AGREEMENT
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THIS AGREEMENT dated as of November 1, 1998, among THE CARE
GROUP, INC. ("Care Group") COMMONWEALTH CERTIFIED HOME CARE, INC.
("Commonwealth"), both of which are corporations organized under the laws of the
State of New York, and VISITING NURSE SERVICE OF NEW YORK HOME CARE, a
not-for-profit corporation organized under the laws of the State of New York
("VNS").
WITNESSETH:
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WHEREAS, Conunonwealth owns and operates a certified home
health agency ("CHHA"); and
WHEREAS, Care Group owns all of the issued and outstanding
stock of Commonnwealth; and
WHEREAS, Care Group and Commonwealth want to ensure the
continuity of the CHHA; and
WHEREAS, Care Group and Commonwealth desire to transfer to a
new corporation to be affiliated with VNS ("Newco"), and VNS desires to
establish Newco to purchase from Care Group certain assets relating to the
operation of the CHHA upon the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing and the
promises and covenants hereinafter contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Care Group, Commonwealth and VNS, on the basis of, and in reliance upon, the
representations, warranties, covenants, obligations and agreements set forth in
this Agreement,hereby agree as follows:
ARTICLE I
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SALE AND PURCHASE OF DESIGNATED ASSETS
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Section 1.01. SALE AND PURCHASE OF DESIGNATED ASSETS
Care Group shall, or shall cause Commonwealth to, and
Commonwealth shall sell, convey by appropriate xxxx of sale, set over, deliver,
assign and transfer to Newco, and VNS shall cause Newco to purchase and acquire
from Care Group and Commonwealth at the Closing (as hereafter defined) the
following, all of which in the aggregate are refer-red to herein as the
"Designated Assets":
(a) All of the records relating to the operations and services
provided by Commonwealth which are owned by Care Group and/or Commonwealth and
which are needed for the operation of the CHHA (the "Records");
(b) All rights of Care Group and/or Commonwealth under the
specific contracts relating to the operation of the CHHA (referred to herein as
the "Contracts") identified in the attached Schedulel.01(b).
(c) All licenses, operating certificates, permits, approvals,
variances, waivers and consents relating to the operation of the CHHA
(collectively refeffed to herein as the "Permits") which are assignable to VNS
as designated in the attached Schedule 1.01(c).
Section 1.02. ASSUMED OBLIGATIONS
At the Closing, VNS shall cause Newco to assume the
obligations of Care Group and/or Conunonwealth under tlle Contracts designated
in the attached Schedule 1.01(b) which arise after the Closing Date.
ARTICLE II
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PURCHASE PRICE
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Section 2.01. PURCHASE PRICE
The purchase price to be paid by VNS to Care Group for the
Designated Assets (the "Purchase Price") shall be $302,000. VNS shall pay to
Care Group the amount of the Purchase Price by check at the Closing.
ARTICLE III
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TRANSFER OF TITLE TO DESIGNATED ASSETS
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Section 3.01. XXXX OF SALE
At the Closing, defined below, Care Group shall, or shall
cause Commonwealth to, and Commonwealth shall, convey to Newco all of Care
Group's and/or Commonwealth's right and title to, and interest in, the Records
by a xxxx of sale (the "Xxxx of Sale") in the form annexed hereto as Schedule
3.01.
Section 3.02. ASSIGNMENT
At the Closing, Care Group shall or shall cause Commonwealth
to, and Conunonwealth shall, convey to Newcd all of Care Group's and/or
commonwealth's right and title to, and interest in, the Permits and the
Contracts pursuant to an assignment (the "Assignment") in the form annexed
hereto as Schedule 3.02.
Section 3.03. ASSUMED LIABILITIES
At the Closing, Newco shall assume by an assumption instrument
in the form annexed hereto as Schedule 3.03 (the "Assumption Instrument"), and
thereafter perform, the obligations of Care Group which arise after the Closing
under the Contracts designated in Schedule 1.01(b).
Section 3.04. CERTAIN ALLOCATIONS AS OF CLOSING
All accounts receivable of Commonwealth as of the Closing Date
(the "Closing Accounts Receivable") shall remain the property of Commonwealth
following the Closing. All accounts receivable relating to the operation of the
CHHA which arise on or after the Closing Date shall be the property of Newco.
ARTICLE IV
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CLOSING AND CLOSING COSTS
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Section 4.01. TRANSFERS AND DELIVERIES
The transfers and deliveries to be made pursuant to this
Agreement shall, except as otherwise provided herein, take place at 10:00 A.M.
on the date, within 30 days following the satisfaction of the condition set
forth in Section 4.02, as shall be fixed by VNS in a notice to Care Group given
not less than five days prior to such date, at the offices of Cadwalader,
Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx (the "Closing"). All
transfers and deliveries required to be made hereunder at the Closing shall be
deemed to take place simultaneously and to be effective as of the time on the
date of the Closing (the "Closing Date") that all of such transfers and
deliveries have taken place.
Section 4.02. CONDITION PRIOR TO THE CLOSING
The Closing shall be subject to Newco having obtained
establishment approval to operate the CHHA from the State Hospital Review and
Planning Council, the New York State Public Health Council, and the
Conmiissioner of the New York State Department of Health (the "Establishment
Approval").
Section 4.03. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF VNS AND NEWCO
(a) Each of the agreements of VNS and/or Newco to be performed
at the Closing pursuant to this Agreement shall be subject to the fulfillment of
each of the following conditions, any of which conditions may be waived in
writing by VNS:
(i) Each of the representations and warranties
of Care Group and Commonwealth set forth in
Article VI hereof shall be true and correct
both on the date hereof and on the Closing
Date as if made at that time, except insofar
as changes shall have occurred after the
date hereof which are contemplated by this
Agreement;
(ii) Care Group and Commonwealth shall have
performed and complied with all agreements,
undertakings and obligations which are
required to be performed or complied with by
it at or prior to the Closing, as the case
may be, pursuant to this Agreement;
(iii) Since the date hereof, there shall have been
no material adverse change, or a discovery
of a condition or the occurrence of any
event which might result in any material
adverse change in the CHHA or the Designated
Assets, other than changes in the ordinary
course of business which are permitted by
this Agreement;
(iv) VNS shall have received from counsel for
Care Group and Commonwealth, their opinion,
as of the Closing Date, in substantially the
form attached hereto as Schedule 4.03(a)(iv)
(the "Care Group Legal Opinion");
(v) All consents and approvals of third parties
with respect to the conveyance of any of the
Designated Assets to be conveyed hereunder
shall have been obtained;
(vi) As of the Closing, there shall not be in
effect any injunction, writ, preliminary
restraining order or any order of any nature
issued by a court or other governmental body
or agency directing that the transactions
provided for herein not be consummated as
herein provided, nor shall there be any
litigation or proceeding pending or
threatened in respect of the transactions
contemplated hereby; and
(vii) The delivery by Care Group and Commonwealth
to VNS of a certificate of an executive
officer of Care Group ("Care Group's Closing
Certificate') and Commonwealth
("Conunonwealth's Closing Certificate"),
respectively, that the conditions to VNS
and/or Newco's obligations set forth in
paragraphs (i) through (iii) and (v) above
have been fulfilled or waived by VNS as the
case may be.
Section 4.04. CONDITIONS PRECEDENT TO CARE GROUP'S AND COMMONWEALTH'S
OBLIGATIONS
(a) Each of the agreements of Care Group and/or Commonwealth
to be performed by it at the Closing pursuant to this Agreement shall be subject
to the fulfillment of each of the following conditions, any of which conditions
may be waived in writing by Care Group:
(i) Each of the representations and warranties
of VNS and/or Newco set forth in Article VII
hereof shall be true and correct both on the
date hereof and on the Closing Date as if
made at that time, except insofar as changes
shall have occurred after the date hereof
which are contemplated by this Agreement;
(ii) VNS and/or Newco shall have performed and
complied with all agreements, undertakings
and obligations which are required to be
performed or complied with by it or them at
or prior to the Closing, as the case may be,
pursuant to this Agreement;
(iii) Care Group shall have received from counsel
for VNS, their opinion, as of the Closing
Date, in substantially the form attached
hereto as Schedule 4.04(a)(iii) (the "VNS
Legal Opinion");
(iv) The delivery by VNS to Care Group of a
certificate of an executive officer of VNS
("VNS Closing Certificate") that the
conditions to Care Group's obligations set
forth in paragraphs (i) and (H) above have
been fulfilled or waived by Care Group as
the case may be; and
(v) As of the Closing, there shall not be in
effect any injunction, writ, preliminary
restraining order or any order of any nature
issued by a court or other governmental body
or agency directing that the transactions
provided for herein not be consummated as
herein provided, nor shall there be any
litigation or proceeding pending or
threatened in respect of the transactions
contemplated hereby.
ARTICLE V
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DOCUMENTS TO BE DELIVERED AT CLOSING
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Section 5.01. DOCUMENTS TO BE DELIVERED BY CARE GROUP AND COMMONWEALTH
In addition to any other documents specifically required to be
delivered pursuant to this Agreement, Care Group and Commonwealth shall deliver
to VNS at the Closing, in form and substance reasonably satisfactory to VNS and
its counsel:
(a) Certified copies of the resolutions of the Board of
Directors of Care Group and Commonwealth, respectively, authorizing and
approving this Agreement and all other transactions and agreements contemplated
hereby;
(b) The Xxxx of Sale;
(c) The Assignment;
(d) The Care Group Legal Opinion;
(e) Care Group's Closing Certificate;
(f) Commonwealth's Closing Certificate;
(g) The consents of any third party required to effectuate the
transactions contemplated herein; and
(h) Such other deeds, bills of sale, certificates of title,
endorsements, assignments, affidavits and other good and sufficient instruments
of sale, assignment, conveyance and transfer, as shall be required to vest
effectively in Newco all of Care Group's and Commonwealth's right, title and
interest in and to the Designated Assets.
Section 5.02. DOCUMENTS TO BE DELIVERED BY VNS
In addition to any other documents specifically required to be
delivered pursuant to this Agreement, VNS shall deliver to Care Group and
Commonwealth at the Closing, in form and substance reasonably satisfactory to
Care Group and Commonwealth and their counsel:
(a) Certified copies of the resolutions of the Board of
Directors of VNS authorizing and approving this Agreement and all other
transactions and agreements contemplated hereby;
(b) The Assumption Instrument;
(c) The VNS Legal Opinion;
(d) VNS' Closing Certificate; and
(e) A certified or bank check payable to Care Group in the
amount of the Purchase Price.
ARTICLE VI
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REPRESENTATIONS AND WARRANTIES OF CARE GROUP AND
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COMMONWEALTH
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Care Group and Conunonwealth represent and warrant to VNS as
follows:
Section 6.01. CORPORATE STATUS
Care Group and Commonwealth are both corporations duly
organized, validly existing, and in good standing under the laws of the State of
New York, and together have full corporate power and authority to:
(a) Own the Designated Assets;
(b) Operate the CHHA in Nassau County;
(c) Execute and deliver this Agreement; and
(d) Perform their obligations under this Agreement.
Section 6.02. APPROVAL
This Agreement and the agreements and transactions
contemplated hereby have been approved and authorized by the Boards of Directors
of Care Group and Conunonwealth, and constitute valid, binding and enforceable
obligations of Care Group and Commonwealth, except to the extent the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, equitable principles or similar laws affecting legal or
equitable rights generally.
Section 6.03. VIOLATION
Neither the execution and delivery of this Agreement by Care
Group and Commonwealth nor the performance of Care Group's or Commonwealth's
obligations hereunder will violate, conflict with, or constitute a default
under, any of the terms of Care Group's or Commonwealth's Certificates of
Incorporation or by-laws, or any provisions thereof, or result in the
acceleration of any obligation under any contract, sales commitment, license,
purchase order, security agreement, mortgage, note, deed, lien, lease,
agreement, instrument, order, judgment or decree to which Care Group or
Commonwealth is a party or by which Care Group, Commonwealth, or the Designated
Assets are bound, and will not constitute an event which, after a notice or
lapse of time or both, will result in such violation, conflict, default or
acceleration. The execution and delivery of this Agreement and the performance
by Care Group and/or Commonwealth of the transactions contemplated hereby will
not result in the creation or imposition of any liens in favor of any third
person or entity upon the Designated Assets and will not violate any law,
judgment, decree, order, rule or regulation of any governmental authority
applicable to Care Group, Commonwealth, or the Designated Assets.
Section 6.04. TITLE
Commonwealth has good and marketable title to the Records.
Section 6.05. CONTRACTS
Neither Care Group nor Commonwealth has breached nor
terminated nor are they in default under any of the Contracts, and there exists
no condition or event which, after notice or lapse of time or both, would
constitute any such breach, termination or default. To the best of Care Group's
and Commonwealth's knowledge and belief, no other party to any such Contract has
breached, terminated or is in default thereunder, and there exists no condition
or event which, after notice or lapse of time or both, would constitute any such
breach, termination or default.
Section 6.06. FINANCIAL STATEMENTS
Care Group and Commonwealth have heretofore delivered to VNS
(i) audited financial statements for Commonwealth as of and for the year ending
December 31, 1997, and (ii) unaudited financial statements for Commonwealth as
of and for the five-month period ending May 31, 1998. Said financial statements
fairly present the financial condition of Commonwealth as of the respective
dates and for the periods indicated thereon and they have been prepared in
accordance with generally accepted accounting principles consistently applied.
All of the foregoing financial statements are hereinafter referred to as
"Commonwealth's Financial Statements".
Section 6.07. LIABILITIES
Since May 31, 1998, neither Care Group nor Commonwealth has
incurred or accrued any liabilities or obligations of any nature whatsoever in
respect of the CHHA, whether fixed, absolute, contingent, known, unknown,
direct, indirect, or otherwise, except for those incurred or accrued in the
ordinary and normal course of the CHHA and consistent with the representations,
warranties, covenants, obligations and agreements contained in this Agreement
and all of which shall be properly reflected in Care Group's or Commonwealth's
journals and ledgers.
Section 6.08. LITIGATION
There is no litigation, action, suit, investigation, claim or
proceeding pending or, to the best of Care Group's and Connnonwealth's knowledge
and belief, threatened against or adversely affecting the CHHA or the Designated
Assets, at law or in equity, before any Federal, state or local governmental
entity or municipality or subdivision thereof, or any authority, department,
commission, board, bureau, agency, court or instrumentality (collectively, the
"Governmental Authorities"), that would have a material adverse effect on the
transactions r-onternplated by this Agreement.
Section 6.09. LAWS
Neither Care Group nor Commonwealth has failed to comply with
any law or any other requirement of any Governmental Authority that will prevent
Newco from operating the CHHA following the Closing on substantially the same
terms as it is currently being operated.
Section 6.10. PERMITS
The Permits are in full force and effect and any fees or other
regulatory obligations required in connection therewith have been paid or
satisfied in full. The operating certificate issued to Commonwealth authorizes
the operation of the CHHA in Nassau County.
Section 6.11. LABOR AND EMPLOYMENT MATTERS
To date, there has not been, there is not presently pending or
existing, and to Care Group's or Conunonwealth's knowledge and belief, there is
not threatened with respect to Commonwealth (a) any strike, slowdown, picketing,
work stoppage, or employee job action, (b) any proceeding against or affecting
Care Group or Commonwealth relating to the alleged violation of any legal
requirement pertaining to labor relations or employment matters involving
Conunonwealth, including any charge or complaint filed by an employee or union
with the National Labor Relations Board, the Equal Employment Opportunity
Commission, or any comparable Governmental Authority, any organizational
activity, or any other labor or employment dispute against or affecting Care
Group or Commonwealth involving Commonwealth, or (c) any application for
certification of a collective bargaining agent. There is no lockout of any
Commonwealth employees in effect. Care Group -and Commonwealth have complied in
all material respects with all legal requirements relating to employment, equal
employment opportunity, nondiscrimination, inuiiigration, wages, hours,
benefits, collective bargaining, the payment of social security and similar
taxes, and occupational safety and health in connection with Commonwealth.
Neither Care Group nor Commonwealth is liable for any compensation, damages,
taxes, fines, penalties, or other amounts, however designated, for failure to
comply with any of the foregoing legal requirements.
Section 6.12. ORDINARY COURSE OF BUSINESS
To date, Care Group and Commonwealth, in respect of the CHHA,
has not, except in the ordinary and normal course of the CHHA:
(a) Sold, transferred or otherwise disposed of any of the
Designated Assets or any other assets dedicated to the CHHA;
(b) Pledged or subjected any of the Designated Assets to any
lien;
(c) Sustained any damage, loss or destruction by reason of
fire, explosion, casualty, requisition or taking of property by any Governmental
Authority, act of God, accident, other calamity or other similar event;
(d) Granted any salary or compensation increase or pemiitted
any advance to any employee, agent or independent contractor (except scheduled
increases consistent with past practice), or entered into any new, or altered or
amended any existing employment or other agreement with any employee, agent or
independent contractor;
(e) Entered into any license or lease; or
(f) Modified, amended, cancelled, or terminated any of the
Contracts or the Permits.
Section 6.13. CONDITION OF CHHA
The staffing and operations of the CHHA satisfy, without
material exception, the applicable requirements of the State of New York.
Section 6.14. COST REPORTS, THIRD PARTY RECEIVABLES AND CONDITIONS OF
PARTICIPATION
The cost reports of Commonwealth for Medicaid and Medicare
payments for the fiscal years through 1997 relating to the CHHA have been
submitted and filed when due to the best of Care Group's and Commonwealth's
knowledge are true and correct. To Care Group's and Commonwealth's knowledge and
belief, there is no dispute between Commonwealth and any Governmental Authority
or the Medicare fiscal intermediary regarding such cost reports. With regard to
Commonwealth's Financial Statements, the patient accounts receivable for
services to Medicare, Medicaid and other patients have been recorded net of
contractual allowances and, without material exception, are accurately recorded.
The CHHA has met and does meet, without material exception, the conditions for
participation in the Medicare and Medicaid programs and, to the best knowledge
and belief of Care Group and Commonwealth, there is not pending or threatened
any proceeding or investigation under such programs involving the CHHA.
Section 6.15. ERISA
Neither Care Group nor Commonwealth has unfunded pension
liabilities with respect to Conunonwealth employees, nor maintains or
contributes to, nor has ever maintained or contributed to any "employee pension
plan", as that term is defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or any other plan or plans covered
by ERISA, other than those which are set out on Schedule 6.16 hereto, in each
case relating to employees of Commonwealth.
ARTICLE VII
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REPRESENTATIONS AND WARRANTIES OF VNS
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VNS represents and warrants to Care Group as follows:
Section 7.01. CORPORATE STATUS
VNS is a not-for-profit corporation duly organized, validly
existing, and in good standing under the laws of the State of New York, and has
full corporate power and authority to perform its obligations under this
Agreement.
Section 7.02. APPROVAL
This Agreement and the agreements and transactions
contemplated hereby have been approved and authorized by the Board of Directors
of VNS, and constitute valid, binding and enforceable obligations of VNS, except
to the extent the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, equitable principles or similar laws
affecting legal or equitable rights generally.
Section 7.03. NO VIOLATION
Neither the execution and delivery of this Agreement by VNS
nor the performance of VNS' obligations hereunder will violate, conflict with,
or constitute a default under, any of the terms of VNS' Certificate of
Incorporation or by-laws, or any provisions thereof, or result in the
acceleration of any obligation under any contract, sales commitment, license,
purchase order, security agreement, mortgage, note, deed, lien, lease,
agreement, instrument, order, judgment or decree to which VNS is a party or by
which VNS is bound, and will not constitute an event which, after a notice or
lapse of time or both, will result in such violation, conflict, default or
acceleration. The execution and delivery of this Agreement and the performance
by VNS of the transactions contemplated hereby will not violate any law,
judgment, decree, order, rule or regulation of any governmental authority
applicable to VNS.
ARTICLE VIII
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AGREEMENTS OF CARE GROUP AND COMMONWEALTH
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Section 8.01. BEST EFFORTS
Care Group and Commonwealth each agrees to use their best and
most diligent efforts to cause all its covenants and agreements and all
conditions precedent to the obligation of VNS to close hereunder to be
performed, satisfied, and fulfilled.
Section 8.02. OPERATION OF CHHA UNTIL CLOSING
From the date of this Agreement until the Closing, except to
the extent otherwise contemplated by this. Agreement or applicable New York
State Department of Health regulations, or as otherwise consented to by an
instrument in writing signed by VNS, Care Group and Commonwealth:
(a) Shall exercise their best efforts to maintain the goodwill
and reputation , associated with the CHHA;
(b) Shall ensure that the health and safety of any patients to
which Commonwealth provides service shall at all times be maintained consistent
with all applicable laws and regulations;
(c) Shall provide all cash necessary to maintain the
operations of the CHHA;
(d) Except with respect to Section 9.05 hereof, shall not
enter into any new leases relating to the CHHA;
(e) Shall not assign, transfer or encumber or permit to be
encumbered the Designated Assets; and
(f) Shall not with respect to Commonwealth grant any salary
increase to any employee (except for scheduled salary increases consistent with
past practice) nor enter into any new or amend or alter any existing bonus,
incentive compensation, profit sharing, retirement, pension, group insurance,
death benefit or other fringe benefit plan, trust agreement or other similar or
dissimilar arrangement, or any employment or consultancy agreement.
Section 8.03. EMPLOYEES
Without limiting any other provision of this Agreement, Care
Group and Commonwealth shall remain obligated after the Closing for any
obligations to employees of Commonwealth which arise as of or prior to the
Closing.
ARTICLE IX
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AGREEMENTS OF VNS
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Section 9.01. BEST EFFORTS
VNS agrees to use its best and most diligent efforts to cause
aH its covenants and agreements and all conditions precedent to Care Group's
obligation to close hereunder to be performed, satisfied ahd fulfilled.
Section 9.02. CARE GROUP'S AND COMMONWEALTH'S ACCESS TO MEDICAL RECORDS
To the extent reasonably necessary and permitted by law, Care
Group and Commonwealth shall be entitled, after the Closing, to have access to
and make copies, at its own cost, of the patient records, including the medical
records and medical charts, of any patient served by Commonwealth on or before
the Closing Date. In addition, Care Group and Commonwealth shall be entitled to
remove any such record or chart for purposes of pending litigation or
goverrunent audit as certified in writing prior to removal by an officer of Care
Group or Commonwealth counsel retained by Care Group or Commonwealth in
connection with such litigation. Any record or chart so removed shall be
promptly returned to Newco following its use by Care Group or Commonwealth.
Section 9.03. PRESERVATION OF RECORDS
After the Closing, VNS shall cause Newco to keep and preserve
all Records turned over to Newco pursuant to this Agreement and which are
required to be kept and preserved (i) by any applicable Federal or state law or
regulation, or (H) in connection with any claim or controversy still pending
involving Care Group or Commonwealth. After the Closing, upon reasonable notice
by Care Group or Commonwealth to Newco, Care Group or Commonwealth or their
agents s hall be entitled, during regular business hours, to have access to and
make copies, at its own cost, of all records pertaining to the operation of the
CHHA prior to the Closing for any lawful corporate purpose.
Section 9.04. EMPLOYMENT
Employees of Conunonwealth who are employed by Newco after the
Closing shall be employed on such individual terms as are established by Newco
for such employees, and shall be subject to termination in accordance with the
personnel policies of Newco.
Section 9.05. LEASE
VNS shall lease office space to Con-unonwealth for the CHHA
from the date hereof to the Closing Date or earlier termination of this
Agreement pursuant to a sublease agreement in the form attached hereto as
Schedule 9.05
ARTICLE X
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CERTAIN ADDITIONAL COVENANTS
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Section 10.01. EXPENSES
Except as expressly set forth herein, each party will bear the
legal, accounting i and ot her expenses incurred by such party in connection
with this Agreement and the other agreements and transactions contemplated
hereby.
Section 10.02. BROKERAGE
Each party represents and warrants to the other that no person
or persons assisted in or brought about the negotiation of this Agreement in the
capacity of broker, fmder, or originator on behalf of it. Each party agrees to
indemnify and hold hannless the other party from any claim asserted against such
other party for a brokerage or finder's or originator's commission or
compensation in respect of the transactions contemplated by this Agreement.
Section 10.03. FURTHER ASSURANCE
From time to time after the Closing, upon reasonable notice
and without further consideration, Care Group and Commonwealth shall execute,
acknowledge and deliver all such other instruments of sale, assignment,
conveyance and transfer and shall take all such other action as may be required
by VNS and/or Newco, in their reasonable discretion, for the consummation of the
transactions contemplated hereby and to more effectively transfer to and vest
in, and to put Newco in possession of, the Designated Assets, free and clear of
any and all liens or encumbrances except as otherwise permitted by this
Agreemem. Care Group and Commonwealth shall use their best efforts to secure and
to assist VNS in securing any consent or waiver from any person, entity or
Governmental Authority, including the Establishment Approval, which may be
reasonably required for the consummation of the transactions contemplated hereby
and for the operation of the CHHA by Newco.
Section 10.04. ESTABLISHMENT APPROVAL
VNS agrees to apply for Establishment Approval as soon as
reasonably possible following the execution and delivery of this Agreement and
to use its best efforts to obtain such approval. Care Group and Commonwealth
agree to participate and assist VNS in any manner reasonably required in the
application for Establishment Approval.
Section 10.05. CONFIDENTIALITY
The partie s agree that they will not, without the prior
written consent of the other party hereto, issue, give or make any press
release, notification or disclosure to any third party or to the public, in each
case relating to this Agreement or any of the terms or conditions hereof or any
of the transactions contemplated hereby, except as required to perform the
obligations of the parties hereunder, including obtaining any consent or
approval required by this Agreement, until the Closing or earlier termination of
this Agreement, or as required by law.
ARTICLE XI
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INDEMNIFICATION
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Section 11.01. VNS INDEMNITY
(a) VNS shall and hereby does agree to indemnify and hold Care
Group and Commonwealth harmless from and against any and afl loss, damage and
expense incurred by Care Group or Commonwealth, arising out of, attributable to,
or in connection with:
(i) Any matter in respect of which VNS shall
have made any misrepresentation, breached
any warranty, or failed to fulfill any
covenant or agreement on the part of VNS or
Newco contained in this Agreement, or in any
list or certificate or other document
delivered or to be delivered, by VNS or
Newco to Care Group or Commonwealth in
connection with this Agreement;
(ii) Any and all liabilities relating to the
operation of the CHHA which relate to
services provided or events occurring
subsequent to the Closing Date; and
(iii) Any and all actions, suits, proceedings,
demands, assessments or judgments, costs and
expenses (including reasonable legal and
accounting fees and investigation costs)
incident to the foregoing and the
enforcement thereof.
(b) Subject to the notice of claim provisions set forth in
Section 11.03 of this Agreement, the provisions of Section 11.01(a) shall not be
deemed to be an election of remedies, but shall be in addition to any other
remedy or remedies, at law or in equity, to which Care Group or Commonwealth may
be otherwise entitled.
Section 11.02. INDEMNITY OF CARE GROUP AND COMMONWEALTH
(a) Care Group and Commonwealth shall and hereby do agree to
indemnify and hold VNS and Newco hanriless from and against any and all loss,
damage and expense incurred by VNS and/or Newco, arising out of, attributable
to, or in connection with:
(i) Any matter in respect of which Care Group or
Commonwealth shall have made any
misrepresentation, breached any warranty, or
failed to fulfill any covenant or agreement
on the part of Care Group or Commonwealth
contained in this Agreement, or in any list
or certificate or other document delivered
or to be delivered, by Care Group or
Commonwealth to VNS or Newco in connection
with this Agreement;
(ii) Any and all liabilities of Care Group or
Commonwealth of any nature, and whenever
asserted, relating to the operation of the
CHHA which relate to services provided or
events occurring on or before the Closing
Date; and
(iii) Any and all actions, suits, proceedings,
demands, assessments or judgments, costs and
expenses (including reasonable legal and
accounting fees and investigation costs)
incident to the foregoing and the
enforcement thereof.
(b) Subject to the notice of claim provisions set forth in
Section 11.03 of this Agreement, the provisions of Section 11.02(a) shall not be
deemed to be an election of remedies, but shall be in addition to any other
remedy or remedies, at law or in equity, to which VNS and/or Newco may be
otherwise entitled.
Section 11.03. NOTICE OF CLAIMS
The party seeking indemnification shall give the party from
whom the indemnification is sought notice of any claim of which it has knowledge
and as to which it is entitled to indemnification. The indemnifying party shall
defend any actions or proceedings by counsel of its own choosing and at its own
expense, and in such case the party seeking indemnification shall cooperate in
such defenses to the fullest reasonable extent requested, and shall not settle,
compromise or otherwise adversely affect the interests of the indemnifying party
in respect of the foregoing.
Section 11.04. SURVIVAL
The obligations of the parties under this Article XI shall
survive the Closing or any termination.of this Agreement.
ARTICLE XII
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MISCELLANEOUS
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Section 12.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of the parties hereto made
in this Agreement shall survive the Closing, and shall not be affected by any
information furnished to, or any investigation conducted by, either of them or
their representatives in connection with the subject matter of this Agreement.
Section 12.02. AMENDMENT
This Agreement may be amended only by a writing executed by
the parties hereto that refers to this Agreement.
Section 12.03. ENTIRE AGREEMENT
This Agreement and the other agreements expressly referred to
herein contain the entire understanding of the parties hereto and supersede all
prior contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written, between the parties.
Section 12.04. NOTICE
Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given when sent by hand or by certified mail, return receipt requested, postage
prepaid, to the parties at the respective addresses set forth below:
TO CARE GROUP AND
COMMONWEALTH: The Care Group, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Mr. Xxxxxxx Xxxxx,
President and Chief Executive
Officer
TO VNS: Visiting Nurse Service of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx. Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxx,
Administrator
WITH A COPY TO: Visiting Nurse Service of New York
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Vice President for Legal/
Government Affairs
Either party by written notice to the other may change the
address or the person to whom notices or copies thereof shall be directed.
Section 12.05. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of which together will
constitute one and the same instrument.
Section 12.06. BINDING NATURE
This Agreement shall be binding upon and inure to the benefit
of the successors and permitted assigns of each party hereto. No rights,
obligations or liabilities hereunder shall be assignable by any party without
the prior written consent of the other party, except that VNS shall be entitled
to assign its rights and obligations under this A greement to Newco or any other
entity affiliated with VNS without the consent of Care Group or Commonwealth.
Section 12.07. WAIVERS OF BREACH
No waiver by any party of the violation of, breach or a
default under, any provision of this Agreement or any other agreements provided
for herein by the other party shall be construed as or constitute a continuing
waiver of such provision or a waiver of any other violation of, breach or a
default under, any provisions of this Agreement or any other agreements provided
for herein.
Section 12.08. TERMINATION
(a) This Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing:
(i) By mutual consent of Care Group and VNS; or
(ii) By either VNS or Care Group if VNS has not
obtained Establishment Approval by June 30,
1999.
(iii) By VNS in the event that either Care Group
or Commonwealth (A) becomes the subject of a
proceeding under any Federal, State or
foreign bankruptcy, insolvency, receivership
or similar law, consents to the institution
of or fails to contest in a timely and
appropriate manner any such proceeding, (C)
applies for or consents to the appointment
of a receiver, trustee, custodian or similar
official for such corporation or for any
substantial part of its assets, (D) makes a
general assignment for the benefit of the
creditors, or (E) admits in writing its
inability or failure generally to pay its
debts as they become due.
(b) In the event of the termination of this Agreement pursuant
to the provisions of this Section 12.08, this Agreement shall become void and
have no effect, without any obligations on the part of either party to the
other.
Section 12.09. EFFECT OF HEADINGS
The subject headings of the articles and sections of this
Agreement are included for purposes of convenience only and shall not affect the
construction or interpretation of this Agreement.
Section 12.10. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Section 12.11. NO THIRD PARTY BENEFICIARIES
None of the provisions of this Agreement are or shall be
construed as being for the benefit of, or enforceable by, any creditors of Care
Group, Commonwealth, VNS or by any person not a party to this Agreement.
Section 12.12. BANKRUPTCY OF CARE GROUP
The parties hereto agree that the effective date of this
Agreement is subject to the approval of The Bankruptcy Court in which the
Petition of Care Group and its subsidiaries has been filed.
IN WITNESS WHEREOF, the duly authorized representatives of the
parties have executed this Agreement as of the day and year first written above.
THE CARE GROUP, INC. COMMONWEALTH CERTIFIED
HOME CARE, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxx
President and Chief Executive Officer
VISITING NURSE SERVICE
OF NEW YORK HOME CARE
By:/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Administrator
