Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT made and entered into effective as of January 31, 2006,
between and among SurgiCare Memorial Village, L.P., 00000 Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxx ( "Seller"), and First Surgical Memorial Village, L.P., or
its assignee, ("Purchaser"), joined herein by Orion HealthCorp, Inc. in regard
to the obligation set forth in paragraph 1.9.
WITNESSETH:
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WHEREAS, Seller desires to sell and Purchaser desires to purchase, all right,
title, and interest of Seller in and to certain of the assets of Seller,
including those assets utilized by Seller in the operation of an outpatient
surgical center (the Business) located at 00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxx,
(the "Facility"). Purchaser will lease from Cornerstone Medical Partnership the
premises in which the Facility operates, under a lease to become effective
immediately following the Closing described below; and
NOW, THEREFORE, in consideration of the premises and covenants hereinafter
set forth, the sufficiency of which are hereby acknowledged, Seller and
Purchaser hereby agree as follows:
1. Agreement to Sell and Purchase. At the Closing as defined in Article 10
hereof, Seller will sell, convey, assign, transfer and deliver, or cause to be
sold, conveyed, assigned, transferred and delivered, to Purchaser, and Purchaser
shall purchase, accept, and pay for the following assets (collectively termed
the "Assets" for purposes of this Agreement), which are owned by, and relate to
the business of the Seller at the Facility:
1.1 Equipment. All of the vehicles, machines, equipment, appliances, and
furnishings (including office equipment, computers and computing software,
furnishings, fixtures and supplies) and other personal property now
physically located at the Facility, or either now or upon the Closing
located elsewhere but owned by Seller and used in the business operated by
Seller at the Facility at any time after December 1, 2005 (collectively,
the "Equipment"). Material items of Equipment are set forth on Schedule
1.1, which is attached hereto and made a part hereof. All of the Equipment
shall, the Purchaser agrees, be subject to normal wear and tear (given
normal maintenance) between the date hereof and the Closing.
1.2 Inventory. All stock, finished goods, components, parts and raw
material and all containers, supplies, and packing materials relating to
the business conducted at the Facility, located at the Facility as of the
Closing (the "Inventory"), the quantity and value of such items to be
determined as described in Article 3.1.2, below. Schedule 1.2 sets forth a
complete and accurate list of the Inventory as of the schedule date.
1.3 Goodwill; Name. The goodwill of the business of Seller in its operation
of the Facility, including therein (without limitation) any and all
goodwill related to the business conducted by Seller at the Facility, along
with all rights, if any, associated with the names Memorial Village Surgery
Center or similar appellations as the same may have been utilized by the
Seller, (collectively, the "Names"); telephone numbers; and existing
signage. Sale and transfer of the Names is subject to the reservation of
the Seller in Section 16, below. 1.4 Contracts. Those written contracts,
open purchase or sales, commitments, and other written purchase or sale
arrangements of the Seller, relating to Seller's operation of the Facility,
to be specifically listed in Schedule 1.4 as of the Closing (the
"Contracts"), subject to and conditioned upon the limitations of this
Section
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1.4 and of Section 8.3 regarding operations prior to the Closing being
conducted in the ordinary course of business. Purchaser shall assume all
obligations and duties heretofore imposed on Seller by such Contracts, to
the extent such Contracts are assignable and subject to the conditions of
this Agreement. Any Contracts existing as of the execution of this
Agreement for the purchase or sale of goods in excess of $1,000.00, or any
contracts for the purchase of services or utilities, are set forth in a
provisional draft of Schedule 1.4, attached hereto. (Schedule 1.4 need not
include normal inventory purchases, subject to the normal-course
requirements of Sections 5.4 and 8.3.) Such provisional draft of Schedule
1.4 shall be supplemented at closing with an up to date list of Contracts,
as defined herein, and Purchaser may elect at the Closing to not assume any
Contract (a) with parties not reflected in the provisional draft of
Schedule 1.4, or (b) for parties on such exhibit, any contract more than
20% greater than the largest purchase or sale agreement reflected on the
provisional draft of Schedule 1.4, for such party. Notwithstanding any
provision to the contrary, Purchaser shall not be required to assume any
contract, purchase or sales commitment, or other purchase or sales
commitment, if such:
1.4.1 are entered into by the Seller outside the ordinary course of
business (as described in Section 8.3 below); or
1.4.2 are for the benefit of any principal or employee of the Seller,
or any other party related thereto, or
1.4.3 provide for purchases at above-market prices; or
1.4.4 provide for sales at below-market prices (other than agreements
for profitable sales made to significant customers under competitive
conditions); or
1.4.5 would require unreasonable additional credit risk; or
1.4.6 relate to employment or to employee benefits.
1.5 Leasehold Improvements. All fixtures and other leasehold Improvements
(the "Leasehold Improvements") situated on the premises of the Facility
which are not legally a part of the real estate with which they are
associated, or in which the Seller has assignable rights.
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1.6 Equipment Leases and Rights upon Lease Payoff. All vehicle and
equipment leases (the "Equipment Leases"), for vehicles and equipment used
by Seller in the conduct of its business as of the execution hereof and
prior to the closing are described on Schedule 1.6, attached hereto and
made a part hereof; if not previously supplied, copies of all such leases
will be supplied by Seller at least fourteen (14) days in advance of the
Closing. Such Equipment Leases are to be assigned to the Purchaser under
the existing terms and conditions; where required, the Seller shall obtain
the assent of the Lessors of such Equipment. Specifically, without limiting
the foregoing, as described in Schedule 1.6, are to be assigned by Seller
to purchaser, and Purchaser is assigned all rights or benefits due to
Seller thereunder, and shall assume all duties and obligations of Seller
thereunder, as further described in Section 1.6 below; Purchaser explicitly
agrees that upon and after the Closing, Purchaser's duty to indemnify
Seller and hold Seller harmless under Section 12, below, will include any
claims arising under such leases with respect to events occurring following
the Closing, pursuant to Section 12.
1.7 Books and Records. All of the books, records, documents, certificates
and instruments relating to or reflecting ownership, lawful possession or
control of the Assets, or good and sufficient copies thereof when originals
are not required. It is understood and agreed that the materials to be
transferred and delivered under this Article 1.7 shall in no event include
personnel files or any other books, records, documents, certificates or
instruments relating to employment matters, or any minute books or similar
corporate records. Provided however, that (subject to Section 16 below)
Seller shall retain or may subsequently request from Purchaser copies of
any books, records and documents which in its reasonable judgment are
necessary for tax or audit purposes. Although the corporate minute books
will not be transferred, Purchaser shall be given access thereto prior to
the Closing, for purposes of completing due diligence.
1.8 Permits and Licenses. All of the assignable permits or licenses issued
by any governmental agency necessary or appropriate for Purchaser's use
and/or quiet enjoyment of the Assets (the "Permits"), such as occupancy
permits, sign permits, and the like, to the extent that the same may be
transferred to an unrelated, non-successor party. The Permits are described
on Schedule 1.8, attached hereto and made a part hereof.
1.9 Noncompetition Agreement. Seller and Orion shall also, with effect as
of the Closing, enter into a Non-Competition and Non-Disclosure Agreement,
in the form attached as Exhibit A, with Purchaser.
2. Excluded Assets; Exclusion of Liabilities. The parties agree that the Assets
shall not include any of the following: accounts receivable; cash and cash
equivalents including certificates of deposit; marketable securities; life
insurance policies; contracts, whether of service, purchase or sale, except as
described in Section 1.4; pre-paid expenses; deposits with utility and/or
service suppliers; shares of corporations; real estate owned by the Seller; any
intangibles or choses in action not listed above, except as may attach by action
of law to title to the Assets; liabilities; any liabilities or obligations
mischaracterized as assets. All account payables and liabilities of the Seller
including warranty work for work performed prior to closing, other than those
expressly assumed by the Purchaser pursuant to Section 1.1, 1.4, and 1.6, are
expressly retained by the Seller pursuant to Section 4.
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3. Purchase Price. In consideration of the sale, conveyance, assignment,
transfer and delivery of the Assets, Purchaser shall pay to Seller a total
purchase price (the "Purchase Price") equal to the sum of (i) One Million One
Hundred Thousand ($1,100,000.00) Dollars, less (ii) any decrease in value of the
Inventory as determined under Section 3.1.2. Such Purchase Price shall be
subject to adjustment, up or down, at and after the Closing, pursuant to the
provisions of Section 3.3 of this Agreement, following.
3.1 Purchase Price Valuations
3.1.1 Equipment. The purchase price for the Equipment shall be Fair
Market Value, defined as: The amount which a willing, able buyer would
pay to a willing, otherwise uncompelled seller, in an arms-length
transaction. The parties have, after negotiations, and an informal
appraisal, determined such amount to be Four Hundred Thirty Thousand
Two Hundred Forty Three 47/100 ($430,243.47), (which amount also
includes any Leasehold Improvements). Such amount shall be subject to
further adjustment at and after the Closing, as provided in the
following provisions of this Agreement.
3.1.2 Inventory. The purchase price for the Inventory shall be Fair
Market Value, defined as: The amount which a willing, able buyer would
pay to a willing, otherwise uncompelled Seller, in an arms-length
transaction. The parties, after negotiations, and an informal
appraisal, determined such amount to be One Hundred FiftyTwo Thousand
Eight Hundred Fifty Six 15/100 ($152,856.15).
3.1.3 Goodwill and Names. The purchase price for the Goodwill and
Names of the business shall be Five Hundred Sixteen Thousand Nine
Hundred 38/100 Dollars ($516,900.38).
3.2 Purchase Price Payment. Purchaser shall pay the Purchase Price as
follows.
3.2.1 Advancement/Xxxxxxx Money. Upon execution of the Letter of
Intent between Seller and Purchaser, Purchaser paid to Seller the sum
of $10,000.00 as a non-refundable advancement against the Purchase
Price, herein in referred to as the Advancement. Under any
circumstances, upon closing of this transaction, Purchaser shall be
entitled to a credit against the Purchase Price for the advancement.
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3.2.2 Payment at Closing. Subject to any credit for Advancement or
Xxxxxxx Money, or adjustment for inventory valuations or prorations,
at Closing, Purchaser shall pay the Purchase Price to Seller by
cashier's check or wire transfer payable to Seller, less any payments
made directly to any creditors or lessors of Seller who may have liens
or claims on or against any of the Assets, all subject to adjustment
as provided in other provisions of this Section 3. A closing statement
shall be prepared and executed by both parties at Closing to evidence
this amount, any adjustments, and the individual items which comprise
it.
3.2.3 Payment of Suppliers and Creditors. At Seller's election, Seller
may provide in part for the passage of clear title to the Inventory
and Equipment (subject to Schedules 5.3 and 5.4, and except those
leases to be assumed under Section 1.6, and amounts owed as accounts
payable to its suppliers for ordinary course purchases of inventory),
notwithstanding liens or other rights of the Seller's creditors or
suppliers thereof, by either
3.2.3.1 Directing Purchaser to make payment directly to
designated suppliers out of the proceeds at Closing, or
3.2.3.2 Purchaser itself making payment directly to any creditors
or lessors of Seller (who shall be disclosed by the Seller prior
to the Closing as provided herein) who may have liens or claims
on or against any of the Equipment or other Assets, and the
amount of such direct payments shall be deducted from the
proceeds to be paid to Seller at the Closing.
3.2.4 Escrow Closing. Purchaser and Seller may, by mutual agreement,
elect to effect the Closing, as described below, and the payments
described in the foregoing provisions of this Section 3, through an
escrow, to be created by utilizing the services of a nationally
recognized escrow/land title company. In such event,
3.2.4.1 Purchaser shall deposit with the Escrow Agent the
Purchase Price by cashier's check or wire transfer.
3.2.4.2 Purchaser shall make any further payment required to the
escrow (or, if directed by the Escrow Agent, to the Seller) by
ordinary business check or wire transfer.
3.2.4.3 The parties shall share equally the costs and fees of the
Escrow Agent.
3.3 Prorations: The cash payment to be made at Closing shall be adjusted to
reflect the following:
3.3.1 Personal Property Taxes. The parties shall prorate any personal
property taxes based upon the tax period in question and the
respective amount of such period during which each party shall own the
Assets under consideration. Therefore, Seller shall be responsible for
payment of all personal property taxes assessed against the Assets in
the name of Seller to the extent such taxes are applicable to the
period prior to Closing. From and after Closing, such taxes shall be
Purchaser's responsibility. Seller shall advance funds, or give an
appropriate credit to Purchaser at the Closing to satisfy Seller's
responsibility for such taxes not then due and payable.
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3.3.2 Sales and Use Taxes. The amount of any sales, use or similar
such taxes imposed on the transfer of title to the Assets shall be
paid by the Seller except for those taxes or governmental fees levied
upon the sale and which in Texas are customarily always or almost
always paid by the purchaser, which shall be paid by Purchaser.
3.3.3 Other. Other similar items which are customarily prorated shall
be prorated, including, but not limited to, water and other utility
charges, fuel bills, and any other taxes or assessments.
3.4 Allocation. Consistent with Section 3.1, above, on or prior to the
Closing, Seller and Purchaser shall jointly agree to an allocation of the
Purchase Price among the Assets for all purposes, including tax and
accounting, under applicable provisions of the Internal Revenue Code of
1986, as amended, utilizing the Fair Market Value of the Assets as of the
date hereof, with valuations and adjustment as provided above. Purchaser
and Seller shall each furnish a copy of the proposed allocation to the
other within 120 days after the Closing and Seller and Purchasershall each
timely file Form 8594, Asset Acquisition Statement, using this allocation.
4. Liabilities. This Agreement is specifically an asset purchase agreement and,
except for the Contracts and Equipment Leases, Purchaser does not and shall not
assume any obligations or liabilities of Seller of any kind or nature, which are
existing on or before the Closing, including, but not limited to, (i) accounts
payable or notes payable; (ii) accrued expenses; (iii) Seller's proportionate
share of taxes determined in accordance with this Agreement; (iv) any
environmental condition or liability on or prior to the Closing or arising out
of acts or omissions occurring on or prior to the Closing; (v) any claim for any
violation of any law, rule, regulation or ordinance, or any claim for personal
injury, property damage or breach of warranty, relating to events,
circumstances, acts or omissions existing or occurring on or before the Closing;
or (vi) any obligation, express or implied, to any present or former employees
of Seller, either under an employee benefit plan or otherwise. Notwithstanding
the foregoing, and subject to Sections 1.1.2, 1.4, 1.6 and 3.2.3, Purchaser may
make payment directly to creditors or lessors of Seller whose obligations are
secured by security interests or liens placed on any Assets in order to obtain
free and clear title to such Assets.
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5. Representations and Warranties of Seller. For the purposes of this Section 5,
"due inquiry" shall mean inquiry of all principals, officers, and supervisory or
managerial employees of Seller, and of Seller's tax, financial, accounting,
legal, insurance, environmental (if any), employee benefits and banking
advisors; thorough inquiry shall mean inquiry of the foregoing, plus such public
or private records as may be reasonably relevant and such additional employees
or advisors as may be prudent. However, all representations and warranties other
than Section 5.1 and 5.2 are (for reasons of confidentiality) made as of the
execution hereof only to the best of Seller's knowledge after inquiry only of
its shareholders, directors, officers, attorneys and auditors, but are made as
of the Closing to the standard of inquiry indicated, or if no qualification or
standard of inquiry is indicated, absolutely and without any qualification based
upon inquiry. The representations and warranties in Sections 5.1 and 5.2 are at
all times made absolutely without qualification. With effect as of the execution
of this Agreement, and with effect as of the date of Closing, Seller represents
and warrants as follows.
5.1 Organization and Standing. Seller is a limited partnership, duly
organized, validly existing, and in good standing under the laws of the
state of Texas and has all the necessary legal power and authority to own
and to operate the properties, assets and rights used in its business.
5.2 Authority. The execution, delivery and performance of this Agreement by
Seller, and any other documents contemplated hereby, have been duly
authorized by all necessary corporate action, including but not limited to
any Board of Directors and shareholders action, and approval by general or
limited partners of the limited partnership. This Agreement constitutes a
legal, valid and binding obligation of the Seller enforceable in accordance
with its terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors' rights generally.
5.3 Equipment. Except as set forth on Schedule 5.3, attached hereto and
made a part hereof, and the leases to be assumed by Purchaser pursuant to
Sections 1.1.2 and 1.6, and certain UCC filings to be cleared at the
Closing, Seller has (or shall prior to the time of Closing have) good and
marketable title, free and clear of all liens, mortgages and encumbrances,
to the Equipment.
5.4 Inventory. Subject to ordinary course purchase money security interests
on Inventory supplied but not yet paid for, Seller has or shall by Closing
have good and marketable title, free and clear of all liens, mortgages and
encumbrances, to the Inventory, except as disclosed in Schedule 5.4 which
(with effect both as of the execution of this Agreement and as of the
Closing) reflects only normal purchases of inventory for resale, all in the
normal course of business.
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5.5 Environmental, Safety and Health. Except as set forth on Schedule 5.5,
attached hereto and made a part hereof, Seller is currently in material
compliance with all laws, rules, regulations and ordinances, currently in
effect, whether federal, state or municipal, which relate to health, safety
and the protection of the environment, and relating to the Assets or their
use or sale. Seller is aware of no condition or circumstance, including the
use of any Hazardous Waste in connection with the business, which, with the
passage of time, would result in any instance of material non-compliance.
For the last twenty years, Seller has not been subject to, or received any
notice of, any private, administrative or judicial action, or notice of any
intended private, administrative or judicial action relating to the
presence of Hazardous Waste in, under or upon the real estate on which the
Facility are located. There are no underground storage tanks located on the
real estate on which the Facility is located. "Hazardous wastes" for
purposes of this Agreement shall include, without limitation: (i) hazardous
substance or hazardous wastes, as those terms are defined by the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act, and any other applicable federal,
state or local law, regulation ordinance, or requirement; (ii) petroleum,
including, but not limited to, crude oil or any fraction thereof which is
liquid at standard conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute); (iii) any radioactive
material, including, but not limited to, any source, special nuclear, or
by-product material as defined in 42 U.S.C. Section 2011 et seq.; and (iv)
any substance listed or classified as toxic under the Clean Air Act, the
Clean Water Act and/or the Toxic Substance Control Act.
5.6 Compliance with Law. Seller is in material compliance with all laws,
rules, regulations, and ordinance, currently in effect, whether federal,
state, or municipal which are applicable to the businesses of Seller or to
the Assets, the noncompliance with which would have a materially adverse
effect on the Assets or the Purchaser's ability to utilize them, or upon
Seller's ability to consummate the transaction contemplated hereby.
5.7 Litigation. Except as set forth on Schedule 5.7, attached hereto and
made a part hereof, there are no legal, administrative, or other claims,
proceedings, charges, investigations, injunctions or restrictions pending
or outstanding or, to the best of Seller's knowledge after thorough
inquiry, threatened against the Seller. Seller has no knowledge of the
pendency of, the likelihood of, or any reasonable basis for, any such
claims, proceedings, charges, investigations injunctions or restrictions.
Without qualification, Seller is not in material default under or violation
of any order of any administrative agency or any order, writ, injunction or
decree of any court.
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5.8 Employees. Seller is not a party to, and Purchaser shall not be
obligated or responsible for performance of any terms of, any employment
contract or labor agreement (whether written, oral, or implied and whether
existing as of the execution hereof or as of the closing) applicable to any
of Seller's employees, salaried or hourly. Seller is and shall remain fully
responsible for any and all liabilities and obligations, whether
contractual or statutory, arising out of the termination of employment of
such employees (including without limitation vacation and severance pay,
and employee benefit plans or programs such as pension, retirement,
savings, profit sharing, group insurance and welfare plans). There exist no
funded or unfunded liabilities under any pension or welfare benefit plan in
which any employees of Seller at the Facility are or were entitled to
participate. Seller has made no agreement, promise or representation to any
such employee concerning future employment by Purchaser.
5.9 Insurance. Schedule 5.9 attached hereto and made a part hereof, fully
and accurately lists all policies of insurance applicable to the Assets.
The coverage under each insurance program is in full force and effect and
Seller has received no notice of cancellation or nonrenewal with respect to
any such insurance program.
5.10 Financial Statements. Schedule 5.10, attached hereto and made a part
hereof, contains true and correct copies of the financial statements of
Seller for the fiscal years 2003, 2004 and 2005. These statements fairly
and completely present the results of operations, at the dates and forthe
periods covered thereby in all material respects. Seller is not aware of
any adjustments that are necessary to prevent the financial statements from
being misleading.
5.11 Taxes. Seller is not delinquent in the payment of any state or federal
taxes, including employment or payroll taxes, and there are no pending or
threatened liens against the Business, Facility or Assets.
5.12 Brokers or Finders; Marital Law. Other than arrangements with its own
shareholders, officers or directors (with respect to which the Seller
indemnifies Purchaser under Section 11), Seller has not retained any
brokers or finders in connection with the transactions contemplated by this
Agreement. No other party, now or previously related by marriage to any
principal of Seller, is entitled, under any applicable marital law, to
receive proceeds of this transaction.
5.13 Permits and Licenses. Seller has furnished to Purchaser the originals,
or, if not available, copies of all Permits, Licenses or other governmental
permissions applicable to its former operations utilizing the Assets.
5.14 Names. Seller is unaware of any use of any of the Names by competitors
and has not received notice that Seller's use thereof is contested by any
party.
5.15 Representations. No representation or warranty by the Seller herein or
in any document delivered pursuant hereto contains any untrue statement of
a material fact or fails to include any material fact necessary to make
such representation, warranty or certificate not misleading in any material
respect.
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6. Representations and Warranties of Purchaser. Purchaser represents and
warrants, absolutely and without qualification, as follows:
6.1 Organization and Standing. Purchaser is a limited partnership duly
organized, validity existing and in good standing under the laws of the
state of Texas, and has all the necessary legal power and authority to own
and to operate the properties, assets and rights used in the business.
Purchaser may assign its rights under this agreement to an entity to be
created prior to closing.
6.2 Authority. This Agreement constitutes a legal, valid and binding
obligation of Purchaser enforceable in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency, or
other similar laws affecting the enforcement of creditors' rights
generally.
6.3 Brokers or Finders. Purchaser has not retained any brokers or finders
in connection with the transactions contemplated by this Agreement.
6.4 Representations. No representation or warranty by the Purchaser herein
or in any documents delivered pursuant hereto contains any untruestatement
of a material fact or fails to include any material fact necessary to make
such representation, warranty or certificate not misleading in any material
respect.
7. Conditions Precedent to the Obligations of Purchaser. The obligations of
Purchaser are subject to the fulfillment of the following conditions precedent
on or before the Closing:
7.1 Lease Effectiveness. Receipt of executed originals of the Lease of Real
Property between Purchaser and Cornerstone Medical Partnership relating to
the Facility, on terms acceptable to Purchaser; and the Equipment Lease -
Assignments/Acceptances relating to the Contracts in Schedule 1.4.
7.2 Financing Contingency. Intentionally left blank.
7.3 Noncompetition Agreements. Receipt of executed originals of the
Non-Competition and Non-Disclosure Agreements provided for in Section 8.5
and Exhibit A.
7.4 Additional Documents. Exchange at Closing of executed originals of the
documents provided in Sections 8 and 9 following.
7.5 Governmental Approval. Purchaser's qualification and approval for all
permits and licenses required to operate the Business to be conducted at
the Facility.
8.Items to be Delivered by Seller at the Closing. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser each of the following:
8.1 Representations and Warranties. A statement certified by the president
of forth in Article 5 of this Agreement are true in all respect at the
Closing with the same effect as though such representations and warranties
had been made at such time.
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8.2 Conduct of Business. A statement dated the date of the Closing
certified by the President of Seller to the effect that from and after the
date of this Agreement and at all times prior to the Closing, to the best
of Seller's knowledge after due inquiry, the businesses of Seller shall
have been conducted in accordance with the provisions hereinafter set
forth:
8.2.1 The businesses of Seller shall have been conducted in the
ordinary course, and no sales or purchase commitments relating to the
properties, assets and rights covered by this Agreement which are
unusual in amount or length of time shall have been entered into or
consummated, except as permitted by Purchaser in writing and disclosed
in Schedule 8.2.1.
8.2.2 No pledge, lease, mortgage, encumbrance, charge or disposition
of any of the properties, assets and rights which arecovered by this
Agreement shall have been committed to, entered into or incurred.
8.2.3 There shall have been no material defaults or breaches by Seller
in the performance of any Contracts to be assigned or transferred to
Purchaser under this Agreement.
8.2.4 All policies of insurance for fire and extended coverage and
comprehensive general and public liability applicable to the
properties, assets and rights covered by this Agreement shall have
been maintained in full force and effect until Closing.
8.2.5 Except as disclosed previously to Purchaser, the level of
inventory of finished goods, components and raw materials related to
the properties, assets and rights covered by this Agreement shall have
been maintained at usual levels and in amounts sufficient for the
ordinary course of business.
8.2.6 Purchaser shall have been promptly notified of any lawsuits,
claims or proceedings brought, asserted or commenced, of which Seller
has acquired any knowledge and which in any way affect or may affect
the properties, assets and rights covered by this Agreement or
Seller's ability to consummate the transactions contemplated by this
Agreement.
8.3 Bills of Sale. A general assignment and xxxx of sale dated the date of
the Closing covering the transfer of the Equipment, Inventory, Contracts,
Name, Goodwill, Leasehold Improvements, and vehicles which are to be sold,
conveyed, assigned, transferred or delivered under this Agreement.
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8.4 Personal Property Title; Vehicle Titles.
8.4.1 UCC Search. Unless provided by an escrow agent, Uniform
Commercial Code search of the records of the Secretary of State of
Texas and of the county clerk for Xxxxxx County, dated not more than
five (5) days prior to the Closing, with respect to the Assets showing
no liens, claims, or encumbrances affecting the Assets (other than
those to be released at Closing or permitted under Section. 3.2.3).
8.4.2 Vehicle Titles: Intentionally left blank.
8.5 Noncompetition Agreements. Seller shall provide an executed
Non-Competition and Non-Disclosure Agreement in the form attached hereto as
Exhibit A, with effect as of and after the Closing.
8.6 Resolutions. Copies of resolutions adopted by the Board of Directors of
the corporate general partner of the Seller properly authorizing the
transactions contemplated by this Agreement. Copies of resolutions approved
by the general partners and limited partners of the limited partnership
approving the transaction contemplated by this Agreement. Such copies shall
be certified by the Secretary of Seller as true, correct, and complete
copies of resolutions presently in force and effect at the Closing, in
conformity with and effective under the applicable corporate law and its
own corporate requirements.
9. Items to be Delivered by Purchaser at the Closing. At the Closing, Purchaser
shall deliver to Seller each of the following:
9.1 Representations and Warranties. On behalf of the Purchaser, a statement
certified by the President or a Vice President of Purchaser to the effect
that the representations and warranties of Purchaser set forth in Article 6
of this Agreement are true in all respects at the Closing with the same
effect as though such representations and warranties had been made at such
time.
9.2 Payment. Cashier's check, wire transfer and business checks in payment
of the Purchase Price (or, if agreed, distribution of funds pursuant to a
closing escrow under Section 3.2.4).
10. The Closing; Termination.
10.1 The transactions contemplated by this Agreement shall be consummated
at the offices of Purchaser's Attorneys, Xxxxxxx X. Xxxxxx, Xxxxxxx &
Xxxxxx Law Firm, 0000 Xxxxx, Xxxxxxx, Xxxxx, 00000, at 9:00 a.m., on
February 8, 2006, (or, if agreed, at the office of the escrow agent
retained pursuant to section 3.2.4) and when consummated, shall be
effective as of such time and date (the "Closing"). At least two (2)
business days prior to the Closing, the parties shall exchange unexecuted
drafts of all closing documents. All of such items shall be reasonably
satisfactory as to form and substance to the parties and their respective
counsel, so long as such requirement of reasonable satisfaction is not
contrary to this Agreement, or its exhibits, and does not require
unreasonable additional expense or risk on the part of the other party.
10.2 Termination. This Agreement may be terminated by either party upon ten
days written notice to the other, if (a) the other party is in continuing,
material breach of its obligations hereunder, or (b) there is event of
casualty under Section 13, below.
12
11. Purchaser's Indemnification. Seller shall defend, indemnify, and hold
harmless Purchaser, its parent company, affiliated companies, and the
directors, officers, employees and representatives of each of such
companies, in accordance with the provisions of this Article 11.
11.1 Circumstances for Defense and Indemnification. The obligation to
defend, indemnify, and hold harmless under this Article 11 shall apply with
respect to any loss, liability, cost, damage or expense incurred in
connection with the following circumstances:
11.1.1 With respect to any claims, demands, debts, causes of action,
obligations and liabilities caused by or arising out of noncompliance
with the bulk sales law of the State of Texas, or any breach,
nonperformance, or nonfulfillment by Seller of any representation,
warranty, covenant, or other undertaking set forth in this Agreement
or in any certificate or other document to be delivered under this
Agreement.
11.1.2 With respect to any claims, demands, debts, causes of action
obligations and liabilities filed, asserted, or otherwise made known
prior to or at the Closing and relating to any of the properties,
assets and rights to be sold, conveyed, assigned, transferred or
delivered under this Agreement or to any part of the business
conducted by means of such properties, assets and rights, or to any
products manufactured or sold by means of such properties, assets and
rights.
11.1.3 With respect to any claims, demands, debts, causes of action,
obligations and liabilities filed, asserted, or otherwise made known
after the Closing but caused by or arising out of an event or
condition (including environmental) existing prior to the Closing and
relating to any of the properties, assets and rights to be sold,
conveyed, assigned, transferred, or delivered under this Agreement or
to any part of the business conducted by means of such properties,
assets and rights, or to any products manufactured or sold by means of
such properties, assets and rights.
11.2 Indemnification Procedures. Purchaser shall give Seller prompt written
notice of any claim, demand, debt, cause of action, obligation or liability
subject to this Article 11. Upon delivery of any such notice, Seller shall
be entitled, at its expense, to participate in all discussions and
negotiations with any claimant and to participate in the defense, or if
Seller so elects within a reasonable time after receipt of such notice, to
assume the defense of any suit or proceeding brought to enforce any such
claim, demand, debt, cause of action, obligation or liability. If Seller
makes such election, such defense shall be conducted by counsel chosen by
Seller, and Purchaser shall do whatever, in the reasonable opinion of such
counsel, is reasonably necessary or appropriate in order to enable such
13
defense to be effectively conducted. In the event that Seller elects to
assume the defense of any such suit or proceeding and retain counsel,
Purchaser shall be entitled to participate in such defense through
additional counsel retained by Purchaser, which shall bear the fees and
expenses of any such additional counsel. Seller shall not be liable under
this Article 11 if Purchaser settles or compromises a claim without
obtaining the prior written consent of Seller (which consent shall not be
unreasonably withheld); provided that, if Seller receives notice of a claim
in accordance with this paragraph and does not elect to participate in the
discussions and negotiations with such claimant and thereafter does not
participate in the defense of such claim, demand, debt, cause of action,
obligation, or liability or, if there are no discussions or negotiations
with such claimant then in progress, does not elect to participate in the
defense of such claim, demand, debt, cause of action, obligation, or
liability within (20) days after receiving notice thereof, Seller shall be
deemed to have consented to any settlement or compromise of such claim,
demand, debt, cause of action, obligation, or liability approved by
Purchaser and shall be as fully liable in respect thereof as if written
consent had been given in accordance with this Article 11.
12. Seller's Indemnification. Purchaser shall defend, indemnify, and hold
harmless Seller, and its directors, officers, employees and
representatives, in accordance with the provisions of this Article 12.
12.1 Circumstances of Defense and Indemnification. The obligation to
defend, indemnify, and hold harmless under this Article 12 shall apply with
respect to any loss, liability, cost, damage or expense incurred in
connection with the following circumstances:
12.1.1 With respect to any claims, demands, debts, causes of action,
obligations and liabilities caused by or arising out of any breach,
nonperformance, or nonfulfillment by Purchaser of any representation,
warranty, covenant or other undertaking set forth in this Agreement or
in any certificate or other document to be delivered under this
Agreement.
12.1.2 With respect to any claims, demands, debts, causes of action,
obligations and liabilities filed, asserted, or otherwise made known
after the Closing which relates to or arises from the conduct of
business or operations involving the Assets after the Closing by
Purchaser.
12.2 Indemnification Procedures. Seller shall give Purchaser prompt written
notice of any claim, demand, debt, cause of action, obligation or liability
subject to this Article 12. Upon delivery of any such notice, Purchaser
shall be entitled, at its expense, to participate in all discussions and
negotiations with any claimant and to participate in the defense, or if
Purchaser so elects within a reasonable time after receipt of such notice,
to assume the defense of any suit or proceeding brought to enforce any such
claim, demand, debt, cause of action, obligation or liability. If Purchaser
makes such election, such defense shall be conducted by counsel chosen by
Purchaser, and Seller shall do whatever, in the reasonable opinion of such
counsel, is reasonably necessary or appropriate in order to enable such
defense to
14
be effectively conducted. In the event that Purchaser elects to assume the
defense of any such suit or proceeding and retain counsel, Seller shall be
entitled to participate in such defense through additional counsel retained
by Seller, which shall bear the fees and expenses of any such additional
counsel. Purchaser shall not be liable under this Article 12 if Seller
settles or compromises a claim without obtaining the prior written consent
of Purchaser (which consent shall not be unreasonably withheld); provided
that, if Purchaser receives notice of a claim in accordance with this
paragraph and does not elect to participate in the discussions and
negotiations with such claimant and thereafter does not participate in the
defense of such claim, demand, debt, cause of action, obligation or
liability or, if there are no discussions or negotiations with such
claimant then in progress, does not elect to participate in the defense of
such claim, demand, debt, cause of action, obligation or liability within
twenty (20) days after receiving notice thereof, Purchaser shall be deemed
to have consented to any settlement or compromise of such claim, demand,
debt, cause of action, obligation or liability approved by Seller and shall
be as fully liable in respect thereof as if written consent had been given
in accordance with this Article 12.
13. Risk of Loss; Catastrophic Occurrence. Until the Closing, risk of loss of,
or damage to, the properties and assets to be sold, conveyed, assigned,
transferred, and delivered under this Agreement by fire or other casualty
shall be on Seller. In the event of loss or damage to such properties and
assets which could reasonably be expected to have a materially adverse
effect upon the conduct of Purchaser's intended business operations
utilizing the Assets, Purchaser may terminate this Agreement by written
notice to Seller within ten (10) days after Purchaser learns of such loss
or damage. If this Agreement is not terminated pursuant to the preceding
sentence, at the Closing any proceeds of insurance resulting from any such
loss or damage shall be paid to Seller and Seller shall restore the lost or
damaged assets to their condition prior to such loss or damage. At
Purchaser's option, upon written notice to Seller, Purchaser may elect to
receive such properties and assets in their unrestored condition together
with an assignment by Seller of the proceeds of any insurance thereon, in
which event the Purchase Price shall be reduced by an amount equal to the
lesser of the uninsured portion of the loss, and/or the deductible portion
of such insurance coverage.
15
14. No Joint Venture; No Joint Employment. In addition to the representations
and warranties contained in Section 5.8 and elsewhere, the Seller agrees,
and the Purchaser agrees, that neither of them intend that this Agreement
or the transaction contemplated herein create a joint venture or
partnership between them with respect to any business, whether conducted at
the Facility or anywhere. The provisions herein for adjustment of the
Purchase Price are purely a pricing mechanism, and Purchaser is entitled to
no voice, veto, vote, or authority with respect to Seller's conduct of any
business pending the Closing (or thereafter, except as expressly provided
herein with respect to noncompetition, in Section 8.7, or as may be
provided by law with respect to diminution in value of the goodwill
purchased and sold hereunder.) No joint employment of any employee is
intended or agreed to.
15. Employees. Notwithstanding any other provision of this Agreement, the
parties agree that it is not their intent that Purchaser be by virtue of
anything in this Agreement, or any other accord or understanding with
Seller, a successor employer, and Purchaser shall not be obligated or
responsible for performance of any terms of any employment contract or
labor agreement (whether written, oral, or implied and whether existing as
of the execution hereof or as of the Closing) applicable to any of Seller's
employees, salaried or hourly. The employees at Seller's Facility shall be
advised at a time to be chosen jointly by Seller and Purchaser (but not
more than 14 days prior to the Closing), with prior written text or summary
of such advice to be given to Purchaser, that this Agreement has been
executed with Closing scheduled as set forth in Article 10. Seller is and
shall remain fully responsible for any and all liabilities and obligations,
whether contractual or statutory, arising out of its termination of
employment of such employees (including without limitation vacation and
severance pay, and employee benefit plans or programs such as pension,
retirement, savings, profit sharing, group insurance and welfare plans). In
no event shall Purchaser by virtue of anything expressed or implied assume
or be responsible for any such liabilities or obligations or any liability
arising, in whole or in part, out of any employee benefit plan maintained
by Seller or to which Seller contributes or has contributed on behalf of
its employees. In addition to its obligations under any other provisions of
this Agreement, Seller agrees to defend, indemnify and hold harmless
Purchaser against any and all such liabilities or obligations. Purchaser
assumes no liability or obligation with respect to any employee benefit
plan of Seller for those employees who were active employees of Seller
prior to Closing. By way of additional warranty, Seller represents that
there exist no unfunded liabilities under any pension or other welfare
benefit plan in which any employees of Seller are or were entitled to
participate. Purchaser has no obligation by reason of this Agreement, nor
any understanding with Seller, to hire any terminated employees of Seller
after Closing. Purchaser likewise is under no restriction preventing it
from hiring terminated employees of Seller after Closing.
16
16. Information and Assistance. After the Closing, Seller and Purchaser may
from time to time need access to information in the possession of the other
and assistance in executing and filing forms and doing other ministerial
acts necessary to effectuate fully the intent of this Agreement. Seller and
Purchaser agree to cooperate to this end. Purchaser shall provide to Seller
every reasonable effort to assist Seller with the collection of Seller's
accounts receivable, which are not being acquired by the Purchaser. Upon
closing, Seller shall within 10 days, change its corporate name to a name
substantially dissimilar from Memorial Village Surgery Center or the Names
acquired, and shall terminate any outstanding assumed name filings or
registrations.
17. Successors. This Agreement shall be binding upon and inure to the benefit
of Seller and Purchaser and all of them and their respective successors and
assigns.
18. Survival of Representations, Warranties, Covenants, and Conditions. Unless
otherwise provided above, all representations, warranties, covenants, and
conditions contained in this Agreement shall survive the Closing for a
period of four (4) years from and after the Closing, and no representation,
warranty, covenant, or condition shall be deemed merged in any of the
Closing documents unless, and only to the extent, expressly agreed in
writing.
19. Entire Agreement. This is the entire agreement between the parties with
respect to the transaction contemplated herein and, with the documents
attached and/or explicitly referenced herein, supersedes and by its own
force terminates all prior or contemporaneous agreements, understandings
and representations concerning the same, whether written or oral. No
modification or amendment of this Agreement shall be binding on any party
hereto unless in writing and signed by all parties. The Schedules and
Exhibits to this Agreement are integral parts of this Agreement and are
incorporated herein.
20. Notices. All notices required or permitted by this Agreement shall be
deemed to have been duly given if sent by first class mail, postage
prepaid, effective three days after dispatch, by facsimile transmission
(with a confirming copy sent by overnight courier) effective the day
following dispatch or by personal delivery effective immediately upon
delivery.
17
20.1 Seller. Notices shall be addressed to Seller as follows:
SurgiCare Memorial Village, L.P.
00000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx
Orion HealthCorp, Inc.
Xxxxxxxx Xxxxx
0000 Xxx Xxxxxxx Xxxx, Xxx. 000
Xxxxxxx, XX 00000
Copy to: Xxxxxx Xxxxxx
Xxxxxxxxxxx & Price, L.L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
20.2 Purchaser. Notices shall be addressed to Purchaser as follows:
First Surgical Memorial Village, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxxx Law Firm
0000 Xxxxx
Xxxxxxx, Xxxxx, 00000
21. Headings; Severability, Independence of Agreement and Consideration. The
wording on the title page and the headings of Articles or portions of
Articles of this Agreement are for convenience only and do not define,
limit, or construe the contents of same. If any provision of this Agreement
shall be prohibited by or held invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement or the consideration therefore.
22. No Third Party Beneficiaries. This Agreement is solely for the benefit of
the parties hereto, their successors and assigns, and shall not be deemed
in any way whatsoever to be for the benefit of any third party.
23. Time of the Essence; Days. Time is of the essence in this Agreement. If any
calculation of days under this agreement results in a period of time ending
on a Saturday, Sunday or a holiday, then such period of time shall be
construed as ending on the next business day.
24. Governing Law and Arbitration. This Agreement and the construction hereof
shall be governed by the laws of the State of Texas, without regard to the
conflicts provisions thereof. The parties each consent to jurisdiction and
venue in the courts of Xxxxxx County, Texas, for the resolution of any
dispute between parties, subject to the following arbitration provision of
this section. All disputes between Seller, or any person or entity claiming
indemnity through Seller under Section 12, on the one hand, and Purchaser,
or any person or entity claiming indemnity through Purchaser under Section
11, on the other hand, arising under this Agreement or any agreement which
is an exhibit hereto which does not explicitly contain an inconsistent
dispute resolution provision, or in relation to the matters contemplated
hereby, shall be resolved by binding arbitration in accordance with the
rules and regulations of the American Arbitration Association. (Such rules
shall be modified, however, to call for the final arbitration decision to
be rendered within 180 days of first referral, and for discovery procedures
to be limited accordingly.) The arbitrators will be selected as follows: In
the event the parties involved in such dispute agree on one arbitrator, the
arbitration will be conducted by such arbitrator. In the event the parties
involved in such dispute do not so agree, they will each select on
independent, qualified arbitrator and the two arbitrators so selected will
select the third arbitrator. In the even that there are three arbitrators
conducting the arbitration, such arbitrators will act by majority vote.
Arbitration will take place in City of Houston, or any
18
other location mutually agreeable to the parties involved in such dispute.
At the request of any party involved in such dispute, arbitration
proceedings will be conducted on a confidential basis; in such case all
documents, testimony, and records will be received, heard and maintained by
the arbitrators in secrecy under seal, available for the inspection only of
the parties involved in such dispute and their respective attorneys and
their respective experts who will agree in advance and in writing to
receive all such information confidentially and to maintain such
information in secrecy until such information becomes generally known. The
arbitrator(s) will be empowered to award monetary damages, but not punitive
or exemplary damages or any other monetary award not measured by the
prevailing party's actual damages. The decree or judgment of or upon any
award rendered by the arbitrators may be entered in any court having
jurisdiction. Each party will bear its own attorneys' fees and expenses in
connection with such proceeding and will bear one-half of the fees and
expenses of the arbitrator(s) relating to such proceeding, unless the
arbitrator(s) shall determine in a written opinion that the position of one
or more parties was so lacking in substance or merit that equity would be
served by awarding legal fees, or repayment of arbitration expenses, to the
prevailing party or parties.
25. Assignment. Purchaser shall have the right, without the consent of the
Seller, to assign his rights hereunder to a corporation, limited liability
company, or partnership, provided the entity assumes the obligations of
Purchaser under this agreement.
WITNESS the due execution hereof on the day and year shown in the first
line of this Agreement. (The parties are agreed that this Agreement shall be
effective upon exchange of faxed signature pages, with original signatures to be
provided in due course.)
Seller: Purchaser:
SurgiCare Memorial Village, L.P. First Surgical Memorial Village, L.P.
By: Town & Country SurgiCare, Inc. By: First Surgical Partners, L.L.C.,
General Partner General Partner
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
-------------------------------- --------------------------------
Xxxxxxxx Xxxxx, President Xxxx Xxxxxxx, Manager
Orion HealthCorp, Inc.
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Xxxxxxxx Xxxxx, President & CEO
19
Exhibit A
NON-COMPETITION AND
NON-DISCLOSURE AGREEMENT
WHEREAS, effective as of the 31st day of January, 2006, First Surgical
Memorial Village, L.P. or its assigns, as "Purchaser", (the "Company") entered
into an Asset Purchase Agreement (the "Agreement") with SurgiCare Memorial
Village, L.P., as "Seller" relating to the purchase and sale of the assets of
SurgiCare Memorial Village, L.P. (the "Business"), and,
WHEREAS, Orion HealthCorp, Inc. is the owner of a controlling interest in
the limited partnership and will receive a material benefit from the sale of the
Business;
NOW THEREFORE, be it remembered that First Surgical Memorial Village, L.P.
and SurgiCare Memorial Village, L.P. and Orion HealthCorp, Inc., pursuant to the
terms of the Asset Purchase Agreement, and in consideration for the benefits
accruing to them under the terms of the aforementioned Asset Purchase Agreement,
and as an inducement for the consummation thereof, and the further consideration
set forth herein do agree as follows:
1. Non Competition
1.1 SurgiCare Memorial Village, L.P. and Orion HealthCorp, Inc. covenant
and agree that for a period of five (5) years from the date of execution of
this agreement that they shall not directly or indirectly, within Xxxxxx,
Fort Bend or Xxxxxxxxxx Counties, Texas, enter into or engage in direct or
indirect competition with Company in the ownership or operation of an
outpatient surgery center as an owner, partner, shareholder or member of
any business entity, or as an agent for any person, partnership, firm or
corporation in such business other than Orion HealthCorp, Inc.'s current
interest in San Jacinto Surgery Center, Ltd. Further, SurgiCare Memorial
Village L.P. and Orion HealthCorp, Inc. covenant and agree that they will
not, either on an individual basis or as a shareholder, partner or joint
venturer with any other individual or entity, or as an agent for any
person, partnership, firm or corporation, hire or offer employment to any
former employee of SurgiCare Memorial Village L.P., who has accepted
employment with the Company, for a period of five (5) years from the date
of the execution hereof. The foregoing covenant of non-competition shall be
construed as an agreement independent of any other provision of the Asset
Purchase Agreement, or any documents prepared in consummation for said
purchase and sale of assets; and the existence of any claim or cause of
action of SurgiCare Memorial Village L.P. and Orion HealthCorp, Inc.,
against Company, whether predicated on the agreement or otherwise shall not
constitute a defense to the enforcement by the Company of this covenant of
non-competition.
2. Non Disclosure.
2.1 SurgiCare Memorial Village L.P. and Orion HealthCorp, Inc. recognize
that the customer list, supplier list and other business information
conveyed to Company pursuant to the terms of the Asset Purchase Agreement
and the documentation executed to effectuate said conveyance, constitute a
valuable business asset purchased and is considered confidential
information. SurgiCare Memorial Village L.P. and Orion HealthCorp, Inc.
covenant and agree not to disclose such information to any third party for
20
a period of five (5) years from the date of this agreement, or to use in
any manner, directly or indirectly, or disclose to any third party the
names of such customers or suppliers. The foregoing covenant shall be
construed as an agreement independent of any other provisions of the Asset
Purchase Agreement or any documents executed pursuant thereto; and the
existence of any claim, or cause of action of the SurgiCare Memorial
Village L.P. or Orion HealthCorp, Inc., against Company, whether predicated
on the Asset Purchase Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of this covenant.
3. Miscellaneous Provisions
3.1 SurgiCare Memorial Village L.P. and Orion HealthCorp, Inc. acknowledge
that no adequate remedy at law would exist in the event of a breach of the
foregoing covenants of non-competition and non-disclosure and that an
injunction by a court of appropriate jurisdiction is an appropriate remedy
to enforce compliance or prevent a breach thereof.
3.2 The foregoing agreement shall be binding upon the successors and
assigns of the parties thereto. In the event any provision of said
agreement shall be determined to be unenforceable by any court then such
offending provisions shall be subject to the court's modification and
enforcement. Further such unenforceability shall not impair any other
obligation set forth herein.
3.3 This agreement sets forth the entire agreement of the parties regarding
the subject matter of the agreement, and any amendment must be in writing
and signed by all parties.
3.4 This agreement is entered into in Xxxxxx County, Texas, and is governed
by the laws of the state of Texas.
SIGNED the 8th day of February, 2006.
SurgiCare Memorial Village, L.P.
By: Town & Country SurgiCare, Inc., General Partner
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Xxxxxxxx Xxxxx, President
Orion HealthCorp, Inc.
By: /s/ Xxxxxxxx Xxxxx
------------------------------------------
Xxxxxxxx Xxxxx, President and CEO
First Surgical Memorial Village, L.P.
By: First Surgical Partners, L.L.C.
By: /s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx, Manager
21
