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EXHIBIT 2
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated March 18, 1998, is by and
among AmSurg Holdings, Inc., a Tennessee corporation ("AmSurg"), AmSurg Corp., a
Tennessee corporation and the owner of all the outstanding capital stock of
AmSurg ("ASC"), South Denver Endoscopy Center, Inc., a Colorado corporation
("Seller"), and the individuals set forth on the signature pages attached hereto
(individually "Doctor" and collectively "Doctors").
WHEREAS, AmSurg desires to purchase and Seller desires to sell certain of its
assets, as more fully described herein, upon and subject to the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations,
warranties and covenants of the parties hereinafter set forth, the parties agree
as follows:
ARTICLE 1. PURCHASE AND SALE OF ASSETS
1.1. PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of
this Agreement, at the Closing, Seller shall sell, transfer, convey, assign and
deliver to AmSurg and AmSurg shall purchase, acquire and accept from Seller an
undivided 51% interest in the assets comprising the business operations of the
gastroenterology ambulatory surgery center (the "Center") owned and operated by
Seller and located in Englewood, Colorado, tangible or intangible, recorded or
unrecorded, known or unknown, of whatsoever type, kind, description, or nature
owned, leased, held, possessed, vested in or claimed in whole or in part by
Seller on the Closing Date (the "Purchased Assets"), which Purchased Assets
shall specifically include the accounts receivable of the Center and the name
"South Denver Endoscopy Center", but which shall specifically exclude cash.
1.2. ASSUMPTION OF LIABILITIES. Except as described herein or set forth on
Schedule 1.2, AmSurg will not assume any debts, liabilities, obligations,
expenses, taxes, contracts or commitments of Seller or the Center of any kind,
character or description, whether accrued, absolute, contingent or otherwise
attributable to pre-Closing activities ("Liabilities"), no matter whether
arising before or after the Closing, and whether or not reflected or reserved
against in Seller's or the Center's financial statements, books of account or
records. Seller will indemnify AmSurg against and hold it harmless from any such
Liabilities. AmSurg will cause The Englewood ASC, LLC, a Tennessee limited
liability company (the "LLC"), to assume all Liabilities arising after the
effective date of the transaction which relate to supplies received by the
Center or services rendered to the Center after the effective date of the
transaction, regardless of the date such Liabilities arose.
ARTICLE 2. PURCHASE PRICE
The purchase price ("Purchase Price") for the Purchased Assets shall be (a)
$3,116,290.11 cash and (b) 1,131 shares of the common stock (the "AmSurg Common
Stock") of ASC. The Purchase Price was determined based on the assumption that
the current expenses of operating the Center and on a going forward basis are
and will be as set forth on Exhibit 2. The Purchase Price as so determined is
final and binding on the parties.
ARTICLE 3. CLOSING
3.1. CLOSING. The closing ("Closing") of the sale and purchase of the
Purchased Assets shall take place at the offices of Xxxxx, Xxxxx and Xxxx P.C.,
Denver, Colorado, within 10 business days after the satisfaction of all
conditions to the parties' obligations to consummate the transactions
contemplated hereby, which shall in no event be later than March 31, 1998, or at
such other time as shall be agreed upon by all the parties hereto (the "Closing
Date"). The closing shall be effective at the close of business on March 31,
1998.
3.2. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, AmSurg shall deliver to Seller:
(i) the consideration as specified in Article 2;
(ii) a copy of resolutions of the Board of Directors of
AmSurg, certified by its Secretary, authorizing the execution, delivery
and performance of this Agreement and the other documents referred to
herein to be executed by AmSurg, and the consummation of the
transactions contemplated hereby;
(iii) a certificate of AmSurg certifying as to the accuracy of
the representations and warranties of AmSurg at and as of the Closing
and that AmSurg has performed or complied with all of the covenants,
agreements, terms, provisions and conditions to be performed or
complied with by AmSurg at or before the Closing;
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(iv) the opinion of Bass, Xxxxx & Xxxx PLC, legal counsel for
AmSurg, the terms of which are substantially as set forth in Exhibit
11.4; and
(v) such other certificates and documents as Seller or its
counsel may reasonably request.
(b) At the Closing, Seller and the Doctors will deliver to AmSurg:
(i) a copy of resolutions of the Board of Directors of
Seller, certified by its Secretary, authorizing the execution, delivery
and performance of this Agreement and the other documents referred to
herein to be executed by Seller, and the consummation of the
transactions contemplated hereby;
(ii) such deeds, bills of sale, endorsements, assignments and
other good and sufficient instruments of conveyance and transfer, in
form and substance reasonably satisfactory to AmSurg, as shall be
effective to vest in AmSurg all of Seller's title to and interest in
the Purchased Assets, all of Seller's books, records and other data
relating to the Purchased Assets (except corporate records and any
other documents and records which Seller is required by law to retain
in its possession), and, simultaneously with such delivery, will take
such steps as may be necessary to put AmSurg in actual possession and
operating control of the Purchased Assets;
(iii) a certificate of the Seller certifying as to the
accuracy of Seller's representations and warranties at and as of the
Closing and that it has performed or complied with all of the
covenants, agreements, terms, provisions and conditions to be performed
or complied with by Seller at or before the Closing;
(iv) a certificate of each of the Doctors certifying as to
the accuracy of the Doctors' representations and warranties at and as
of the Closing and that they have performed or complied with all of the
covenants, agreements, terms, provisions and conditions to be performed
or complied with by each of them at or before the Closing;
(v) the opinion of Xxxxx, Xxxxx and Xxxx P.C., legal counsel
to Seller and the Doctors, in substantially the form of Exhibit 10.6;
and
(vi) such other certificates and documents as AmSurg or its
counsel may reasonably request.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY SELLER
Seller represents and warrants as follows:
4.1. ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado with full
power and authority to conduct its business as now conducted and to own, lease
or operate its properties and assets as now owned, leased or operated.
4.2. AUTHORIZATION. Seller has full corporate power and corporate authority
to enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby, including the conveyance, assignment, transfer and delivery of the
Purchased Assets, have been duly authorized and approved by all necessary
corporate action, and this Agreement, when executed, will constitute a valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms.
4.3. NO VIOLATION. The execution and delivery of this Agreement by Seller
does not, and the consummation of the transactions contemplated hereby will not,
(a) violate any provision of, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage or lien to which Seller is a party or by which any of Seller's assets
or properties are bound which violation or lien would have a material adverse
effect on the business or operations of Seller or the Center; (b) violate any
provision of the charter or bylaws of Seller; (c) violate any order, arbitration
award, judgment, writ, injunction, decree, statute, rule or regulation
applicable to Seller which violation would have a material adverse effect on the
business or operations of Seller or the Center; or
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(d) violate any other contractual or legal obligation or restriction to which
Seller is subject which violation would have a material adverse effect on the
business or operations of Seller or the Center.
4.4. FINANCIAL INFORMATION. Seller has delivered to AmSurg: (a) statements
of Center charges and cash receipts by month for the years ended December 31,
1996 and 1997, (b) cash basis unaudited statements of income for the Center for
the years ended December 31, 1996 and 1997, (c) a cash basis unaudited balance
sheet of the Center at December 31, 1996 and 1997, and (d) details of patient
accounts receivable for the Center at February 28, 1998 (hereinafter
collectively referred to as "Financial Information"), all of which are attached
as Schedule 4.4. The Financial Information fairly presents the assets,
liabilities, financial condition and results of operation of the Center as at
the respective dates thereof and for the periods therein referred to, prepared
on a cash basis and accurately reflects the revenues and expenses of the Center
for the periods covered thereby and, in particular, reflects all expenses
necessary for the efficient operation of the Center as a stand-alone entity. The
Financial Information reflects the consistent application of such accounting
principles throughout the periods involved.
4.5. OWNERSHIP OF PURCHASED ASSETS. Seller owns and possesses and has good
and marketable title to all of the Purchased Assets, free and clear of all
mortgages, pledges, liens, security interests, conditional sale agreements,
defects, charges, encumbrances and rights of third parties, and no conditions
exist which could give rise to any such mortgage, pledge, lien, security
interest, defect, charge, encumbrance on, or right of any such third party to,
the Purchased Assets.
Schedule 4.5 contains an accurate and complete description of the Purchased
Assets, which include, but are not limited to, supplies, inventory, uncollected
accounts receivable and equipment owned by Seller, and which are all of the
assets which are in any way necessary to the continued operation of the Center
as it is now being conducted. All of the Purchased Assets are in good working
condition and repair, normal wear and tear excepted, and are adequate for the
uses for which they are intended. Schedule 4.5 also sets forth the current book
value of all equipment included in the Purchased Assets.
4.6. NO LIABILITIES OR ADVERSE CONDITIONS. Except as and to the extent of
the amounts specifically reflected in the Financial Information, Seller does not
have any material liabilities or obligations of any nature with respect to the
Center, whether, absolute, accrued, contingent or otherwise and whether due or
to become due (including, without limitation, liabilities for taxes and
interest, penalties and other charges payable with respect thereto).
Furthermore, Seller does not know or have reason to know of any basis for the
assertion against Seller of any such liability or obligation of any nature not
fully reflected in the Financial Information. To the best of Seller's knowledge,
there are no conditions existing with respect to any of Seller's facilities,
properties, assets or personnel, which might materially and adversely affect any
of the Center's properties, business or prospects.
4.7. ABSENCE OF CERTAIN CHANGES. Since December 31, 1997, with respect to
the Center, Seller has not:
(a) suffered any material adverse change in its working capital,
financial condition, assets, liabilities, business or prospects, or suffered any
material casualty loss (whether or not insured);
(b) made any change in its business or operations or in the manner of
conducting its business, other than changes in the ordinary course of business;
(c) incurred any obligations or liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except items incurred
in the ordinary course of business and consistent with past practice, or
experienced any change in any assumptions or methods of calculating any bad
debt, contingency or other reserve;
(d) paid, discharged or satisfied any claim, lien, encumbrance or
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), other than claims, liens, encumbrances, or liabilities:
(i) which are reflected in the Financial Information and
which were paid, discharged or satisfied since the date thereof in the
ordinary course of business consistent with past practice, or
(ii) which were incurred and paid, discharged or satisfied
since December 31, 1997 in the ordinary course of business consistent
with past practice;
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(e) written off as uncollectible any notes or accounts receivable or
any portion thereof, except for write-offs made in the ordinary course of
business consistent with past practice;
(f) cancelled any other debts or claims, or waived any rights, of
substantial value;
(g) sold, transferred or conveyed any of its properties or assets,
except in the ordinary course of business consistent with past practice;
(h) made any capital expenditures or commitments in excess of $10,000
in the aggregate for replacements or additions to property, plant, equipment or
intangible capital assets;
(i) declared, paid or made or set aside for payment of, any
distribution in respect of its outstanding common stock, other than
distributions made in the ordinary course of business consistent with past
practice, or directly or indirectly redeemed, purchased or otherwise acquired
any of its common stock;
(j) made any change in any method of accounting or accounting practice;
(k) granted any increase in the compensation of any officer, employee
or agent of Seller who performs services for or on behalf of the Center,
(including without limitation any increase pursuant to any bonus, pension,
profit sharing or other plan or commitment), other than increases in the
ordinary course of business consistent with past practice, or adopted any such
plan or other arrangement; and no such increase or the adoption of any such plan
or arrangement, is planned or required; and
(l) agreed, whether in writing or otherwise, to take any action
described in this Section 4.7.
4.8. TAXES. Seller has filed all federal, state and local tax returns
required to be filed by it through the date hereof and has paid all taxes and
assessments (including, without limitation, income, excise, unemployment, social
security, occupation, franchise, property, sales and use taxes, services taxes,
import duties or charges, and all penalties and interest with respect thereto)
due and payable therefrom. Seller has not signed any extension agreement with
any taxing authority and knows of no open or questionable matters for any prior
periods. To Seller's best knowledge, all taxes and assessments relating to or
affecting the operations of the Center through the date hereof have been paid;
provided, however, that in the event any such taxes or assessments have not been
paid, Seller acknowledges and agrees that it will be responsible for such taxes
or assessments.
4.9. LITIGATION. There is no claim, litigation, investigation or proceeding
pending or, to Seller's knowledge, threatened at law or in equity or before any
court, legislative or administrative tribunal or governmental agency which
questions the validity of this Agreement or which, if adversely determined or
publicly disclosed, would have a material adverse effect on the business or
operations of the Center. Schedule 4.9 sets forth a true and accurate
description of all claims, actions, investigations or proceedings relating to
the Center and its operations initiated since January 1, 1995.
4.10. COMPLIANCE WITH LAWS AND OTHER REGULATIONS. Seller is in compliance in
all material respects with all requirements of applicable laws, rules,
regulations, orders, ordinances, judgments and decrees of all governmental
bodies or agencies (federal, state or local) (collectively, "Laws") relating to
or affecting the operations of the Center. Seller has not received any notice
of, or notice of any investigation of, a possible violation of any applicable
Laws, or any other Law or requirement relating to or affecting the operations of
the Center.
Seller has all required licenses, permits, certificates, authorizations and
agreements needed for the ownership and efficient operation of the Center, all
of which are listed on Schedule 4.10. Seller knows of no act or omission
occurring on or before the date hereof which would subject Seller or the Center
to the likelihood of any fine or suspension of any license, permit, certificate,
authorization or agreement.
4.11. CONTRACTS; SIGNIFICANT PAYORS. Schedule 4.11 is a complete and accurate
list of all individual payors, or group of affiliated payors, that accounted for
more than 5% of the Center's revenues in any two of the previous three years or
is expected to account for more than 5% of the Center's revenues in the current
year or the next year ("Significant Payors").
All contracts, agreements and instruments, including, but not limited to, third
party provider agreements and agreements with Significant Payors, to which
Seller is a party and which are necessary for the ownership and efficient
operation of the Center, are in full force and effect; there have been no
threatened cancellations thereof
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nor outstanding disputes thereunder, and Seller has not breached any provision
of, nor does there exist any default in any material respect under, or event
(including the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby) which is, or with the giving of notice or
the passage of time or both would become, a breach or default in any material
respect under the terms of any such contract, instrument or agreement. Seller
has no reason to believe that any Significant Payor intends to terminate any
such contract, instrument or agreement, or intends to withhold its consent to
the assignment thereof, to the LLC by Seller.
4.12. ACCOUNTS RECEIVABLE. All accounts and notes receivable of the Center,
whether reflected in the Financial Information or otherwise, represent services
actually provided in the ordinary course of business; all such receivables are
current and collectible in accordance with their respective terms; and none of
such receivables is subject to any counterclaim or set-off, other than normal
discounts, allowances and bad debts consistent with past practice.
4.13. REPORTS AND RETURNS. All reports and returns heretofore required by
federal, state or municipal authorities with respect to the operations of the
Center and all reports and returns to the various governmental authorities which
control, directly or indirectly, any of the Center's activities, for which the
failure to file would have a material adverse effect on the business or
operations of the Center, have been filed and all sums heretofore due with
respect to such reports and returns have been paid.
4.14. DEFAULTS. Seller is not in default under, and no event has occurred
which, with the giving of notice or the passage of time, or both, would result
in a default under, any outstanding indenture, mortgage, contract, agreement or
other instrument with respect to the Center to which Seller is a party which
default would have a material adverse effect on the business or operations of
the Center. The execution, delivery and performance by Seller of this Agreement
and the transactions contemplated hereby will not violate any provision of, or
result in the breach of, or constitute a default under, or require any consent
under, any law, or any order, writ, injunction or decree of any court,
governmental agency or arbitration tribunal, or any material contract, agreement
or instrument with respect to the Center to which Seller is a party or by which
Seller is bound.
4.15. EMPLOYEES; INDEPENDENT CONTRACTORS.
(a) Schedule 4.15(a) sets forth the names and titles of all employees
of Seller who perform services in or on behalf of the Center, and the annual
rate of compensation (including bonuses) being paid to each such employee as of
the most recent practicable date. The employees listed on Schedule 4.15(a),
constitute all of the employees who are in any way necessary to the continued
operation of the Center as it is now being conducted.
(b) Schedule 4.15(b) hereto contains a list of each employment, bonus,
deferred compensation, pension, stock option, stock appreciation right, profit
sharing or retirement plan, arrangement or practice and each other agreement or
fringe benefit plan, arrangement or practice of Seller, whether formal or
informal, whether legally binding or not and whether affecting one or more of
its employees who perform services in or on behalf of the Center. Copies of each
such agreement or plan have hereto been delivered to AmSurg. Seller does not
have any commitment, whether formal or informal, and whether legally binding or
not (i) to create any additional such agreement, plan, arrangement or practice;
(ii) to modify or change any such agreement, arrangement, plan or practice; or
(iii) to maintain for any period of time any such agreement, arrangement, plan
or practice, except as described on Schedule 4.15(b).
(c) Schedule 4.15(c) hereto contains a list of all services provided to
the Center for which Seller contracts with third parties. Copies of each such
agreement previously have been provided to AmSurg. Schedule 4.15(c) contains a
description of each such oral agreement.
4.16. CONSENTS AND APPROVALS. Seller has obtained all consents, approvals,
authorizations and orders of third parties, including governmental authorities,
necessary for the authorization, execution and performance of this Agreement by
Seller, which consents, approvals, authorizations and orders are listed on
Schedule 4.16.
4.17. ACQUISITION FOR INVESTMENT. Seller represents that it is acquiring the
AmSurg Common Stock for its own account for investment with no present intention
of reselling any such AmSurg Common Stock, and not with a view to the resale or
distribution in whole or in part thereof in violation of the Securities Act of
1933, as amended (the "Securities Act").
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4.18. SUITABILITY OF INVESTMENT. Seller has carefully considered and has, to
the extent it believes necessary, obtained professional legal, tax and financial
advice concerning the suitability of its acquisition of the AmSurg Common Stock
for its particular tax and financial situation. Seller is capable of evaluating
and has evaluated carefully the merits and risks of its purchase of the AmSurg
Common Stock and is able to bear the economic risk of an investment therein.
4.19. ACCESS TO INFORMATION. Seller has had access during the course of this
transaction and prior to its purchase of the AmSurg Common Stock to such
information relating to AmSurg and ASC as it has desired. It has had the
opportunity to ask questions of and receive answers from AmSurg and ASC and
their representatives concerning the terms and conditions of the acquisition of
the AmSurg Common Stock and to obtain such additional information about the
business and financial condition of AmSurg and ASC as Seller has requested (to
the extent that AmSurg or ASC possessed such information or could acquire it
without unreasonable effort or expense).
4.20. RESTRICTIONS ON TRANSFER OF THE AMSURG COMMON STOCK. Seller understands
that the AmSurg Common Stock has not been registered under the Securities Act or
any applicable state securities law, and may not be transferred or sold unless
it is subsequently registered under the Securities Act or an exemption from such
regis tration is available.
4.21. LEGEND ON CERTIFICATES. Seller is aware that the certificates
representing the AmSurg Common Stock shall bear the following legend and that
appropriate stop transfer instructions will be entered in the stock records of
ASC:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR
ANY APPLICABLE STATE SECURITIES LAW. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE
DISTRIBUTION THEREOF. NO DISPOSI TION OF THE SHARES MAY BE MADE IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (ii) AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
DISPOSITION WITHOUT REGISTRATION IS IN COMPLIANCE WITH THE SECURITIES
ACT.
4.22. FULL DISCLOSURE. Neither this Agreement, nor any schedule, exhibit,
list, certificate or other instrument or document delivered to AmSurg pursuant
to this Agreement by or on behalf of Seller, contains any untrue statement of a
material fact or omits to state any material fact required to be stated herein
or therein or necessary to make the statements, representations or warranties
and information contained herein or therein not misleading. Seller has not
withheld from AmSurg disclosure of any event, condition or fact which Seller
knows, or has reasonable grounds to know, may materially adversely affect the
Purchased Assets or the operations of the Center.
4.23. NO BROKER'S FEES. Seller has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and Seller does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE DOCTORS
Each of the Doctors, severally and not jointly, represents and warrants as
follows:
5.1. AUTHORITY. Such Doctor has full authority to enter into and carry out
the provisions of this Agreement, and this Agreement, when executed, will
constitute a valid and binding legal obligation enforceable against him in
accordance with its terms.
5.2. NO VIOLATION. The execution and delivery of this Agreement by the
Doctors does not, and the consummation of the transactions contemplated hereby
will not, (a) violate any provision of, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which such Doctor is a party or by which any of
such Doctors's assets or properties are bound; (b) violate any provision of the
charter or bylaws of Seller; (c) violate any order, arbitration award, judgment,
writ, injunction, decree, statute, rule or regulation applicable to such
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Doctor; or (d) violate any other contractual or legal obligation or restriction
to which such Doctor is subject.
5.3. SHAREHOLDERS OF SELLER. The Doctors constitute all of the shareholders
of Seller.
5.4. RESTRICTIVE COVENANTS; CONFIDENTIALITY. Each Doctor agrees that he will
not be a consultant to, or have any direct or indirect ownership interest in, or
manage, lease, develop or otherwise have any financial interest in, or receive
any compensation in the form of a facility fee or as a medical director from any
business or entity competing with the LLC within seven (7) miles of the Center
until the later of (a) one (1) year after the Doctor ceases to be a shareholder
of Seller or (b) five (5) years after the Closing Date. The foregoing shall not
prohibit the Doctors from owning shares of capital stock constituting less than
1% of the outstanding capital stock of any corporation whose common stock is
traded on a national securities exchange or on The Nasdaq Stock Market. The
Doctors recognize and acknowledge that the ascertainment of damages in the event
of a breach of this Section 5.4 would be difficult, and agree that AmSurg, in
addition to all other remedies it may have, shall have the right to injunctive
relief if there is such a breach.
Notwithstanding the foregoing, Section 5.4 does not prohibit the Doctors, or an
entity owned by some or all of them, from owning an interest in a
multi-specialty ambulatory surgery center in Littleton, Colorado, provided that
the aggregate interest owned does not exceed the lesser of (a) 12% or (b) 1.5%
times the number of physicians then affiliated with Seller.
Notwithstanding the foregoing, the parties acknowledge and agree that Section
5.4 does not require the Doctors to perform endoscopy procedures at the Center
or to refer patients to the Center, and imposes no restrictions on where such
procedures are performed or where referrals are made.
5.5. NO BROKER'S FEES. Such Doctor has not done anything to cause or incur
any liability or obligation for investment banking, brokerage, finder's, agent's
or other fees, commissions, expenses or charges in connection with the
negotiation, preparation, execution or performance of this agreement or the
consummation of the transactions contemplated hereby, and Doctor does not know
of any claim by anyone for such a fee, commission, expense or charge.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF AMSURG
AmSurg represents and warrants as follows:
6.1. ORGANIZATION. AmSurg is a corporation duly organized, validly existing
and in good standing under the laws of the state of Tennessee. AmSurg has full
corporate power and corporate authority to carry on its business as now
conducted and to own, lease or operate its properties and assets as now owned,
leased or operated.
6.2. AUTHORIZATION. AmSurg has full corporate power and corporate authority
to enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
AmSurg of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
This Agreement, when executed, will constitute a legal, valid and binding
obligation of AmSurg enforceable against it in accordance with its terms.
6.3. NO VIOLATION. The execution and delivery of this Agreement by AmSurg
does not, and the consummation of the transactions contemplated hereby will not,
(a) violate any provision of, or result in the creation of any lien or security
interest under, any material agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which AmSurg is a party or by which any of
AmSurg's assets or properties are bound which violation or lien would have a
material adverse effect on the business or operations of AmSurg; (b) violate any
provision of the Charter or Bylaws of AmSurg; (c) violate any order, arbitration
award, judgment, writ, injunction, decree, statute, rule or regulation
applicable to AmSurg which violation would have a material adverse effect on the
business or operations of AmSurg; or (d) violate any other contractual or legal
obligation or restriction to which AmSurg is subject which violation would have
a material adverse effect on the business or operations of AmSurg.
6.4. TAXES. AmSurg has filed all federal, state and local tax returns
required to be filed by it through the date hereof (or has obtained an extension
for such filing) and has paid all taxes and assessments (including without
limitation income, excise, unemployment, social security, occupation, franchise,
property, sales and use taxes, import duties or charges, and all penalties and
interest in respect thereof) due and payable therefrom. AmSurg has not signed
any extension agreement with any taxing authority
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and knows of no open or questionable matters for any prior periods.
6.5. LITIGATION. There is no claim, litigation, investigation or proceeding
pending or, to AmSurg's knowledge, threatened against AmSurg at law or in equity
or before any court, legislative or administrative tribunal or governmental
agency which questions the validity of this Agreement or which, if adversely
determined or publicly disclosed, would have a material adverse effect on the
business or operations of AmSurg.
6.6. COMPLIANCE WITH LAW AND OTHER REGULATIONS. AmSurg is in compliance in
all material respects with all requirements of applicable Laws. AmSurg possesses
all required licenses, permits, certificates, and authorizations needed for the
conduct of its business as presently conducted the failure of which to have
would have a material adverse effect on the business or operations of AmSurg.
AmSurg knows of no act or omission occurring on or before the date hereof which
would subject AmSurg to the likelihood of any material fine or suspension of any
material license, permit, certificate or authorization.
6.7. REPORTS AND RETURNS. AmSurg has filed all material reports and returns
heretofore required by federal, state or municipal authorities and all material
reports and returns to the various governmental authorities which control,
directly or indirectly, any of its activities, and has paid all sums heretofore
due with respect to such reports and returns.
6.8. DEFAULTS. AmSurg is not in default under, and no event has occurred
which, with the giving of notice or the passage of time, or both, would result
in a default under, any outstanding indenture, mortgage, contract or agreement
to which AmSurg is a party, which default would have a material adverse effect
on the business or operations of AmSurg.
The execution, delivery and performance by AmSurg of this Agreement and the
transactions contemplated hereby will not violate any provision of, or result in
the breach of, or constitute a default under, or require any consent under, any
law, or any order, writ, injunction or decree of any court, governmental agency
or arbitration tribunal, or any material contract, agreement or instrument to
which AmSurg is a party or by which AmSurg is bound.
6.9. CORPORATE DOCUMENTS. AmSurg has made available to Seller and the
Doctors for inspection by Seller and its authorized representatives, a copy of
its Charter, as amended to the date hereof, certified to be a true and correct
copy thereof by the Secretary of State of Tennessee, and the minute books of
AmSurg containing the bylaws and all records of the proceedings, meeting,
actions and consents of the shareholders and the board of directors (and any
committees thereof) of AmSurg.
6.10. FULL DISCLOSURE. Neither this Agreement, nor any Schedule, exhibit,
list, certificate or other instrument or document delivered to Seller and the
Doctors pursuant to this Agreement by or on behalf of AmSurg 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, representations or
warranties con tained herein or therein not misleading.
6.11. NO BROKER'S FEES. AmSurg has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and AmSurg does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF ASC
ASC represents and warrants as follows:
7.1. ORGANIZATION. ASC is a corporation duly organized, validly existing and
in good standing under the laws of the State of Tennessee. ASC has full
corporate power and corporate authority to carry on its business as now
conducted and to own, lease or operate its properties and assets as now owned,
leased or operated.
7.2. AUTHORIZATION. ASC has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
ASC of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
The Agreement, when executed, will constitute a legal, valid and binding
obligation of ASC enforceable against it in accordance with its terms.
7.3. CORPORATE DOCUMENTS. ASC has made available to Seller and the Doctors
for inspection by Seller and its authorized representatives, a copy of its
Charter, as
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Asset Purchase Agreement/Page 8
9
amended to the date hereof, certified to be a true and correct thereof by the
Secretary of State of Tennessee, and the minute books of ASC containing the
Bylaws and all records of the proceedings, minutes, actions and consents of the
shareholders and the board of directors (and any committees thereof) of ASC.
7.4. FULL DISCLOSURE. Neither this Agreement, nor any exhibit, list,
certificate or other instrument or document delivered to Seller and the Doctors
pursuant to this Agreement, by or on behalf of ASC, 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, representations or
warranties contained herein or therein not misleading.
7.5. VALID ISSUANCE. All shares of AmSurg Common Stock issued to Seller on
the Closing Date will be validly issued, fully paid and nonassessable.
ARTICLE 8. COVENANTS AND AGREEMENTS OF SELLER AND THE DOCTORS
Seller and the Doctors further covenant and agree that from the date hereof
until the Closing, and thereafter if so specified, they will fulfill the
following covenants and agreements unless otherwise consented to by AmSurg in
writing:
8.1. ACCESS; FURTHER ASSURANCES.
(a) Seller will accord to AmSurg, its counsel, accountants, and other
representatives, from the date hereof and at any time after the Closing, full
access to all of the properties, books, contracts, commitments, financial
information and records of the Center, and will furnish AmSurg during such
period with all such infor mation concerning the business and operations of the
Center, as AmSurg reasonably may request. At any time and from time to time
after the Closing, at AmSurg's request and without further consideration, Seller
and the Doctors agree to execute and deliver such certificates and documents as
may be required in connection with any audit of the Center or its operations.
(b) From the date hereof until the Closing, as soon as reasonably
practicable after the end of each quarter, but not later than the 15th day of
the next succeeding month, Seller will deliver to AmSurg an unaudited statement
of income for the Center for the quarter and the period then ended, and an
unaudited balance sheet and a detail of patient accounts receivable for the
Center as at the quarter then ended ("Ongoing Quarterly Financial Information").
In addition, as soon as reasonably practicable after the end of each month, but
not later than the 15th day of the next succeeding month, Seller will deliver to
AmSurg a statement of (i) the number of procedures performed, (ii) the billed
charges, and (iii) the cash collections, all with respect to the prior month
("Ongoing Monthly Financial Information") (the Ongoing Quarterly Financial
Information and the Ongoing Monthly Financial Information are collectively
referred to as the "Ongoing Financial Information"). All such Ongoing Financial
Information shall be prepared in accordance with generally accepted accounting
principles consistent with prior practice.
(c) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, Seller will execute and deliver such
other instruments of sale, transfer, conveyance, assignment and delivery and
confirmation and take such action as AmSurg may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to AmSurg and
to place AmSurg in possession and control of and to confirm AmSurg's title to,
the Purchased Assets, and to assist AmSurg in exercising all rights and enjoying
all benefits with respect thereto.
(d) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, the Doctors will execute and deliver
such other instruments of sale, transfer, conveyance, assignment and delivery
and confirmation and take such action as AmSurg may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to AmSurg and
to place AmSurg in possession and control of and to confirm AmSurg's title to,
the Purchased Assets, and to assist AmSurg in exercising all rights and enjoying
all benefits with respect thereto.
8.2. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are
not consummated for any reason, Seller and the Doctors promptly will return to
AmSurg and ASC all records and information provided to Seller from AmSurg and
ASC, and Seller and the Doctors will treat all such records and information as
confidential.
(b) Except as otherwise required by law, Seller and the Doctors will
not disclose at any time to any other person not an employee of AmSurg, ASC or
Seller
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Asset Purchase Agreement/Page 9
10
(or a person otherwise involved in the carrying out of the transactions
contemplated by this Agreement), nor make any public announcement of, the
transactions or terms of the transactions contemplated by this Agreement.
8.3. CONDUCT OF BUSINESS PENDING THE CLOSING. From the date hereof until the
Closing, and except as otherwise consented to by AmSurg in writing, Seller shall
not:
(a) fail to maintain in effect adequate insurance coverage of the
Purchased Assets; or
(b) fail to use its best efforts to (i) maintain the Purchased Assets
in their present condition, (ii) comply with all applicable laws, rules and
regulations of governmental agencies or authorities, and (iii) operate its
business in the manner necessary to maintain the good will of its patients and
physicians and its reputation.
8.4. INSURANCE. Seller will use its best efforts to include AmSurg and the
LLC as additional insureds on Seller's professional liability, general property
and workers' compensation insurance policies, and will provide AmSurg with
written evidence of such coverage. AmSurg will pay the additional cost, if any,
for such insurance coverage.
8.5. TRANSFER OF SIGNIFICANT PAYOR AGREEMENTS. Seller and the Doctors will
take all action necessary in order to effect the valid assignment to the LLC of
all agreements with Significant Payors effective as of the Closing Date or
within a reasonable time thereafter.
8.6. NOTICE OF ADVERSE CHANGE. Seller will advise AmSurg in writing of any
material adverse change in the Purchased Assets from the date of this Agreement
to the Closing Date.
8.7. SCHEDULES. Seller shall have the continuing obligation to supplement or
amend promptly the Schedules being delivered by Seller pursuant to this
Agreement with respect to any matter hereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been required to be
set forth or described in these Schedules.
ARTICLE 9. COVENANTS AND AGREEMENTS OF AMSURG AND ASC
AmSurg and ASC further covenant and agree that from the date hereof until the
Closing, unless otherwise consented to by Seller in writing, they will fulfill
the following covenants and agreements:
9.1. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are
not consummated for any reason, AmSurg and ASC promptly will return to Seller
all records and information provided to AmSurg and ASC from Seller, and AmSurg
and ASC will treat all such records and information as confidential.
(b) Except as otherwise required by law, AmSurg will not disclose at
any time to any other person not an employee of AmSurg, ASC or Seller (or a
person otherwise involved in the carrying out of the transactions contemplated
by this Agreement), nor make any public announcement of, the transactions or
terms of the transactions contemplated by this Agreement.
9.2. NOTICE OF ADVERSE CHANGE. AmSurg and ASC each will notify Seller and
the Doctors in writing of any material adverse change in the business, assets,
operations, conditions or prospects of AmSurg or ASC, as the case may be, from
the date of this Agreement to the Closing Date.
9.3. SCHEDULES. AmSurg shall have the continuing obligation to supplement or
amend promptly the Schedules being delivered by AmSurg pursuant to this
Agreement with respect to any matter hereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been required to be
set forth or described in these Schedules.
ARTICLE 10. CONDITIONS TO AMSURG'S AND ASC'S OBLIGATIONS
AmSurg and ASC shall not be obligated to consummate the transactions
contemplated hereby, unless each of the following conditions is fulfilled or
performed (unless expressly waived in writing by AmSurg and ASC) prior to or at
the Closing:
10.1. COMPLIANCE. The representations and warranties made by Seller and the
Doctors in this Agreement and the
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Asset Purchase Agreement/Page 10
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statements contained in the Schedules attached hereto or in any instrument,
list, certificate or writing delivered by Seller or the Doctors pursuant to this
Agreement shall be true when made and at and as of the time of the Closing as
though such representations and warranties were made at and as of the Closing.
10.2. PERFORMANCE BY SELLER AND THE DOCTORS. Seller and the Doctors shall
have performed and complied with all covenants, agreements, obligations and
conditions required by this Agreement to be so complied with or performed by
each of them.
10.3. CERTIFICATE OF SELLER. Seller shall have delivered to AmSurg a
certificate, dated the Closing Date, certifying as to the fulfillment by Seller
of the conditions specified in Sections 10.1 and 10.2 hereof.
10.4. CERTIFICATE OF DOCTORS. Each of the Doctors shall have delivered to
AmSurg a certificate, dated the Closing Date, certifying as to the fulfillment
by such Doctor of the conditions specified in Sections 10.1 and 10.2 hereof.
10.5. CONSENTS AND LICENSES. All necessary consents, licenses, permits,
approvals, authorizations, orders and agreements from federal, state and local
governmental units and any other entity which are listed on Schedule 4.16,
including approval by the Colorado Department of Health and by applicable
Medicare and state Medicaid agencies, for the continued operation and
third-party reimbursement of the Center by the LLC following the consummation of
the transactions contemplated hereby, shall have been issued to the LLC or
notice of issuance shall have been provided.
10.6. OPINION OF COUNSEL. AmSurg shall have been furnished with the opinion
of Xxxxx, Xxxxx and Xxxx P.C., counsel to Seller and the Doctors, in
substantially the form of Exhibit 10.6.
10.7. LEASE. Seller shall have assigned to the LLC, and the LLC shall have
assumed all future obligations under, the lease and by and between Columbia
Health One, LLC and Seller for the Center, pursuant to an assignment and
assumption agreement in substantially the form of Exhibit 10.7.
10.8. SIGNIFICANT PAYOR AGREEMENTS. All of the Significant Payor agreements
shall have been validly assigned to the LLC or Seller and AmSurg shall have no
reason to believe that any such agreement with a Significant Payor will not be
approved or that such Significant Payor will not execute a new agreement with
the LLC on terms reasonably acceptable to AmSurg.
10.9. SHAREHOLDER APPROVAL. All of the shareholders of Seller shall have
approved the transactions contemplated by this Agreement, and Seller shall have
furnished AmSurg with a certificate of the President of Seller evidencing such
approval.
10.10. FORM 8594. AmSurg initially will allocate the Purchase Price using the
methodology reflected on Exhibit 10.10. In the course of completing ASC's
consolidated federal income tax return, AmSurg shall provide Seller with an IRS
Form 8594. Seller also shall file a Form 8594, and Seller and AmSurg each agree
to provide the other party with any information necessary in order to complete
and file the Form 8594.
ARTICLE 11. CONDITIONS TO SELLER'S AND THE DOCTORS' OBLIGATIONS
Seller and the Doctors shall not be obligated to consummate the transactions
contemplated hereby unless each of the following conditions is fulfilled or
performed (unless expressly waived in writing by Seller) prior to or at the
Closing:
11.1. COMPLIANCE. The representations and warranties made by AmSurg and ASC
in this Agreement and the statements contained in the Schedules attached hereto
or in any instrument, list, certificate or writing delivered by AmSurg and ASC
pursuant to this Agreement shall be true when made and at and as of the time of
the Closing as though such representations and warranties were made at and as of
the Closing.
11.2. PERFORMANCE BY AMSURG AND ASC. AmSurg and ASC shall have performed and
complied with all agreements, obligations and conditions required by this
Agreement to be so complied with or performed by AmSurg and ASC.
11.3. CERTIFICATE OF AMSURG AND ASC. AmSurg and ASC each shall have delivered
to Seller and the Doctors a certificate, dated the Closing Date, certifying as
to the fulfillment of the conditions specified in Sections 11.1 and 11.2 hereof.
11.4. OPINION OF COUNSEL. Seller and the Doctors shall have been furnished
the opinion of Bass, Xxxxx &
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Asset Purchase Agreement/Page 11
12
Xxxx PLC, counsel to AmSurg and ASC, in substantially the form of Exhibit 11.4.
11.5. LEASE. The LLC and Seller shall have entered into the assignment and
assumption agreement for the Lease in substantially the form of Exhibit 10.7.
ARTICLE 12. INDEMNIFICATION
12.1. INDEMNIFICATION BY SELLER AND THE DOCTORS. Seller and the Doctors,
jointly and severally, hereby agree to defend, indemnify and hold harmless
AmSurg and ASC and shall reimburse AmSurg and ASC for, from and against each
claim, loss, liability, cost and expense (including without limitation,
interest, penalties, costs of preparation and investigation, and the reasonable
fees, disbursements and expenses of attorneys, accountants and other
professional advisors) (collectively, "Losses"), directly or indirectly relating
to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by or of Seller or
any Doctor contained herein, any Schedule hereto or in any certificate, document
or instrument delivered to AmSurg and ASC pursuant hereto.
(b) Any tax liability of Seller or the Center not previously paid,
which may at any time be asserted or assessed against Seller or the Center for
any event or period prior to the Closing Date (regardless of whether the
possibility of the assertion or assessment of any such tax liability shall have
been disclosed to AmSurg at or prior to the Closing).
(c) Liability for any amounts owed by Seller or the Center to any
governmental third party or private payors because of overpayments to Seller or
the Center prior to the Closing for services rendered to patients, which
liability is due to a recomputation of rates, field audit adjustments,
overpayments or otherwise.
(d) Any other Loss incidental to any of the foregoing.
12.2. INDEMNIFICATION BY AMSURG AND ASC. AmSurg and ASC, severally and not
jointly, hereby agree to defend, indemnify and hold harmless Seller and the
Doctors, and shall reimburse Seller and the Doctors for, from and against Losses
directly or indirectly relating to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by AmSurg or ASC,
as the case may be, contained herein or in any certificate, document or
instrument delivered to Seller and the Doctors pursuant hereto.
(b) Any other Loss incidental to the foregoing.
12.3. PROCEDURE.
(a) The indemnified party shall promptly notify the indemnifying party
of any claim, demand, action or proceeding for which indemnification will be
sought under Sections 12.1 or 12.2 of this Agreement, and, if such claim,
demand, action or proceeding is a third party claim, demand, action or
proceeding, the indemnifying party will have the right at its expense to assume
the defense thereof using counsel reasonably acceptable to the indemnified
party. The indemnified party shall have the right to participate, at its own
expense, with respect to any such third party claim, demand, action or
proceeding. In connection with any such third party claim, demand, action or
proceeding, AmSurg, ASC, Seller and the Doctors shall cooperate with each other
and provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action or proceeding shall be
settled without the prior written consent of the indemnified party. If a firm
written offer is made to settle any such third party claim, demand, action or
proceeding and the indemnifying party proposes to accept such settlement and the
indemnified party refuses to consent to such settlement, then: (i) the
indemnifying party shall be excused from, and the indemnified party shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding; and (ii) the maximum liability of the indemnifying party
relating to such third party claim, demand, action or proceeding shall be the
amount of the proposed settlement if the amount thereafter recovered from the
indemnified party on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement.
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Asset Purchase Agreement/Page 12
13
(b) Any claim of indemnity of AmSurg or ASC against Seller with respect
to Section 12.1 hereof may in AmSurg's discretion be discharged by setoff
against any amounts owed or owing to Seller or any affiliate thereof under the
Operating Agreement between Seller and AmSurg.
(c) Notwithstanding the foregoing, no Doctor shall be required to
indemnify AmSurg or ASC for any amount in excess of his pro rata portion of the
Purchase Price.
(d) Notwithstanding the foregoing, Seller and the Doctors shall not be
obligated to make any indemnification under Section 12.1 unless the aggregate
amount of Losses exceeds $10,000 (the "Basket"), and such indemnification with
respect to such Losses shall be made by Seller and the Doctors only to the
extent of such excess over the Basket.
(e) No party shall be entitled to seek indemnification for
consequential damages against another party.
ARTICLE 13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
13.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein shall survive the Closing Date and any investigation
made by or on behalf of any party hereto, and shall survive for a period of 24
months after the Closing Date (except for any Losses described in Section
12.1(b), which shall survive for the applicable statute of limitations,
including any waivers thereof, Section 12.1(c), which shall not terminate, and
any breach of the representations and warranties contained in Sections 4.6 and
4.9 with respect to professional malpractice claims arising before the Closing
Date, which shall not terminate).
In addition, in the event that the LLC dissolves, liquidates or otherwise ceases
to exist, the provisions of Section 5.4 hereof shall terminate and be of no
further force or effect.
13.2. REMEDIES CUMULATIVE. The remedies provided herein shall be cumulative
and shall not preclude the assertion by any party hereto of any other rights or
the seeking of any other remedies against the other party hereto.
ARTICLE 14. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing:
(a) by mutual agreement of Seller and AmSurg;
(b) by AmSurg, if there has been a material violation or breach by
Seller or the Doctors of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing, or if any of
the conditions set forth in Article 10 hereof have not been satisfied by the
Closing or have not been waived in writing by AmSurg;
(c) by Seller, if there has been a material violation or breach by
AmSurg or ASC of any of the agreements, representations or warranties contained
in this Agreement which has not been waived in writing, or if any of the
conditions set forth in Article 11 hereof have not been satisfied by the Closing
or have not been waived in writing by Seller;
(d) By either AmSurg or Seller if the transactions contemplated by this
Agreement shall not have been consummated on or before March 31, 1998; or
(e) By either AmSurg or Seller if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving the other.
ARTICLE 15. MISCELLANEOUS
15.1. EXPENSES. All fees and expenses incurred by Seller and the Doctors,
including without limitation, legal fees and expenses, in connection with this
Agreement will be borne by Seller and the Doctors and all fees and expenses
incurred by AmSurg and ASC, including without limitation, legal fees and
expenses, in connection with this Agreement will be borne by AmSurg and ASC.
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Asset Purchase Agreement/Page 13
14
15.2. ASSIGNABILITY; PARTIES IN INTEREST.
(a) AmSurg may assign any or all of its rights hereunder to any
affiliate or any direct or indirect subsidiary of AmSurg, and AmSurg shall
advise Seller of any such assignment and shall designate such party as the
assignee and transferee of the Purchased Assets. Any such assignee shall assume
all of AmSurg's duties, obligations and undertakings hereunder.
(b) Seller and the Doctors may not assign, transfer or otherwise
dispose of any of their respective rights hereunder without the prior written
consent of AmSurg.
(c) All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
heirs, successors, assigns and legal or personal representatives of the parties
hereto.
15.3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the exhibits,
Schedules, lists and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by all parties or their respective heirs, successors, assigns or legal
personal representatives. Any condition to a party's obligations hereunder may
be waived but only by a written instrument signed by the party entitled to the
benefits thereof. The failure or delay of any party at any time or times to
require performance of any provision or to exercise its rights with respect to
any provision hereof, shall in no manner operate as a waiver of or affect such
party's right at a later time to enforce the same.
15.4. SEVERABILITY. The invalidity of any term or terms of this Agreement
shall not affect any other term of this Agreement, which shall remain in full
force and effect.
15.5. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested or by overnight courier service) as follows:
If to Seller:
South Denver Endoscopy Center, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attn: Xxxx Xxxxxxxxxxx
with a copy to:
Xxxxx, Xxxxx and Xxxx P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Diss, Esq.
If to AmSurg or ASC:
AmSurg Holdings, Inc.
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Bass, Xxxxx & Xxxx PLC
First American Center
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
15.6. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
15.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, provided, however, that
the several executed counterparts shall together have been
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Asset Purchase Agreement/Page 14
15
signed by AmSurg, ASC, Seller and each of the Doctors. All of such executed
counterparts shall constitute one and the same instrument.
15.8. PARTIES IN INTEREST. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns. The parties acknowledge that they have
independently negotiated the provisions of this Agreement, that they have relied
upon their own counsel as to matters of law and application and that neither
party has relied on the other party with regard to such matters. The parties
expressly agree that there shall be no presumption created as a result of either
party having prepared in whole or in part any provisions of this Agreement.
15.9. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Tennessee, without regard
to its conflict of laws rules.
15.10. NO THIRD PARTY BENEFICIARIES. The parties acknowledge and agree that
there are no third party beneficiaries to this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
AMSURG HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: Secretary
--------------------------------
AMSURG CORP.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Senior Vice President
--------------------------------
SOUTH DENVER ENDOSCOPY CENTER, INC.
By: /s/ Xxxx Xxxxx
----------------------------------
Title: President
--------------------------------
By their execution of this Agreement, the Doctors hereby consent to the
execution hereof by Seller and agree to be bound by the provisions of Section
5.4 hereof:
DOCTORS:
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, M.D.
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx, M.D.
/s/ Xxx X. Xxxxx
--------------------------------------
Xxx X. Xxxxx, M.D.
/s/ Xxxxxxx Xxxx
--------------------------------------
Xxxxxxx Xxxx, M.D.
/s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx, M.D.
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Asset Purchase Agreement/Page 15
