1
EXHIBIT 2.23
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XXXX OF SALE
AND
ASSET PURCHASE AGREEMENT
by and among
PARK INFUSION SERVICES, LP,
a Texas limited partnership
("Buyer")
AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.,
a Louisiana corporation
("AASI")
and
PRN, INC.,
a Texas corporation
("PRN")
(PRN and AASI are herein sometimes collectively
referred to as "Sellers")
and
AMEDISYS, INC.,
a Delaware corporation
("Parent")
Executed on August 10, 2000, but Effective as of August 1, 2000, 12:01 p.m.
Central Standard Time
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TABLE OF CONTENTS
PAGE
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1. Purchase and Sale of Purchased Assets....................................................................1
2. Excluded Assets..........................................................................................4
3. Assignment of Seller Contracts, Leases, Licenses and Permits.............................................4
4. Assumption of Certain Liabilities........................................................................5
5. Purchase Price; Manner of Payment; Allocation; Other Consideration.......................................7
6. Time and Place of Closing................................................................................8
7. Representations and Warranties of Seller and Parent.....................................................11
8. Representations of Parent...............................................................................18
9. Covenants...............................................................................................19
10. Survival................................................................................................23
11. Indemnification by Seller and Parent; Offset; Third-Party Claims........................................23
12. Indemnification by Buyer; Offset; Third-Party Claims....................................................27
13. Parent's Guarantee of Obligations.......................................................................29
14. Xxxx of Sale; Assumption of Liabilities.................................................................29
15. Expenses; Brokers.......................................................................................30
16. Severable Provisions....................................................................................30
17. Enforceability..........................................................................................30
18. Arbitration.............................................................................................30
19. Governing Law...........................................................................................32
20. Definition of Knowledge.................................................................................32
21. Entire Agreement........................................................................................32
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AND AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.) - PAGE i
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22. Construction............................................................................................32
23. Further Assurances......................................................................................32
24. Press Release or Public Statements......................................................................33
25. Successors and Assigns..................................................................................33
26. Amendment, Modification or Waiver.......................................................................33
27. Headings................................................................................................33
28. Notices.................................................................................................33
29. Counterparts............................................................................................34
30. Execution by Facsimile; Delivery of Original Signed Agreement...........................................35
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AND AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.) - PAGE ii
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XXXX OF SALE AND ASSET PURCHASE AGREEMENT
THIS XXXX OF SALE AND ASSET PURCHASE AGREEMENT (this "Agreement") is made
and entered on this ___ day of August, 2000 (the "Execution Date"), but
effective as of 12:01 Central Standard Time, August 1, 2000 (the "Effective
Date") by and among PARK INFUSION SERVICES, LP, a Texas limited partnership
("Buyer"), AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC., a Louisiana
corporation ("AASI"), and PRN, INC., doing business as HOME IV THERAPY and
AMEDISYS ALTERNATIVE-SITE INFUSION THERAPY SERVICES, a Texas corporation (AASI
and PRN are herein sometimes collectively referred to as the "Sellers") and
AMEDISYS, INC., a Delaware corporation ("Parent").
RECITALS:
A. PRN is engaged in the business of providing infusion therapy services
administered in alternative sites, such as ambulatory infusion centers and/or
homes, in the State of Texas and in providing pharmaceutical drugs to other
persons and/or facilities ("PRN Business").
B. AASI is engaged in the business of providing infusion therapy services
administered in alternative sites, such as ambulatory infusion centers and/or
homes of patients, in the States of Florida and Texas and in providing
pharmaceutical drugs to other persons and/or facilities, (collectively "AASI
Business"). (The PRN Business and AASI Business are herein sometimes
collectively referred to as the "Business").
X. Xxxxxxx desire to sell to Buyer, and Buyer desires to purchase from
Sellers, certain of Sellers' respective assets used in the Business, free and
clear of any and all liens, claims, charges, liabilities, encumbrances and
security interests of whatsoever kind and nature, except only for the Assumed
Liabilities (as hereinafter defined), upon the terms and conditions set forth
in this Agreement.
D. Parent is the sole shareholder of AASI, and AASI is the sole
shareholder of PRN, and Parent desires to cause each of the Sellers to perform
their respective obligations under this Agreement and to make certain
representations and warranties to Buyer in connection with the transactions
contemplated by this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below and other good and valuable consideration, the
parties hereby agree as follows:
1. PURCHASE AND SALE OF PURCHASED ASSETS. Subject to the terms and
conditions of this Agreement and the Operative Documents (defined herein), each
Seller hereby sells, assigns, transfers, conveys and delivers to Buyer, and
Buyer hereby purchases and accepts from each
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Seller, free and clear of any and all liens, claims, charges, liabilities,
encumbrances and security interests of whatsoever kind and nature, except only
the Assumed Liabilities, all of the following assets (collectively, the
"Purchased Assets") in effect and existence as of the Effective Date:
(a) EQUIPMENT. All furniture, office furniture, appliances, fixtures,
equipment, office equipment, computer hardware, machinery, parts and tools,
whether owned, leased or used by each Seller in the Business (the
"Equipment"), including, but not limited to, the Equipment described in
Schedule 1(a)(i) and Schedule 1(a)(ii) attached hereto and incorporated
herein for all purposes;
(b) INVENTORY. All inventory and supplies on hand and/or in transit
and used in the Business by each Seller, whether damaged or otherwise
unsaleable (the "Inventory"), including, but not limited to, the Inventory
set forth on Schedule 1(b)(i) and Schedule 1(b)(ii) attached hereto and
incorporated herein for all purposes;
(c) CONTRACTS. All of each Seller's service and provider contracts and
all other business contracts, arrangements and other agreements to which
the applicable Seller is a party or that are required or beneficial for
Buyer's operation of the Business (the "Contract(s)"), including, but not
limited to, the Contracts set forth on Schedule 1(c)(i) and Schedule
1(c)(ii) attached hereto and incorporated herein for all purposes;
(d) INTELLECTUAL PROPERTY AND INTANGIBLE ASSETS. All intellectual
property rights owned by or licensed to each Seller, including, but not
limited to, all patents, know-how, unpatented inventions, trade secrets,
business and marketing plans, copyrights, all registered or unregistered
trademarks, service marks and trade names, computer software, all names and
slogans used by each Seller in the conduct of the Business, all
applications for any of the above and any right to recovery for
infringement thereof (including past infringement) and any and all goodwill
associated therewith or connected with the use thereof (the "Intellectual
Property"). The Intellectual Property shall include, but not be limited to,
all right, title and interest in and to the names, "PRN, Inc.,"
"Alternate-Site Infusion Therapy," "Alternative-Site Infusion Therapy"
and/or "Home IV Therapy" and any derivations of any such names. All
intangible assets of the Business, including, but not limited to, all
computer records, technology, proprietary information, know-how, ideas,
licenses, processes, formulas, software, computer programs, covenants by
others not to compete, each Seller's rights to email addresses, Internet
domain names, URLs, web sites and such other computer records, computer
numbers and passwords used by each Seller or Parent in connection with the
Business and such privileges, registrations or applications for
registrations of any of the foregoing, and any right to recovery for
infringement thereof (including past infringement) and any and all goodwill
associated therewith or connected with the use thereof, including those
that are listed on Schedule 1(d)(i) and Schedule 1(d)(ii) attached hereto
and incorporated herein for all purposes, but excluding for all purposes,
Parent's e-mail addresses, Internet domain names, URLs and web sites,
except to the extent used in connection with the Business;
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AND AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.) - PAGE 2
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(e) LICENSES, PERMITS AND APPROVALS. All of each Seller's licenses,
permits, approvals and authorizations of whatsoever kind and type,
governmental or private, issued, applied for, or pending used by, related
to or required of the applicable Seller in the conduct of the Business
and/or the Purchased Assets (the "Licenses and Permits"). Schedule 1(e)(i)
and Schedule 1(e)(ii) attached hereto and incorporated herein contains a
complete list of all Licenses and Permits;
(f) CAPITAL AND OPERATING LEASES. All of each Seller's right, title,
interest and equity in and to and under the leases identified on Schedule
1(f)(i) and Schedule 1(f)(ii) attached hereto and incorporated herein for
all purposes (collectively, the "Leases"), including, but not limited to,
all deposits and prepaid expenses related to all of the Leases;
(g) TELEPHONE AND FACSIMILE NUMBERS. All telephone and facsimile
numbers used by each Seller, including, but not limited to, those telephone
and facsimile numbers listed on Schedule 1(g)(i) and Schedule 1(g)(ii)
attached hereto and incorporated herein for all purposes;
(h) CUSTOMER AND SUPPLIER LISTS. All of each Seller's customer and
supplier lists and all of each Seller's mailing lists, true, correct and
complete copies of which are attached hereto as Schedule 1(h)(i) and
Schedule 1(h)(ii) and incorporated herein for all purposes, and all of each
Seller's customer, supplier and patient records related to the Business;
(i) BOOKS AND RECORDS. Except as set forth in Section 2 hereof, all
books and records regarding the Business of each Seller, including, without
limitation, inventory, maintenance, patient lists and patient books and
records, and asset history records and employee records, but excluding all
tax records; provided, however, that access thereto shall be provided to
Buyer pursuant to Section 9(g) hereof;
(j) GOODWILL. The goodwill of each Seller's Business or associated
with the Purchased Assets;
(k) DEPOSITS AND PREPAID EXPENSES. All of each Seller's right, title,
interest and equity in and to deposits and prepaid expenses, including
without limitation those deposits and prepaid expenses set forth on
Schedule 1(k)(i) and Schedule 1(k)(ii) attached hereto and incorporated
herein for all purposes (the "Deposits");
(l) CLAIMS AND RIGHTS. All of each Seller's claims and rights
associated in any way with the Purchased Assets, including, without
limitation, the Contracts and the Leases; and
(m) OTHER PROPERTY. All other or additional privileges, rights,
interests, properties and assets of every kind and description and wherever
located, that are used or
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AND AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.) - PAGE 3
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intended for use in connection with, or that are necessary to the
continued conduct of each Seller's Business.
2. EXCLUDED ASSETS. The following assets shall be excluded from the
purchase and sale contemplated by this Agreement in effect and as in existence
on the Effective Date (collectively, the "Excluded Assets"):
(a) CASH. All of each Seller's cash on hand and in banks;
(b) BANK ACCOUNTS. All right, title and interest in and to each
Seller's bank accounts;
(c) ACCOUNTS RECEIVABLE. All accounts receivable of each Seller;
(d) RIGHTS HEREUNDER. All of each Seller's rights under this
Agreement;
(e) CORPORATE DOCUMENTS. All of each Seller's corporate charter
documents, minute and stock record books and corporate seals;
(f) EMPLOYER IDENTIFICATION NUMBER. Each Seller's tax identification
number; and
(g) SPECIFICALLY LISTED ASSETS. In addition to those items generally
described in Sections 2(a)-(f) herein and without limiting the generality
of the foregoing, those assets that are specifically identified on Schedule
2(g)(i) and Schedule 2(g)(ii) attached hereto and incorporated herein for
all purposes.
3. ASSIGNMENT OF SELLER CONTRACTS, LEASES, LICENSES AND PERMITS.
(a) Notwithstanding the foregoing, this Agreement shall not constitute
an agreement to assign or transfer any Contract and/or Lease if an
assignment or transfer, or an attempt to make such assignment or transfer,
without the consent of the third party, would constitute a breach or
violation thereof or affect adversely the rights of Buyer or any Seller
thereunder; and any transfer or assignment to Buyer by any Seller of any
interest under any such Contract or Lease hereunder that requires the
consent or approval of a third party shall be made subject to such consent
or approval being obtained. In the event any such consent or approval is
not obtained before the Closing Date (defined herein), and if the failure
to obtain the consent or approval prior to the Closing Date has been
waived, the applicable Seller shall continue to use its best efforts to
obtain any such consent or approval after the Closing Date until such time
as such consent or approval is obtained, and such Seller shall cooperate
with Buyer in any lawful and economically feasible arrangement to provide
that Buyer shall receive the interest of such Seller and all benefits under
any such Contract or Lease, including without limitation, performance by
such Seller as agent if economically feasible.
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(b) Notwithstanding the foregoing, this Agreement shall not constitute
an agreement to assign or transfer any License and/or Permit if an
assignment or transfer, or an attempt to make such assignment or transfer,
without the consent or approval of the third party, would constitute a
breach or violation thereof or affect adversely the rights of Buyer or any
Seller thereunder; and any transfer or assignment to Buyer by any Seller of
any interest under any such License or Permit hereunder that requires the
consent or approval of a third party shall be made subject to such consent
or approval being obtained. In the event any such consent or approval is
not obtained prior to the Closing Date and if failure to obtain the consent
or approval prior to the Closing Date has been waived, the applicable
Seller shall continue to use its best efforts to obtain any such consent or
approval after the Closing Date until such time as such consent or approval
is obtained, and such Seller shall cooperate with Buyer in any lawful and
economically feasible arrangement to provide that Buyer shall receive the
interest of such Seller and all benefits under any such License or Permit,
including without limitation, performance by such Seller as agent if
economically feasible.
4. ASSUMPTION OF CERTAIN LIABILITIES.
(a) ASSUMED LIABILITIES. Buyer hereby assumes and agrees to undertake,
pay, perform and/or discharge only (i) the Liabilities arising from and
after the Closing Date pursuant to the Contracts set forth on Schedule
1(c)(i) and Schedule 1(c)(ii) attached hereto and the Leases set forth on
Schedule 1(f)(i) and Schedule 1(f)(ii) attached hereto, but in each case
only to the extent the Contract and/or Lease is not in default and only to
the extent that the Liability relates to the performance of the applicable
Contract and/or Lease by Buyer or its assignee after the Closing and from a
set of circumstances that began after the Closing, and (ii) the monthly
lease rentals related to the Leases arising from and after the Effective
Date, but in each case only to the extent the Lease is not in default and
only to the extent that the monthly lease rental relates solely to the
period after the Effective Date (iii) any expenses incurred to purchase
inventory for the period after the Effective Date (with the understanding
that all purchases of inventory on or after the Effective Date shall be
owned by the Buyer), and (iv) any liabilities related to wages and/or
salaries of the Employees (who are Employees during the period between the
Effective Date and the Closing Date) incurred after the Effective Date
(collectively, the "Assumed Liabilities"). For purposes of this Agreement,
the term "Liability" shall mean any commitments, debts, liabilities,
obligations (including contract and capitalization lease obligations),
indebtedness, accounts payable, accrued expenses of any nature whatsoever,
losses, damages and costs (whether any of the foregoing are known or
unknown, secured or unsecured, asserted or unasserted, absolute or
contingent, direct or indirect, accrued or unaccrued, liquidated or
unliquidated and/or due or to become due), including any liability or
obligation for Taxes.
(b) NO THIRD PARTY BENEFICIARIES OR EXPANSION OF RIGHTS.
Notwithstanding anything contained herein to the contrary, nothing in this
Agreement, express or implied, is intended to or shall be construed to
confer upon, or give to, any person, partnership,
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corporation or other entity other than Sellers and Parent, any remedy or
claim under or by reason of this Agreement or any terms, covenants or
conditions hereof, and all the terms, covenants and conditions, promises
and agreements contained in this Agreement shall be for the sole and
exclusive benefit of Sellers and Parent.
This Agreement shall, in all events, be construed so that the
assumption by Buyer of the Assumed Liabilities, and the delegation thereof
by the Sellers, shall in no way expand or increase the rights and/or
remedies of any third party against either Buyer or any Seller as compared
to the rights and/or remedies that such third party would have had against
any Seller had Buyer not assumed such liabilities. Without limiting the
generality of the preceding sentence, the assumption by Buyer of the
Assumed Liabilities shall not create any third party beneficiary rights.
(c) LIABILITIES NOT ASSUMED BY BUYER. Anything in this Agreement to
the contrary notwithstanding, each of the Sellers and Parent shall be
responsible for all of their respective Liabilities and obligations, which
includes all Liabilities, related in any respect to the Business and/or the
Purchased Assets and/or any of the Sellers, but excluding solely the
Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer
shall not assume, or in any way be liable or responsible for, any of such
Excluded Liabilities. Without limiting the generality of the foregoing, the
Excluded Liabilities shall also include the following:
(i) any Liability or obligation of each of the Sellers or Parent
arising out of or in connection with the negotiation and preparation
of this Agreement and the consummation and performance of the
transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is
specifically retained by the Sellers pursuant to this Agreement,
including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or
Parent, or any consolidated group of which the Sellers are a member,
for any foreign, federal, state, commonwealth, county or local taxes
of any kind or nature, or any taxes levied by any other legitimate
taxing authority, or any interest or penalties thereon, including,
without limitation, any sales or use tax obligations applicable to the
transfer of the Purchased Assets or the transfer of the Contracts
and/or Leases as contemplated by this Agreement, it being hereby
agreed by the parties hereto that such obligations shall be paid by
the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions
or causes of action arising out of the operation of the Business on or
prior to the Closing Date; and
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(v) any Liabilities with respect to each of the Sellers' Benefit
Plans (defined herein) and/or Benefit Arrangements (defined herein)
arising on or prior to the Closing Date.
(d) PAYMENT OF EARNED PAYROLL AND PAID TIME OFF. Prior to or at the
Closing (as hereinafter defined), or if the Closing does not occur on a day
which is a normal date on which payroll is paid by the Sellers to its
employees, then on the first normal payroll date following the Closing (the
"Normal Payroll Date"), each Seller shall have paid to its Employees
(defined in Section 7(l) herein) all earned payroll, earned through the
"paid-time off bank" (the "PTO Bank") (collectively, the "Earned Employees
Benefits") and associated taxes to which such Employees are entitled prior
to and through the Effective Date.
5. PURCHASE PRICE; MANNER OF PAYMENT; ALLOCATION; MONITORING OF CASH
RECEIPTS.
(a) PURCHASE PRICE AND MANNER OF PAYMENT. In addition to the Other
Consideration (defined herein) set forth in Section 5(c) herein, the total
purchase price for the Purchased Assets (the "Purchase Price") and the
covenants of each of the Sellers and Parent shall be One Million Seven
Hundred Fifty Thousand Dollars ($1,750,000) to be paid to the Sellers by
wire transfer at the Closing, to the account or accounts designated in
writing by the Sellers to Buyer, as follows:
(i) to AASI, the sum of $ 1,049,490.00
(ii) to PRN, the sum of $ 700,510.00
(b) PURCHASE PRICE ALLOCATION. The parties shall allocate the Purchase
Price, among the Purchased Assets as set forth in Schedule 5(c) attached
hereto (the "Allocation"). Buyer and each Seller agree to report the
transactions set forth herein for federal and state tax purposes in
accordance with the Allocation, including, but not limited to, for purposes
of filing IRS Form 8594, and on a timely manner (including any and all
permitted extensions)
(c) POST-CLOSING ADJUSTMENTS. The parties clearly understand that the
Sellers are transferring the Business effective as of the Effective Date,
although the Business will be managed and/or operated by the Sellers from
the Effective Date until and including the Closing Date. In accordance
therewith, the Sellers are entitled to all Accounts Receivables prior to
the Effective Date and/or cash received with respect to the Accounts
Receivables generated prior to the Effective Date. The Buyers are entitled
to all Accounts Receivable generated on and after the Effective Date and
all proceeds received in connection therewith. It is further understood
that the Seller may pay for certain items that are Assumed Liabilities. In
connection therewith, the parties agree to meet on a mutually agreed upon
date within thirty (30) days after the
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AND AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.) - PAGE 7
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Closing Date to account for the obligations of each party to the other
party. In addition to other mutually agreed amounts to be transferred
between Seller and Buyer, the parties agree as follows:
(i) The Buyer shall be responsible for reimbursing Sellers for all
expenses paid by either of the Sellers on or after the Effective Date
and before the Closing Date which are attributable to the Business on
or after the Effective Date, including without limitation, all
salaries and wages and related taxes incurred during the month of
August and thereafter and paid by the Sellers and/or the rent paid by
either of the Sellers on any of the Leases for equipment and/or
leased space for the month of August and that are related to the
Purchased Assets; and
(ii) The Seller shall be responsible for paying Buyer for any cash or
cash equivalents received by the Sellers for services rendered or
products provided that are received and are attributable to the
Business on or after the Effective Date and before the Closing Date
but excluding any payments or portions thereof that are received and
are attributable to accounts receivables earned prior to the
Effective Date.
(d) MONITORING OF CASH RECEIPTS. The parties understand that checks
and/or other forms of money may inadvertently be sent to the wrong party.
Each of the Sellers and/or Parent, on the one hand (and with respect to the
Parent, to the extent related to the Business and/or the Purchased Assets),
and the Buyer, on the other hand, agree to work efficiently and expediently
to resolve this problem and related issues during the period beginning with
the Execution Date and ending six (6) months thereafter (the "Monitoring
Period"), and agree to do the following during the Monitoring Period:
(i) the parties shall each appoint a point person who would be
the person acting on behalf of such party to facilitate the resolution
of problems;
(ii) effective as of the Closing Date, the parties shall provide
to the other party a weekly report detailing a listing of all receipts
by such party, including the name of the patient and/or customer, the
payor, the invoice numbers and accompanied by the explanation of
benefits (the "EOBs") related to such invoices, and any other
information reasonably requested by such party; and
(iii) upon notification by one party that there might be a
problem with the listing or related issues, the parties agree to
commit their resources to resolve any differences within forty-eight
(48) hours.
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6. TIME AND PLACE OF CLOSING. The transactions contemplated by this
Agreement shall be consummated at a closing (the "Closing") held on the date
that the parties agree to next after the Buyer has secured its financing (the
"Closing Date") at the Dallas, Texas offices of Xxxxxxxxx & Xxxxxxxxx, LLP, or
at such other place or in such other manner as the parties may mutually
designate, and shall be effective on the Effective Date, unless otherwise
specifically provided herein. In connection with such Closing, all of the
following transactions were considered to have taken place simultaneously and no
delivery or payment was considered to have been made until all transactions
taken at the Closing had been completed:
(a) PRN has duly executed and/or delivered to Buyer, as part of the
Operative Documents (defined below), the following:
(i) this Agreement;
(ii) a Certificate duly executed by the Secretary of PRN that
certifies (A) the due adoption by the Board of Directors and the sole
shareholder of PRN of resolutions attached to such Certificate
authorizing the execution of this Agreement and the Operative
Documents and the taking of all actions contemplated hereby or
thereby; (B) the incumbency and true signatures of those officers of
PRN duly authorized on its behalf in connection with the documents and
transactions referred to in (A) above; and (C) that the copy of the
Articles of Incorporation and Bylaws of PRN attached to such
Certificate are true and correct copies thereof and that such Articles
and Bylaws have not been amended or modified in any way except as
reflected in such copies;
(iii) An opinion of counsel for PRN in form and substance
satisfactory to counsel for Buyer in the form of Exhibit A hereto;
(iv) All of the consents of third persons necessary to effectuate
the valid assignment to Buyer of the Contracts, Leases, Licenses and
Permits to which PRN is a party or by which it or its assets are bound
shall have been obtained in a form reasonably satisfactory to Buyer,
without any diminution of the value of the Purchased Assets.
(v) All UCC-3s or other financing statements necessary to release
any liens and/or any other encumbrances on the Purchased Assets; and
(vi) all other documents or certificates, instruments and other
items necessary to effect the transactions contemplated hereby.
(b) AASI has duly executed and/or delivered to Buyer, as part of the
Operative Documents, the following:
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AND AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.) - PAGE 9
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(i) this Agreement;
(ii) a Certificate duly executed by the Secretary of AASI that
certifies (A) the due adoption by the Board of Directors and the sole
shareholder of AASI of resolutions attached to such Certificate
authorizing the execution of this Agreement and the Operative
Documents and the taking of all actions contemplated hereby or
thereby; (B) the incumbency and true signatures of those officers of
AASI duly authorized on its behalf in connection with the documents
and transactions referred to in (A) above; and (C) that the copy of
the Articles of Incorporation and Bylaws of AASI attached to such
Certificate are true and correct copies thereof and that such Articles
and Bylaws have not been amended or modified in any way except as
reflected in such copies;
(iii) An opinion of counsel for AASI in form and substance
satisfactory to counsel for Buyer in the form of Exhibit A hereto;
(iv) All of the consents of third persons necessary to effectuate
the valid assignment to Buyer of the Contracts, Leases, Licenses and
Permits to which AASI is a party or by which it or its assets are
bound shall have been obtained in a form reasonably satisfactory to
Buyer, without any diminution of the value of the Purchased Assets;
(v) All UCC-3s or other financing statements necessary to release
any liens and/or other encumbrances on the Purchased Assets; and
(vi) all other documents or certificates, instruments and other
items necessary to effect the transactions contemplated hereby.
(c) Parent has duly executed and/or delivered to Buyer, as part of the
Operative Documents, the following:
(i) this Agreement;
(ii) a Certificate duly executed by the Secretary of Parent that
certifies (A) the due adoption by the Board of Directors of Parent of
resolutions attached to such Certificate authorizing the execution of
this Agreement and the Operative Documents and the taking of all
actions contemplated hereby or thereby; (B) the incumbency and true
signatures of those officers of Parent duly authorized on its behalf
in connection with the documents and transactions referred to in (A)
above; and (C) that the copy of the Articles of Incorporation and
Bylaws of Parent attached to such Certificate are true and correct
copies thereof and that such Articles and Bylaws have not been amended
or modified in any way except as reflected in such copies;
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(iii) an opinion of counsel for Parent in form and substance
satisfactory to counsel for Buyer in the form of Exhibit A hereto;
(iv) all consents and/or approvals necessary from any third
parties, including, without limitation, any financial institutions, to
consummate the transactions contemplated by this Agreement; and
(v) all other documents or certificates, instruments and other
items necessary to effect the transactions contemplated hereby.
(d) Buyer has duly executed and/or delivered to Sellers and/or Parent
as part of the Operative Documents, the following:
(i) the Purchase Price;
(ii) a Certificate duly executed by the Secretary of Buyer that
certifies (A) the due adoption by the General Partner of Buyer of
resolutions attached to such Certificate authorizing the execution of
this Agreement and the Operative Documents and the taking of all
actions contemplated hereby or thereby; (B) the incumbency and true
signatures of those representatives of Buyer duly authorized on its
behalf in connection with the documents and transactions referred to
in (A) above; and (C) that the copy of the Partnership Agreement of
Buyer attached to such Certificate is a true and correct copy thereof,
and that the Partnership Agreement has not been amended or modified in
any way except as reflected in such copies; and
(iii) an opinion of counsel for Buyer in form and substance
satisfactory to counsel for PRN, AASI and Parent in the form of
Exhibit C hereto.
(e) At the Closing, and at all times thereafter as may be necessary,
each of the Sellers and Parent shall execute and deliver to Buyer such
other instruments of transfer as shall be reasonably necessary or
appropriate to vest in Buyer title to the Purchased Assets and to comply
with the purposes and intent of this Agreement. Further, each of the
parties hereto agrees to cooperate fully with each other and with the other
party's respective counsel and accountants in connection with any steps
required to be taken as part of their respective obligations hereunder and
all parties agree to use their reasonable best efforts to do all things
necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement.
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7. REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT. Each of the
Sellers and Parent jointly and severally represent and warrant to Buyer that
the following were true, complete and correct as of the Effective Date of this
Agreement and are true, complete and correct as of the Execution Date and
Closing Date of this Agreement:
(a) ORGANIZATION, EXISTENCE AND GOOD STANDING.
(i) AASI is a corporation duly formed, validly existing and in
good standing under the laws of the State of Louisiana and is duly
qualified as a foreign corporation to do business in each other
jurisdiction where the nature of its activities makes such
qualification necessary. AASI has the corporate power and authority to
own and lease all of the properties and assets now owned and leased
and to carry on its business as now being conducted.
(ii) PRN is a corporation duly formed, validly existing and in
good standing under the laws of the State of Texas and is duly
qualified as a foreign corporation to do business in each other
jurisdiction where the nature of its activities makes such
qualification necessary. PRN has the corporate power and authority to
own and lease all of the properties and assets now owned and leased
and to carry on its business as now being conducted.
(b) CAPITAL STOCK; OWNERSHIP.
(i) AASI has authorized capital stock consisting of ten thousand
(10,000) shares of common stock, par value one-tenth of One Cent
($0.001) per share, of which Ten Thousand (10,000) shares are
presently issued and outstanding and are all held beneficially and of
record by Parent. There are no other authorized or outstanding
securities of AASI, of any class, kind or character. There are no
outstanding subscriptions, options, warrants or other rights,
agreements or commitments obligating AASI to issue any additional
shares of capital stock of AASI, or any options or rights with respect
thereto, or any securities convertible into or exchangeable for any
shares of capital stock of AASI.
(ii) PRN has authorized capital stock consisting of five hundred
thousand (500,000) shares of common stock, par value One Cent ($0.01)
per share, of which Ninety-Five Thousand (95,000) shares are presently
issued and outstanding and are all held beneficially and of record by
AASI. There are no other authorized or outstanding securities of PRN,
of any class, kind or character. There are no outstanding
subscriptions, options, warrants or other rights, agreements or
commitments obligating PRN to issue any additional shares of capital
stock of PRN, or any options or rights with respect thereto, or any
securities convertible into or exchangeable for any shares of capital
stock of PRN.
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(iii) AASI is the sole shareholder of PRN. AASI has good and
marketable title and rightful possession of all of the shares of
capital stock of PRN, free and clear of any and all liens, claims,
charges, encumbrances and security interests of any nature or type
whatsoever, except as specifically described in Schedule 7(b)(iii)
attached hereto and incorporated herein for all purposes.
(c) ENFORCEABILITY AND AUTHORITY. This Agreement and the other
documents and instruments executed by each of the Sellers and/or
Parent and/or each of the Named Individuals in connection herewith
(collectively, the "Operative Documents," including, without
limitation, this Agreement) to which it is a party have been duly
executed and delivered by each of the Sellers and constitute a legal,
valid and binding obligation of each of the Sellers, enforceable
against each of the Sellers in accordance with their respective
terms. Each of the Sellers has full power, capacity and authority
(both legal and corporate) to execute and deliver this Agreement and
the Operative Documents, and to perform its obligations hereunder and
thereunder, and all required approvals of the Board of Directors of
each of the Sellers and the shareholders of each Seller have been
duly and properly obtained. No other corporate action on the part of
any Seller is necessary to authorize the transactions contemplated
hereby.
(d) TITLE. Each of the Sellers has good and marketable title to the
Purchased Assets owned by such Seller, free and clear of any and all
liens, claims, charges, liabilities, encumbrances and security
interests of every kind and nature, except only for the Assumed
Liabilities.
(e) CONDITION OF EQUIPMENT AND INVENTORY. Except as otherwise
specifically noted on Schedule 1(a)(i) and Schedule 1(a)(ii) and
Schedule 1(b)(i) and Schedule 1(b)(ii) attached hereto, the Equipment
and Inventory set forth therein, respectively, constitute all
material tangible personal property used by each Seller in the
Business and/or necessary for the Business and is sufficient to
enable Buyer to conduct the Business in the same manner after the
Closing as each Seller operated and conducted the Business
immediately prior to the Closing. Except as otherwise specifically
noted on Schedule 1(a)(i) and Schedule 1(a)(ii) attached hereto, all
Equipment is in good working condition and repair, and is in
operating condition, subject to normal wear and tear, and is
adequately insured against damage and loss through the Closing Date.
The Inventory is free from defects in materials and workmanship
except with respect to items of Inventory that are indicated as being
"below quality" or "non-saleable" on Schedule 1(b)(i) and Schedule
1(b)(ii) attached hereto. All Equipment and Inventory is located at
the locations set forth on Schedule 7(e)(i) and Schedule 7(e)(ii)
attached hereto.
(f) TAXES. Each Seller has properly completed and filed in correct
form and on a timely basis all tax returns, and other required tax
forms, with respect to all
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sales, excise, transaction privilege, business license, employment,
withholding, income, franchise and real and personal property taxes,
and all other local, state and federal taxes (collectively, the
"Taxes") that are required of any Seller to be filed prior to the
Closing or for any period relating on or before the Closing, and has
timely paid all Taxes and all assessments of every kind and nature
owing by any Seller as such Taxes and assessments have accrued and/or
become due or payable.
(g) CONFLICTS; CONSENTS. Except as set forth on Schedule 7(g)(i) and
Schedule 7(g)(ii) attached hereto, neither the execution and delivery
of this Agreement and/or the Operative Documents, nor the
consummation of the transactions contemplated hereby or thereby will
conflict with, violate or result in a breach of or default under
(with or without the giving of notice or the passage of time, or
both): (i) the Articles of Incorporation or the Bylaws of any of the
Sellers; (ii) any License, Permit, instrument, contract or agreement
(including any Contract and/or Lease) to which any Seller is a party
or is subject or by which any Seller or any of the Purchased Assets
are bound; or (iii) any law, order, rule, regulation, writ,
injunction or decree that is applicable to any Seller, or that may
affect any of the Purchased Assets. Neither the execution and
delivery of this Agreement, nor of any of the Operative Documents,
nor the consummation by any Seller or Parent of the transactions
contemplated hereby or thereby, will require any consent or approval
of, or any filing with, any entity or other person, including any
governmental entity or body, except as set forth on Schedule 7(g)(i)
and Schedule 7(g)(ii) attached hereto and incorporated herein.
(h) CREDITORS OF SELLERS. Schedule 7(h)(i) and Schedule 7(h)(ii)
attached hereto lists all of each Seller's creditors (the
"Creditors"), the Creditors' current addresses and the balance due to
each of the Creditors, as of the date hereof.
(i) SOLE NAMES. The names under which each of the Sellers has
conducted the Business is as follows: (i) for AASI - Amedisys
Alternate-Site Infusion Therapy Services, Inc., and (ii) for PRN-PRN,
Inc., Home IV Therapy (an inactive d/b/a), and Amedisys
Alternative-Site Infusion Therapy Services (an active d/b/a).
(j) LITIGATION AND RELATED MATTERS. Set forth on Schedule 7(j)(i) and
Schedule 7(j)(ii) attached hereto is a list of (i) all actions, suits,
proceedings, investigations or grievances pending against each of the
Sellers and, if related in any respect to the Business or the ability
of Parent to perform under this Agreement, Parent, or, to the
knowledge of any Seller or Parent, threatened against any Seller, any
Seller's business or any property or rights of any Seller or, if
related in any respect to the Business or the ability of Parent to
perform under this Agreement, Parent, at law or in equity, before or
by any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign (collectively, "Agencies"), (ii) all
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pending and prior fraud or other investigations, actions, suits,
proceedings, settlements, claims or grievances against each of the
Sellers and Parent and their respective officers, directors and other
employees, or, to the knowledge of any Seller or Parent, threatened
against any Seller or Parent, by the Health Care Financing
Administration ("HCFA"), the Office of Inspector General, the
Department of Justice or the Medicaid agency for any states in which
the Seller and/or Parent has conducted any business; and (iii) all
worker's compensation claims outstanding against any Seller. None of
the actions, suits, proceedings, investigations or claims listed on
Schedule 7(j)(i) or Schedule 7(j)(ii) would reasonably be anticipated
to have a Material Adverse Effect (defined below). Neither Seller nor
Parent has any knowledge of any acts or omissions that could form the
basis of a lawsuit against any Seller or Parent which, if determined
adversely to any such Seller or Parent, would reasonably be expected
to have a Material Adverse Effect. Neither Seller nor Parent is
subject to any continuing court or Agency order, writ, injunction or
decree applicable specifically to the Business, their respective
operations and assets (including, without limitation, the Purchased
Assets) or employees, nor is any Seller or Parent in default with
respect to any order, writ, injunction or decree of any court or
Agency with respect to any Seller's assets (including, without
limitation, the Purchased Assets), Parent's assets (if it would
reasonably be expected to have a Material Adverse Effect), the
Business and their respective operations or employees. For purposes
of this Agreement, the term "Material Adverse Effect" shall mean a
material adverse effect, individually or in the aggregate, on the
assets, liability, financial condition or results of operations of
any Seller or the ability of any Seller or Parent to consummate the
transactions contemplated by this Agreement.
(k) EMPLOYEES.
(i) Schedule 7(k)(i) and Schedule 7(k)(ii) attached hereto and
incorporated herein sets forth the name of each of Seller's current
Employees.
(ii) None of the Sellers is a party to, nor bound by, the terms
of any collective bargaining agreement. No charges or proceedings
before the National Labor Relations Board, or similar agency, exist,
have been threatened or, to the knowledge of any Seller, are
contemplated.
(iii) Each of the Seller's relationship with its Employees (as a
group, and without regard to any individual Employee) is good.
(iv) No legal proceedings, charges, complaints, or similar
actions exist under any federal, state or local laws affecting any
employment relationship of any Seller, and neither any Seller nor
Parent have any knowledge of any acts or omissions that could form the
basis for such legal proceedings, charges,
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complaints, or similar actions, including, but not limited to: (A)
anti-discrimination statutes such as Title VII of the Civil Rights Act
of 1964, as amended (or similar state or local laws prohibiting
discrimination because of race, sex, religion, national origin, age
and the like); (B) the Fair Labor Standards Act or other federal,
state or local laws regulating hours of work, wages, overtime and
other working conditions; (C) state laws with respect to tortuous
employment conduct, such as slander, false light, invasion of privacy,
negligent hiring or retention, intentional infliction of emotional
distress, assault and battery, or loss of consortium; or (D) the
Occupational Safety and Health Act, as amended, as well as any similar
state laws, or other regulations respecting safety in the workplace;
and no proceedings, charges, or complaints are threatened or, to the
knowledge of Seller, contemplated under any such laws or regulations.
Neither Seller is subject to any settlement or consent decree with any
present or former Employee, Employee representative or any court,
government or Agency relating to claims of discrimination or other
claims in respect to employment practices and policies; no court,
government or Agency has issued a judgment, order, decree or finding
with respect to the labor and employment practices (including
practices relating to discrimination) of any Seller.
(v) Except as otherwise set forth on Schedule 7(k)(i) and
Schedule 7(k)(ii), each of the current Employees of the Sellers is
employed at will.
(vi) The Sellers have informed Employees in writing of all
benefits to which they are or were entitled prior to the Effective
Date. The Sellers do not pay their respective Employees for accrued
vacation or sick time, except through their respective paid time off
plan.
(l) EMPLOYEE BENEFIT PLANS AND BENEFIT ARRANGEMENTS.
(i) The term "Employees" shall mean all current employees
(including those on layoff, disability, or leave of absence, whether
paid or unpaid), former employees and retired employees of any Seller
and the term "Employee" shall mean any of the Employees.
(ii) The term "Benefit Plans" shall mean each and all "employee
benefit plans" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), maintained or
contributed to by any Seller or Parent or any other employer that is,
or was at any time after September 2, 1984, together with any Seller,
treated as a "single employer" under Section 414(b), 414(c) 414 (m) or
414(o) of the Code (an "ERISA Affiliate"), or in which any Seller or
an ERISA Affiliate participates or participated and which provides
benefits to Employees or their spouses or covered dependents,
including (A) any such plans that are "employee welfare benefit plans"
as defined in Section
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3(1) of ERISA and (B) any such plans that are "employee pension
benefit plans" as defined in Section 3(2) of ERISA.
(iii) The term "Benefit Arrangements" shall mean each and all
foreign and domestic pension, supplemental pension, accidental death
and dismemberment, life and health insurance and benefits (including
medical, dental, vision and hospitalization), savings, bonus, deferred
compensation, holiday, vacation, severance pay, salary continuation,
sick pay, sick leave, short and long-term disability, tuition refund,
service award, company car, scholarship, relocation, patent award,
fringe benefit and other employee benefit arrangements, plans,
employment agreements, consulting agreements or severance agreements,
policies or practices of any Seller or any ERISA Affiliate providing
employee or executive compensation or benefits to Employees, other
than the Benefit Plans.
(iv) Schedule 7(l)(i) and Schedule 7(l)(ii) to this Agreement
contains a list of all written and unwritten Benefit Plans and Benefit
Arrangements. True and complete copies of each such listed written
Benefit Plan and Benefit Arrangement and written descriptions of each
such listed unwritten Benefit Plan and Benefit Arrangement have
previously been delivered to Buyer. Each Benefit Plan which is
intended to qualify under Section 401(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), is and always has been qualified
under Section 401(a) of the Code ("Qualified Plans"). All Qualified
Plans have been amended to comply with the Code and any subsequent
changes in the law that require amendments of such Qualified Plans.
Each Qualified Plan is in receipt of a favorable determination letter
issued by the Internal Revenue Service, and each such letter has not
been revoked nor, to the knowledge of any Seller and Parent,
threatened to be revoked. Each Benefit Plan and Benefit Arrangement
has been administered in all material respects in compliance with all
applicable laws and in accordance with the terms of the Benefit Plan
and Benefit Arrangement. No "prohibited transaction" (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) has
occurred with respect to any Benefit Plan which would result directly
or indirectly in any material liability to any Seller.
(v) No Benefit Plan which is subject to Part 3 of Title I of
ERISA or Section 412 of the Code has an accumulated funding deficiency
within the meaning of such provisions, except as set forth in Schedule
7(l)(i) and Schedule 7(l)(ii) to this Agreement.
(vi) Neither any Seller nor any ERISA Affiliate has ever
participated in nor had an obligation to contributed to any
"multiemployer plan" (as defined in Sections 3(37) and 4001(a)(3) of
ERISA).
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(vii) Except as noted in Schedule 7(l)(i) and Schedule 7(1)(ii)
to this Agreement, there are no pending investigations by any
governmental agency involving the Benefit Plans or Benefit
Arrangements, no termination proceedings involving the Benefit Plans
or Benefit Arrangements, and no pending, threatened or, to the
knowledge of any Seller, contemplated claims (except for claims for
benefits payable in the normal operation of the Benefit Plans and
Benefit Arrangements), suits or proceedings against any Benefit Plan
or Benefit Arrangement or asserting rights or claims to benefits under
any Benefit Plan or Benefit Arrangement.
(viii) Neither any Seller nor any ERISA Affiliate has incurred or
is reasonably likely to incur any liability with respect to any plan
or arrangement that would be included within the definition of Benefit
Plan or Benefit Arrangement hereunder but for the fact that such plan
or arrangement was terminated before the date of this Agreement.
(m) INSURANCE. Schedule 7(m)(i) and Schedule 7(m)(ii) contains a list
of the policies and contracts for fire, casualty, liability and other forms
of insurance maintained by, or for the benefit of, each Seller. No Seller
has received any notice of cancellation or non-renewal, in each case which
has not been cured, or of significant premium increases with respect to any
such policy. Except as disclosed on Schedule 7(m)(i) and Schedule 7(m)(ii),
no pending claims made by or on behalf of any Seller under such policies
have been denied or are being defended against third parties by an insurer
of any Seller. Nothing contained in this Section 7(m) shall be interpreted
to imply that Buyer is assuming the policies referenced herein.
(n) INTERESTS IN CUSTOMERS, SUPPLIERS, ETC. Neither Parent nor any
person who is a director or officer of either Seller or Parent or a
shareholder of more than 10% of the shares of capital stock of Parent is an
officer, director or affiliate of any corporation, firm, association or
business organization which is a supplier, customer or competitor of either
of the Sellers.
(o) NO ILLEGAL PAYMENTS, ETC. Neither Seller nor Parent nor anyone
acting on behalf of Seller or Parent has (i) directly or indirectly given
or agreed to give any illegal gift, contribution, payment or similar
benefit to any supplier, customer, governmental official or employee or
other person who was, is, or may be in a position to help or hinder either
Seller (or assist either Seller in connection with any actual or proposed
transaction) or made or agreed to make any illegal contribution, or
reimbursed any illegal political gift or contribution made by any other
person, to any candidate for federal, state, local or foreign public office
(A) which might subject any of the Sellers to any damage or penalty in any
civil, criminal or governmental litigation or proceeding or (B) the
non-continuation of which has had or might have, individually or in the
aggregate, a Material Adverse Effect, or (ii) established or maintained any
unrecorded
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fund or asset or made any false entries on any books or records for
purposes of disguising such a benefit.
(p) CONTRACTS AND LEASES. Each of the Contracts and Leases is in full
force and effect as of the Closing, and there are no existing defaults or
breaches under any of the Contracts or Leases, and no event or condition
exists which, with the passage of time and/or with or without the giving of
notice, could constitute a default or a breach under any of the Contracts
or Leases. None of the Contracts or Leases will be terminated or breached
as a result of the transactions contemplated herein.
(q) FINANCIAL STATEMENTS. The respective financial statements of the
Sellers attached to Schedule 7(q)(i) and Schedule 7(q)(ii) hereto are true,
correct and complete, and fairly present the financial condition of the
respective Sellers during the periods covered, and were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods (collectively, the "Financial Statements").
Since the date of the most recent Financial Statements, there has not been
any transactions by either Seller outside the ordinary course of each such
Seller's Business. As of the Closing, the financial condition of each
Seller is no worse than that disclosed in the Financial Statements of the
respective Seller.
(r) COMPLIANCE WITH LAWS. To Seller's best knowledge, each of the
Sellers is in compliance with all laws applicable to each such Seller
(including, without limitation, all health care related laws, rules,
regulations or orders), and Seller has not received any information that it
is not in compliance.
(s) COMPLIANCE WITH MEDICARE/MEDICAID PROGRAMS. Except as otherwise
noted on Schedule 7(s) attached hereto, each of the Sellers and the Parent
are qualified for participation in the Medicare and Medicaid reimbursement
programs and is a party to provider agreements for such programs which are
in full force and effect with no events of default having occurred
thereunder. Neither the Sellers, nor the Parent has been convicted of, or
pled guilty or nolo contendere to, patient abuse or neglect, or any other
Medicare or Medicaid program-related offense. Neither the Sellers nor the
Parent has (I) committed any offense which may serve as the basis for
suspension or exclusion from the Medicare and Medicare programs, including,
but not limited to, defrauding a government program, loss of a license to
provide health care services, and failure to provide quality care, or (ii)
engaged in any prohibited reassignment of Medicare or Medicaid program
accounts receivable. Neither of the Sellers nor the Parent has been or is
excluded from participation in the Medicaid or Medicare programs.
(t) FILING OF THIRD PARTY PAYOR CLAIMS. Each of the Sellers and the
Parent have timely filed all claims or other reports required to be filed
prior to the Closing Date with respect to the purchase of services by
third-party payors ("Payors"), including, but not limited to, the Medicare
and Medicaid reimbursement programs, except where the
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failure to file would not, individually or in the aggregate, result in a
Material Adverse Effect. All such claims or reports ("Third-Party Payor
Claims") are complete and accurate in all material respects, except where
the incompleteness or inaccuracy of such reports in the aggregate would not
have a Material Adverse Effect on the condition (financial or otherwise) of
either of the Sellers or the Parent. Except as otherwise noted on Schedule
7(f) attached hereto, there are not pending any appeals, overpayment
determinations, adjustments, challenges, audits, litigation or notices of
intent to reopen Medicare and/or Medicaid claims, determinations or other
reports required to be filed by either of the Sellers or the Parent in
order to be paid by a Payor for services rendered.
(u) FRAUD AND ABUSE. Neither the Sellers, the Parent nor any persons
and/or entities providing professional services therefor have engaged in
any activities which are prohibited under Sec. 1320a-7b of Title 42 of the
United States Code, or the regulations promulgated thereunder, or related
state or local statutes or regulations, or which are prohibited by rules of
professional conduct, including, but not limited to, the following:
(i) knowingly and willfully making or causing to be made a false
statement or representation of a material fact in any application for
any benefit or payment;
(ii) knowingly and willfully making or causing to be made any
false statement or representation of a material fact for use in
determining rights to any benefit or payment;
(iii) failure to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right to
any benefit or payment on its own behalf or on behalf of another with
intent to fraudulently secured such benefit or payment; and
(iv) knowingly and willfully soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or
indirectly, overtly or covertly, in cash or in kind, or offering to
pay or receive such remuneration (A) in return for referring an
individual to a person for the furnishing or arranging for the
furnishing of any item or service for which payment may be made in
whole or in part by the Medicare or Medicaid reimbursement programs,
or (:B) in return for purchasing, leasing or ordering or arranging for
or recommending, purchasing, leasing or ordering any good, facility,
service or item for which payment may be made in whole or in part by
the Medicare or Medicaid reimbursement programs.
(v) COMPLIANCE WITH XXXXX I AND II. Neither Sellers, nor the Parent,
nor any person proving professional services has engaged in any activities
which are prohibited under Section 1395nn of Title 42 of the United States
Code (subject to the exceptions set forth therein), including the referring
of a patient for "designated health services" (as defined by 42 U.S.C.
Section 1395nn) to or providing designated health services to a
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patient upon a referral from an entity or person which the Sellers and/or
the Parent (or an immediate family member thereof) has a financial
relationship and to which no exception under said section applies.
(w) FINANCING STATEMENTS. Each of Sellers and Park agree and
acknowledge that the security interest granted by Parent and/or AASI in
favor of US Bank Trust, bearing UCC No. 98-746431 (reflecting the
assignment from DVI Capital Company of UCC No. 98-104340) is a security
interest in telephone equipment leased by AASI, but which assets are not
included within the definition of Purchased Assets and which lease is not
included within the definition of Lease, nor will the security interest
affect the Purchased Assets.
(x) ACCURACY OF DOCUMENTS, REPRESENTATIONS AND WARRANTIES. The copies
of all documents furnished to Buyer or its representatives by or on behalf
of the Sellers or their respective representatives are true, correct and
complete. No representation or warranty of any Seller contained in this
Agreement or any of the Operative Documents, delivered by or on behalf of
any Seller or its representatives pursuant to or in connection with this
Agreement or any other document or instrument executed by any such Seller
in connection herewith or therewith, or any of the transactions
contemplated hereby or thereby, contains any untrue statement of a material
fact, or omits to state any material fact required to be stated herein or
therein in order to make the statements contained herein or therein not
misleading.
8. REPRESENTATIONS OF PARENT. Parent represents and warrants to Buyer that the
following were true, complete and correct as of the Effective Date of this
Agreement and are true, complete and correct as of the Execution Date and
Closing Date of this Agreement:
(a) OWNERSHIP. Parent is the sole shareholder of AASI and, as a result
of Parent's ownership in AASI, is the indirect sole shareholder of PRN.
Parent has good and marketable title to and rightful possession of all of
the shares of the capital stock of AASI and indirectly, PRN, in each case
free and clear of any and all liens, claims, charges, encumbrances and
security interests of any nature or type whatsoever, except as specifically
described in Schedule 8(a) and Schedule 7(b)(iii) attached hereto and
incorporated herein for all purposes.
(b) ENFORCEABILITY AND CAPACITY. This Agreement and all other
documents and instruments executed and delivered by Parent in connection
with this Agreement constitute the legal, valid and binding obligations of
Parent, enforceable against Parent in accordance with their respective
terms. Parent has the full power, capacity and authority (legal and
corporate) to execute and deliver this Agreement and all such other
agreements, documents and instruments to be executed and delivered by
Parent pursuant hereto and to perform its obligations hereunder and
thereunder. All required approvals of the Board of Directors of Parent have
been duly and properly obtained. No other
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corporate action on the part of Parent is necessary to authorize the
transactions contemplated hereby.
(c) COMPLIANCE WITH LAWS. Parent is in compliance with all laws
applicable to Parent (including, without limitation, all health care
related laws, rules, regulations or orders).
(d) ACCURACY OF DOCUMENTS, REPRESENTATIONS AND WARRANTIES. The copies
of all documents furnished to Buyer or its representatives by or on behalf
of Parent, or its respective representatives, are true, correct and
complete. No representation or warranty of Parent contained in this
Agreement or any of the Operative Documents, delivered by or on behalf of
Parent, or its respective representatives, pursuant to or in connection
with this Agreement or any other document or instrument executed by Parent
in connection herewith or therewith, or any of the transactions
contemplated hereby or thereby, contains any untrue statement of a material
fact, or omits to state any material fact required to be stated herein or
therein in order to make the statements contained herein or therein not
misleading.
9. COVENANTS.
(a) COVENANT NOT TO COMPETE AND NON-SOLICITATION. In consideration of
the execution and delivery of this Agreement by Buyer, and in consideration
of, among other things, the delivery by Buyer of the Purchase Price to the
Sellers, and as additional consideration therefor, each of the Sellers and
Parent agree that during the Restricted Period (as defined below), neither
of the Sellers, nor Parent, nor any entity or person controlled by either
of the Sellers or Parent will, directly or indirectly (including, but not
limited to, as a partner, shareholder, director, officer or employee of, or
lender or consultant to, any other person or entity, or in any other
capacity), unless first authorized in writing by Buyer, which authorization
may be withheld in the sole and absolute discretion of Buyer:
(i) within, into or from the Restricted Territory (as defined
below) engage or cause others to engage in the Business, or any aspect
thereof in competition with Buyer, its subsidiaries or affiliates,
(ii) solicit in respect of the Business, any person or entity
that is or was within the twelve (12) months preceding the date of
this Agreement a customer, supplier and/or patient of Sellers and/or
Parent,
(iii) solicit in respect of the Business, any person or other
entity that becomes a customer, supplier, and/or patient of Buyer or
any of its affiliates during the Restricted Period, or
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(iv) solicit, take away, hire, employ or endeavor to solicit,
employ or hire any person who is an employee of Buyer, any affiliate
of Buyer or the Business.
For purposes of this Agreement, the term "Restricted Period" shall mean the
period ending three (3) years from the date hereof. For purposes of this
Agreement, the term "Restricted Territory" shall mean the State of Texas
and the State of Florida. If either of the Sellers or Parent violates any
obligation under this Section 9(a), then the Restricted Period hereunder
shall be extended by the period of time equal to that period beginning when
the activities constituting such violation commenced and ending when the
activities constituting such violation terminated.
(b) RIGHT OF FIRST REFUSAL. Notwithstanding the foregoing, in the
event any of the Sellers or Parent become involved in the negotiations
with, or begin to negotiate with, a third party to purchase the assets
and/or stock of such third party that includes products, assets and/or
services similar in nature to those included within the definition of
Business contained herein, then the Sellers and/or Parent, as applicable,
shall give Buyer notice of such negotiations within five (5) days of the
commencement date of such negotiations and give Buyer or, in Buyer's sole
discretion, an affiliate of Buyer the ability to participate in such
negotiations and/or transaction, with respect to those products, assets
and/or services similar in nature to the Business and/or the Purchased
Assets. If Buyer or such affiliate elects to participate in the
negotiations and/or transactions, it shall notify the Sellers and/or Parent
of such fact in writing, and Buyer and/or its affiliate, on the one hand,
and the Sellers and/or Parent, on the other hand, shall proceed in good
faith with such negotiations and/or transactions. In the event that Buyer
elects not to participate or elects to participate, but fails to reach an
agreement with the proposed seller of such products, assets and/or
services, then the Sellers and/or Parent can enter into such transaction
with the proposed seller without being in violation of Section 9(a)(i) of
this Agreement.
(c) CONFIDENTIALITY. From and after the Closing Date, neither of the
Sellers nor Parent shall, without the prior written consent of Buyer, which
consent may be given or withheld in the sole discretion of Buyer,
communicate or divulge to, or use for the benefit of, any person, firm, or
corporation other than Buyer and/or its affiliates any Confidential
Information (defined below) of each of the Sellers or related to or
included within the meaning of the Purchased Assets or the Business of each
of the Sellers. The term "Confidential Information" shall mean all of the
confidential and proprietary information of each of the Sellers or related
to or included within the meaning of the Business or related to each of the
Seller's customers and/or patients, existing as of the date hereof or
created in the future, including, but not limited to, all information
relating to the financial condition, results of operations, business,
properties, assets, liabilities or future prospects of each of the Sellers
and/or their respective Businesses or any customer, supplier or patient of
each of the Sellers and the Business, including, but not limited to,
special arrangements regarding pricing of products or services, including
pricing by
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customer and price protection agreements, each of the Seller's and the
Business' major customers and/or patients, customer and/or patient lists,
sales and profit information for the Business with respect to each service
within the service lines, any trade secrets, including, but not limited
to, information concerning products, developments, new product plans,
inventions, discoveries, ideas, designs, computer programs, methods,
research, procurement and sales activities and procedures, promotion and
pricing techniques and credit and financial data concerning customers
and/or patients of each of the Sellers' or the Business, as well as
information relating to the management, operation or planning of each of
the Seller's Business, and technical proprietary information and any other
intangible assets, whether communicated orally, electronically, in writing
or in any other tangible media. This Section 9(c) shall not apply to
information that (i) is, was, or becomes generally known or available to
the public or the industry other than as a result of a disclosure in
violation of this Agreement, (ii) is independently developed by the Seller
or the Parent after the date hereof, as shown by credible evidence, (iii)
is required to be disclosed by law; or (iv) entered the public domain
subsequent to the time it was communicated to the Sellers and/or Parent by
Buyer through no fault of the Sellers or Parent. Each of the Sellers and
Parent shall advise Buyer of any request, including a subpoena or similar
legal inquiry, to disclose by law any such confidential information prior
to disclosing such information, such that Buyer can seek appropriate legal
relief.
(d) NON-INTERFERENCE; NON-DISPARAGEMENT. Each of the Sellers and
Parent agree that they will not, at any time, directly or indirectly,
together or separately, take any action that interferes with any
relationship between the Sellers or their respective Business and any
other person or entity. Each of the Sellers and Parent agree that they
will not, at any time, directly or indirectly, together or separately, do
anything that might result in the disparagement to the name of each of the
Sellers or the Business or Buyer or the name or reputation of the products
and services sold, distributed and/or provided by the Business or Buyer.
(e) REASONABLENESS AND REMEDIES. Each of the Sellers and Parent
specifically acknowledge that (i) Buyer, in its own capacity or through
one or more of its affiliates, currently operates, or will operate
following the date hereof, in the Restricted Territory; (ii) Buyer, in its
own capacity or through one or more of its affiliates, plans to further
expand their operations in the Business within and throughout the
Restricted Territory; (iii) the geographic regions contained in Section
9(a) hereof, and the length of time restrictions contained in Section 9(a)
hereof are each necessary and reasonable and were negotiated between the
Sellers, Parent and Buyer; and (iv) the provisions of Sections 9(a), 9(b),
9(c) and 9(d) are integral to the transactions contemplated by this
Agreement, and Buyer would not consummate such transactions without such
provisions. Each of the Sellers and Parent hereby acknowledge and agree
that the restrictions set forth in this Agreement are reasonable and
necessary, and that any violation thereof would result in substantial and
irreparable injury to Buyer and its affiliates, and neither Buyer nor its
affiliates will have an adequate remedy at law with respect to any such
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violation. Accordingly, each of the Sellers and Parent agree that, in the
event of any actual or threatened violation thereof, Buyer and each of its
affiliates shall have the right and privilege to obtain, without the
necessity of posting bond therefor or demonstrating irreparable injury,
and in addition to any other remedies that may be available, equitable
relief, including temporary and permanent injunctive relief, to cease or
prevent any actual or threatened violation of any provision hereof.
Further, in the event of a breach by either of the Sellers or Parent of
any of the provisions of this Agreement, Buyer and each of its affiliates
shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remunerations or other benefits that either of
the Sellers, Parent or any of them, directly or indirectly, have realized
and/or may realize as a result of, arising out of or in connection with
any such breach.
(f) PAYMENT OF CREDITORS. Within ninety (90) days of the Closing
Date, each of the Sellers shall pay off entirely all of their respective
creditors, except with respect to the Assumed Liabilities. In the event
Buyer receives notice from any of Sellers' creditors that any debt not an
Assumed Liability has not been paid off subsequent to the ninety (90) day
period stated herein, Purchaser will notify the appropriate Seller and the
Parent in writing, with sufficient detail as to the name of the Creditor
and the amount due, and Seller and/or Parent will pay said creditor any
amounts properly due and owing with five (5) business days of its receipt
of said notice. Notwithstanding anything to the contrary contained herein,
the Liability owing to Paragon Scientific Corporation shall not be subject
to the payment terms contained herein, provided that the Sellers are
actively pursuing a settlement with Paragon Scientific Corporation.
(g) USE OF NAME. On the Closing Date, each of the Sellers and Parent
shall execute such documents and resolutions as are necessary to change
each of the Seller's respective names to names which are not deceptively
similar to any names used by the Sellers prior to the Closing Date
(excluding the name "Amedisys," which Parent shall retain for all
purposes) and, within ninety (90) days thereafter, each of the Sellers
shall deliver to Buyer a copy of the amendment to each of the Seller's
Articles of Incorporation reflecting each such change of name and
certified by the Secretary of the State of the State of Texas and/or the
State of Louisiana, as the case may be. Further, each of the Sellers
shall, within five (5) days following the Closing, execute and file with
the Secretary of State of the State of Texas and/or Louisiana and/or such
other appropriate authorities, such documents and/or instruments necessary
to abandon PRN's use of the assumed name "Amedisys Alternative-Site
Infusion Therapy." Each of the Sellers and Parent further agree not to
operate any future or present business activity under the assumed names
"Home IV Therapy," and "Amedisys Alternative-Site Infusion Therapy."
Notwithstanding the foregoing, Seller and/or Parent shall have the ability
to use the names of their entities for a period of ninety (90) days after
Closing solely for purposes of collecting any moneys owed to either of the
Sellers or Parent as a result of transactions incurred prior to and
related solely to the period prior to the Closing Date.
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(h) INSPECTION OF RECORDS. Each of the Sellers and Parent shall make
it books and records applicable to its day-to-day operations (including
work papers in the possession of their accountants), and with respect to
Parent, only those books and records relating to the Business or the
Purchased Assets available for inspection by Buyer, or by Buyer's
authorized representatives, for reasonable business purposes at all
reasonable times during normal business hours, for a period of five (5)
years after the Closing. As used in this Section 11(h), the right of
inspection shall include the right to make extracts or copies at Buyer's
expense.
(i) ADDITIONAL COVENANTS REGARDING CLOSING. With respect to the
period from the Effective Date through and continuing until the Closing
Date, each of the Sellers and the Parent represents and warrants that,
except to the extent that Buyer has consented in writing prior to the
Closing Date:
(i) Ordinary Course. Each of the Sellers have carried on their
respective Business in the usual, regular and ordinary course
consistent with past practice and used their best efforts to preserve
intact their present business organizations, and kept available,
consistent with past practice, the services of the Employees and
preserved the relationships with customers, suppliers and others
having business dealings with the Business, it being understood,
however, that the failure or refusal of any Employee to remain an
employee of any of the Sellers during such period shall not
constitute a breach of this representation and warranty covenant.
Without limiting the generality of the foregoing, the Sellers and
Parent have not permitted the Business to incur any indebtedness for
borrowed money that would constitute an Assumed Liability.
(ii) Changes to Benefit Plans. Each of the Sellers have not (aa)
entered into, adopted, amended (except as may be required by law) or
terminated any Benefit Plan and Benefit Agreement or any agreement,
arrangement, plan or policy between any of the Sellers and one or
more of their respective Employees, or (bb) except for normal
increases in the ordinary course of business consistent with past
practice, increased in any manner the compensation or fringe benefits
of any Employee or paid any benefit to any Employee or required by
any plan or arrangement in effect as of the Effective Date or entered
into any contract, agreement, commitment or arrangement to do any of
the foregoing.
(iii) Sale of Purchased Assets. Each of the Sellers have not
sold, leased exchanged, mortgaged, pledged, transferred or otherwise
disposed of, or, agreed to sell, lease, exchange, mortgage, pledge,
transfer or otherwise dispose of, any of the Purchased Assets, except
in each case for dispositions of inventory in the ordinary course of
business and consistent with past practice.
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10. SURVIVAL. The representations, warranties, covenants and indemnifications
set forth herein shall survive the execution and delivery of this Agreement and
all of the agreements contemplated by this Agreement. The representations,
warranties, covenants and indemnifications contained herein shall not be
affected by any investigation, verification, approval or subsequent notice made
by or on behalf of any party hereto. No specific representation or warranty
shall limit the generality or applicability of a more general representation or
warranty.
11. INDEMNIFICATION BY SELLERS AND PARENT; OFFSET; THIRD-PARTY CLAIMS.
(a) INDEMNIFICATION BY SELLERS AND PARENT. Each of the Sellers and
Parent, jointly and severally, covenant and agree to defend, indemnify and
hold harmless Buyer, any parent, subsidiary or affiliate of Buyer, and
their respective officers, directors, stockholders, partners, employees,
agents, representatives, successors and assignees (collectively, the
"Buyer Indemnified Group"), from and against any and all damages
(including any penalty or punitive damages), losses, liabilities, fines,
penalties, claims, actions, proceedings, obligations, amounts paid in
settlement, costs and expenses (including, but not limited to, reasonable
counsel fees and costs and expenses incurred in the investigation, defense
or settlement of any claim covered by this indemnity, but excluding any
Assumed Liability) (collectively, the "Buyer Losses"), as and when
incurred or suffered by any member of Buyer Indemnified Group, by reason
of, with respect to or arising out of the following:
(i) any breach of, or any inaccuracy in, any representation or
warranty of any Seller, Parent and/or any of the Named Individuals
contained herein or in any document or instrument executed and
delivered pursuant hereto or thereto, including any Operative
Document (including, without limitation, the Non-Competition,
Non-Solicitation and Confidentiality Agreements);
(ii) the non-performance of any covenant or obligation to be
performed by any Seller, Parent and/or any of the Named Individuals
contained herein or in any document or instrument executed and
delivered pursuant hereto or thereto, including any Operative
Document (including, without limitation, the Non-Competition,
Non-Solicitation and Confidentiality Agreements);
(iii) any Liability of any Seller of any nature, presently existing
or arising out of any state of facts existing on or prior to the
Closing Date, or arising after the Closing Date in connection
herewith or arising out of the conduct of the Business or any use or
ownership of any of the Purchased Assets on or prior to the Closing
Date;
(iv) any Liability of any nature, presently existing or arising out
of any pending or threatened litigation, claims, investigations,
inquiries, regulatory audits or assessments, HCFA investigations or
inquiries, or similar proceedings against
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any Seller, Parent and/or their respective directors, officers,
shareholders, employees, agents or representatives, as well as any
future litigation, claims, investigations, inquiries, regulatory
audits or assessments, or other similar proceedings against any
Seller, Parent and/or their respective directors, officers,
shareholders, employees, agents or representatives;
(v) any Liability arising from any employment relationship or for any
salary or other compensation or benefits attributable to service or
employment with any Seller or Parent or any of their respective
affiliates (including any employee benefit plan, all Liabilities
under the Occupational Safety and Health Act ("OSHA"), any
Liabilities under ERISA or the Code, and any Liabilities to any
governmental body or authority or related to any failure to comply
with applicable law, regulations, etc. in each case arising from
facts or circumstances existing on or prior to the Closing Date;
(vi) any Excluded Liability, including, without limitation, any Tax
Liabilities;
(vii) the Excluded Assets;
(viii) any demand, inquiry, investigation, proceeding, action or
cause of action, environmental assessment and/or remediation expenses
that any member of Buyer Indemnified Group may suffer or incur by
reason of:
(A) any generation, transportation, storage, treatment or
disposal of industrial, toxic or hazardous substances or solid
or hazardous wastes by, for the account, or for the benefit of
any Seller or Parent, occurring on or prior to the Closing Date,
including, but not limited to, any waste or other disposal
activities or discharges that occurred at a facility on which
any portion of any Seller's or Parent's or its or their
respective predecessors' business was conducted, any waste or
other disposal activities or discharges that occurred off of any
such facility with regard to wastes and other substances
generated at or on any such facility, and any waste or other
disposal activities or discharges that occurred on real estate
owned, leased or used by any Seller or Parent or its or their
respective predecessors at any time whether or not any Seller or
its or their respective predecessor owned or leased such real
estate at the time such waste or other disposal activities or
discharges were engaged in, and whether or not any such Seller
or Parent performed such waste or other disposal activities or
discharges;
(B) any spills, discharges, leaks, emissions, injections,
escapes, dumpings, or any releases or threatened releases as
defined now or in the future under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended or reauthorized from time to time,
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or any other similar federal, state or local laws, statutes,
rules or regulations occurring on or prior to the Closing Date,
including, but not limited to, both those releases or incidents
involving potential or actual environmental contamination which
required notification or reporting to appropriate federal, state
or local officials or agencies, or clean-up or remedial
activities and those releases or incidents which occurred prior
to the effective date of any requirements imposing such
notification or reporting obligations or clean-up or remedial
activities, but which would have been subject to such
obligations if they had occurred subsequent to the effective
date of such requirements;
(C) any discharges by, on behalf of, or for the benefit of
any Seller or Parent, to surface waters or ground waters;
(D) any air emissions by, on behalf of, or for the benefit
of any Seller or Parent;
(E) the exposure of and resulting consequences to any
persons, including, but not limited to, employees of any Seller
or Parent, to any mineral, chemical or industrial product, raw
material intermediate, by-product or waste, or substance
created, generated, processed, handled or originating at a
facility at which any Seller or Parent (or any of its or their
respective predecessors) conducted business prior to the Closing
Date, or otherwise used by any Seller or Parent (or any of its
or their respective predecessors) in the conduct of its
business;
(F) any violations by any Seller or Parent of any federal,
state or local (i) environmental laws, regulations, etc., or
(ii) occupational or employee health and safety laws,
regulations, etc.;
(G) any and all actions, failures to act and negligence by
any Seller, Parent or anyone acting for, or on behalf of, any
Seller or Parent in monitoring, maintaining and upkeep of
on-site storage, treatment and disposal facilities;
(H) any use, removal, maintenance or monitoring of storage
tanks by any Seller or Parent, or anyone acting for, or on
behalf of, any Seller or Parent; or
(I) any violations, fees, obligations or failures by any
Seller or Parent, or anyone acting for, or on behalf of, any
Seller or Parent to comply with any and all environmental and
operational permit requirements.
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(b) OFFSET. In addition to Buyer's other rights under this Agreement,
or at law or in equity, Buyer shall be entitled to offset against any sums
now or at any time hereafter due and owing to any Seller or Parent, any
amounts due by either Seller or Parent to Buyer as a result of this
Agreement or otherwise, whether arising out of an obligation for
indemnification pursuant to this Section 11 or otherwise.
(c) THIRD-PARTY CLAIMS. Promptly upon receipt of notice of any claim,
demand or assessment or the commencement of any suit, action or proceeding
with respect to which indemnity may be sought pursuant to this Section 11,
Buyer or the appropriate member of Buyer Indemnified Group shall notify in
writing, if possible, within sufficient time to respond to such claim or
answer or otherwise plea in such action, the party(ies) from whom
indemnification is sought (individually or collectively, as applicable,
the "Seller Group-Indemnitor"). In case any claim, demand or assessment
shall be asserted, or suit, action or proceeding is commenced against any
member of Buyer Indemnified Group, the Seller Group-Indemnitor shall be
entitled, at the Seller Group-Indemnitor's expense, to participate
therein, and, to the extent that it or they may desire, to assume the
defense, conduct or settlement thereof, at its or their own expense, with
counsel satisfactory to Buyer (whose consent to the selection of counsel
shall not be unreasonably withheld or delayed), provided that the Seller
Group-Indemnitor confirms to Buyer and the member of Buyer Indemnified
Group, within five (5) days of receiving notice from the member of Buyer
Indemnified Group, that it is a claim to which the rights of
indemnification apply with respect to the applicable member of Buyer
Indemnified Group. The Seller Group-Indemnitor shall have the right to
settle or compromise monetary claims; however, as to any other claim, the
Seller Group-Indemnitor shall first obtain the prior written consent from
the member of Buyer Indemnified Group, which consent shall be exercised in
the member of Buyer Indemnified Group's sole discretion. After notice from
the Seller Group-Indemnitor to Buyer and the appropriate member of Buyer
Indemnified Group of the Seller Group-Indemnitor's intent to so assume the
defense, conduct, settlement or compromise of such action, the Seller
Group-Indemnitor shall not be liable to the member of Buyer Indemnified
Group for any legal or other expenses (including, without limitation,
settlement costs) subsequently incurred by the member of Buyer Indemnified
Group in connection with the defense, conduct or settlement of such action
by the member of Buyer Indemnified Group while the Seller Group-Indemnitor
is diligently defending, conducting, settling or compromising such action.
The Seller Group-Indemnitor shall keep Buyer and the applicable member of
Buyer Indemnified Group apprised of the status of the suit, action or
proceeding and shall make the Seller Group-Indemnitor's counsel available
to Buyer and the member of Buyer Indemnified Group, at the Seller
Group-Indemnitor's expense, upon the request of Buyer and/or the member of
Buyer Indemnified Group. Buyer and Buyer Indemnified Group shall cooperate
with the Seller Group-Indemnitor in connection with any such claim and
shall make personnel, books and records and other information relevant to
the claim available to the Seller Group-Indemnitor to the extent that such
personnel, books and records and other information are in the possession
and/or control of Buyer or the
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member of Buyer Indemnified Group. If the Seller Group-Indemnitor decides
not to participate or does not respond within five (5) days of receiving
notice from the member of Buyer Indemnified Group, then the member of
Buyer Indemnified Group shall be entitled, at the Seller
Group-Indemnitor's expense, to defend, conduct, settle or compromise such
matter with counsel selected by the member of Buyer Indemnified Group.
(d) MANNER OF INDEMNIFICATION. All indemnification pursuant to this
Section 11 shall be effected upon demand by Buyer or another appropriate
member of Buyer Indemnified Group for payment by the Seller
Group-Indemnitor to the appropriate member of Buyer Indemnified Group in
the appropriate amount and by delivery of cash or a certified or cashier's
check in such amount; and thereafter, to the extent that it is ultimately
determined or agreed that a member of Buyer Indemnified Group is entitled
to indemnification amounts under this Agreement, such amounts shall accrue
interest at the rate equal to the lesser of twelve percent (12%) per annum
or the maximum interest rate allowed by law, from the date of notice by
the member of Buyer Indemnified Group to the Seller Group-Indemnitor of a
claim pursuant to this Section 11.
12. INDEMNIFICATION BY BUYER.
(a) INDEMNIFICATION BY BUYER. Buyer covenants and agrees to defend,
indemnify and hold harmless Seller, any parent, subsidiary or affiliate of
the Seller, and their respective officers, directors, stockholders,
partners, employees, agents, representatives, successors and assignees,
but excluding any party included within the Buyer Indemnified Group
(collectively, the "Seller Indemnified Group"), from and against any and
all damages (including any penalty or punitive damages), losses, fines,
penalties, claims, actions, proceedings, obligations, amounts paid in
settlement, costs and expenses (including, but not limited to, reasonable
counsel fees and costs and expenses incurred in the investigation, defense
or settlement of any claim covered by this indemnity) (collectively, the
"Seller/Parent Losses"), as and when incurred or suffered by any member of
the Seller Indemnified Group, relating to the Business and the Purchased
Assets as the direct result of actions taken solely by Buyer after the
Closing Date.
(b) OFFSET. In addition to any Seller's and/or Parent's other rights
under this Agreement, or at law or in equity, any Seller and/or Parent
shall be entitled to offset against any sums, now or at any time hereafter
due and owing to Buyer, the amount of any liabilities owing by Buyer to
any Seller and/or Parent under this Agreement, whether arising out of an
obligation for indemnification pursuant to this Section 12 or otherwise.
(c) THIRD-PARTY CLAIMS. Promptly upon receipt of notice of any claim,
demand or assessment or the commencement of any suit, action or proceeding
with respect to which indemnity may be sought pursuant to this Section 12,
any Seller or Parent or the appropriate member of the Seller Indemnified
Group shall notify in writing, if possible, within sufficient time to
respond to such claim or answer or otherwise plea in
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such action, the party(ies) from whom indemnification is sought
(individually or collectively, as applicable, the "Buyer
Group-Indemnitor"). In case any claim, demand or assessment shall be
asserted, or suit, action or proceeding is commenced against any member of
the Seller Indemnified Group, the Buyer Group-Indemnitor shall be
entitled, at the Buyer Group-Indemnitor's expense, to participate therein,
and, to the extent that it or they may desire, to assume the defense,
conduct or settlement thereof, at its or their own expense, with counsel
satisfactory to any Seller and/or Parent (whose consent to the selection
of counsel shall not be unreasonably withheld or delayed), provided that
the Buyer Group-Indemnitor confirms to Seller and/or Parent, as
applicable, and the member of the Seller Indemnified Group, within five
(5) days of receiving notice from the member of the Seller Indemnified
Group, that it is a claim to which the rights of indemnification apply
with respect to the applicable member of the Seller Indemnified Group. The
Buyer Group-Indemnitor shall have the right to settle or compromise
monetary claims; however, as to any other claim, the Buyer
Group-Indemnitor shall first obtain the prior written consent from the
member of the Seller Indemnified Group, which consent shall be exercised
in the member of the Seller Indemnified Group's sole discretion. After
notice from the Buyer Group-Indemnitor to any Seller and/or Parent and the
appropriate member of the Seller Indemnified Group of the Buyer
Group-Indemnitor's intent to so assume the defense, conduct, settlement or
compromise of such action, the Buyer Group-Indemnitor shall not be liable
to the member of the Seller Indemnified Group for any legal or other
expenses (including, without limitation, settlement costs) subsequently
incurred by the member of the Seller Indemnified Group in connection with
the defense, conduct or settlement of such action by the member of the
Seller Indemnified Group while the Buyer Group-Indemnitor is diligently
defending, conducting, settling or compromising such action. The Buyer
Group-Indemnitor shall keep the Seller and/or Parent and the applicable
member of the Seller Indemnified Group apprised of the status of the suit,
action or proceeding and shall make the Buyer Group-Indemnitor's counsel
available to the Seller and/or Parent and the member of the Seller
Indemnified Group, at the Buyer Group-Indemnitor's expense, upon the
request of the Seller and/or the member of the Seller Indemnified Group.
Seller and the Seller Indemnified Group shall cooperate with the Buyer
Group-Indemnitor in connection with any such claim and shall make
personnel, books and records and other information relevant to the claim
available to the Buyer Group-Indemnitor to the extent that such personnel,
books and records and other information are in the possession and/or
control of the Seller or the member of the Seller Indemnified Group. If
the Buyer Group-Indemnitor decides not to participate or does not respond
within five (5) days of receiving notice from the member of the Seller
Indemnified Group, then the member of the Seller Indemnified Group shall
be entitled, at the Buyer Group-Indemnitor's expense, to defend, conduct,
settle or compromise such matter with counsel selected by the member of
the Seller Indemnified Group.
(d) MANNER OF INDEMNIFICATION. All indemnification hereunder shall be
effected upon demand by the Seller or another appropriate member of the
Seller
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Indemnified Group for payment by the Buyer Group-Indemnitor to the
appropriate member of the Seller Indemnified Group in the appropriate
amount and by delivery of cash or a certified or cashier's check in such
amount; and thereafter, to the extent that it is ultimately determined or
agreed that a member of the Seller Indemnified Group is entitled to
indemnification amounts under this Agreement, such amounts shall accrue
interest at the rate equal to the lesser of twelve percent (12%) per annum
or the maximum interest rate allowed by law, from the date of notice by
the member of the Seller Indemnified Group to the Buyer Group-Indemnitor
of a claim pursuant to this Section 12.
13. PARENT'S GUARANTEE OF OBLIGATIONS.
(a) Parent hereby unconditionally guarantees the full, prompt and
complete performance by each Seller of each and every obligation of each
such Seller arising out of and/or pursuant to this Agreement and/or any of
the Operative Documents.
(b) Parent hereby expressly waives any right to require Buyer to:
(i) proceed against any Seller; or
(ii) pursue any other remedy in Buyer's power.
(c) Parent also expressly waives any defense arising by reason of any
disability or other defense of any Seller or by reason of the cessation of
or from any cause whatsoever (other than full performance by any such
Seller) of the liability of any such Seller for all or any part of the
obligations hereunder. Each Seller waives due diligence, presentment,
notice of default, demand for performance or payment, notice of
non-performance, protest, notice of dishonor and notice of acceptance of
the provisions of this Section 13, and all rights and privileges that
Parent might otherwise have to require Buyer to pursue any other remedy
available to it in any particular manner or order.
(d) Parent agrees that the provisions of this Section 13 shall apply
to and be binding upon Parent and Parent's successors, legal
representatives and permitted assigns. The provisions of this Section 13
shall inure to the benefit of Buyer and its successors and assigns.
(e) No delay or failure of Buyer, in exercising any right hereunder
shall affect that right nor shall any single or partial exercise of any
right hereunder preclude further exercise thereof.
14. XXXX OF SALE; ASSUMPTION OF LIABILITIES. This Agreement is intended to also
operate as a xxxx of sale and shall be evidence of the transfer of the Purchased
Assets as provided for herein and the assumption by Buyer of the Assumed
Liabilities, and such transfer and assumption is made based in substantial part
on the representations and warranties and obligations provided for herein.
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15. EXPENSES; BROKERS.
(a) Each of the parties hereto shall pay its own legal, accounting and
other expenses incurred in connection herewith and the transactions
contemplated hereby.
(b) Except for any payments and/or obligations owing to Xxxxxx & Gage,
Incorporated, by Buyer, each of the parties hereto represents and warrants
that no finder, broker or other person is entitled to any commission, fee
or other compensation in connection with any of the transactions
contemplated by this Agreement.
16. SEVERABLE PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of the parties under this Agreement would not be
materially and adversely affected thereby, such provision shall be fully
separable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance therefrom, and in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement, a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the parties
hereto request the court or any arbitrator to whom disputes relating to this
Agreement are submitted to reform the otherwise illegal, invalid or
unenforceable provision in accordance with this Section 16.
17. ENFORCEABILITY. In the event of a breach or threatened breach by any Seller
or Parent of any representation, warranty or covenant herein, Buyer shall be
entitled to obtain, without the necessity of posting any bond therefor, an order
for specific performance requiring any Seller and/or Parent to fully, promptly
and completely perform any of its and/or their respective obligations hereunder.
The remedies provided in this Section 17 shall be in addition to and not in lieu
of any other remedies of Buyer at law or in equity, which remedies shall be
cumulative, including specifically the recovery of damages. Venue for any such
action under this Section 17 shall be solely in the state or federal courts
located in Dallas County, Texas.
18. ARBITRATION. Except to the extent permitted by Section 17, all disputes
between the parties relating to this Agreement shall be resolved as follows:
(a) If the parties are unable to resolve any controversy, dispute or
claim arising out of, or relating to, this Agreement (any such
controversy, claim or dispute, a "Dispute") on or before the 30th day
following the receipt by the parties of written notice of such Dispute
from the other party or parties (the "Initial Dispute Period") (which
notice describes in reasonable detail the nature of the Dispute and the
facts and circumstances relating thereto), any one or more of the parties
may cause such Dispute to be settled by final and binding arbitration in
Dallas, Texas, by filing a written demand for arbitration with the
American Arbitration Association, with a copy to the other party or
parties, by submitting such Dispute for arbitration within thirty (30)
days following the
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expiration of the Initial Dispute Period. Except as herein stated, the
arbitration will be conducted in accordance with the provisions of the
Commercial Arbitration Rules of American Arbitration Association in effect
at the time of filing of the demand for arbitration; provided that the
parties agree that each party to the Dispute shall have discovery to the
same extent as provided under the Federal Rules of Civil Procedure. The
arbitrator or arbitrators shall be required to follow the applicable law
as set forth in the governing law section of this Agreement.
(b) Buyer, on the one hand, and the Sellers and/or Parent, on the
other hand, will appoint, within fifteen (15) days after receipt of notice
of arbitration from the noticing party, one person as its or their
respective representative to hear and determine the Dispute. The two
persons so chosen will select a third impartial arbitrator, and their
majority decision will be final and conclusive upon the parties hereto. If
either Buyer, on the one hand, or the Sellers and Parent, on the other
hand, fails to designate its arbitrator within fifteen (15) days after the
notice provided for herein, then the arbitrator designated by the one will
act as the sole arbitrator and will be deemed to be the single, mutually
approved arbitrator to resolve the controversy. In the event the parties
are unable to agree upon a rate of compensation for the arbitrators, they
will be compensated for their services at a rate to be determined by the
American Arbitration Association.
(c) This agreement to arbitrate shall be specifically enforceable
against the parties by any court of competent jurisdiction, and may be
challenged only upon the grounds provided in Section 10 to the United
States Arbitration Act, 9 U.S.C. Sec. 10. Application may also be made to
such court to confirm, modify or vacate any decision or award of the
arbitrators, for an order of enforcement and for any other remedies,
including equitable remedies, which may be necessary to effectuate such
decision or award. All the parties hereto hereby consent to the
jurisdiction of the arbitrators and of such court and waive any objection
to the jurisdiction of such arbitrator and such court.
(d) One or more of the parties to any arbitration proceeding
commenced hereunder shall be entitled, as a part of the arbitration award,
to petition the arbitrators to award the costs and expenses (including
reasonable attorneys' fees and interest from the date due until paid at
the maximum rate allowable by law on any award) of investigating,
preparing and pursuing an arbitration claim as such costs and expenses are
determined by the arbitrators.
(e) Buyer, on the one hand, and the Sellers and Parent, on the other
hand, shall each deposit one half of all estimated fees and expenses of
the arbitration proceeding with the American Arbitration Association
within fourteen (14) days after a Dispute has been submitted to
arbitration.
(f) THE ARBITRATOR OR ARBITRATORS SHALL BE EMPOWERED TO AWARD DAMAGES
IN EXCESS OF COMPENSATORY DAMAGES (WHICH
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COMPENSATORY DAMAGES INCLUDE REASONABLE ATTORNEYS FEES AND EXPERT WITNESS
FEES)
(g) The arbitrators will, upon the request of any party, issue a
written opinion of their findings of fact and conclusions of law.
(h) Upon receipt by the requesting party of said written opinion,
said party will have the right within twenty (20) days thereof to file
with the arbitrators a motion to reconsider, and the arbitrators thereupon
will reconsider the issues raised by said motion and either confirm or
change their majority decision which will then be final and conclusive
upon both parties hereto. The costs of such a motion of reconsideration
and written opinion of the arbitrators will be borne by the moving party.
19. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS, REGARDLESS OF ANY
CONFLICT OF LAW RULES TO THE CONTRARY. EXCEPT WITH RESPECT TO THE MATTERS
SUBJECT TO ARBITRATION, EACH OF THE PARTIES HEREBY CONSENTS TO THE SERVICE OF
PROCESS IN ANY SUCH ACTION OR LEGAL PROCEEDING BY MEANS OF REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN CARE OF THE APPLICABLE ADDRESS SET
FORTH IN SECTION 28 HEREOF.
20. DEFINITION OF KNOWLEDGE. As used herein, "know" or "knowledge" shall
mean such person's awareness or knowledge of facts or other information related
to the matter or issue at hand to the extent that facts or circumstances exist
that would cause a reasonable person to know of a condition or event, and with
the further understanding that such person has made reasonable investigation to
determine if such facts or circumstances exist.
21. ENTIRE AGREEMENT. This Agreement and the exhibits and schedules
attached hereto constitute the entire agreement among the parties with respect
to the purchase and sale of the Purchased Assets and the other matters
referenced herein. This Agreement, therefore, supersedes any and all prior
agreements, arrangements, communications, and representations, whether oral or
written, among the parties, or any of them, relating to the subject matters
hereof, including the Letter of Intent between the parties dated June 29, 2000.
22. CONSTRUCTION. The parties hereto acknowledge that each party was
represented by legal counsel, or had the opportunity to obtain legal counsel,
in connection with this Agreement and that each party and each party's counsel,
as applicable, have reviewed and revised this Agreement, or have had an
opportunity to do so, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement and the Operative Documents.
23. FURTHER ASSURANCES. Each party hereto agrees to do all acts and things
and to make, execute, and deliver such written instruments as shall from time
to time be reasonably
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required to further evidence the sale and transfer of the Purchased Assets, and
to carry out the terms and provisions of this Agreement.
24. PRESS RELEASE OR PUBLIC STATEMENTS. Before either party shall execute
or administer a press release or public announcement related to the
consummation of the transaction contemplated by this Agreement, the parties
shall cooperate with each other and shall furnish to the other party drafts of
all documents or proposed oral statements to the other party for comment and
shall not release any such information without the written consent of the other
party. Nothing contained herein shall prevent either party from furnishing any
information to any governmental authority if required to do so by law.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted assigns and
successors. Notwithstanding any provision hereof, Buyer may assign all or part
of its rights under this Agreement to any of Buyer's direct or indirect
subsidiaries or affiliates or to a successor by merger, consolidation or other
business combination, and such assignee of Buyer shall thereafter receive and
enjoy all of the benefits of each Seller's and Parent's obligations hereunder
with respect to the rights so assigned.
26. AMENDMENT, MODIFICATION OR WAIVER. No amendment, modification or
waiver of any condition, provision or term of this Agreement shall be valid or
of any effect unless made in writing, signed by the party or parties to be
bound and specifying with particularity the nature and extent of such
amendment, modification or waiver.
27. HEADINGS. Headings of the articles and sections of this Agreement are
for the convenience of the parties only and shall be given no substantive or
interpretive effect whatsoever.
28. NOTICES. Any notice or other communication required or permitted to be
given to any party pursuant to this Agreement shall be in writing and shall be
deemed to have been delivered: (a) if mailed, three (3) days after deposited in
the United States mail, postage prepaid; (b) if telecopied, upon delivery; (c)
if hand-delivered, upon delivery against receipt or upon refusal to accept the
notice; or (d) if delivered by Federal Express or other similar courier, one
(1) day after deposited with such courier, postage prepaid, in each case,
addressed to such party at the address set forth below:
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(i) If to PRN, AASI and/or Parent:
Amedisys, Inc.
00000 Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Senior Vice President
Telephone: 000.000.0000
Facsimile: 225.295.9624
With a copy to:
Amedisys, Inc.
00000 Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 225.292.8163
(iv) If to Buyer:
Park Pharmacy Corporation
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President and Chief Executive
Officer
Telephone: 000.000.0000
Facsimile: 214.692.9924
With a copy to:
Xxxxxxxxx & Xxxxxxxxx, LLP
000 X. Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other place as the respective addressee may have
designated in a written notice to the other party as provided
in this Section. Notices may be given by each party's
respective legal counsel.
29. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original.
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30. EXECUTION BY FACSIMILE; DELIVERY OF ORIGINAL SIGNED AGREEMENT. This
Agreement may be executed by facsimile, and shall be deemed effectively executed
upon the receipt by Buyer, Sellers and Parent of the last page of this Agreement
duly executed by the other parties hereto. Each party to this Agreement agrees
to deliver four (4) original, inked and signed copies of this Agreement within
four (4) days of faxing the executed last page hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Buyer, Sellers and Parent have executed and
delivered this Agreement as of the day and year first above written.
BUYER:
PARK INFUSION SERVICES, LP, a Texas
limited partnership
By: PARK OPERATING GP, LLC, a Texas
limited liability company, its sole general
partner
By: /s/ XXXXXX X. XXXXX
-------------------------------
Xxxxxx X. Xxxxx, President
SELLERS:
AASI:
AMEDISYS ALTERNATE-SITE INFUSION THERAPY
SERVICES, INC., a Louisiana corporation
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Its: Secretary
--------------------------------------
PRN:
PRN, INC., a Texas corporation
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Its: Secretary
--------------------------------------
PARENT:
AMEDISYS, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Its: Secretary
--------------------------------------
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LIST OF EXHIBITS
Exhibit A Form of opinion letter from counsel for PRN, AASI and Parent
Exhibit B Employment Agreements (including Non-Competition,
Non-Solicitation and Confidentiality Agreements)
Exhibit C Form of opinion letter from counsel for Buyer
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LIST OF SCHEDULES
Schedule 1(a)(i) - Equipment of PRN
Schedule 1(a)(ii) - Equipment of AASI
Schedule 1(b)(i) - Inventory of PRN
Schedule 1(b)(ii) - Inventory of AASI
Schedule 1(c)(i) - Contracts of PRN
Schedule 1(c)(ii) - Contracts of AASI
Schedule 1(d)(i) Intellectual Property and Intangible Assets of PRN
Schedule 1(d)(ii) Intellectual Property and Intangible Assets of AASI
Schedule 1(e)(i) - Licenses, Permits and Approvals of PRN
Schedule 1(e)(ii) - Licenses, Permits and Approvals of AASI
Schedule 1(f)(i) - Leases of PRN
Schedule 1(f)(ii) - Leases of AASI
Schedule 1(g)(i) - Telephone and Facsimile Numbers of PRN
Schedule 1(g)(ii) - Telephone and Facsimile Numbers of AASI
Schedule 1(h)(i) - Customer and Suppliers List of PRN
Schedule 1(h)(ii) - Customer and Supplier List of AASI
Schedule 1(k)(i) - Deposits and Expenses of PRN
Schedule 1(k)(ii) - Deposits and Expenses of AASI
Schedule 2(g)(i) - Excluded Assets of PRN
Schedule 2(g)(ii) - Excluded Assets of AASI
Schedule 5(b) - Purchase Price Allocation
Schedule 7(b)(iii) - Liens Against Stock of PRN owned by AASI
Schedule 7(e)(i) - Locations of Equipment and Inventory of PRN
Schedule 7(e)(ii) - Locations of Equipment and Inventory of AASI
Schedule 7(g)(i) - Conflicts and/or Consents of PRN
Schedule 7(g)(ii) - Conflicts and/or Consents of AASI
Schedule 7(h)(i) - List of all of PRN's Creditors
Schedule 7(h)(ii) - List of all of AASI's Creditors
Schedule 7(j)(i) - Pending or Threatened Litigation of PRN
Schedule 7(j)(ii) - Pending or Threatened Litigation of AASI
Schedule 7(k)(i) - Employees of PRN
Schedule 7(k)(ii) - Employees of AASI
Schedule 7(l)(i) - Benefit Plans and Benefit Arrangements of PRN
Schedule 7(l)(ii) - Benefit Plans and Benefit Arrangements of AASI
Schedule 7(m)(i) - Insurance of PRN
Schedule 7(m)(ii) - Insurance of AASI
Schedule 7(q)(i) - Financial Statements of PRN
Schedule 7(q)(ii) - Financial Statements of AASI
Schedule 8(a) - Liens against Stock of AASI owned by Parent
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