EXHIBIT 2.18
ASSET PURCHASE AGREEMENT
among
AMEDISYS SURGERY CENTERS, LC
a Texas Limited Liability Company
and
PERMIAN SURGICAL CENTER, INC.
dba
TANGLEWOOD SURGERY CENTER
a Texas Corporation
Dated as of October 23, 1998
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TABLE OF CONTENTS
Page No.
ARTICLE I
PURCHASE OF ASSETS................... 1
1.1 Assets To Be Acquired............................... 1
1.2 Employees........................................... 3
ARTICLE II
PURCHASE PRICE.................... 3
2.1 Payment of Purchase Price........................... 3
ARTICLE III
CLOSING........................ 3
3.1 Closing............................................. 3
ARTICLE IV
4.1 Representations of PURCHASER........................ 4
4.2 Representations of SELLER........................... 5
ARTICLE V
COVENANTS....................... 10
5.1 Covenants of SELLER................................. 10
5.1.1 Existence and Rights................................ 10
5.1.2 Consents............................................ 10
5.1.3 Closing Documents................................... 11
5.2 Covenants and Agreements of PURCHASER............... 11
5.3 Mutual Covenants and Agreements..................... 11
5.4 Forwarding of SELLER's Collected Receivables........ 13
5.5 Forwarding of Telephone Calls....................... 13
5.6 Risk of Loss........................................ 13
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS.......... 14
6.1 Conditions to SELLER's Obligations.................. 14
6.2 Conditions to Obligations of PURCHASER.............. 15
ARTICLE VII
BULK SALES COMPLIANCE................. 17
7.1 Bulk Sales Compliance............................... 17
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ARTICLE VIII
INDEMNIFICATION................... 17
8.1 Indemnification by SELLER........................... 17
8.3 Indemnification by PURCHASER........................ 17
8.5 Procedure for Indemnification....................... 18
ARTICLE IX
MISCELLANEOUS..................... 19
9.1 Notices............................................. 19
9.2 Captions............................................ 19
9.3 Waivers............................................. 20
9.4 No Third-Party Beneficiaries........................ 20
9.5 Counterparts........................................ 20
9.6 Severability........................................ 20
9.7 Remedies of PURCHASER............................... 20
9.8 Governing Law....................................... 20
9.9 Attorneys' Fees..................................... 20
SCHEDULES
------------------
Schedule 1.1(b) - September 30, 1998 Balance Sheet
Schedule 1.1(c) - Machinery and Equipment
Schedule 1.1(d) - Supplies and Inventory
Schedule 1.1(e) - Licenses and Permits
Schedule 1.1(f) - Contracts
Schedule 1.1(g) - Personal Property Leases, Sub Leases
and Assignments
Schedule 1.1(h) - Real Property Leases
Schedule 1.1(k) - Manuals and Marketing Materials
Schedule 1.2 - Employee Benefits
Schedule 2.1(c) - Term Note
Schedule 2.1(d) - Guaranty
Schedule 2.1(e) - Security Agreement
Schedule 4.2(b) - Governmental Consents
Schedule 4.2(i) - Hazardous Materials
Schedule 4.2(l) - Physician Utilization
Schedule 4.2(n) - Litigation
Schedule 4.2(p) - Employees
Schedule 5.5(a) - Xxxx of Sale
Schedule 5.5(b) - Assignment of Contracts
Schedule 5.5(c) - Assignment of Leases
Exhibit A - Promissory Note
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made by and among
[Permian Surgical Center, Inc. a Texas corporation] doing business as Tanglewood
Surgery Center, ("SELLER"), and Amedisys Surgery Centers, LC., a Texas limited
liability company ("PURCHASER").
RECITALS
WHEREAS, SELLER owns and operates an outpatient ambulatory surgery
center known as Tanglewood Surgery Center located at 0000 Xxxxxxxxxx, Xxxxxx,
Xxxxx 00000 (the "Surgery Center").
WHEREAS, PURCHASER is a Texas limited liability company formed for the
purpose of acquiring and operating an ambulatory surgery center;
WHEREAS, PURCHASER is willing to buy and SELLER is willing to sell
upon the terms and conditions as hereinafter set forth certain assets of the
Surgery Center;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF ASSETS
1.1 Assets To Be Acquired. Subject to the terms of this Agreement, SELLER
shall transfer to PURCHASER on the Closing Date (as hereinafter defined) all
right, title and interest of SELLER, in and to the following to the extent and
only to the extent assignable:
(a) All accounts receivable set forth on the October 31, 1998
balance sheet of the Surgery Center.
(b) The prepaid items listed on the SELLER's Balance Sheet dated
October 31, 1998, (the "Balance Sheet") attached hereto as Schedule 1.1(b) and
made a part hereof.
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(c) The machinery and equipment listed on Schedule 1.1(c) attached
hereto and made a part hereof (collectively the "Equipment").
(d) The supplies and inventory listed on Schedule 1.1(d) attached
hereto and made a part hereof.
(e) The regulatory licenses, approvals and registrations listed on
Schedule 1.1(e) attached hereto and make a part hereof to the extent assignable
by seller.
(f) The contracts listed on Schedule 1.1(f) attached hereto and made a
part hereof (collectively the "Contracts"). Copies of the written contracts
listed on Schedule 1.1(f) are collectively attached hereto as Schedule 1.1(f)(A)
and made a part hereof.
(g) The leases listed on Schedule 1.1(g) attached hereto and made a
part hereof (collectively the "Leases").
(h) The customer lists and vendor lists delivered on the Closing Date
(as hereinafter defined) by SELLER to PURCHASER.
(i) The marketing materials, training materials, office and reference
manuals listed on Schedule 1.1(k) attached hereto and made a part hereof.
(j) All goodwill associated with the Surgery Center.
It is the intention of the parties that all of the assets, properties, and
rights of SELLER used in and reasonably necessary to conduct the Surgery Center
business, as of the Effective Date (as defined herein), be transferred and
conveyed to PURCHASER pursuant to this Agreement. To the extent that any such
asset, property and rights of SELLER are not specifically identified above,
SELLER shall execute and deliver such other documents and instruments and take
such other action as PURCHASER shall reasonably request to transfer and convey
such assets, properties and rights to PURCHASER.
All of the foregoing assets specified in sub-paragraphs 1.1(a) through
1.1(k) inclusive are sometimes collectively referred to as the "Assets".
PURCHASER is not assuming any liability for any obligations of SELLER
except as specifically provided herein.
1.2 Employees. It is understood and agreed that the employees of
the Surgery Center Business will continue as employees of SELLER through the
Effective Date at which time they will be
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discharged by SELLER. PURCHASER may hire all or some of such employees following
the Effective Date.
ARTICLE II
PURCHASE PRICE
2.1 Payment of Purchase Price. The total aggregate purchase price
for the Assets to be transferred to PURCHASER shall be $500,000 (the "Purchase
Price") payable as follows:
a. The sum of $50,000 payable in cash in the form of a check at the
Closing.
b. The sum of $50,000 in the form of a promissory note payable to SELLER
included herein as Exhibit A;
c. The sum of $400,000 in the form of a purchase note Payable to SELLER
included herein as Exhibit B;
ARTICLE III
CLOSING
3.1 Closing. The closing (the "Closing" or "Closing Date") of the
purchase and sale of the assets and the transactions contemplated by this
Agreement shall occur on October 23, 1998, at 5:00 p.m. at the Surgery Center or
at such other time and/or place as may be mutually agreed by the parties to this
Agreement. Regardless of when Closing occurs, it shall be effective as of 6:00
a.m. on November 1, 1998 (the "Effective Date") and SELLER and PURCHASER agree
to acknowledge and use the Effective Date for all purposes, including accounting
and federal and state tax reporting purposes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations of PURCHASER In addition to any other
representations and warranties of PURCHASER made in this Agreement, PURCHASER
further represents and warrants to SELLER as follows:
(a) Corporate Existence. PURCHASER is presently and will be on the
Closing Date, a limited liability company duly organized,
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validly existing and in good standing under the laws of the State of Texas with
full power and authority to purchase the Assets.
(b) Governmental Consents. No consent or approval by any governmental
authority is or will be required in connection with the execution, delivery and
performance of this Agreement by PURCHASER or the consummation by PURCHASER of
the transactions contemplated in this Agreement.
(c) Full Disclosure. No representation or warranty by PURCHASER in this
Agreement or any statement or instrument furnished, or to be furnished, by any
of them to SELLER pursuant hereto or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to prevent any
such statement from becoming inaccurate, misleading, erroneous or untrue.
(d) Brokerage. PURCHASER has not entered into any agreement with any
individual or entity for the payment of any commission, brokerage, finders or
other fee in connection with the execution of this Agreement or the transactions
contemplated hereunder.
(e) No Disability. As of the date of this Agreement, PURCHASER is not
and will not be under any legal disability to enter into and perform this
Agreement and, at all times from the date of this Agreement until the Closing,
PURCHASER shall have the full power and authority to perform all of its
respective obligations under this Agreement.
(f) Authority Relative to this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and effectively authorized by PURCHASER and
the members of PURCHASER and this Agreement, together with each schedule
attached hereto, is valid, legally binding and enforceable against PURCHASER in
accordance with its terms and their terms.
(g) No Insolvency. The purchase of the Assets shall not render
PURCHASER insolvent.
All of the representations, warranties, agreements, and obligations of
PURCHASER as set forth in this Agreement and the foregoing paragraphs are deemed
to be continuing and shall survive the Closing of this transaction and shall be
true as of the Closing Date.
4.2 Representations of SELLER. In addition to any other representations
and warranties of SELLER made in this Agreement, as
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set forth herein, SELLER further represents and warrants to PURCHASER as
follows:
(a) Assets. To the best of SELLER's knowledge and belief in good operating
condition and in reasonable repair, free and clear from any known defects,
except such minor defects as do not interfere with continued use thereof.
(b) Ownership. Seller is the beneficial owner of the Assets and has good
and marketable title to and the absolute right to sell, assign, and transfer the
Assets to Purchaser, free and clear of any interests, security interest, claims,
liens, pledges, penalties, charges, encumbrances, buy-sell agreements, or other
rights of any party whatsoever of every kind and character by, through, or under
seller. Upon delivery of and payment of the purchase price in accordance with
this Agreement, good and marketable title thereto shall be delivered to
Purchaser, free and clear of any interest, security interest, claims, liens,
pledges, penalties, charges, encumbrances, buy-sell agreements, or other rights
of any party whatsoever claiming by, through, or under seller.
(c) Governmental Consents. No consent or approval by any governmental
authority is or will be required in connection with the execution, delivery and
performance of this Agreement by SELLER or the consummation by SELLER of the
transactions contemplated herein except with respect to the transfer of the
regulatory licenses, approvals and registrations listed on Schedule 4.2(b)
attached hereto.
(d) Full Disclosure. No representation or warranty by SELLER in this
Agreement or any statement of instrument furnished, or to be furnished, by
SELLER to PURCHASER pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact presently known to seller
necessary to prevent any such statement from becoming inaccurate, misleading,
erroneous or untrue.
(e) Existence. SELLER is presently and will be on the Closing Date a
corporation duly organized, validly existing and in good standing under the laws
of the State of Texas with full power and authority to own, manage, operate,
encumber, transfer, sell and lease its properties.
(f) Insurance. SELLER shall maintain in full force and effect until
the Closing, at its sole cost and expense, all insurance policies covering the
Assets. SELLER shall also obtain at its expense, "tail" or "previous acts"
malpractice insurance coverage for any potential claims for pre-Effective Date
business conducted by SELLER.
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(g) No Disability. As of the date of this Agreement and as of the
Closing Date, SELLER is not and will not be under legal disability to enter into
and perform this Agreement and, at all times from the date of this Agreement
until the Closing, SELLER shall have the full power and authority to perform all
of its respective obligations under this Agreement.
(h) Brokerage. SELLER has not entered into any agreement with any
individual or entity for the payment of any commission, brokerage, finders or
other fee in connection with the execution of this Agreement or the transactions
contemplated hereunder.
(i) Authority Relative to this Agreement. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and effectively authorized by the Board of
Directors of SELLER and the shareholders of SELLER and this Agreement, together
with each schedule attached hereto, is valid, legally binding and enforceable
against SELLER in accordance with its terms and their terms.
(j) Compliance With Law. SELLER believes that it has conducted the
business of the Surgery Center in compliance in all material respects with all
applicable federal, state and local laws, statutes, licensing requirements,
rules and regulations, and judicial or administrative decisions applicable to
the Surgery Center bus iness, including without limitation, all laws, statutes,
licensing requirements, rules and regulations and decisions applicable to the
Surgery Center business (i) regarding the disposal of its medical waste; (ii)
regarding Medicare and Medicaid fraud and abuse. SELLER contracts with
Biomedical Waste Systems for disposal of its medical waste.
No enforcement action, litigation or other proceedings or claims has been
brought or, to the best knowledge of SELLER, threatened against SELLER during
the period that SELLER has owned the property at 0000 Xxxxxxxxxx, Xxxxxx, Xxxxx
(the "Property") alleging use of any Hazardous Materials on, from or under the
Property. Schedule 4.2(i) sets forth a list of all environmental reports
relating to the Surgery Center Business prepared by, for or on behalf of SELLER,
and SELLER has delivered or made available true and complete copies of all such
reports to PURCHASER.
For purposes of this Agreement, the following terms shall have the
following meanings:
"Hazardous Materials" means any and all flammable, corrosive or
ignitable materials, explosives, petroleum or petroleum by-products,
asbestos, radioactive materials, hazardous waste, toxic substances or
related materials, to the extent those materials and substances are
defined as "hazardous substances," "hazardous materials,"
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"hazardous wastes" or "toxic substances" in, or are otherwise governed
by, the Environmental Laws, but shall expressly include those materials
excluded by 42 U.S.C. Section 9601(14).
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.;
the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; the Hazardous
Materials Transpor tation Act, 49 U.S.C. Section 1801 et seq.; the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.;
the Federal Clean Water Act, 33 U.S.C. Section 1251 et seq.; the Xxxxxx-
Cologne Water Quality Act; including all amendments thereto,
replacements thereof, and regulations and publications promulgated
pursuant thereto and any other federal, state or local law, rule or
regulation relating to the environment (including the work place) or
regulating the use of Hazardous Materials to the extent the same are
applicable to SELLER or the Property.
(k) Medicare and Medicaid. The SELLER is licensed by the Texas Department
of Health to operate the Surgery Center as an ambulatory surgery center, and the
Surgery Center is certified and qualifies for reimbursement under Medicare and
Medicaid as an ambulatory surgery center.
(l) Contracts and Commitments. There are no material contracts,
commitments, leases, permits, and other instruments binding upon SELLER with
respect to the Surgery Center business, including, without limitation, any
agreements or arrangements (written or oral) granting any person the right to
purchase, use or occupy the premises used in connection with the Surgery Center
business, except as set forth in Schedules 1(f), and (g).
To the best of SELLER's knowledge, (i) all of the contracts, and leases
listed on Schedules 1.1(f) and 1.1(g) are in full force and effect and are
valid, binding and enforceable in accordance with their respective provisions;
(ii) SELLER is not in default of any contract or lease listed on Schedule 1.1(f)
and Schedule 1.1(g), nor has there occurred an event or condition which, with
the passage of time or giving of notice (or both), would constitute a default
with respect to the payment or performance of any obligation thereunder; and no
claim of such a default has been asserted and there is no basis upon which such
a claim could validly be made. No notice has been received by SELLER claiming
any such default or indicating the desire or intention of any other party
thereto to amend, modify, rescind or terminate the same.
(m) Financial and Operating Information
(i) To the best of seller's knowledge, based on information and
belief, Schedule 4.2(l) contains a complete
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and accurate chart setting forth the physician utilization of the Surgery Center
for 1997 and for the months of January through September of 1998.
(ii) SELLER has heretofore delivered to PURCHASER the following
financial statements: (i) a balance sheet as of September 30, 1998, (ii) an
income statement as of September 30, 1998, and (iii) an income statement for
each month in 1998, (collectively, the "Financial Statements"). The Financial
Statements (i) are in accordance with the books and records of SELLER, (ii) have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby and (iii) fairly and
accurately present the assets, liabilities (including all reserves) and
financial position of SELLER as of the date thereof and the results of
operations for the periods then ended. As of the September 30, 1998 balance
sheet, there were no liabilities of SELLER which, in accordance with generally
accepted accounting principles, should have been shown on such balance sheet.
(n) Absence of Certain Changes and Events. Since September 30, 1998, there
has not been any material adverse change in the financial condition assets,
liabilities, business or prospects of SELLER or any occurrence, circumstance, or
combination thereof which reasonably could be expected to result in any such
adverse change which would directly effect the transactions herein;
(o) Litigation. Except as set forth on Schedule 4.2(n) there is no action,
order, writ, injunction, judgment or decree outstanding or any claim,
litigation, proceeding, labor dispute, arbitral action, governmental audit or
investigation (collectively "Actions") pending or, to the best knowledge of
SELLER, threatened or anticipated (i) against, related to or affecting the
Assets (ii) seeking to delay, limit or enjoin the transactions contemplated by
this Agreement; or (iii) in which SELLER is a plaintiff. SELLER is not subject
to any judgment, order, writ, injunction or decree of any court or governmental
agency, and there is no unsatisfied judgments against the SELLER.
(p) Taxes. All taxes, including, without limitation, income, property,
sales, use, franchise, value added, employees, income withholding, social
security and other employee-related taxes, imposed by the United States, by any
state, municipality, other local government or other subdivision or
instrumentality of the United States, or by any foreign country or any state or
other government thereof, or by any other taxing authority, that are due and
payable by SELLER and all interest and penalties thereon, whether disputed or
not (collectively, "Taxes"), and which would result in the imposition of a lien,
claim, or encumbrance on the Assets, or other than Taxes which are not yet due
and payable, have been paid in full or contested in appropriate proceedings, all
tax returns required to be filed in connection therewith have been accurately
prepared and duly and
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timely filed and all deposits required by law to be made by SELLER with respect
to employees' withholding or other Taxes have been duly made. SELLER is not
delinquent in the payment of any Taxes, assessment or governmental charge or
deposits which would result in the imposition of a lien, claim or encumbrance on
the Assets and SELLER has no Taxes, deficiency or claim outstanding, proposed or
assessed against it, and to the best of SELLER's knowledge and belief there is
no basis for any such deficiency or claim, which would result in the imposition
of any lien, claim or encumbrances on the Assets.
(q) Labor Relations. As set Forth in Schedule 4.2(p), attached hereto, is a
complete list of all employees of SELLER and with respect to each such employee,
each employee's: (i) hire date; (ii) current wage or salary; (iii) age; and
(iv) social security number.
(r) Seller's Relationships. To the best of SELLER's knowledge and belief,
neither SELLER nor any person having any direct or indirect equity interest in
SELLER, has any material financial interest or other relationship, direct or
indirect, in any supplier of SELLER, any party to any contract which is material
to the Surgery Center business, or with any employee of the SELLER or any
physician practicing or performing services at the Surgery Center other than
Xxxxx Xxxxxx, M.D.
(s) No Other Agreements to Sell the Assets. Neither SELLER nor any of its
officers, employers or affiliates have any commitment or obligation, absolute or
contingent, to any other person or firm other than PURCHASER to, directly or
indirectly, sell, assign, transfer, or effect a sale of the Assets, to effect
any liquidation, dissolution or other reorganization of SELLER.
(t) Books and Records. SELLER has made and kept and given PURCHASER, and
PURCHASER's representatives, access to books and records which, in reasonable
detail, accurately and fairly reflect the activities of the Surgery Center.
ARTICLE V
COVENANTS
5.1 COVENANTS OF SELLER. SELLER covenants and agrees that it will comply
with each of the covenants and agreements set forth in paragraph 5.2, the
fulfillment of each of which shall constitute a condition precedent to
PURCHASER'S obligations to purchase the Assets at the Closing.
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5.2. EXISTENCE AND RIGHTS. Between the date hereof and the Closing
Date, SELLER will take all necessary actions to keep in full force and effect
its existence. During the period from the date hereof to the Effective Date,
SELLER shall not, without the written consent of the PURCHASER, which consent
shall not be unreasonably withheld;
(a) Enter into any material transaction not in the ordinary course of
business except as contemplated by or provided for in this Agreement or
which would prevent SELLER from fulfilling its obligations under this
Agreement.
(b) Mortgage, pledge or voluntarily subject to lien or other
encumbrance any of the Assets; and SELLER shall promptly notify
PURCHASER in writing of any lien or encumbrance created against any of
the Assets of SELLER of which SELLER becomes aware.
(c) Sell or transfer any of the Assets.
5.1.2 Consents. SELLER shall use its best efforts to procure all
consents, approvals or waivers which must be obtained by SELLER and which are
necessary for completion of the transactions described herein, including using
all reasonable efforts to obtain all required consents of any governmental
agency or body issuing any permits, licenses or other governmental
authorizations affecting SELLER.
5.1.3 Closing Documents. SELLER shall cause the following documents
to be delivered to PURCHASER at or before the Closing:
(a) The Assignment and Xxxx of Sale, executed by SELLER in
substantially the form of Schedule 5.5(a) attached hereto and made a part
hereof.
(b) The Assignments of Contracts, in substantially the form of
Schedule 5.5(b) attached hereto and made a part hereof.
(c) The Assignments of Leases, in substantially the form of Schedule
5.5(c) attached hereto and made a part hereof.
5.2 COVENANTS AND AGREEMENTS OF PURCHASER. PURCHASER covenants and agrees
that it will comply with each of the covenants and agreements set forth in this
paragraph 5.2, the fulfillment of each of which shall constitute a condition
precedent to SELLER's obligations to sell the Assets at the Closing.
(a) Consents. PURCHASER agrees to use its best efforts to procure
all necessary consents, approvals, or waivers which must be
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obtained by PURCHASER or are necessary for completion of the transactions
described herein on or prior to the Closing.
5.3 MUTUAL COVENANTS AND AGREEMENTS. PURCHASER, and SELLER mutually agree
as follows:
(a) Allocation of the Total Aggregate Purchase Price. The parties
shall on or before the Closing Date allocate the Total Aggregate Purchase Price
to the Assets in accordance with Section 1060 of the Internal Revenue Code of
1986, as amended, (the "Code") and the regulations thereunder and each shall
timely file with the Secretary of the Treasury and information required to be
furnished thereunder.
(b) Accounting and Attorneys Fees. PURCHASER, and SELLER shall each
pay their own respective expenses including, but not limited to, appraisal,
legal and accounting fees attendant or incidental to the negotiation,
preparation and Closing of the transactions contemplated by this Agreement.
(c) Computation of Time. Any time period to be computed pursuant to
this Agreement shall be computed by the number of days stipulated, excluding the
first and including the last day of such period.
(d) Retention of Liabilities. SELLER shall retain and be responsible
for (i) any debts, obligations or liabilities whether actual or contingent,
known or unknown arising out of medical malpractice or products liability, and
related claims made by or on behalf of patients of the Surgery Center to the
extent that such claims arise out of actions or omissions occurring prior on or
prior to the Effective Date; (ii) any debts, obligations or liabilities of
SELLER or any person or entity affiliated with SELLER arising as the result of
the termination by SELLER prior to the Effective Date of any contract whether or
not listed in Schedule 1.1(f), nor shall PURCHASER be required to defend any
suit or claim arising out of any act, omission or transaction by SELLER or any
person or entity affiliated with SELLER regardless of whether any such liability
or obligation corresponds to any Assets purchased by PURCHASER under this
Agreement; (iii) termination payments, severance benefits or other amounts
payable (except for vacation and sick leave amounts for employees of SELLER as
are scheduled on Schedule 1.2 hereto which will be borne by PURCHASER) to
employees of SELLER under SELLER's employment contracts, compensation plans or
severance policies or as required by applicable law or regulation; and (iv)
obligations and liabilities relating to the Surgery Center business which were
incurred during the period from the date of the last financial statements
delivered to PURCHASER and the Closing Date outside the ordinary course of the
Surgery Center business (collectively,
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"Retained Liabilities"). PURCHASER shall not assume, or otherwise be responsible
for, any Retained Liabilities.
(e) Survival of Warranties and Representations. Unless otherwise
specifically provided to the contrary or unless the text of this Agreement
clearly dictates otherwise, each of the covenants and agreements of the parties
hereto shall survive the Closing of this transaction and delivery of all Closing
documents and shall be fully enforceable against the party or parties sought to
be charged with any breach hereof for a period of forty-eight (48) months from
the Closing.
(f) Taxes. SELLER shall pay when due all ad-valorem property taxes
for the Assets from January 1 to the Effective Date, and for the year 1997 and
prior years. PURCHASER shall pay when due all ad-valorem property taxes from
the Effective Date and all subsequent years.
(g) Time of the Essence. The parties hereto declare that time shall
be of the essence in the performance of this Agreement and the terms and
conditions set forth herein.
(h) Condition of Assets. PURCHASER and SELLER acknowledge the Assets
to be transferred at the Closing are transferred "AS IS" and "WHERE IS", with no
warranties of any kind except for the warranty of title by, through, or under
seller and with a warranty of quantity with respect to and only with respect to
the items set forth on Schedules 1.1(c) and 1.1(d) SELLER DOES HEREBY DISCLAIM
ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
PURCHASER acknowledges that on or prior to the Closing Date it has had an
opportunity to inspect the Assets.
(i) Entire Agreement. This Agreement sets forth the entire
understanding and agreement between the parties pertaining to the sale of the
Assets and shall be binding upon the parties, their subsidiaries, affiliates,
successors and permitted assigns. All prior negotiations, agreements and
understandings as to the transactions contemplated in this Agreement are
superseded hereby. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
(j) Conflict of Interest. This Agreement has been prepared by counsel
representing PURCHASER in the transactions contemplated by this Agreement.
Seller was represented by independent counsel.
5.4 THIS SECTION INTENTIONALLY OMITTED
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5.5 Forwarding of Telephone Calls. PURCHASER shall refer to SELLER all
telephone calls pertinent to SELLER received by PURCHASER after the Closing
Date.
5.6 Risk of Loss. The risk of loss of, or damage to, the Assets shall be
upon SELLER until the date and time of the Closing. If any portion of the Assets
with a value in the aggregate of $15,000.00 or less, based on the net book value
of the Assets as reflected on the books of SELLER, are partially or totally
damaged or destroyed prior to the date and time of the Closing, PURCHASER shall
continue under this Agreement and receive the proceeds of any insurance payable
in connection with said damage or destruction. In the event any of the Assets
valued in excess of $15,000.00 shall be damaged or destroyed, SELLER shall
immediately and with forty-eight (48) hours thereafter notify PURCHASER thereof
in writing and PURCHASER shall have the option upon written notice to SELLER to
(i) terminate this Agreement and thereafter the same shall be null and void and
each party released and discharged from any liability hereunder, or (ii)
PURCHASER may elect to continue under this Agreement and receive the proceeds of
any insurance payable in connection with said damage or destruction.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
6.1 Conditions to SELLER's Obligations. The obligations of SELLER to make
the deliveries contemplated at the Closing shall, in addition to conditions set
forth elsewhere herein, be subject to the satisfactory completion on or prior to
the Closing Date of each of the following conditions, any of which may be waived
by SELLER:
(a) Corporate Existence. PURCHASER shall have furnished to SELLER,
on the Closing Date, (i) a Certificate of Corporate Existence issued by the
Office of the Secretary of State of Texas, dated not more than thirty (30) days
prior thereto, setting forth that PURCHASER is duly organized under the laws of
the State of Texas, and (ii) a Certificate of Good Standing issued by the
Office of the Comptroller of the State of Texas, dated not more than sixty (60)
days prior thereto, setting forth that PURCHASER is in good standing under the
laws of the State of Texas.
(b) PURCHASER's Corporate Authority. PURCHASER shall have furnished
to SELLER on or before the Closing Date, a copy of a corporate resolution duly
adopted by the members of PURCHASER, authorizing the purchase of the Assets from
SELLER pursuant to the terms and conditions of this Agreement, including,
without limitation, authorization for the execution and delivery by PURCHASER
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to SELLER of this Agreement, which copy shall be duly certified by the Secretary
of the PURCHASER and otherwise be in form and content satisfactory to counsel
for SELLER.
(c) Correctness of Representations and Warranties. All the
representations and warranties of PURCHASER, in this Agreement shall be true and
complete in all respects on the Closing Date as though such representations and
warranties were made on said date.
(f) Performance of Covenants and Agreements. All covenants and
agreements of PURCHASER, contained in this Agreement and required to be
performed by PURCHASER, on or before the Closing Date shall have been performed
in all material respects.
(g) Closing Documents. PURCHASER shall have furnished to SELLER, at
the Closing, all documents required to be furnished to SELLER by PURCHASER,
under the terms of this Agreement.
(h) Additional Closing Documents. PURCHASER shall have delivered to
SELLER at or prior to Closing such documents as SELLER may reasonably request to
enable SELLER to determine whether the conditions to PURCHASER's obligations
under this Agreement have been met and otherwise carry out the provisions of
this Agreement.
(i) No Legal Bar.
(a) There shall not have been instituted or threatened any legal
proceeding seeking to prohibit the consummation of the transactions contemplated
by this Agreement, or to obtain substantial damages with respect thereto.
(b) None of the parties hereto shall be prohibited by any order,
writ, injunction or decree of any governmental body of competent jurisdiction
from consummating the transactions contemplated by this Agreement, and no action
or proceeding shall then be pending which questions the validity of this
Agreement, any of the transactions contemplated hereby or any action which has
been taken by any of the parties in connection herewith or in connection with
any of the transactions contemplated hereby.
(j) Purchase Price Documents. PURCHASER shall have furnished to
SELLER all documents required by Section 2 of this Agreement.
6.2 Conditions to Obligations of PURCHASER The obligations of PURCHASER
to make the deliveries contemplated at the Closing shall, in addition to
conditions set forth elsewhere herein, be subject to the satisfactory completion
on or prior to the Closing Date of each of the following conditions, any of
which may be waived by PURCHASER:
(a) Representations, Warranties and Covenants. All
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the SELLER's representations and warranties set forth in Section 4.2 of this
Agreement shall have been true and complete in all respects on the Closing Date
as though such representations and warranties were made on said date.
(b) Consents. All consents and waivers necessary to the consummation
of the transactions contemplated hereby and for the operation of the Surgery
Center business by PURCHASER shall have been obtained.
(c) Government Licenses. Seller will assign any and all regulatory,
administrative or other governmental approvals, licenses, clearances, provider
numbers and certificates which seller has and may properly assign necessary for
the operation of the Surgery Center business, including, without limitation, all
applicable Medicare and Medicaid certifications and all approvals for
participation in the Texas Medicare and Medicaid Program. In addition, SELLER
shall have obtained reasonable assurances from the appropriate governmental
authorities that no material structural alterations to the Surgery Center
facility will be required by such governmental authorities.
(d) No Legal Bar.
(i) There shall not have been instituted or threatened any legal
proceeding seeking to prohibit the consummation of the transactions contemplated
by this Agreement, or to obtain substantial damages with respect thereto.
(ii) None of the parties hereto shall be prohibited by any order,
writ, injunction or decree of any governmental body of competent jurisdiction
from consummating the transactions contemplated by this Agreement, and no action
or proceeding shall then be pending which questions the validity of this
Agreement, any of the transactions contemplated hereby or any action which has
been taken by any of the parties in connection herewith or in connection with
any of the transactions contemplated hereby.
(e) Due Diligence(e) PURCHASER and its representatives shall have
conducted a due diligence review of SELLER's books and records, financial
statements, and other records and accounts, and in the sole discretion of
PURCHASER, PURCHASER shall be satisfied on the basis of such review that there
has been no breach of the representations and warranties or the pre-closing
covenants of SELLER made pursuant to this Agreement. Such review shall have no
effect whatsoever on the liability of SELLER to PURCHASER under this Agreement
or otherwise for breach of any representations, warranties, or covenants of
SELLER hereunder.
(f) Evidence of Title PURCHASER shall have received evidence, at or
prior to the Closing Date, satisfactory to it of
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SELLER's title to all of the Assets and right to fully convey all the Surgery
Center Assets and to assign the Facility Lease, in each case, free and clear of
any lien, encumbrances, restrictions on transfer or the like.
(g) Certificates. SELLER shall furnish PURCHASER with such
certificates of its officers and others to evidence compliance with the
conditions set forth in this Section 6.2 as may be reasonably requested by
PURCHASER.
(h) Other Documents. The Noncompetition and Confidentiality Agreement
has been executed and delivered, in each case, by all of the parties thereto.
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ARTICLE VII
BULK SALES COMPLIANCE
7.1 Bulk Sales Compliance. PURCHASER hereby waives compliance by SELLER
with the provisions of the Bulk Sales Law of any state. SELLER warrants and
agrees to pay and discharge when due all claims of creditors are asserted
against PURCHASER by reason of such noncompliance. SELLER shall indemnify and
hold PURCHASER harmless from, against and in respect of (and shall on demand
reimburse PURCHASER for) any damages suffered or incurred by PURCHASER by reason
of the failure of SELLER to pay or discharge such claims.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification by SELLER SELLER hereby agrees to indemnify,
defend and hold harmless PURCHASER and its successors and permitted assigns at
any time after the Closing from and against all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
(collectively, "Damages"), asserted against, resulting to, imposed upon or
incurred by or PURCHASER, directly or indirectly, by reason of or resulting from
(i) a breach of any agreement of SELLER contained in or made pursuant to this
Agreement and (ii) a breach by SELLER of any repre sentation or warranty to
PURCHASER contained in or made pursuant to this Agreement.
8.2 Indemnification by PURCHASER PURCHASER hereby agrees to
indemnify, defend and hold harmless SELLER, its successors and permitted assigns
at any time after the Closing, from and against all Damages asserted against,
resulting to, imposed upon or incurred by SELLER, directly or indirectly, by
reason of or resulting from (i) a breach of any agreement of PURCHASER contained
in or made pursuant to this Agreement and (ii) a breach by PURCHASER of any
representation or warranty to SELLER contained in or made pursuant to this
Agreement.
8.3 Procedure for Indemnification.
(a) In General. If PURCHASER or SELLER determines to seek
indemnification for Damages under this Article VIII (the party seeking such
indemnification hereinafter referred to as the "Indemnified Party," the party
against whom such indemnification is sought is hereinafter referred to as the
"Indemnifying Party" and the claim for which such party is seeking such
indemnification is
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hereinafter referred to as the "Indemnifiable Claim") the Indemnified Party
shall give notice (a "Claim Notice") to the Indemnifying Party as promptly as
practicable after becoming aware of any such Indemnifiable Claim or of facts
upon which any such Indemnifiable Claim will be based. The Claim Notice shall
set forth such material information with respect thereto as is then reasonably
available to the Indemnified Party.
(b) Third-Party Claims. If any lawsuit or enforcement action is
filed against any Indemnified Party, a Claim Notice shall be given to the
Indemnifying Party as promptly as practicable; provided, however, the failure of
any Indemnified Party to give timely notice shall not affect rights to
indemnification hereunder, except to the extent that the Indemnifying Party
demonstrates actual damage caused by such failure. After such notice, if the
Indemnifying Party shall acknowledge in writing to the Indemnified Party that
the Indemnifying Party shall be obligated under the terms of its indemnify
hereunder in connection with such lawsuit or action, then the Indemnifying Party
shall be entitled, if it so elects, (i) to take control of the defense and
investigation of such lawsuit or action; (ii) to employ and engage attorneys of
its own choice to handle and defend the same, at the Indemnifying Party's cost,
risk and expense unless the named parties to such action or proceeding includes
both the Indemnifying Party and the Indemnified Party and the Indemnified Party
has been advised in writing by counsel that there may be one or more legal
defenses available to such Indemnified Party that are different from or
additional to those available to the Indemnifying Party, in which case the
Indemnified Party shall also have the right to employ its own counsel in any
such case with the reasonable fees and expenses of such counsel being borne by
the Indemnifying Party; and (iii) to compromise or settle such claim, which
compromise or settlement shall be made only with the written consent of the
Indemnified Party, such consent not to be unreasonably withheld. Notwithstanding
anything in this Article VIII to the contrary, (i) if there is a reasonable
probability than an Indemnifiable Claim may materially and adversely affect the
Indemnified Party, other than as a result of money damages or other money
payments, the Indemnified Party shall have the right to participate in such
defense, compromise or settlement and the Indemnifying Party shall not, without
the Indemnified Party's written consent (which consent shall not be unreasonably
withheld), settle or compromise any Indemnifiable Claim or consent to entry of
any judgment in respect thereof unless such settlement, compromise or consent
includes as an unconditional term thereof, the giving by the claimant or the
plaintiff to the Indemnified Party a release from all liability in respect of
such Indemnifiable Claim.
If the Indemnifying Party fails to assume the defense of such claim within
fifteen (15) calendar days after receipt of the Claim Notice, the Indemnified
Party will (upon delivering such notice to such effect to the Indemnifying
Party) have the right to undertake
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the defense, compromise or settlement of such third party claim on behalf of and
for the account and risk of the Indemnifying Party.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a domestic
address by recognized overnight delivery service (e.g., Federal Express); and
upon receipt, if sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
If to SELLER, addressed to:
Xxx Xxxxxx
0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Xxxxx Xxxx Xxxxx
Xxxx, Xxxxxx & Xxxxxxxx, P.C.
0000 Xxxx 00/xx/ Xxxxxx, Xxxxx #000
Xxxxxx, XX 00000-0000
If to PURCHASER, addressed to:
Amedisys Surgery Centers, LC
0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
With a copies to:
Ambulatory Systems Development of Texas, Inc.
0000 Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxx, President
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
9.2 Captions. The Article and Section headings of this Agreement are
inserted for convenience only and shall not constitute a part of this Agreement
in construing or interpreting any provision hereof.
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9.3 Waivers. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
9.4 No Third-Party Beneficiaries. Except as otherwise expressly
provided for in this Agreement, nothing herein, expressed or implied, is
intended or shall be construed to confer upon or give to any person, firm,
corporation or legal entity, other than the parties hereto, any rights, remedies
or other benefits under or by reason of this Agreement.
9.5 Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
9.6 Severability If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
9.7 Remedies of PURCHASER. SELLER agree that the Surgery Center
Assets are unique and not otherwise readily available to PURCHASER.
Accordingly, SELLER acknowledges that, in addition to all other remedies to
which PURCHASER is entitled, PURCHASER shall have the right to enforce the terms
of this Agreement by a decree of specific performance; provided, that PURCHASER
is not in material default hereunder.
9.8 Governing Law. This Agreement shall be construed and enforced
pursuant to the laws of the State of Texas, except to the extent preempted or
governed by the laws of the United States of America. In the event of a legal
dispute arising from or pertaining to this Agreement, it is agreed that the
venue shall be Dallas County, Texas.
9.9 Attorneys' Fees If any party to this Agreement brings an action
to enforce its rights under this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including without limitation
reasonable attorneys' fees, incurred in connection with such action, including
any appeal of such action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by and
through their duly authorized representatives on the date first above written.
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"PURCHASER"
AMEDISYS SURGERY CENTERS, LC
A TEXAS LIMITED LIABILITY COMPANY
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Its: President
_______________________________________
"SELLER"
PERMIAN SURGICAL CENTER, INC.
a Texas corporation
/s/ Xxxxxx Xxxxxx, M.D., President
-----------------------------------------------------
Xxxxxx Xxxxxx, M.D., President
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