EXHIBIT 2.7
ASSET PURCHASE AGREEMENT
BY
AND
BETWEEN
AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC. AS PURCHASER,
AND
PRECISION HEALTH SYSTEMS, L.L.C., AS SELLER
DATED AS OF FEBRUARY 1, 1998
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into and made
effective as of the 1/st/ day of February, 1998, by and between AMEDISYS
ALTERNATE-SITE INFUSION THERAPY SERVICES, INC., a Louisiana corporation, with
its principal place of business at 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx., Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxxxx 00000 (hereinafter referred to as "Purchaser") and
PRECISION HEALTH SYSTEMS, L.L.C., a Louisiana limited liability company having
its principal place of business at 00000 Xxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxx 00000 (hereinafter referred to as "Seller").
RECITALS
WHEREAS, Seller conducts a home health care and infusion business which
provides services to non-Medicare and non-Medicaid patients and whose offices
are located at 00000 Xxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxx;
WHEREAS, Purchaser desires to buy and Seller desires to sell all or
substantially all of the assets of Seller's business enterprise; and
WHEREAS, the parties expect that this Agreement will further advance their
respective business objectives, including without limitation, integration of the
business operations of Seller with the business operations of Purchaser in order
for Purchaser to more effectively compete in the marketplace.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
meanings indicated:
1.01 Assets: The assets to be sold and transferred by Seller to Purchaser
pursuant to this Agreement consisting of the assets owned by Seller as
of the Closing that are described in clauses (a) - (l) below and that
are more specifically detailed in Schedule 1.01 of this Agreement,
plus any other assets and rights pertaining to Seller's Business as
reflected on the balance sheet of Seller prepared as of January 31,
1998, subject to payments and receipts within the ordinary course of
business between January 31, 1998 and the date of the Closing, (the
"Balance Sheet"); provided however, the Excluded Assets are
specifically excluded from the assets to be sold under this Agreement:
a) All furniture, fixtures, equipment, leasehold improvements and
supplies of Seller located at and used by Seller in the operation
of Seller's Business at the address stated above, which are
further identified in and by the books and records of Seller;
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b) All inventory owned by Seller and used by Seller in the operation
of Seller's Business at the address stated above as of the
Closing;
c) All outstanding accounts receivable of Seller, as of the Closing,
together with all other indebtedness owed to Seller arising out
of Seller's Business;
d) Seller's right to use the name "Precision Health Systems", any
d/b/a or other name utilized to market its service and products,
and all trademarks, trade names, signage, marketing symbols and
logos;
e) All of Seller's current patient lists of present or former
patients, all of Seller's mailing lists, all business records
relating to the operations of Seller's Business (including all
records relating to patients), and all telephone numbers and
listings used by Seller in Seller's Business, and all intangibles
and other rights and privileges of Seller currently used in
Seller's Business;
f) Seller's leasehold interest in the premises occupied by Seller in
Baton Rouge, Louisiana, in accordance with the Sublease Agreement
described in Schedule 1.01 to this Agreement;
g) The goodwill and going concern value of Seller and all provider
numbers, licenses and permits of or pertaining to Seller's
Business;
h) The benefits of all amounts previously paid by Seller for
advertising, design fees, rent services, or interest relating to
Seller's Business or the Assets, to the extent that they extend
or are to be performed after the Closing;
i) All of Seller's rights under the agreements described in Schedule
5.08 (other than those described in Section 5.08.01), and the
rights given therein;
j) Seller's rights under all other contracts, including all leases
and non-competition agreements relating to Seller's Business;
k) All technical outlines and records (including all plans,
drawings, diagrams, notes, reports, memoranda, and other similar
documents), and any and all know-how and software and other
technology, including all contracts, licenses, authorizations,
permits, and other documents necessary for Seller's Business that
are owned by Seller; and
l) All trade secrets, inventions, patents, copyrights, trade names,
business names, trademarks, and other intangible assets used by
Seller for Seller's Business that are owned by Seller.
1.02 Closing. The consummation of the transactions contemplated by this
Agreement.
1.03 Excluded Assets. The assets of Seller which are not to be sold and
transferred to Purchaser pursuant to this Agreement and which consist
of the following: organizational documents of Seller, insurance
policies providing coverage to Seller
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and all rights under such policies, Seller's tax identification
number, Seller's depositary accounts and the agreements between Seller
and Seller's bank(s) (subject to the reconciliation of cash balances
of accounts described in Section 11.02(b)), and any prepaid taxes by
Seller.
1.04 GAAP. Generally accepted accounting principles.
1.06 Inventory and Accounts Receivable. All inventory and accounts
receivable of the Seller as of the Closing, including Seller's
interest in equipment which has been expensed but not capitalized,
more fully described in Schedule 1.06.
1.07 Accounts Payable. All accounts payable of the Seller as of the
Closing, including but not limited to, trade payables and account
payables more fully described in Schedule 1.07.
1.08 Liabilities. Those liabilities of Seller to be assumed by Purchaser at
the Closing pursuant to this Agreement, which consist of those
liabilities of Seller specifically disclosed on Schedule 1.08.
Purchaser shall also assume the obligations of Seller accruing after
the Closing Date on the contracts and agreements comprising a part of
the Assets, as disclosed on Schedule 1.08. Purchaser shall not assume
any other liabilities, contingent or certain, of Seller unless
incurred and disclosed in the manner provided in this Section 1.08.
Without limiting the foregoing, Purchaser is not assuming (i) any
expenses, liabilities, or obligations of Seller arising out of the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby which are unpaid at the Closing, (nor
may Seller pay any of such expenses out of the Assets), except for its
payment as provided in Section 3.03, (ii) any liabilities or
obligations of Seller relating to federal, state, or local income for
the period through the Closing or other taxes attributable to the
transactions contemplated hereby or the conduct of Seller's Business
except for the sales taxes shown on the Seller's Last Balance Sheet
and the sales taxes, if any, attributable to this transaction, (iii)
any obligation of Seller to pay a fee to any agent, broker, or finder
relating to this transaction, or (iv) the specific liabilities of
Seller for accrued medical director's fees and accrued management
expenses.
1.09 Material Adverse Effect. Any change in the financial condition of
Seller or operation of its business that would materially effect the
Seller's Business adversely, including, but not limited to, material
changes to its business condition or financial condition.
1.10 Permitted Encumbrances. As to each of the following, for which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) liens for taxes, assessments and
governmental charges or levies not yet due and payable or which are
being contested in good faith which are not in excess of $5,000.00 in
the aggregate; (b) encumbrances imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's liens and other
similar liens arising in the ordinary course of business securing
obligations that are
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being contested in good faith or are not overdue for a period of more
than 30 days provided that they are not in excess of $5,000.00 in the
case of a single property or $10,000.00 in the aggregate at any time
or which are being contested in good faith; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; (d) minor
survey exceptions, reciprocal easement agreements and other customary
encumbrances on title to real property that (i) were not incurred in
connection with any indebtedness, (ii) do not render title to the
property encumbered thereby unmarketable and (iii) do not,
individually or in the aggregate, materially adversely affect the
value or use of such property for its current purposes.
1.11 Purchaser's Knowledge. The actual knowledge of Purchaser's officers
and directors after reasonable inquiry.
1.12 Seller's Business. The home health care and infusion business which
provides services to non-Medicare and non-Medicaid patients as
presently carried on by Seller at Seller's address stated above.
1.10 Seller's Knowledge. The actual knowledge of Seller's member, Xxxxxx X.
Xxxxx and the administrator of Seller's other member after reasonable
inquiry.
2. Agreement to Purchase and Sell. Subject to the terms and conditions of
this Agreement, Purchaser agrees to purchase from Seller, and Seller
agrees to sell, transfer, convey, assign, and deliver to Purchaser, at
the Closing, the Assets, free and clear of all liens, claims,
liabilities, restrictions on transfer and encumbrances, except (i)
those liabilities listed in Schedule 1.08, (ii) Permitted Encumbrances
(iii) the restrictions set forth in the agreements and contracts
identified in Schedule 1.01, copies of which are attached thereto;
(iv) the consents required but not obtained identified in Schedule
5.03 and (v) liens, claims and liabilities accruing after the Closing.
2.01 The Closing. The Closing of the transactions contemplated by this
Agreement shall occur on February 27, 1998, to be effective on the
1/st/ day of February, 1998.
3. Purchase Price. The purchase price for the sale, transfer, conveyance,
assignment, and delivery of the Assets to Purchaser, subject to the
terms and conditions of this Agreement, shall be ONE MILLION AND
NO/100 ($1,000,000.00) DOLLARS, to be paid to Seller at the Closing by
the Purchaser as follows:
3.01 SEVEN HUNDRED FIFTY THOUSAND AND NO/100 ($750,000.00) DOLLARS, cash in
hand; and
3.02 Purchaser will deliver and execute a promissory note ("Promissory
Note"), the form of which is attached hereto as Schedule 3.02, payable
to the order of Seller, for the principal amount of TWO HUNDRED FIFTY
THOUSAND AND NO/100 ($250,000.00) DOLLARS. The Promissory Note shall
bear interest from February 27, 1998 until paid on the unpaid
principal balance at a per annum interest rate equal to the prime
interest rate designated in the Wall Street Journal plus one
percentage
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point, adjusted on an annual basis, and shall be payable, principal
plus interest, in twenty-four (24) equal monthly installments. The
Promissory Note shall be solidarily guaranteed by Amedisys, Inc. (the
"Guarantor"), shall provide for acceleration of the entire principal
balance in the event of default by Purchaser in the payment of any
installment thereunder or under this Agreement and shall provide for
the payment of the reasonable attorney fees incurred by Seller in the
collection thereof.
3.03 In addition to the Purchase Price, Purchaser will pay Seller, at the
Closing, TWENTY THOUSAND AND NO/100 ($20,000.00) DOLLARS to defray
certain expenses incurred by Seller in association with this
transaction.
3.04 The consideration to be paid pursuant to the provisions of this
Section 3 and the Liabilities to be assumed by Purchaser pursuant to
Section 4 shall constitute all the consideration to be paid by
Purchaser in connection with the purchase of the Assets contemplated
by this Agreement.
4. Assumption of Liabilities. In connection with the purchase of the
Assets hereunder, Purchaser shall specifically assume at Closing the
Liabilities and Permitted Encumbrances. Purchaser shall not assume any
other liabilities, contingent or certain, of Seller.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser, as of the date of this Agreement (unless
another date is expressly provided in this Section 5) that the
statements contained in this Section 5 are correct and complete:
5.01 Ownership. Seller is the beneficial owner of the Assets and has good
and marketable title to, and/or a valid leasehold interest in, and the
right to sell, assign, and transfer the Assets to Purchaser, free and
clear of any security interest, claims, liens, pledges, penalties,
charges, restrictions on transfer, encumbrances whatsoever of every
kind and character, other than (i) Permitted Encumbrances; (ii) the
restrictions set forth in the agreements and contracts identified in
Schedule 1.01, copies of which are attached thereto; (iii) the
consents required but not obtained identified in Schedule 5.03; and
(iv) those accruing after the Closing . Upon delivery of and payment
of the Purchase Price in accordance with this Agreement and obtaining
the consents described on Schedule 5.03, good and marketable title to,
or valid leasehold interest in, the Assets, shall be delivered to
Purchaser, free and clear of any security interest, claims, liens,
pledges, penalties, charges, encumbrances, whatsoever, other than the
liabilities set forth in Schedule 1.08, the Permitted Encumbrances,
the restrictions set forth in the agreements and contracts identified
in Schedule 1.01, copies of which are attached thereto, and those
accruing after the Closing.
5.02 Valid Existence. Seller is duly organized, validly exiting, and in
good standing as a limited liability company under the laws of the
State of Louisiana and has full power and authority (including all
licenses, franchises, permits, and other authorizations that are
legally required) to own the Assets, its properties and to engage in
the business and activities now conducted by it. Seller is in good
standing in each jurisdiction in which it conducts business.
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5.03 Due Authorization: Consent of Third Parties. Seller has the right,
power, legal capacity and authority to enter into and perform Seller's
obligations under this Agreement and, no approval or consent of any
person other than the Seller is necessary in connection with the
execution, delivery, or performance of this Agreement by the Seller,
except for the consents set forth in Schedule 5.03. This Agreement
constitutes a legal and binding obligation of the Seller, and is valid
and enforceable against the Seller in accordance with its terms except
that (i) the enforcement of certain rights and remedies created by
this Agreement is subject to bankruptcy, insolvency, reorganization,
and similar laws of general application affecting the rights and
remedies of parties, and (ii) the enforceability of any particular
provision of this Agreement under principles of equity or the
availability of equitable remedies, such as specific performance,
injunctive relief, waiver, or other equitable remedies, is subject to
the discretion of courts of competent jurisdiction.
5.04 Use of Assets. All of the Assets which are tangible personal property
are located at the above stated address of Seller and are free and
clear from defects, are maintained in accordance with normal industry
practice and are in good operating condition and repair, normal wear
and tear excepted. Seller has had no other business address within the
three years prior to the Closing. The Assets are being utilized by
Seller in conformity with all applicable federal, local and state
health care related and imposed rules, regulations, laws, statutes,
and permits ("Health Care Laws") applicable to Seller, and to the best
of Seller's Knowledge all other federal, state and local rules,
regulations, laws, statutes and permits, except where failure to so
conform will not have a Material Adverse Effect.
5.05 Reserved.
5.06 Litigation. Except as described on Schedule 5.06, there is not any
suit, action, arbitration, or legal, administrative, or other
proceeding or governmental investigation pending or, to the best of
Seller's Knowledge, threatened (in the form of threats made to
representatives of Seller), against or affecting Seller or any of the
Assets or other assets of Seller, including but not limited to any
action or claim under any federal, state, local or other governmental
act, rule, regulation, or any interpretations thereof, relating to
environmental matters or the protection of the safety and health of
persons connected with Seller's Business (including but not limited to
the transportation, treatment, storage, recycling, disposal, or
release into the environment of hazardous or toxic materials or
waste), or any basis on which any proceeding or investigation against
Seller might reasonably be undertaken or brought. The Seller has
informed Purchaser of, and upon request has furnished or made
available to Purchaser, copies of all relevant court papers and other
documents relating to, the matters set forth in this Section. Seller
has described on Schedule 5.06 all suits, actions, arbitrations, or
other proceedings or investigations in which Seller has been a party
to during the five year period immediately preceding the Closing.
Except as described on Schedule 5.06, Seller is not in default with
respect to any order, writ, injunction, or decree of any Health Care
Law. In addition, to
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Seller's Knowledge, it is not in violation of any other federal,
state, local law, rule or regulation, or foreign court, department,
agency, or instrumentality. Except as set forth on Schedule 5.06,
Seller is not presently engaged in any legal action to recover monies
due to the Seller, for damages sustained by the Seller, or amounts
owed to the Seller. During the five year period immediately preceding
the Closing, except as described on Schedule 5.06, Seller has neither
received nor been a party to any written notice of violations, orders,
claims, citations, complaints, penalties, assessments, court, or other
proceedings, administrative, civil or criminal, at law or in equity,
with respect to any Health Care Law. In addition, to Seller's
Knowledge, except as described on Schedule 5.06, it has neither
received nor been party to any written notice of violations, orders,
claims, citations, complaints, penalties, assessments, court, or other
proceedings, administrative, civil or criminal, at law or in equity,
with respect to any alleged violations of any other federal, state, or
local environmental law, regulation, ordinance, standard, permit, or
order in connection with the conduct of its business or otherwise
during the past five years.
5.07 Insurance. Schedule 5.07 contains an accurate and complete list and
brief description of all policies of fire and extended coverage,
liability, and the forms of similar insurance or indemnity bonds held
by Seller. Seller is not in default with respect to any provisions of
any such policy or indemnity bond and has not failed to give any
notice or present any claim thereunder in due and timely fashion,
which failure or failures to give such notice or present such claim,
individually or in the aggregate, could materially adversely affect
the Assets. All such policies and bonds are (i) in full force and
effect, (ii) with insurance companies believed by Seller to be
financially sound and reputable, (iii) are sufficient for compliance
by Seller with all requirements of law and of all agreements and
instruments to which Seller is a party, and (iv) will not in any
significant respect be affected by, and will not terminate or lapse by
reason of, the transactions contemplated by this Agreement. Schedule
5.07 contains an accurate and complete list of all accident or other
liability claims received by or known by Seller for the three year
period immediately preceding the Closing, as well as a description of
the status of each such claim. Such claims which remain outstanding
are covered by one or more insurance policies set forth in this
Section.
5.08 Contracts, Agreements and Instruments. Schedule 5.08 contains a list
of the following, copies of which have been heretofore furnished by
Seller to Purchaser, which acknowledges receipt thereof:
5.08.01 The Articles of Organization, Operating Agreement and other
organizational documents of Seller and all amendments
thereto, as presently in effect, certified by a member of
Seller;
5.08.02 True and correct copies of all material contracts, agreements
and other instruments to which Seller is a party;
5.08.03 True and correct written descriptions of all verbal material
contracts and/or agreements to which Seller is party.
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Except for matters which, in the aggregate, would not have a Material
Adverse Effect or are otherwise disclosed in the Agreement, Seller is not, and
to the best of Seller's Knowledge, no other party to any such contract,
agreement, instrument, lease, or license is now in violation or breach of, or in
default with respect to complying with, any material provision thereof, and each
such contract, agreement, instrument, lease, or license by which Seller is
presently engaged is in full force and effect and is the legal, valid, and
binding obligation of the parties thereto and is enforceable as to them in
accordance with its terms, except that (i) the enforcement of certain rights and
remedies created thereby is subject to bankruptcy, insolvency, reorganization,
and similar laws of general application affecting the rights and remedies of
parties, and (ii) the enforceability of any particular provision thereof under
principles of equity or the availability of equitable remedies, such as specific
performance, injunctive relief, waiver, or other equitable remedies, is subject
to the discretion of courts of competent jurisdiction. Each such service,
supply, distribution, agency, financing, or other arrangement, contract or
understanding is a valid and continuing arrangement, contract or understanding,
except for matters which, in the aggregate, will not have a Material Adverse
Effect; neither Seller, nor any other party to any such arrangement, contract or
understanding has given notice of termination or taken any action inconsistent
with the continuance of such arrangement, contract or understanding, except for
matters which, in the aggregate, will not have a Material Adverse Effect; and,
subject to obtaining the consents described on Schedule 5.03, the execution,
delivery, and performance of this Agreement will not prejudice any such
arrangement, contract or understanding in any way, except for matters which, in
the aggregate, will not have a Material Adverse Effect.
5.09 Compliance With Law: Taxes. Seller has complied with, and is not in
violation of any (i) term or provision of its Articles of
Organization or Operating Agreement; (ii) term or provision of any
applicable judgment, decree, order, statute, injunction, rule,
ordinance known to it; (iii) any Health Care Law; or (iv) to the best
of Seller's Knowledge, foreign, United States, state or local
statutes, laws, rules, or regulations except where such non-
compliance or violation will not have a Material Adverse Effect.
Seller has timely filed all federal, state, and local tax returns
required to be filed and all such returns are complete and correct.
Except as described on Schedule 5.06, the Seller has made timely
payment of all such taxes when due and payable and has paid all
interest, penalties, deficiencies, and assessments, if any, levied or
assessed against it. Except as described on Schedule 5.06, Seller has
duly withheld, collected, and timely paid to the proper governmental
authorities all taxes required to be withheld and collected by it.
There are no agreements for extension of the time of assessment of
payment of any taxes of Seller, except as otherwise disclosed by
Seller. No waiver of any statute of limitations has been executed by
the Seller. There are no examinations by the Internal Revenue Service
of Seller presently in process of the tax returns of Seller for any
year(s) open to such examination.
5.10 Permits and Licenses. Seller has all permits, licenses, and other
similar authorizations necessary for the conduct of its business as
now being conducted by it, and it is not in default in any respect
under any such permits, licenses, or authorizations. No royalties,
commissions, or fees are payable by Seller to any person by reason of
the ownership or use of any intangible property, except as set forth
in the contracts described on Schedule 5.08. There are no material
licenses,
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sub-licenses, or agreements relating to the use by Seller of any
intangible property now in effect, except as set forth in the
contracts described on Schedule 5.08, and Seller has no knowledge
that any intangible property is being infringed by others. No claim
that will have a Material Adverse Effect on the business of the
Seller is pending or, to the best of Seller's Knowledge, threatened,
that the operation of Seller's Business or any method, process, part,
or material that Seller employs, conflicts in any material way with,
or infringes in any material way upon any rights of the type
enumerated above, owned by others.
5.11 Employees. Schedule 5.11 is a list of the names of all employees of
Seller, stating the amounts or rates of compensation payable to each,
the employee benefits enjoyed by each, and whether or not each
respective employee has executed an employment agreement with Seller.
5.12 No Violation of Employee Contracts. Seller is not, and to the best of
Seller's Knowledge, no employee of Seller is in violation of any term
of any employment contract, non-competition agreement, or any other
contract or agreement or any restrictive covenant with, or any other
common law obligation to, a former employer of such employee relating
to the right of any such employee to be employed by Seller because of
the nature of the business conducted by Seller or of the use of trade
secrets or proprietary information of others. There is no pending
nor, to the best of Seller's Knowledge, threatened, any actions,
suits, proceedings, or claims with respect to any contract,
agreement, covenant, or obligation referred to in the preceding
sentence.
5.13 Hazardous Materials. The Seller is not in the business of possession,
transportation, or disposal of hazardous materials. If and to the
extent that Seller's Business has involved the possession,
transportation, or disposal of hazardous materials, to Seller's
Knowledge, the Seller has complied with any and all applicable laws,
ordinances, rules, and regulations and has not and will not be the
basis of any claim or proceeding against, or any liability of, Seller
with respect to the period prior to the Closing. To the best of
Seller's Knowledge, no employee of Seller has been exposed to
hazardous materials during the period of employment by Seller such
that exposure could cause damage to such employee.
5.14 Interest in Competitors. To Seller's Knowledge, except as disclosed
on Schedule 5.14, Xxxxxx X. Xxxxx has no direct or indirect ownership
interest in any competitor, supplier, or customer of Seller or in any
person from whom or to whom Seller leases any real or personal
property, or in any other person with whom Seller is doing business.
5.15 Financial Condition. Seller has delivered to Purchaser true and
correct copies of the following: the unaudited balance sheet and
income statement of Seller for the fiscal year ended December 31,
1997; and an unaudited balance sheet ("Seller's Last Balance Sheet"),
and income statement for the one month ended January 31, 1998
("Seller's Last Balance Sheet Date"). Each such balance sheet
presents fairly in all material respects the financial condition,
assets and liabilities of Seller as of its date;
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and, except for unrecorded revenue, each such statement of income
presents fairly in all material respects the results of operations of
Seller for the period indicated. The financial statements referred to
in this section have been prepared in accordance with the books and
records of Seller.
5.16 Changes or Events. Since Seller's Last Balance Sheet Date, except as
described on Schedule 5.16, none of the following has occurred:
5.16.01 Any material transaction by Seller not in the ordinary course
of business involving amounts in excess of $5,000;
5.16.02 Any material capital expenditure by Seller involving amounts
in excess of $5,000;
5.16.03 Other than in the ordinary course of business, any changes in
the condition (financial or otherwise), liabilities, assets,
or business or in any business relationships of Seller,
including relationships with suppliers or customers, that,
when considered individually or in the aggregate, are
reasonably expected to have a Material Adverse Effect;
5.16.04 The destruction of, damage to, or loss of any asset of Seller
(regardless of whether covered by insurance) that, when
considered individually or in the aggregate, are reasonably
expected to have a Material Adverse Effect;
5.16.05 Any labor disputes that, when considered individually or in
the aggregate, are reasonably expected to have a Material
Adverse Effect;
5.16.06 There have been no change in accounting methods or practices
(including, without limitation, any change in depreciation or
amortization policies or rates) by Seller, except for any
such changes as were required by law;
5.16.07 Other than in the ordinary course of business and payments to
the pharmacist employed by Seller in the amount of $4,000.00,
any increase in the salary or other compensation payable or
to become payable by Seller to any employee, or the
declaration, payment, or commitment or obligation of any kind
for the payment by Seller of a bonus or other additional
salary or compensation to any such person;
5.16.08 The material amendment or termination of any material
contract, agreement, or license to which Seller is a party,
except in the ordinary course of business;
5.16.09 Any loan by Seller to any person or entity, or the
guaranteeing by Seller of any loan other than loans made in
the ordinary course of business;
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5.16.10 Any mortgage, pledge, or other encumbrance of any asset of
Seller except in the ordinary course of business;
5.16.11 The waiver or release of any right or claim of Seller, except
in the ordinary course of business;
5.16.12 Reserved;
5.16.13 Any loss or, to the knowledge of Seller, any threatened loss
of any permit, license, qualification, special charter or
certificate of authority held or enjoyed by Seller which loss
has had or upon occurrence is reasonably expected to have a
Material Adverse Effect;
5.16.14 To Seller's Knowledge, any statute, regulation, order,
ordinance or other law the adoption or rescission of which is
reasonably expected to have a Material Adverse Effect;
5.16.15 Except such matters undertaken in consultation with
Purchaser, any failure on the part of Seller to operate its
business in the ordinary course and consistent with past
practices so as to preserve its business organization intact,
to retain the services of its employees and to preserve its
goodwill and relationships with suppliers, creditors,
customers, and others having business relationships with it;
5.16.16 Any action taken or omitted to be taken by Seller which would
cause (after lapse of time, notice or both) the breach,
default, or acceleration of any right, contract, commitment,
or other obligation of Seller; or
5.16.17 Any agreement by Seller to do any of the things described in
the preceding clauses in this section.
5.17 No Defaults. Subject to obtaining the consents described on Schedule
5.03, the consummation of the transactions contemplated by this
Agreement will not result in or constitute any of the following: (i)
a breach of any term or provision of any other agreement to which
Seller is a party that will not be waived or released at the Closing;
(ii) a default or an event that will not be waived or released at the
Closing, and that, with notice or lapse of time or both, would be a
default, breach, or violation of the Articles of Organization or
Operating Agreement of Seller or of any lease, license, promissory
note, conditional sales contract, commitment, indenture, mortgage,
deed of trust, or other agreement, instrument, or arrangement to
which Seller is a party or by which Seller or its assets is bound;
(iii) an event that will not be waived or released at Closing and
that would permit any party to terminate any agreement or to
accelerate the maturity of any indebtedness or other obligation of
Seller; (iv) the creation or imposition of any lien, charge, or
encumbrance on any of the Assets; or (v) a violation of any law or
any rule or regulation of any administrative agency or governmental
body unrelated to the business or profession
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of health care and any profession related to health care, of any
order, writ, injunction or decree of any court, administrative agency
or governmental body to which Seller is subject.
5.18 Liabilities. No liabilities of Seller will be assumed by or
transferred to Purchaser pursuant to the transactions contemplated by
this Agreement, except as provided in Section 1.08, those listed in
Schedule 1.08, or as provided in Section 4, nor will any of the
Assets to be acquired by Purchaser pursuant to this Agreement be
subject to any pre-Closing liabilities, nor will Purchaser otherwise
be liable for any other liabilities of Seller.
5.19 No Prohibited Payments. Neither Seller nor any employee or agent of
Seller has made or authorized any payment of funds of Seller or on
behalf of Seller prohibited by law and no funds of Seller have been
set aside to be used for any payment prohibited by law.
5.20 Completeness of Disclosure. No representation or warranty by Seller
in this Agreement including the Schedules, Exhibits, and certificates
prepared by Seller incorporated herein, contains any untrue statement
of a material fact or omits any material fact necessary in order to
make the statements contained herein not misleading.
6. Representations and Warranties of Purchaser and Guarantor. Purchaser,
and with respect to Sections 6.05, 6.06 and 6.07, Guarantor, hereby
represents and warrants to Seller, as of the date of this Agreement,
that the statements contained in this Section 6 are correct and
complete:
6.01 Organization. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Louisiana and is authorized to do business in every other
jurisdiction in which its ownership, leasing, licensing, or use of
property or assets or the conduct of its business makes such
qualification necessary, except where the failure to do so would not
have a Material Adverse Effect. Purchaser is a wholly owned
subsidiary of Guarantor.
6.02 Due Authorization: Third Party Consents. Purchaser has the right,
power, legal capacity, and authority to enter into and perform its
obligations under this Agreement and, except as otherwise set forth
herein, no approval or consent of any person other than the Purchaser
is necessary in connection with the execution, delivery, or
performance of this Agreement. The execution, delivery, and
performance of this Agreement by the Purchaser has been duly
authorized by its board of directors and no other corporate
proceedings on the part of Purchaser are necessary to authorize this
Agreement or the consummation of the transactions contemplated
hereby. This Agreement constitutes a legal and binding obligation of
the Purchaser, and is valid and enforceable against the Purchaser in
accordance with its terms except that (i) the enforcement of certain
rights and remedies created by this Agreement is subject to
bankruptcy, insolvency, reorganization, and similar laws of general
application affecting the rights and remedies of parties, and (ii)
the enforceability of any
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particular provision of this Agreement under principles of equity or
the availability of equitable remedies, such as specific performance,
injunctive relief, waiver or other equitable remedies, is subject to
the discretion of courts of competent jurisdiction.
6.03 No Violation. The consummation of the transactions contemplated by
this Agreement will not result in or constitute any of the following:
(i) a breach of any term or provision of any other agreement of
Purchaser that will not be waived or released at the Closing; (ii) a
default or an event that will not be waived or released at the
Closing and that, with notice or lapse of time or both, would be a
default, breach, or violation of the Certificate of Incorporation or
Bylaws of Purchaser or of any lease, license, promissory note,
conditional sales contract, commitment, indenture, mortgage, deed of
trust, or other agreement, instrument, or arrangement to which
Purchaser is a party or by which Purchaser or the property of
Purchaser is bound; or (iii) a violation of any law or any rule or
regulation of any administrative agency or governmental body or any
order, writ, injunction, or decree of any court, administrative
agency or governmental body to which Purchaser is subject.
6.04 Completeness of Disclosure. No representation or warranty and no
Schedule, Exhibit, or certificate incorporated herein and prepared by
Purchaser pursuant hereto and no statement made or other document
prepared by Purchaser and furnished to Seller by Purchaser contains
any untrue statement of a material fact or omits or will omit any
material fact necessary in order to make the statements contained
therein not misleading.
6.05 Organization of Guarantor. Guarantor is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware and is authorized to do business in every other jurisdiction
in which its ownership, leasing, licensing, or use of property or
assets or the conduct of it business makes such qualification
necessary, except where the failure to do so would not have a
Material Adverse Effect.
6.06 Due Authorization: Third Party Consents. Guarantor has the right,
power, legal capacity, and authority to enter into and perform its
obligations under this Agreement and, except as otherwise set forth
herein, no approval or consent of any person other than the Guarantor
is necessary in connection with the execution, delivery, or
performance of this Agreement. The execution, delivery, and
performance of this Agreement by the Guarantor has been duly
authorized by its board of directors and no other corporate
proceedings on the part of Guarantor are necessary to authorize this
Agreement or the consummation of the transactions contemplated
hereby. This Agreement constitutes a legal and binding obligation of
the Guarantor, and is valid and enforceable against the Guarantor in
accordance with its terms except that (i) the enforcement of certain
rights and remedies created by this Agreement is subject to
bankruptcy, insolvency, reorganization, and similar laws of general
application affecting the rights and remedies of parties, and (ii)
the enforceability of any particular provision of this Agreement
under principles of equity or the availability
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of equitable remedies, such as specific performance, injunctive
relief, waiver or other equitable remedies, is subject to the
discretion of courts of competent jurisdiction.
6.07 No Violation. The consummation of the transactions contemplated by
this Agreement will not result in or constitute any of the following:
(i) a breach of any term or provision of any other agreement of
Guarantor that will not be waived or released at the Closing; (ii) a
default or an event that will not be waived or released at the
Closing and that, with notice or lapse of time or both, would be a
default, breach, or violation of the Certificate of Incorporation or
Bylaws of Guarantor or of any lease, license, promissory note,
conditional sales contract, commitment, indenture, mortgage, deed of
trust, or other agreement, instrument, or arrangement to which
Guarantor is a party or by which Guarantor or the property of
Guarantor is bound; or (iii) a violation of any law or any rule or
regulation of any administrative agency or governmental body or any
order, writ, injunction, or decree of any court, administrative
agency or governmental body to which Guarantor is subject.
7. Conditions to Obligations of Purchaser. The obligations of Purchaser
under this Agreement are subject, at the option of Purchaser, to the
satisfaction of the following conditions:
7.01 Accuracy of Representations and Compliance With Conditions. All
representations and warranties of Seller contained in this Agreement
shall be accurate when made and, in addition, shall be materially
accurate as of the Closing as though such representations and
warranties were then made by Seller, other than such representations
and warranties that are made as to another date. As of the Closing,
Seller shall have performed and complied with all covenants and
agreements and satisfied all conditions required to be performed and
complied with by Seller at or before such time by this Agreement.
7.02 Closing Documents. In connection with the Closing, Seller shall
deliver to Purchaser the following items:
7.02.01 Bills of sale, endorsements, assignments, drafts, checks, and
other instruments of transfer in form and substance
consistent with this Agreement and mutually satisfactory to
Purchaser and Seller in order to transfer all right, title
and interest of Seller in the Assets to Purchaser;
7.02.02 To the extent applicable, original evidences of title or
ownership of the Assets, including drafts, warehouse receipts
and licenses;
7.02.03 Evidence (including, if applicable, the delivery of duly
executed UCC-3 Termination Statements) reasonably
satisfactory to Purchaser and its counsel, of the
satisfaction and discharge by Seller of all existing liens,
claims, and encumbrances upon or affecting the Assets; and
7.02.04 Such other instruments and documents in form and content
consistent with the terms of this Agreement and mutually
satisfactory to Seller and
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Purchaser, as may be necessary or appropriate to (i)
effectively transfer and assign to and vest in Purchaser good
and marketable title to the Assets and/or to consummate more
effectively the transactions contemplated hereby and (ii) in
order to enable Purchaser to determine whether the conditions
to Seller's obligations under this Agreement have been met
and otherwise to carry out the provisions of this Agreement.
7.03 Review of Proceedings. All actions, proceedings, instruments, and
documents required to carry out this Agreement, or any agreement
incidental thereto and all other related legal matters shall be
subject to the reasonable approval of counsel to Purchaser, and
Seller shall have furnished such counsel for Purchaser such documents
as such counsel may have reasonably requested for the purpose of
enabling them to pass upon such matters.
7.04 Legal Action. There shall not have been instituted or threatened any
legal proceeding relating to, or seeking to prohibit or otherwise
challenging the consummation of, the transactions contemplated by
this Agreement or related agreements or to obtain substantial damages
with respect thereto.
7.05 No Governmental Action. There shall not have been any action taken,
or any law, rule, regulation, order, or decree proposed, promulgated,
enacted, entered, enforced, or deemed applicable to the transactions
contemplated by this Agreement by any federal, state, local, or other
governmental authority or by any court or other tribunal, including
the entry of a preliminary or permanent injunction which, in the
reasonable judgment of Purchaser:
7.05.01 Makes any of the transactions contemplated by this Agreement
illegal;
7.05.02 Results in a delay which affects the ability of Purchaser to
consummate any of the transactions contemplated by this
Agreement;
7.05.03 Requires the divestiture by Purchaser of a material portion
of the business of either Purchaser taken as a whole, or of
Seller taken as a whole; and
7.05.04 Otherwise prohibits, restricts, or delays consummation of any
of the transactions contemplated by this Agreement or impairs
the contemplated benefits to Purchaser of the transactions
contemplated by this Agreement.
7.06 Contractual Consents Needed. Except for the consents described in
Schedule 5.03, the Parties to this Agreement shall have obtained at
or prior to the Closing all consents required for the consummation of
the transactions contemplated by this Agreement from any party to any
contract, agreement, instrument, lease, license, arrangement, or
understanding to which either of them is a party, or to which any of
their respective businesses, properties, or assets are subject,
except where the failure to obtain the same would not have a Material
Adverse Effect on such party.
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7.07 Other Agreements. Agreements set forth as exhibits or schedules to
this Agreement shall have been duly authorized, executed, and
delivered by the parties thereto at or prior to the Closing, shall be
in full force and effect, valid and binding upon the parties thereto,
and enforceable by them in accordance with their terms at the
Closing, and no party thereto at any time from the execution thereof
until immediately after the Closing shall have been in violation of
or in default in complying with any material provision thereof.
7.08 Member Approval. The members of Seller shall have approved the
transactions contemplated herein.
7.09 Legal Opinion. Seller shall have obtained a legal opinion from the
law firm of Kantrow, Spaht, Xxxxxx & Blitzer in the form shown in
Schedule 7.09.
7.10 Public Statements. Before Seller shall execute or administer a press
release or public announcement related to consummation of this
transaction, Seller shall cooperate with Purchaser, shall furnish
drafts of all documents or proposed oral statements to Purchaser for
comment, and shall not release any such information without the
written consent of Purchaser. Nothing contained herein shall prevent
Seller from furnishing any information to any governmental authority
if required to do so by law.
8. Conditions to Obligations of Seller. The obligations of Seller under
this Agreement are subject, at the option of Seller, to the
satisfaction of the following conditions:
8.01 Accuracy of Representations and Compliance With Conditions. All
representations and warranties of Purchaser contained in this
Agreement shall be accurate when and shall be accurate as of the
Closing as though such representations and warranties were then made
by Purchaser, other than such representations and warranties as are
made as to another date. As of the Closing, Purchaser shall have
performed and complied with all covenants and agreements and
satisfied all conditions required to be performed and complied with
by any of them at or before such time by this Agreement.
8.02 Other Closing Documents. Purchaser shall have delivered to Seller, at
or prior to the Closing, such other documents as Seller may
reasonably request in order to enable Seller to determine whether the
conditions to its obligations under this Agreement have been met and
otherwise to carry out the provisions of this Agreement.
8.03 Review of Proceedings. All actions, proceedings, instruments, and
documents required to carry out this Agreement, or any agreement
incidental thereto and all other related legal matters shall be
subject to the reasonable approval of counsel to Seller and Purchaser
shall have furnished such counsel such documents as such counsel may
have reasonably requested for the purpose of enabling them to pass
upon such matters.
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8.04 Legal Action. There shall not have been instituted or threatened any
legal proceeding relating to, or seeking to prohibit or otherwise
challenging the consummation of, the transactions contemplated by
this Agreement or related agreements set forth as an exhibit hereto,
or to obtain substantial damages with respect thereto.
8.05 No Governmental Action. There shall not have been any action taken,
or any law, rule, regulation, order, or decree proposed, promulgated,
enacted, entered, enforced, or deemed applicable to the transactions
contemplated by this Agreement by any federal, state, local, or other
governmental authority or by any court or other tribunal, including
the entry of a preliminary or permanent injunction, which, in the
reasonable judgment of Seller:
8.05.01 Makes any of the transactions contemplated by this Agreement
illegal;
8.05.02 Results in a delay which affects the ability of Seller to
consummate any of the transactions contemplated by this
Agreement;
8.05.03 Otherwise prohibits, restricts, or delays consummation of any
of the transactions contemplated by this Agreement or impairs
the contemplated benefits to Seller or the Stockholders of
the transactions contemplated by this Agreement.
8.06 Contractual Consents Needed. The parties to this Agreement shall have
obtained at or prior to the Closing the consents described on
Schedule 5.01 and all other consents required for the consummation of
the transactions contemplated by this Agreement from any party to any
contract, agreement, instrument, lease, license, arrangement, or
understanding to which either of them is a party, or to which any of
their respective businesses, properties, or assets are subject,
except where the failure would not have a Material Adverse Effect.
8.07 Other Agreements. Agreements set forth as exhibits or schedules to
this Agreement shall have been duly authorized, executed, and
delivered by the parties thereto at or prior to the Closing, shall be
in full force, valid and binding upon the parties thereto, and
enforceable by them in accordance with their terms at the Closing,
and no party thereto at any time from the execution thereof until
immediately after the Closing shall have been in violation of or in
default in complying with any material provision thereof.
8.08 Board Approval. The Boards of Directors of Purchaser and Guarantor
shall have approved the transactions contemplated herein and
certified copies of authroizing resolutions shall have been delivered
to Seller.
9. Covenants and Agreements of Purchaser. Purchaser covenants and agrees
as follows:
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9.01 Payment of Sales Taxes. Any sales tax incurred as a result of this
transaction will be paid by Purchaser to Seller at the Closing for
remittance to the appropriate taxing authority.
9.02 Post Closing Covenants. On and after the Closing, Purchaser agrees to
maintain in confidence and not to disclose, except in accordance with
and as permitted by applicable laws and regulations, the records of
the patients to whom Seller provided services.
9.03 Employment Matters. On or prior to the Closing, Purchaser shall offer
employment to all of Seller's employees, other than Xxx Xxxxxxxxx, on
such terms and providing such health and other benefits as Purchaser
has previously advised Seller.
9.04 Collection of Receivables. Purchaser shall use it best good faith
efforts to collect all outstanding receivables of Seller, as detailed
in Schedule 1.01, in a timely and efficient manner.
9.05 Release of Xxxxxx X. Xxxxx. Subsequent to closing, Purchaser shall
ensure that Xxxxxx X. Xxxxx is released from any personal contract or
agreement guarantees which are active with respect to Seller's
business.
9.06 Information Accessibility. Upon prior reasonable notice and at
reasonable times, Seller shall be allowed access to those business
records transferred herein.
10. Covenants and Agreements of Seller. Seller covenants and agrees as
follows:
10.01 Payment of Taxes. Except City sales taxes in the amount shown on
Seller's Last Balance Sheet, all accrued but unpaid federal, state,
and local income and other taxes of Seller for the period ended as of
the Closing and all prior periods will be paid by Seller.
10.02 Post-Closing Consents. Seller agrees to use its best good faith
effort to secure and/or assist Purchaser in securing post-Closing
third party consents material to the ongoing operation of Seller's
Business.
11. Miscellaneous.
11.01 Brokerage and Other Fees. The parties agree that there are no
brokerage arrangements or fee obligations, in writing or otherwise,
with respect to the transactions set forth in this Agreement. Each
party shall be responsible for the fees of their respective
professionals (including, without limitation, legal and accounting
fees) engaged to assist in the preparation, negotiation and
counseling with respect, and relating, to this Agreement and
consummation of the transactions contemplated herein, as well as
their respective out-of-pocket expenses except Purchaser agrees to
pay for the preparation of the necessary transfer documents to
accomplish the transactions herein.
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11.02 Further Actions.
(a) At any time and from time to time, the parties agree, at their
expense, to take such actions and to execute and deliver such
documents as may be reasonably necessary to effectuate the purposes
of this Agreement.
(b) Purchaser and Seller shall reconcile Seller's depositary accounts
as of the effective date of the Closing, and for the period
thereafter through the date of the Closing, and upon completion
thereof, Seller shall pay to Purchaser the balance of said accounts.
11.03 Reserved.
11.04 Survival. The representations, and warranties contained in or made
pursuant to this Agreement by the Parties hereto shall survive for a
period of 24 months from the date of the Closing, irrespective of any
investigation made by or on behalf of any party (the "Survival
Date"). No claim for indemnification or otherwise may be brought by a
party hereto against another party hereto unless asserted by written
notice as provided herein by the party claiming indemnification or
otherwise on or before the Survival Date.
11.05 Entire Agreement; Modification. The Agreement and the Schedules and
Exhibits hereto set forth the entire understanding of the parties
with respect to the subject matter hereof, supersede all existing
agreements between them concerning such subject matter, and may be
modified only by a written instrument duly executed by the parties.
11.06 Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by telecopy (confirmed by
telephone within twenty-four (24) hours following receipt thereof),
or by registered or certified mail, (postage prepaid, return receipt
requested) to the respective parties at the following address (or at
such other address for a party as shall be specified in a notice
given in accordance with this Section 11.06:
(a) If to Seller:
Precision Health Systems, L.L.C.
00000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (00) 000-0000
Telephone: (000) 000-0000
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with copy to:
Kantrow, Spaht, Xxxxxx & Blitzer
(A Professional Law Corporation)
Suite 300, City Plaza
000 Xxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxx Xxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx X. Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(b) If to Purchaser:
Amedisys Alternate-Site Infusion Therapy Services, Inc.
0000 X. Xxxxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
11.07 Waiver. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon
strict adherence to any term of this Agreement on one or more
occasions will not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement. Any waiver must be in writing and,
in the case of a corporate party, be authorized by a resolution of
the Board of Directors or by an officer of the waiving party.
11.08 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of each party's respective successors
and assigns; provided, however, any such assignment by Purchaser
shall not release Purchaser of any of its obligations under this
Agreement.
11.09 No Third-Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
11.10 Severability. If any provision of this Agreement is invalid, illegal,
or unenforceable, the balance of this Agreement shall remain in
effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other
persons and circumstances.
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11.11 Headings. The headings of this Agreement are solely for convenience
of reference and shall be given no effect in the construction or
interpretation of this Agreement.
11.12 Counterparts, Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. It shall be governed by and construed in accordance with
the laws of the State of Louisiana without giving effect to conflict
of laws.
11.13 Indemnification. Subject to the limitations set forth in Sections
11.14 and 11.15 hereof, Seller shall indemnify, defend and hold
harmless Purchaser and each of its officers, directors, agents and
affiliates from and against any damage, loss, claim, liability, cost
or expense incurred by Purchaser, including fees and disbursements of
counsel, accountants, experts and other consultants reasonably and
necessarily incurred by Purchaser, net of any tax benefit to which
Purchaser is entitled and net of any and all amounts to which
Purchaser is entitled to from insurance, guarantees, indemnities, and
contractual and legal rights by, from or against other persons, firms
or entities (collectively, "Damages"), resulting from, arising out
of, based upon or occasioned by the inaccuracy of any warranty or any
representation made by Seller in this Agreement, or any breach of any
covenant or agreement of Seller contained herein. Purchaser shall
indemnify, defend and hold harmless Seller and each of its members,
officers, directors, agents and affiliates from and against any
Damages, resulting from, arising out of, based upon or occasioned by
the inaccuracy of any warranty or representation made by the
Purchaser herein, or any breach of any covenant or agreement of
Purchaser contained herein.
11.14 Limitations on Indemnification and Other Claims. The maximum amount
of Damages for which Seller shall be responsible under this
Agreement, whether pursuant to a claim for indemnification or
otherwise, shall not exceed the unpaid principal balance of the
Promissory Note, such maximum amount to be reduced by principal
payments made by the Purchaser or the Guarantor on the Promissory
Note and by amounts offset against the unpaid principal balance of
the Promissory Note in the manner permitted by this Agreement. Such
right of offset shall be the exclusive remedy of the Purchaser, and
all other persons entitled to indemnity against the Seller pursuant
to Section 11.13 above, for Damages under this Agreement and
otherwise. It is understood and agreed that Seller shall have no
liability to return any part of the cash portion of the Purchase
Price or any payments of principal or interest on the Promissory Note
received by it or otherwise pay any amount of Damages (except
pursuant to the right of offset as permitted by this Agreement). The
right of offset permitted in this Agreement shall be exercised first
against accrued but unpaid interest and then against the unpaid
principal installments of the Promissory Note in the inverse order of
their maturity.
11.15 Right of Off-Set. If Purchaser reasonably believes it is entitled to
indemnification under this Agreement, it shall be entitled to the
right of offset against amounts owing by it under the Promissory Note
in accordance with the following terms and
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provisions: Purchaser shall promptly notify Seller of the matter for
which it seeks indemnification and shall specify in reasonable detail
the facts and circumstances thereof and a good faith estimate of the
Damages occasioned thereby. Seller shall have ten (10) days from the
receipt of Purchaser's notice in which to cure the circumstance
giving rise to the Damages and provide evidence of such cure to the
Purchaser. If the circumstance is not cured within the ten day
period, Purchaser shall have the immediate right to deposit the
monthly payment due and payable pursuant to the Promissory Note into
an escrow account at a bank mutually acceptable to the parties to be
held and invested pursuant to a mutually agreeable escrow agreement.
Monthly payments into said escrow account shall continue until the
amount of the Damages specified in Purchaser's notice is equal to the
balance of said escrow account, at which time payments to Seller
under the Promissory Note shall resume as originally contemplated. In
the event the Purchaser's claim for indemnification is disputed by
Seller, such dispute shall be resolved by the provisions of Section
9.15. If it is ultimately determined that Purchaser's claim for
indemnification was improper, the escrowed funds and earnings thereon
shall be distributed to Seller. If it is ultimately determined that
Purchaser's claim for indemnification was proper, the escrowed funds
and earnings thereon shall be distributed to Purchaser.
11.16 Arbitration Procedures. Any and every dispute of any nature
whatsoever that may arise between the parties hereto, whether
sounding in contract, statute, tort, fraud, misrepresentation,
discrimination or any other legal theory, or breach of this
Agreement, or any schedule, certificate or other document delivered
by any party hereto or thereto, or those arising under any federal,
state or local law, regulation or ordinance, shall be subject to the
limitations of Section 11.14 and shall be determined by binding
arbitration in accordance with the then-current commercial
arbitration rules of the American Arbitration Association ("AAA"), to
the extent such rules do no conflict with the provision of this
Section 11. The arbitration shall be conducted by a single neutral
arbitrator. The parties shall endeavor to select a neutral arbitrator
by mutual agreement. If such agreement cannot be reached within
thirty (30) calendar days after a dispute has arisen which is to be
decided by arbitration, any party or the parties jointly shall
request AAA to submit to each party an identical panel of fifteen
(15) persons. Alternate strikes shall be made to the panel,
commencing with the party bringing the claim, until the name of one
(1) person remains. The parties may, however, by mutual agreement,
request AAA to submit additional panels of possible arbitrators. The
arbitrator shall have the power to determine all matters incident to
the conduct of the arbitration, including without limitation all
procedural and evidentiary matters and the scheduling of any hearing.
The award made by the arbitrator shall be governed by the United
States Arbitration Act, 9 U.S.C. (S)(S) 1-16, and judgment upon the
award rendered by the arbitrator(s) may be entered by any court
having jurisdiction thereof. Unless otherwise agreed by the parties,
the arbitration shall be held in Baton Rouge, Louisiana.
11.17 Provision applicable to claims for injunctive relief. This agreement
to arbitrate shall specifically include, without limitation, an
application for injunctive relief under Section 11. In the event
injunctive relief is sought, the parties agree that Commercial
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Arbitration Rule 13 (as amended November 1, 1993, or its subsequent
equivalent) shall not apply, and instead, a single arbitrator shall
be appointed within one business day after the filing of the demand
or submission. Such arbitrator shall then preside over the
application for injunctive relief and all other disputes then arising
under this Agreement. The arbitrator appointed under this paragraph
10(b) shall be appointed by JAMS Endispute, Baton Rouge, Louisiana
("JAMS"), in the following manner: the case administrator for the AAA
shall contact JAMS immediately on receipt of the demand for
arbitration containing the claim for injunctive relief. The case
administrator shall provider JAMS with the names of the parties to,
and a copy of, this agreement. From its then current list of
qualified, licensed, but non-practicing attorneys who are former,
sitting trial judges, the Baton Rouge national account manager (or
equivalent position) of JAMS shall appoint one such individual as the
arbitrator to preside over the application for injunctive relief and
all other disputes between the parties. Except in the unlikely event
of an actual conflict of interest under the Rules of Professional
Conduct or Code of Judicial Conduct, neither party shall have any
right to strike or object to the appointment of any person so
selected. The parties expressly agree and desire that the selection
of an arbitrator hereunder shall be effected within one business day
of any application for injunctive relief and agree that such
application shall then be considered at least as expeditiously as
would be the case in the District Courts for East Baton Rouge Parish.
The parties further agree that any injunctive relief granted by the
arbitrator shall be separately enforceable in the District Court for
East Baton Rouge Parish, to the same extent as would be the case for
a final award of the arbitrator.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as
of the date written in the preamble of this Agreement.
AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.
By: ________________________________________
Xxxxxxx Xxxxxxxxxxx, President
AMEDISYS, INC.
By:_________________________________________
Print Name:__________________________________
Title:_______________________________________
PRECISION HEALTH SYSTEMS, L.L.C.
By: ________________________________________
Xxxxxx X. Xxxxx, Member
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SCHEDULES OF SELLER
TO ASSET PURCHASE AGREEMENT (THE "ASSET PURCHASE AGREEMENT")
BY AND BETWEEN
AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.
(THE "PURCHASER")
AND
PRECISION HEALTH SYSTEMS, L.L.C
(THE "SELLER")
DATED AS OF FEBRUARY ____, 1998
NOTE: Unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to them in the Asset Purchase Agreement. Matters
disclosed under any Schedule hereof shall be deemed incorporated into matters
disclosed under any other Schedule hereof to the extent applicable.
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