidated or unliquidated or whether due or
to become due.
6.2.7 LIMITED PARTNERSHIP AGREEMENT. The General Partner and the
Limited Partners shall have each executed and delivered to AmSurg
a Limited Partnership Agreement in substantially the same form
attached hereto as Exhibit H.
6.2.8 CONTRIBUTION AGREEMENT. The General Partner and the Limited
Partners shall have each executed and delivered to AmSurg a
Contribution Agreement in substantially the same form attached
hereto as Exhibit I pursuant to which they each agree to
contribute the undivided interest in the Distributed Assets
(other than the Purchased Assets) to the LP.
6.2.9 LICENSE. AmSurg shall have received evidence satisfactory
to it that the surgery center currently operated by the
Partnership may continue to be operated by the LP without
obtaining a license from any applicable state or local authority.
6.2.10 INTERIM MANAGEMENT AGREEMENT. The LP and the Partnership
shall have entered into an Interim Management Agreement in
substantially the same form as attached hereto as Exhibit J.
6.2.11 MANAGEMENT SERVICES AGREEMENT. The LP and AmSurg Corp.
shall have entered into a Management Services Agreement in
substantially the same form as attached hereto as Exhibit K.
6.2.12 BILLING AND TRANSCRIPTION AGREEMENT. The LP and Glendale
Eye Medical Group, Inc. shall have entered into a Billing and
Transcription Agreement in substantially the same form as
attached hereto as Exhibit L.
6.2.13 SUBLEASE. The LP, as subtenant, shall have entered into a
sublease with Glendale Eye Medical Group Inc., as sublandlord,
relative to the real property known as Suite 103 in the building
located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx and
currently utilized by the Partnership in connection with the
operation of its business.
6.2.14 PHYSICIAN ENTITY. The General Partner and each Limited
Partner as of the Closing Date, which shall include Xxxxxxx
Xxxxx, M.D., shall have formed an entity (the "Physician Entity")
in which the General Partner and each Limited Partner have an
ownership interest, which entity shall be the sole limited
partner in the LP.
13
14
7. OBLIGATIONS AT CLOSING.
7.1 OBLIGATIONS OF THE GENERAL PARTNER AT CLOSING. At the Closing, the
General Partner shall deliver (or cause to be delivered) the following:
7.1.1 The Bills of Sale, executed and delivered by the Partnership
to AmSurg;
7.1.2 The Assignments of Contracts, executed and delivered by the
Partnership to AmSurg;
7.1.3 The Assignments of Licenses, Permits, and Approvals, executed
and delivered by the Partnership to AmSurg;
7.1.4 Fully executed copies of the organizational documents for
the Physician Entity and such other information and documentation
as AmSurg shall reasonably request to establish the ownership of
the Physician Entity.
7.1.5 All other documents that are required herein to be delivered
by the General Partner.
7.2 OBLIGATIONS OF AMSURG AT CLOSING. At the Closing, AmSurg shall
deliver (or cause to be delivered) the following:
7.2.1 A copy, certified as of the Closing Date by the secretary
of AmSurg of the resolutions of the Board of Directors of AmSurg
authorizing the execution, delivery and performance of this
Agreement and the other documents, agreements, instruments and
certificates to be executed in connection herewith;
7.2.2 The Purchase Price in cash or immediately available funds
by wire transfer; and
7.2.3 All other documents that are required herein to be delivered
by AmSurg.
8. GENERAL PROVISIONS.
8.1 AFFILIATE. For purposes of this Agreement, "Affiliate" means (a)
any person or entity controlling, controlled by, or under common
control with such person or entity, (b) any officer, director, general
partner or trustee of such person or entity, or (c) any officer,
director, general partner or trustee of any person or entity described
in clauses (a) and (b) of this sentence. For purposes of this
definition, the terms "controlling," "controlled by," or "under common
control with" mean the possession, direct or indirect, of the power to
direct or cause the direction of the management, policies, business and
affairs of a person or entity, whether through the ownership of voting
securities, by contract, or otherwise.
14
15
8.2 NOTICES. All notices, requests, demands and other communications
which are required or permitted to be given under this Agreement shall
be in writing and shall be deemed to be duly given upon the delivery or
mailing thereof, as the case may be, if delivered personally or sent by
registered or certified mail, return receipt requested, postage
prepaid, addressed to the party to whom such notice is to be given at
the address specified herein (or to such other address as shall have
been specified in a previous notice similarly given).
8.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof, and
supersedes any and all prior agreements or understandings, whether
written or oral, among the parties with respect to the subject matter
contained herein.
8.4 MODIFICATION; WAIVER. No modification, amendment or waiver of any
provision of this Agreement, and no consent by any party hereto to any
departure therefrom by any other party hereto, shall be effective
unless such modification, amendment, waiver or consent shall be in
writing and signed by all of the parties hereto. No waiver by any party
of any default, misrepresentation, or breach of any warranty,
agreement, covenant or obligation hereunder shall be deemed to extend
to any prior or subsequent default, misrepresentation, or breach of any
warranty, agreement, covenant or obligation hereunder or affect in any
way any rights arising by virtue of any prior or subsequent such
occurrence.
8.5 BINDING EFFECT; BENEFIT. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and
permitted assigns.
8.6 ASSIGNMENT. No party hereto may assign this Agreement or any of its
rights, interests or obligations hereunder without the prior written
consent of all of the other parties hereto.
8.7 MULTIPLE COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original instrument,
and said counterparts shall constitute but one and the same agreement
which may be sufficiently evidenced by one counterpart.
8.8 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of California without giving
effect to the principles of conflict of laws thereof.
8.9 CONSTRUCTION. Every covenant, term, and provision of this Agreement
shall be construed simply according to its fair meaning, and not
strictly for or against any party. Accordingly, in the event of any
dispute as to the precise meaning of any term contained herein, the
principles of construction and interpretation that written documents be
construed against the party preparing the same shall not be applicable.
15
16
8.10 HEADINGS. Section and other headings contained in this Agreement
are for reference purposes only, and are not intended to describe,
interpret, define, or limit the scope, extent or intent of this
Agreement or any provision hereof.
8.11 INCORPORATION BY REFERENCE. All exhibits, schedules, documents or
instruments attached hereto or delivered in connection herewith are
hereby incorporated herein by reference and made a part hereof.
8.12 SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not affect
the validity or legality of the remainder of this Agreement.
8.13 EXPENSES. Each party hereto shall pay the fees and expenses of its
own counsel and experts and all other expenses incurred by such party
incident to the negotiation, preparation and consummation of this
Agreement.
8.14 BROKERS' FEES. No party hereto has committed or obligated itself
or any other party hereto to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this
Agreement.
8.15 CONFIDENTIALITY. Except as otherwise required by law, no party
hereto shall at any time (a) disclose (1) the terms and conditions of,
(2) the transactions contemplated by, or (3) the subject matter of this
Agreement to any person or entity other than an employee or agent of
such party; or (b) issue any press release or make any public
disclosure or announcement relating to any of the foregoing.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
16
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
GENERAL PARTNER:
/s/ R. Xxxxxxx Xxxx, M.D.
----------------------------------------
R. Xxxxxxx Xxxx, M.D.
LIMITED PARTNERS:
/s/ Xxxxxxx Xxxxx, M.D.
----------------------------------------
Xxxxxxx Xxxxx, M.D.
/s/ Xxxxx XxXxxxxxx, M.D.
----------------------------------------
Xxxxx XxXxxxxxx, M.D.
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
YAMADA INVESTMENT CLUB
By: /s/ Xxxx Xxx
-------------------------------------
Its: General Partner
-----------------------------------
/s/Xxxxxxx Xxxxx, M.D.
----------------------------------------
Xxxxxxx Xxxxx, XXX
Xxxxxx Xxxx, M.D.
----------------------------------------
Xxxxxx Xxxx, M.D.
Xxxxxx Xxxxxxxxx, M.D.
----------------------------------------
Xxxxxx Xxxxxxxxx, M.D., Retirement Plan
17
18
AMSURG:
AMSURG GLENDALE, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Its: Secretary
------------------------------------
19
The Schedules and Exhibits to the Agreement of Dissolution of
Partnership and Asset Purchase 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 Agreement of Dissolution of Partnership and Asset Purchase.
