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BILL OF SALE
AND
ASSET PURCHASE AGREEMENT
by and among
PARK INFUSION SERVICES, LP,
a Texas limited partnership
("Buyer")
AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.,
a Louisiana corporation
("AASI")
and
PRN, INC.,
a Texas corporation
("PRN")
(PRN and AASI are herein sometimes collectively
referred to as "Sellers")
and
AMEDISYS, INC.,
a Delaware corporation
("Parent")
Executed on August 10, 2000, but Effective as of August 1, 2000,
12:01 p.m. Central Standard Time
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TABLE OF CONTENTS
Page
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1. Purchase and Sale of Purchased Assets......................1
2. Excluded Assets............................................4
3. Assignment of Seller Contracts, Leases, Licenses and
Permits...................................................4
4. Assumption of Certain Liabilities..........................5
5. Purchase Price; Manner of Payment; Allocation; Other
Consideration.............................................7
6. Time and Place of Closing..................................8
7. Representations and Warranties of Seller and Parent.......11
8. Representations of Parent.................................18
9. Covenants.................................................19
10. Survival..................................................23
11. Indemnification by Seller and Parent; Offset; Third-
Party Claims.............................................23
12. Indemnification by Buyer; Offset; Third-Party Claims......27
13. Parent's Guarantee of Obligations.........................29
14. Bill of Sale; Assumption of Liabilities...................29
15. Expenses; Brokers.........................................30
16. Severable Provisions......................................30
17. Enforceability............................................30
18. Arbitration...............................................30
19. Governing Law.............................................32
20. Definition of Knowledge...................................32
21. Entire Agreement..........................................32
22. Construction..............................................32
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23. Further Assurances........................................32
24. Press Release or Public Statements........................33
25. Successors and Assigns....................................33
26. Amendment, Modification or Waiver.........................33
27. Headings..................................................33
28. Notices...................................................33
29. Counterparts..............................................34
30. Execution by Facsimile; Delivery of Original Signed
Agreement................................................35
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BILL OF SALE AND ASSET PURCHASE AGREEMENT
THIS BILL OF SALE AND ASSET PURCHASE AGREEMENT (this
"Agreement") is made and entered on this 10th day of August, 2000
(the "Execution Date"), but effective as of 12:01 Central
Standard Time, August 1, 2000 (the "Effective Date") by and
among PARK INFUSION SERVICES, LP, a Texas limited partnership
("Buyer"), AMEDISYS ALTERNATE-SITE INFUSION THERAPY SERVICES,
INC., a Louisiana corporation ("AASI"), and PRN, INC., doing
business as HOME IV THERAPY and AMEDISYS ALTERNATIVE-SITE
INFUSION THERAPY SERVICES, a Texas corporation (AASI and PRN are
herein sometimes collectively referred to as the "Sellers") and
AMEDISYS, INC., a Delaware corporation ("Parent").
RECITALS:
A. PRN is engaged in the business of providing infusion therapy
services administered in alternative sites, such as ambulatory
infusion centers and/or homes, in the State of Texas and in
providing pharmaceutical drugs to other persons and/or facilities
("PRN Business").
B. AASI is engaged in the business of providing infusion
therapy services administered in alternative sites, such as
ambulatory infusion centers and/or homes of patients, in the
States of Florida and Texas and in providing pharmaceutical drugs
to other persons and/or facilities, (collectively "AASI
Business"). (The PRN Business and AASI Business are herein
sometimes collectively referred to as the "Business").
C. Sellers desire to sell to Buyer, and Buyer desires to
purchase from Sellers, certain of Sellers' respective assets used
in the Business, free and clear of any and all liens, claims,
charges, liabilities, encumbrances and security interests of
whatsoever kind and nature, except only for the Assumed
Liabilities (as hereinafter defined), upon the terms and
conditions set forth in this Agreement.
D. Parent is the sole shareholder of AASI, and AASI is the sole
shareholder of PRN, and Parent desires to cause each of the
Sellers to perform their respective obligations under this
Agreement and to make certain representations and warranties to
Buyer in connection with the transactions contemplated by this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals
and the mutual covenants set forth below and other good and
valuable consideration, the parties hereby agree as follows:
1. Purchase and Sale of Purchased Assets. Subject to the
terms and conditions of this Agreement and the Operative
Documents (defined herein), each Seller hereby sells, assigns,
transfers, conveys and delivers to Buyer, and Buyer hereby
purchases and accepts from each Seller, free and clear of any and
all liens, claims, charges, liabilities, encumbrances and
security
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interests of whatsoever kind and nature, except only the Assumed
Liabilities, all of the following assets (collectively, the
"Purchased Assets") in effect and existence as of the Effective
Date:
(a) Equipment. All furniture, office furniture,
appliances, fixtures, equipment, office equipment, computer
hardware, machinery, parts and tools, whether owned, leased
or used by each Seller in the Business (the "Equipment"),
including, but not limited to, the Equipment described in
Schedule 1(a)(i) and Schedule 1(a)(ii) attached hereto and
incorporated herein for all purposes;
(b) Inventory. All inventory and supplies on hand
and/or in transit and used in the Business by each Seller,
whether damaged or otherwise unsaleable (the "Inventory"),
including, but not limited to, the Inventory set forth on
Schedule 1(b)(i) and Schedule 1(b)(ii) attached hereto and
incorporated herein for all purposes;
(c) Contracts. All of each Seller's service and
provider contracts and all other business contracts,
arrangements and other agreements to which the applicable
Seller is a party or that are required or beneficial for
Buyer's operation of the Business (the "Contract(s)"),
including, but not limited to, the Contracts set forth on
Schedule 1(c)(i) and Schedule 1(c)(ii) attached hereto and
incorporated herein for all purposes;
(d) Intellectual Property and Intangible Assets. All
intellectual property rights owned by or licensed to each
Seller, including, but not limited to, all patents, know-
how, unpatented inventions, trade secrets, business and
marketing plans, copyrights, all registered or unregistered
trademarks, service marks and trade names, computer
software, all names and slogans used by each Seller in the
conduct of the Business, all applications for any of the
above and any right to recovery for infringement thereof
(including past infringement) and any and all goodwill
associated therewith or connected with the use thereof (the
"Intellectual Property"). The Intellectual Property shall
include, but not be limited to, all right, title and
interest in and to the names, "PRN, Inc.," "Alternate-Site
Infusion Therapy," "Alternative-Site Infusion Therapy"
and/or "Home IV Therapy" and any derivations of any such
names. All intangible assets of the Business, including, but
not limited to, all computer records, technology,
proprietary information, know-how, ideas, licenses,
processes, formulas, software, computer programs, covenants
by others not to compete, each Seller's rights to email
addresses, Internet domain names, URLs, web sites and such
other computer records, computer numbers and passwords used
by each Seller or Parent in connection with the Business and
such privileges, registrations or applications for
registrations of any of the foregoing, and any right to
recovery for infringement thereof (including past
infringement) and any and all goodwill associated therewith
or connected with the use thereof, including those that are
listed on Schedule 1(d)(i) and Schedule 1(d)(ii) attached
hereto and incorporated herein for all purposes, but
excluding for all purposes, Parent's e-mail addresses,
Internet domain names, URLs and web sites, except to the
extent used in connection with the Business;
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(e) Licenses, Permits and Approvals. All of each
Seller's licenses, permits, approvals and authorizations of
whatsoever kind and type, governmental or private, issued,
applied for, or pending used by, related to or required of
the applicable Seller in the conduct of the Business and/or
the Purchased Assets (the "Licenses and Permits"). Schedule
1(e)(i) and Schedule 1(e)(ii) attached hereto and
incorporated herein contains a complete list of all Licenses
and Permits;
(f) Capital and Operating Leases. All of each
Seller's right, title, interest and equity in and to and
under the leases identified on Schedule 1(f)(i) and Schedule
1(f)(ii) attached hereto and incorporated herein for all
purposes (collectively, the "Leases"), including, but not
limited to, all deposits and prepaid expenses related to all
of the Leases;
(g) Telephone and Facsimile Numbers. All telephone and
facsimile numbers used by each Seller, including, but not
limited to, those telephone and facsimile numbers listed on
Schedule 1(g)(i) and Schedule 1(g)(ii) attached hereto and
incorporated herein for all purposes;
(h) Customer and Supplier Lists. All of each Seller's
customer and supplier lists and all of each Seller's mailing
lists, true, correct and complete copies of which are
attached hereto as Schedule 1(h)(i) and Schedule 1(h)(ii)
and incorporated herein for all purposes, and all of each
Seller's customer, supplier and patient records related to
the Business;
(i) Books and Records. Except as set forth in Section
2 hereof, all books and records regarding the Business of
each Seller, including, without limitation, inventory,
maintenance, patient lists and patient books and records,
and asset history records and employee records, but
excluding all tax records; provided, however, that access
thereto shall be provided to Buyer pursuant to Section 9(g)
hereof;
(j) Goodwill. The goodwill of each Seller's Business
or associated with the Purchased Assets;
(k) Deposits and Prepaid Expenses. All of each
Seller's right, title, interest and equity in and to
deposits and prepaid expenses, including without limitation
those deposits and prepaid expenses set forth on Schedule
1(k)(i) and Schedule 1(k)(ii) attached hereto and
incorporated herein for all purposes (the "Deposits");
(l) Claims and Rights. All of each Seller's claims and
rights associated in any way with the Purchased Assets,
including, without limitation, the Contracts and the Leases;
and
(m) Other Property. All other or additional
privileges, rights, interests, properties and assets of
every kind and description and wherever located, that are
used or intended for use in connection with, or that are
necessary to the continued conduct of each Seller's
Business.
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2. Excluded Assets. The following assets shall be excluded
from the purchase and sale contemplated by this Agreement in
effect and as in existence on the Effective Date (collectively,
the "Excluded Assets"):
(a) Cash. All of each Seller's cash on hand and in
banks;
(b) Bank Accounts. All right, title and interest in
and to each Seller's bank accounts;
(c) Accounts Receivable. All accounts receivable of
each Seller;
(d) Rights Hereunder. All of each Seller's rights
under this Agreement;
(e) Corporate Documents. All of each Seller's
corporate charter documents, minute and stock record books
and corporate seals;
(f) Employer Identification Number. Each Seller's tax
identification number; and
(g) Specifically Listed Assets. In addition to those
items generally described in Sections 2(a)-(f) herein and
without limiting the generality of the foregoing, those
assets that are specifically identified on Schedule 2(g)(i)
and Schedule 2(g)(ii) attached hereto and incorporated
herein for all purposes.
3. Assignment of Seller Contracts, Leases, Licenses and
Permits.
(a) Notwithstanding the foregoing, this Agreement
shall not constitute an agreement to assign or transfer any
Contract and/or Lease if an assignment or transfer, or an
attempt to make such assignment or transfer, without the
consent of the third party, would constitute a breach or
violation thereof or affect adversely the rights of Buyer or
any Seller thereunder; and any transfer or assignment to
Buyer by any Seller of any interest under any such Contract
or Lease hereunder that requires the consent or approval of
a third party shall be made subject to such consent or
approval being obtained. In the event any such consent or
approval is not obtained before the Closing Date (defined
herein), and if the failure to obtain the consent or
approval prior to the Closing Date has been waived, the
applicable Seller shall continue to use its best efforts to
obtain any such consent or approval after the Closing Date
until such time as such consent or approval is obtained, and
such Seller shall cooperate with Buyer in any lawful and
economically feasible arrangement to provide that Buyer
shall receive the interest of such Seller and all benefits
under any such Contract or Lease, including without
limitation, performance by such Seller as agent if
economically feasible.
(b) Notwithstanding the foregoing, this Agreement
shall not constitute an agreement to assign or transfer any
License and/or Permit if an assignment or transfer, or an
attempt to make such assignment or transfer, without the
consent or approval of the third party, would constitute a
breach or violation thereof or affect adversely the rights
of
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Buyer or any Seller thereunder; and any transfer or
assignment to Buyer by any Seller of any interest under any
such License or Permit hereunder that requires the consent
or approval of a third party shall be made subject to such
consent or approval being obtained. In the event any such
consent or approval is not obtained prior to the Closing
Date and if failure to obtain the consent or approval prior
to the Closing Date has been waived, the applicable Seller
shall continue to use its best efforts to obtain any such
consent or approval after the Closing Date until such time
as such consent or approval is obtained, and such Seller
shall cooperate with Buyer in any lawful and economically
feasible arrangement to provide that Buyer shall receive the
interest of such Seller and all benefits under any such
License or Permit, including without limitation, performance
by such Seller as agent if economically feasible.
4. Assumption of Certain Liabilities.
(a) Assumed Liabilities. Buyer hereby assumes and
agrees to undertake, pay, perform and/or discharge only (i)
the Liabilities arising from and after the Closing Date
pursuant to the Contracts set forth on Schedule 1(c)(i) and
Schedule 1(c)(ii) attached hereto and the Leases set forth
on Schedule 1(f)(i) and Schedule 1(f)(ii) attached hereto,
but in each case only to the extent the Contract and/or
Lease is not in default and only to the extent that the
Liability relates to the performance of the applicable
Contract and/or Lease by Buyer or its assignee after the
Closing and from a set of circumstances that began after the
Closing, and (ii) the monthly lease rentals related to the
Leases arising from and after the Effective Date, but in
each case only to the extent the Lease is not in default and
only to the extent that the monthly lease rental relates
solely to the period after the Effective Date (iii) any
expenses incurred to purchase inventory for the period after
the Effective Date (with the understanding that all
purchases of inventory on or after the Effective Date shall
be owned by the Buyer), and (iv) any liabilities related to
wages and/or salaries of the Employees (who are Employees
during the period between the Effective Date and the Closing
Date) incurred after the Effective Date (collectively, the
"Assumed Liabilities"). For purposes of this Agreement, the
term "Liability" shall mean any commitments, debts,
liabilities, obligations (including contract and
capitalization lease obligations), indebtedness, accounts
payable, accrued expenses of any nature whatsoever, losses,
damages and costs (whether any of the foregoing are known or
unknown, secured or unsecured, asserted or unasserted,
absolute or contingent, direct or indirect, accrued or
unaccrued, liquidated or unliquidated and/or due or to
become due), including any liability or obligation for
Taxes.
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(b) No Third Party Beneficiaries or Expansion of
Rights. Notwithstanding anything contained herein to the
contrary, nothing in this Agreement, express or implied, is
intended to or shall be construed to confer upon, or give
to, any person, partnership, corporation or other entity
other than Sellers and Parent, any remedy or claim under or
by reason of this Agreement or any terms, covenants or
conditions hereof, and all the terms, covenants and
conditions, promises and agreements contained in this
Agreement shall be for the sole and exclusive benefit of
Sellers and Parent.
This Agreement shall, in all events, be construed so
that the assumption by Buyer of the Assumed Liabilities, and
the delegation thereof by the Sellers, shall in no way
expand or increase the rights and/or remedies of any third
party against either Buyer or any Seller as compared to the
rights and/or remedies that such third party would have had
against any Seller had Buyer not assumed such liabilities.
Without limiting the generality of the preceding sentence,
the assumption by Buyer of the Assumed Liabilities shall not
create any third party beneficiary rights.
(c) Liabilities Not Assumed by Buyer. Anything in
this Agreement to the contrary notwithstanding, each of the
Sellers and Parent shall be responsible for all of their
respective Liabilities and obligations, which includes all
Liabilities, related in any respect to the Business and/or
the Purchased Assets and/or any of the Sellers, but
excluding solely the Assumed Liabilities (collectively, the
"Excluded Liabilities"), and Buyer shall not assume, or in
any way be liable or responsible for, any of such Excluded
Liabilities. Without limiting the generality of the
foregoing, the Excluded Liabilities shall also include the
following:
(i) any Liability or obligation of each of the Sellers or
Parent arising out of or in connection with the negotiation and
preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby, or any Tax
Liabilities so arising;
(ii) any Liability or obligation of each of the
Sellers that is specifically retained by the Sellers pursuant to
this Agreement, including, without limitation, the Excluded
Liabilities;
(iii) any Liability or obligation of each of the
Sellers or Parent, or any consolidated group of which the Sellers
are a member, for any foreign, federal, state, commonwealth,
county or local taxes of any kind or nature, or any taxes levied
by any other legitimate taxing authority, or any interest or
penalties thereon, including, without limitation, any sales or
use tax obligations applicable to the transfer of the Purchased
Assets or the transfer of the Contracts and/or Leases as
contemplated by this Agreement, it being hereby agreed by the
parties hereto that such obligations shall be paid by the Sellers
and Parent, on a joint and several basis;
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(iv) any Liabilities with respect to any claims,
suits, actions or causes of action arising out of the operation
of the Business on or prior to the Closing Date; and
(v) any Liabilities with respect to each of the Sellers'
Benefit Plans (defined herein) and/or Benefit Arrangements
(defined herein) arising on or prior to the Closing Date.
(d) Payment of Earned Payroll and Paid Time Off. Prior
to or at the Closing (as hereinafter defined), or if the
Closing does not occur on a day which is a normal date on
which payroll is paid by the Sellers to its employees, then
on the first normal payroll date following the Closing (the
"Normal Payroll Date"), each Seller shall have paid to its
Employees (defined in Section 7(l) herein) all earned
payroll, earned through the "paid-time off bank" (the "PTO
Bank") (collectively, the "Earned Employees Benefits") and
associated taxes to which such Employees are entitled prior
to and through the Effective Date.
5. Purchase Price; Manner of Payment; Allocation;
Monitoring of Cash Receipts.
(a) Purchase Price and Manner of Payment. In
addition to the Other Consideration (defined herein) set
forth in Section 5(c) herein, the total purchase price
for the Purchased Assets (the "Purchase Price") and the
covenants of each of the Sellers and Parent shall be One
Million Seven Hundred Fifty Thousand Dollars ($1,750,000)
to be paid to the Sellers by wire transfer at the
Closing, to the account or accounts designated in writing
by the Sellers to Buyer, as follows:
(i) to AASI, the sum of $ 1,049,490.00
(ii) to PRN, the sum of $ 700,510.00
(b) Purchase Price Allocation. The parties shall
allocate the Purchase Price, among the Purchased Assets
as set forth in Schedule 5(c) attached hereto (the
"Allocation"). Buyer and each Seller agree to report
the transactions set forth herein for federal and state
tax purposes in accordance with the Allocation,
including, but not limited to, for purposes of filing IRS
Form 8594, and on a timely manner (including any and all
permitted extensions)
(c) Post-Closing Adjustments. The parties clearly
understand that the Sellers are transferring the Business
effective as of the Effective Date, although the Business
will be managed and/or operated by the Sellers from the
Effective Date until and including the Closing Date. In
accordance therewith, the Sellers are entitled to all
Accounts Receivables prior to the Effective Date and/or
cash received with respect to the Accounts Receivables
generated prior to the Effective Date. The Buyers are
entitled to all Accounts Receivable generated on and
after the Effective Date and all proceeds received in
connection therewith. It is further understood that the
Seller
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may pay for certain items that are Assumed Liabilities.
In connection therewith, the parties agree to meet on a
mutually agreed upon date within thirty (30) days after
the Closing Date to account for the obligations of each
party to the other party. In addition to other mutually
agreed amounts to be transferred between Seller and
Buyer, the parties agree as follows:
(i) The Buyer shall be responsible for
reimbursing Sellers for all expenses paid by
either of the Sellers on or after the Effective
Date and before the Closing Date which are
attributable to the Business on or after the
Effective Date, including without limitation, all
salaries and wages and related taxes incurred
during the month of August and thereafter and paid
by the Sellers and/or the rent paid by either of
the Sellers on any of the Leases for equipment
and/or leased space for the month of August and
that are related to the Purchased Assets; and
(ii) The Seller shall be responsible for paying
Buyer for any cash or cash equivalents received by
the Sellers for services rendered or products
provided that are received and are attributable to
the Business on or after the Effective Date and
before the Closing Date but excluding any payments
or portions thereof that are received and are
attributable to accounts receivables earned prior
to the Effective Date.
(d) Monitoring of Cash Receipts. The parties
understand that checks and/or other forms of money may
inadvertently be sent to the wrong party. Each of the
Sellers and/or Parent, on the one hand (and with respect to
the Parent, to the extent related to the Business and/or the
Purchased Assets), and the Buyer, on the other hand, agree
to work efficiently and expediently to resolve this problem
and related issues during the period beginning with the
Execution Date and ending six (6) months thereafter (the
"Monitoring Period"), and agree to do the following during
the Monitoring Period:
(i) the parties shall each appoint a point person who would be
the person acting on behalf of such party to facilitate the
resolution of problems;
(ii) effective as of the Closing Date, the parties shall
provide to the other party a weekly report detailing a listing of
all receipts by such party, including the name of the patient
and/or customer, the payor, the invoice numbers and accompanied
by the explanation of benefits (the "EOBs") related to such
invoices, and any other information reasonably requested by such
party; and
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(iii) upon notification by one party that there might be a
problem with the listing or related issues, the parties agree to
commit their resources to resolve any differences within forty-
eight (48) hours.
6. Time and Place of Closing. The transactions contemplated by
this Agreement shall be consummated at a closing (the "Closing")
held on the date that the parties agree to next after the Buyer
has secured its financing (the "Closing Date") at the Dallas,
Texas offices of Bracewell & Patterson, LLP, or at such other
place or in such other manner as the parties may mutually
designate, and shall be effective on the Effective Date, unless
otherwise specifically provided herein. In connection with such
Closing, all of the following transactions were considered to
have taken place simultaneously and no delivery or payment was
considered to have been made until all transactions taken at the
Closing had been completed:
(a) PRN has duly executed and/or delivered to Buyer,
as part of the Operative Documents (defined below), the
following:
(i) this Agreement;
(ii) a Certificate duly executed by the Secretary
of PRN that certifies (A) the due adoption by the Board of
Directors and the sole shareholder of PRN of resolutions attached
to such Certificate authorizing the execution of this Agreement
and the Operative Documents and the taking of all actions
contemplated hereby or thereby; (B) the incumbency and true
signatures of those officers of PRN duly authorized on its behalf
in connection with the documents and transactions referred to in
(A) above; and (C) that the copy of the Articles of Incorporation
and Bylaws of PRN attached to such Certificate are true and
correct copies thereof and that such Articles and Bylaws have not
been amended or modified in any way except as reflected in such
copies;
(iii) An opinion of counsel for PRN in form and
substance satisfactory to counsel for Buyer in the form of
Exhibit A hereto;
(iv) All of the consents of third persons
necessary to effectuate the valid assignment to Buyer of the
Contracts, Leases, Licenses and Permits to which PRN is a party
or by which it or its assets are bound shall have been obtained
in a form reasonably satisfactory to Buyer, without any
diminution of the value of the Purchased Assets.
(v) All UCC-3s or other financing statements necessary
to release any liens and/or any other encumbrances on the Purchased
Assets; and
(vi) all other documents or certificates,
instruments and other items necessary to effect the transactions
contemplated hereby.
(b) AASI has duly executed and/or delivered to Buyer,
as part of the
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Operative Documents, the following:
(i) this Agreement;
(ii) a Certificate duly executed by the Secretary
of AASI that certifies (A) the due adoption by the Board of
Directors and the sole shareholder of AASI of resolutions
attached to such Certificate authorizing the execution of this
Agreement and the Operative Documents and the taking of all
actions contemplated hereby or thereby; (B) the incumbency and
true signatures of those officers of AASI duly authorized on its
behalf in connection with the documents and transactions referred
to in (A) above; and (C) that the copy of the Articles of
Incorporation and Bylaws of AASI attached to such Certificate are
true and correct copies thereof and that such Articles and Bylaws
have not been amended or modified in any way except as reflected
in such copies;
(iii) An opinion of counsel for AASI in form and
substance satisfactory to counsel for Buyer in the form of
Exhibit A hereto;
(iv) All of the consents of third persons
necessary to effectuate the valid assignment to Buyer of the
Contracts, Leases, Licenses and Permits to which AASI is a party
or by which it or its assets are bound shall have been obtained
in a form reasonably satisfactory to Buyer, without any
diminution of the value of the Purchased Assets;
(v) All UCC-3s or other financing statements necessary to
release any liens and/or other encumbrances on the Purchased
Assets; and
(vi) all other documents or certificates,
instruments and other items necessary to effect the transactions
contemplated hereby.
(c) Parent has duly executed and/or delivered to
Buyer, as part of the Operative Documents, the following:
(i) this Agreement;
(ii) a Certificate duly executed by the
Secretary of Parent that certifies (A) the due adoption
by the Board of Directors of Parent of resolutions
attached to such Certificate authorizing the execution
of this Agreement and the Operative Documents and the
taking of all actions contemplated hereby or thereby;
(B) the incumbency and true signatures of those
officers of Parent duly authorized on its behalf in
connection with the documents and transactions referred
to in (A) above; and (C) that the copy of the Articles
of Incorporation and Bylaws of Parent attached to such
Certificate are true and correct copies thereof
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and that such Articles and Bylaws have not been amended or
modified in any way except as reflected in such copies;
(iii) an opinion of counsel for Parent in
form and substance satisfactory to counsel for Buyer in
the form of Exhibit A hereto;
(iv) all consents and/or approvals
necessary from any third parties, including, without
limitation, any financial institutions, to consummate
the transactions contemplated by this Agreement; and
(v) all other documents or certificates,
instruments and other items necessary to effect the
transactions contemplated hereby.
(d) Buyer has duly executed and/or delivered to
Sellers and/or Parent as part of the Operative Documents,
the following:
(i) the Purchase Price;
(ii) a Certificate duly executed by the Secretary
of Buyer that certifies (A) the due adoption by the
General Partner of Buyer of resolutions attached to
such Certificate authorizing the execution of this
Agreement and the Operative Documents and the taking of
all actions contemplated hereby or thereby; (B) the
incumbency and true signatures of those representatives
of Buyer duly authorized on its behalf in connection
with the documents and transactions referred to in (A)
above; and (C) that the copy of the Partnership
Agreement of Buyer attached to such Certificate is a
true and correct copy thereof, and that the Partnership
Agreement has not been amended or modified in any way
except as reflected in such copies; and
(iii) an opinion of counsel for Buyer in form and
substance satisfactory to counsel for PRN, AASI and Parent
in the form of Exhibit C hereto.
(e) At the Closing, and at all times thereafter as may
be necessary, each of the Sellers and Parent shall execute
and deliver to Buyer such other instruments of transfer as
shall be reasonably necessary or appropriate to vest in
Buyer title to the Purchased Assets and to comply with the
purposes and intent of this Agreement. Further, each of the
parties hereto agrees to cooperate fully with each other and
with the other party's respective counsel and accountants in
connection with any steps required to be taken as part of
their respective obligations hereunder and all parties agree
to use their reasonable best efforts to do all things
necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
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7. Representations and Warranties of Seller and
Parent. Each of the Sellers and Parent jointly and severally
represent and warrant to Buyer that the following were true,
complete and correct as of the Effective Date of this Agreement
and are true, complete and correct as of the Execution Date and
Closing Date of this Agreement:
(a) Organization, Existence and Good Standing.
(i) AASI is a corporation duly formed, validly existing
and in good standing under the laws of the State of Louisiana and
is duly qualified as a foreign corporation to do business in each
other jurisdiction where the nature of its activities makes such
qualification necessary. AASI has the corporate power and
authority to own and lease all of the properties and assets now
owned and leased and to carry on its business as now being
conducted.
(ii) PRN is a corporation duly formed, validly existing
and in good standing under the laws of the State of Texas and is
duly qualified as a foreign corporation to do business in each
other jurisdiction where the nature of its activities makes such
qualification necessary. PRN has the corporate power and
authority to own and lease all of the properties and assets now
owned and leased and to carry on its business as now being
conducted.
(b) Capital Stock; Ownership.
(i) AASI has authorized capital stock
consisting of ten thousand (10,000) shares of common
stock, par value one-tenth of One Cent ($0.001) per
share, of which Ten Thousand (10,000) shares are
presently issued and outstanding and are all held
beneficially and of record by Parent. There are no
other authorized or outstanding securities of AASI, of
any class, kind or character. There are no outstanding
subscriptions, options, warrants or other rights,
agreements or commitments obligating AASI to issue any
additional shares of capital stock of AASI, or any
options or rights with respect thereto, or any
securities convertible into or exchangeable for any
shares of capital stock of AASI.
(ii) PRN has authorized capital stock
consisting of five hundred thousand (500,000) shares of
common stock, par value One Cent ($0.01) per share, of
which Ninety-Five Thousand (95,000) shares are
presently issued and outstanding and are all held
beneficially and of record by AASI. There are no other
authorized or outstanding securities of PRN, of any
class, kind or character. There are no outstanding
subscriptions, options, warrants or other rights,
agreements or commitments obligating PRN to issue any
additional shares of capital stock of PRN, or any
options or rights with respect thereto, or any
securities convertible into or exchangeable for any
shares of capital stock of PRN.
(iii) AASI is the sole shareholder of
PRN. AASI has good and marketable title and rightful
possession of all of the shares of capital stock of
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PRN, free and clear of any and all liens, claims,
charges, encumbrances and security interests of any
nature or type whatsoever, except as specifically
described in Schedule 7(b)(iii) attached hereto and
incorporated herein for all purposes.
(c) Enforceability and Authority. This Agreement and the other
documents and instruments executed by each of the Sellers and/or
Parent and/or each of the Named Individuals in connection
herewith (collectively, the "Operative Documents," including,
without limitation, this Agreement) to which it is a party have
been duly executed and delivered by each of the Sellers and
constitute a legal, valid and binding obligation of each of the
Sellers, enforceable against each of the Sellers in accordance
with their respective terms. Each of the Sellers has full power,
capacity and authority (both legal and corporate) to execute and
deliver this Agreement and the Operative Documents, and to
perform its obligations hereunder and thereunder, and all
required approvals of the Board of Directors of each of the
Sellers and the shareholders of each Seller have been duly and
properly obtained. No other corporate action on the part of any
Seller is necessary to authorize the transactions contemplated
hereby.
(d) Title. Each of the Sellers has good and marketable
title to the Purchased Assets owned by such Seller,
free and clear of any and all liens, claims, charges,
liabilities, encumbrances and security interests of
every kind and nature, except only for the Assumed
Liabilities.
(e) Condition of Equipment and Inventory. Except as
otherwise specifically noted on Schedule 1(a)(i) and
Schedule 1(a)(ii) and Schedule 1(b)(i) and Schedule
1(b)(ii) attached hereto, the Equipment and Inventory
set forth therein, respectively, constitute all
material tangible personal property used by each Seller
in the Business and/or necessary for the Business and
is sufficient to enable Buyer to conduct the Business
in the same manner after the Closing as each Seller
operated and conducted the Business immediately prior
to the Closing. Except as otherwise specifically noted
on Schedule 1(a)(i) and Schedule 1(a)(ii) attached
hereto, all Equipment is in good working condition and
repair, and is in operating condition, subject to
normal wear and tear, and is adequately insured against
damage and loss through the Closing Date. The Inventory
is free from defects in materials and workmanship
except with respect to items of Inventory that are
indicated as being "below quality" or "non-saleable" on
Schedule 1(b)(i) and Schedule 1(b)(ii) attached hereto.
All Equipment and Inventory is located at the locations
set forth on Schedule 7(e)(i) and Schedule 7(e)(ii)
attached hereto.
(f) Taxes. Each Seller has properly completed and
filed in correct form and on a timely basis all tax
returns, and other required tax forms, with respect to
all sales, excise, transaction privilege, business
license, employment, withholding, income, franchise and
real and personal property taxes, and all other local,
state and federal taxes (collectively, the "Taxes")
that are required of any Seller to be
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filed prior to the Closing or for any period relating
on or before the Closing, and has timely paid all Taxes
and all assessments of every kind and nature owing by
any Seller as such Taxes and assessments have accrued
and/or become due or payable.
(g) Conflicts; Consents. Except as set forth on
Schedule 7(g)(i) and Schedule 7(g)(ii) attached hereto,
neither the execution and delivery of this Agreement
and/or the Operative Documents, nor the consummation of
the transactions contemplated hereby or thereby will
conflict with, violate or result in a breach of or
default under (with or without the giving of notice or
the passage of time, or both): (i) the Articles of
Incorporation or the Bylaws of any of the Sellers; (ii)
any License, Permit, instrument, contract or agreement
(including any Contract and/or Lease) to which any
Seller is a party or is subject or by which any Seller
or any of the Purchased Assets are bound; or (iii) any
law, order, rule, regulation, writ, injunction or
decree that is applicable to any Seller, or that may
affect any of the Purchased Assets. Neither the
execution and delivery of this Agreement, nor of any of
the Operative Documents, nor the consummation by any
Seller or Parent of the transactions contemplated
hereby or thereby, will require any consent or approval
of, or any filing with, any entity or other person,
including any governmental entity or body, except as
set forth on Schedule 7(g)(i) and Schedule 7(g)(ii)
attached hereto and incorporated herein.
(h) Creditors of Sellers. Schedule 7(h)(i) and
Schedule 7(h)(ii) attached hereto lists all of each
Seller's creditors (the "Creditors"), the Creditors'
current addresses and the balance due to each of the
Creditors, as of the date hereof.
(i) Sole Names. The names under which each of the
Sellers has conducted the Business is as follows: (i)
for AASI - Amedisys Alternate-Site Infusion Therapy
Services, Inc., and (ii) for PRN-PRN, Inc., Home IV
Therapy (an inactive d/b/a), and Amedisys Alternative-
Site Infusion Therapy Services (an active d/b/a).
(j) Litigation and Related Matters. Set forth on
Schedule7(j)(i) and Schedule7(j)(ii) attached hereto is
a list of (i) all actions, suits, proceedings,
investigations or grievances pending against each of
the Sellers and, if related in any respect to the
Business or the ability of Parent to perform under this
Agreement, Parent, or, to the knowledge of any Seller
or Parent, threatened against any Seller, any Seller's
business or any property or rights of any Seller or, if
related in any respect to the Business or the ability
of Parent to perform under this Agreement, Parent, at
law or in equity, before or by any court or any
federal, state, municipal or other governmental
department, commission, board, bureau, agency or
instrumentality, domestic or foreign (collectively,
"Agencies"), (ii) all pending and prior fraud or other
investigations, actions, suits, proceedings,
settlements, claims or grievances against each of the
Sellers and Parent and their respective officers,
directors and other employees, or, to the knowledge of
any Seller or Parent, threatened against any Seller or
Parent, by the Health Care
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Financing Administration ("HCFA"), the Office of
Inspector General, the Department of Justice or the
Medicaid agency for any states in which the Seller
and/or Parent has conducted any business; and (iii) all
worker's compensation claims outstanding against any
Seller. None of the actions, suits, proceedings,
investigations or claims listed on Schedule 7(j)(i) or
Schedule 7(j)(ii) would reasonably be anticipated to
have a Material Adverse Effect (defined below).
Neither Seller nor Parent has any knowledge of any acts
or omissions that could form the basis of a lawsuit
against any Seller or Parent which, if determined
adversely to any such Seller or Parent, would
reasonably be expected to have a Material Adverse
Effect. Neither Seller nor Parent is subject to any
continuing court or Agency order, writ, injunction or
decree applicable specifically to the Business, their
respective operations and assets (including, without
limitation, the Purchased Assets) or employees, nor is
any Seller or Parent in default with respect to any
order, writ, injunction or decree of any court or
Agency with respect to any Seller's assets (including,
without limitation, the Purchased Assets), Parent's
assets (if it would reasonably be expected to have a
Material Adverse Effect), the Business and their
respective operations or employees. For purposes of
this Agreement, the term "Material Adverse Effect"
shall mean a material adverse effect, individually or
in the aggregate, on the assets, liability, financial
condition or results of operations of any Seller or the
ability of any Seller or Parent to consummate the
transactions contemplated by this Agreement.
(k) Employees.
(i) Schedule 7(k)(i) and Schedule 7(k)(ii)
attached hereto and incorporated herein sets forth the
name of each of Seller's current Employees.
(ii) None of the Sellers is a party to, nor bound
by, the terms of any collective bargaining agreement.
No charges or proceedings before the National Labor
Relations Board, or similar agency, exist, have been
threatened or, to the knowledge of any Seller, are
contemplated.
(iii) Each of the Seller's relationship with
its Employees (as a group, and without regard to any
individual Employee) is good.
(iv) No legal proceedings, charges, complaints, or
similar actions exist under any federal, state or local
laws affecting any employment relationship of any
Seller, and neither any Seller nor Parent have any
knowledge of any acts or omissions that could form the
basis for such legal proceedings, charges, complaints,
or similar actions, including, but not limited to: (A)
anti-discrimination statutes such as Title VII of the
Civil Rights Act of 1964, as amended (or similar state
or local laws prohibiting discrimination because of
race, sex, religion, national origin, age and the
like); (B) the Fair Labor Standards Act or other
federal, state or local laws regulating hours of work,
wages, overtime and other working conditions; (C) state
laws with respect to tortuous employment
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conduct, such as slander, false light, invasion of
privacy, negligent hiring or retention, intentional
infliction of emotional distress, assault and battery,
or loss of consortium; or (D) the Occupational Safety
and Health Act, as amended, as well as any similar
state laws, or other regulations respecting safety in
the workplace; and no proceedings, charges, or
complaints are threatened or, to the knowledge of
Seller, contemplated under any such laws or
regulations. Neither Seller is subject to any
settlement or consent decree with any present or former
Employee, Employee representative or any court,
government or Agency relating to claims of
discrimination or other claims in respect to employment
practices and policies; no court, government or Agency
has issued a judgment, order, decree or finding with
respect to the labor and employment practices
(including practices relating to discrimination) of any
Seller.
(v) Except as otherwise set forth on Schedule
7(k)(i) and Schedule 7(k)(ii), each of the current
Employees of the Sellers is employed at will.
(vi) The Sellers have informed Employees in
writing of all benefits to which they are or were
entitled prior to the Effective Date. The Sellers do
not pay their respective Employees for accrued vacation
or sick time, except through their respective paid time
off plan.
(l) Employee Benefit Plans and Benefit Arrangements.
(i) The term "Employees" shall mean all
current employees (including those on layoff,
disability, or leave of absence, whether paid or
unpaid), former employees and retired employees of any
Seller and the term "Employee" shall mean any of the
Employees.
(ii) The term "Benefit Plans" shall mean
each and all "employee benefit plans" as defined in
Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), maintained or
contributed to by any Seller or Parent or any other
employer that is, or was at any time after September 2,
1984, together with any Seller, treated as a "single
employer" under Section 414(b), 414(c) 414 (m) or
414(o) of the Code (an "ERISA Affiliate"), or in which
any Seller or an ERISA Affiliate participates or
participated and which provides benefits to Employees
or their spouses or covered dependents, including (A)
any such plans that are "employee welfare benefit
plans" as defined in Section 3(1) of ERISA and (B) any
such plans that are "employee pension benefit plans" as
defined in Section 3(2) of ERISA.
(iii) The term "Benefit Arrangements"
shall mean each and all foreign and domestic pension,
supplemental pension, accidental death and
dismemberment, life and health insurance and benefits
(including medical, dental, vision and
hospitalization), savings, bonus, deferred
compensation, holiday,
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vacation, severance pay, salary continuation, sick pay,
sick leave, short and long-term disability, tuition
refund, service award, company car, scholarship,
relocation, patent award, fringe benefit and other
employee benefit arrangements, plans, employment
agreements, consulting agreements or severance
agreements, policies or practices of any Seller or any
ERISA Affiliate providing employee or executive
compensation or benefits to Employees, other than the
Benefit Plans.
(iv) Schedule 7(l)(i) and Schedule
7(l)(ii) to this Agreement contains a list of all
written and unwritten Benefit Plans and Benefit
Arrangements. True and complete copies of each such
listed written Benefit Plan and Benefit Arrangement and
written descriptions of each such listed unwritten
Benefit Plan and Benefit Arrangement have previously
been delivered to Buyer. Each Benefit Plan which is
intended to qualify under Section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code"),
is and always has been qualified under Section 401(a)
of the Code ("Qualified Plans"). All Qualified Plans
have been amended to comply with the Code and any
subsequent changes in the law that require amendments
of such Qualified Plans. Each Qualified Plan is in
receipt of a favorable determination letter issued by
the Internal Revenue Service, and each such letter has
not been revoked nor, to the knowledge of any Seller
and Parent, threatened to be revoked. Each Benefit
Plan and Benefit Arrangement has been administered in
all material respects in compliance with all applicable
laws and in accordance with the terms of the Benefit
Plan and Benefit Arrangement. No "prohibited
transaction" (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) has occurred with
respect to any Benefit Plan which would result directly
or indirectly in any material liability to any Seller.
(v) No Benefit Plan which is subject to Part
3 of Title I of ERISA or Section 412 of the Code has an
accumulated funding deficiency within the meaning of
such provisions, except as set forth in Schedule
7(l)(i) and Schedule 7(l)(ii) to this Agreement.
(vi) Neither any Seller nor any ERISA
Affiliate has ever participated in nor had an
obligation to contributed to any "multiemployer plan"
(as defined in Sections 3(37) and 4001(a)(3) of ERISA).
(vii) Except as noted in Schedule 7(l)(i)
and Schedule 7(1)(ii) to this Agreement, there are no
pending investigations by any governmental agency
involving the Benefit Plans or Benefit Arrangements, no
termination proceedings involving the Benefit Plans or
Benefit Arrangements, and no pending, threatened or, to
the knowledge of any Seller, contemplated claims
(except for claims for benefits payable in the normal
operation of the Benefit Plans and Benefit
Arrangements), suits or proceedings against any Benefit
Plan or Benefit
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Arrangement or asserting rights or claims to benefits
under any Benefit Plan or Benefit Arrangement.
(viii) Neither any Seller nor any ERISA
Affiliate has incurred or is reasonably likely to incur
any liability with respect to any plan or arrangement
that would be included within the definition of Benefit
Plan or Benefit Arrangement hereunder but for the fact
that such plan or arrangement was terminated before the
date of this Agreement.
(m) Insurance. Schedule 7(m)(i) and Schedule 7(m)(ii)
contains a list of the policies and contracts for fire,
casualty, liability and other forms of insurance maintained
by, or for the benefit of, each Seller. No Seller has
received any notice of cancellation or non-renewal, in each
case which has not been cured, or of significant premium
increases with respect to any such policy. Except as
disclosed on Schedule 7(m)(i) and Schedule 7(m)(ii), no
pending claims made by or on behalf of any Seller under such
policies have been denied or are being defended against
third parties by an insurer of any Seller. Nothing
contained in this Section 7(m) shall be interpreted to imply
that Buyer is assuming the policies referenced herein.
(n) Interests in Customers, Suppliers, Etc. Neither
Parent nor any person who is a director or officer of either
Seller or Parent or a shareholder of more than 10% of the shares
of capital stock of Parent is an officer, director or affiliate
of any corporation, firm, association or business organization
which is a supplier, customer or competitor of either of the
Sellers.
(o) No Illegal Payments, Etc. Neither Seller nor
Parent nor anyone acting on behalf of Seller or Parent has (i)
directly or indirectly given or agreed to give any illegal gift,
contribution, payment or similar benefit to any supplier,
customer, governmental official or employee or other person who
was, is, or may be in a position to help or hinder either Seller
(or assist either Seller in connection with any actual or
proposed transaction) or made or agreed to make any illegal
contribution, or reimbursed any illegal political gift or
contribution made by any other person, to any candidate for
federal, state, local or foreign public office (A) which might
subject any of the Sellers to any damage or penalty in any civil,
criminal or governmental litigation or proceeding or (B) the
non-continuation of which has had or might have, individually or
in the aggregate, a Material Adverse Effect, or (ii) established
or maintained any unrecorded fund or asset or made any false
entries on any books or records for purposes of disguising such a
benefit.
(p) Contracts and Leases. Each of the Contracts and
Leases is in full force and effect as of the Closing, and there
are no existing defaults or breaches under any of the Contracts
or Leases, and no event or condition exists which, with the
passage of time and/or with or without the giving of notice,
could constitute a default or a breach under any of the Contracts
or Leases. None of the Contracts or Leases will be terminated or
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breached as a result of the transactions contemplated
herein.
(q) Financial Statements. The respective financial
statements of the Sellers attached to Schedule 7(q)(i) and
Schedule 7(q)(ii) hereto are true, correct and complete, and
fairly present the financial condition of the respective Sellers
during the periods covered, and were prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with prior periods (collectively, the "Financial
Statements"). Since the date of the most recent Financial
Statements, there has not been any transactions by either Seller
outside the ordinary course of each such Seller's Business. As of
the Closing, the financial condition of each Seller is no worse
than that disclosed in the Financial Statements of the respective
Seller.
(r) Compliance with Laws. To Seller's best knowledge,
each of the Sellers is in compliance with all laws applicable to
each such Seller (including, without limitation, all health care
related laws, rules, regulations or orders), and Seller has not
received any information that it is not in compliance.
(s) Compliance with Medicare/Medicaid Programs.
Except as otherwise noted on Schedule 7(s) attached hereto, each
of the Sellers and the Parent are qualified for participation in
the Medicare and Medicaid reimbursement programs and is a party
to provider agreements for such programs which are in full force
and effect with no events of default having occurred thereunder.
Neither the Sellers, nor the Parent has been convicted of, or
pled guilty or nolo contendere to, patient abuse or neglect, or
any other Medicare or Medicaid program-related offense. Neither
the Sellers nor the Parent has (I) committed any offense which
may serve as the basis for suspension or exclusion from the
Medicare and Medicare programs, including, but not limited to,
defrauding a government program, loss of a license to provide
health care services, and failure to provide quality care, or
(ii) engaged in any prohibited reassignment of Medicare or
Medicaid program accounts receivable. Neither of the Sellers nor
the Parent has been or is excluded from participation in the
Medicaid or Medicare programs.
(t) Filing of Third Party Payor Claims. Each of the
Sellers and the Parent have timely filed all claims or other
reports required to be filed prior to the Closing Date with
respect to the purchase of services by third-party payors
("Payors"), including, but not limited to, the Medicare and
Medicaid reimbursement programs, except where the failure to file
would not, individually or in the aggregate, result in a Material
Adverse Effect. All such claims or reports ("Third-Party Payor
Claims") are complete and accurate in all material respects,
except where the incompleteness or inaccuracy of such reports in
the aggregate would not have a Material Adverse Effect on the
condition (financial or otherwise) of either of the Sellers or
the Parent. Except as otherwise noted on Schedule 7(f) attached
hereto, there are not pending any appeals, overpayment
determinations, adjustments, challenges, audits, litigation or
notices of intent to reopen Medicare and/or Medicaid claims,
determinations or other reports required to be filed by either of
the Sellers or the Parent in order to be paid by a Payor for
services rendered.
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(u) Fraud and Abuse. Neither the Sellers, the Parent
nor any persons and/or entities providing professional services
therefor have engaged in any activities which are prohibited
under Sec. 1320a-7b of Title 42 of the United States Code, or the
regulations promulgated thereunder, or related state or local
statutes or regulations, or which are prohibited by rules of
professional conduct, including, but not limited to, the
following:
(i) knowingly and willfully making or causing to be made a
false statement or representation of a material fact in any
application for any benefit or payment;
(ii) knowingly and willfully making or causing to be made
any false statement or representation of a material fact for use
in determining rights to any benefit or payment;
(iii) failure to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right
to any benefit or payment on its own behalf or on behalf of
another with intent to fraudulently secured such benefit or
payment; and
(iv) knowingly and willfully soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly
or indirectly, overtly or covertly, in cash or in kind, or
offering to pay or receive such remuneration (A) in return for
referring an individual to a person for the furnishing or
arranging for the furnishing of any item or service for which
payment may be made in whole or in part by the Medicare or
Medicaid reimbursement programs, or (:B) in return for
purchasing, leasing or ordering or arranging for or recommending,
purchasing, leasing or ordering any good, facility, service or
item for which payment may be made in whole or in part by the
Medicare or Medicaid reimbursement programs.
(v) Compliance with Stark I and II. Neither Sellers,
nor the Parent, nor any person proving professional services has
engaged in any activities which are prohibited under Section
1395nn of Title 42 of the United States Code (subject to the
exceptions set forth therein), including the referring of a
patient for "designated health services" (as defined by 42 U.S.C.
Section 1395nn) to or providing designated health services to a
patient upon a referral from an entity or person which the
Sellers and/or the Parent (or an immediate family member thereof)
has a financial relationship and to which no exception under said
section applies.
(w) Financing Statements. Each of Sellers and Park
agree and acknowledge that the security interest granted by
Parent and/or AASI in favor of US Bank Trust, bearing UCC No. 98-
746431 (reflecting the assignment from DVI Capital Company of UCC
No. 98-104340) is a security interest in telephone equipment
leased by AASI, but which assets are not included within the
definition of Purchased Assets and which lease is
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<PAGE>
not included within the definition of Lease, nor will the
security interest affect the Purchased Assets.
(X) Accuracy of Documents, Representations and Warranties.
The copies of all documents furnished to Buyer or its
representatives by or on behalf of the Sellers or their
respective representatives are true, correct and complete. No
representation or warranty of any Seller contained in this
Agreement or any of the Operative Documents, delivered by or on
behalf of any Seller or its representatives pursuant to or in
connection with this Agreement or any other document or
instrument executed by any such Seller in connection herewith or
therewith, or any of the transactions contemplated hereby or
thereby, contains any untrue statement of a material fact, or
omits to state any material fact required to be stated herein or
therein in order to make the statements contained herein or
therein not misleading.
8. Representations of Parent. Parent represents and warrants
to Buyer that the following were true, complete and correct as of
the Effective Date of this Agreement and are true, complete and
correct as of the Execution Date and Closing Date of this
Agreement:
(a) Ownership. Parent is the sole shareholder of AASI
and, as a result of Parent's ownership in AASI, is the
indirect sole shareholder of PRN. Parent has good and
marketable title to and rightful possession of all of the
shares of the capital stock of AASI and indirectly, PRN, in
each case free and clear of any and all liens, claims,
charges, encumbrances and security interests of any nature
or type whatsoever, except as specifically described in
Schedule 8(a) and Schedule 7(b)(iii) attached hereto and
incorporated herein for all purposes.
(b) Enforceability and Capacity. This Agreement and
all other documents and instruments executed and delivered
by Parent in connection with this Agreement constitute the
legal, valid and binding obligations of Parent, enforceable
against Parent in accordance with their respective terms.
Parent has the full power, capacity and authority (legal and
corporate) to execute and deliver this Agreement and all
such other agreements, documents and instruments to be
executed and delivered by Parent pursuant hereto and to
perform its obligations hereunder and thereunder. All
required approvals of the Board of Directors of Parent have
been duly and properly obtained. No other corporate action
on the part of Parent is necessary to authorize the
transactions contemplated hereby.
(c) Compliance with Laws. Parent is in compliance with
all laws applicable to Parent (including, without
limitation, all health care related laws, rules, regulations
or orders).
(d) Accuracy of Documents, Representations and
Warranties. The copies of all documents furnished to Buyer
or its representatives by or on behalf of Parent, or its
respective representatives, are true, correct and complete.
No representation or warranty of Parent contained in this
Agreement or any of the Operative Documents, delivered by
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or on behalf of Parent, or its respective representatives,
pursuant to or in connection with this Agreement or any
other document or instrument executed by Parent in
connection herewith or therewith, or any of the transactions
contemplated hereby or thereby, contains any untrue
statement of a material fact, or omits to state any material
fact required to be stated herein or therein in order to
make the statements contained herein or therein not
misleading.
9. Covenants.
(a) Covenant Not to Compete and Non-
solicitation. In consideration of the execution and delivery
of this Agreement by Buyer, and in consideration of, among
other things, the delivery by Buyer of the Purchase Price to
the Sellers, and as additional consideration therefor, each
of the Sellers and Parent agree that during the Restricted
Period (as defined below), neither of the Sellers, nor
Parent, nor any entity or person controlled by either of the
Sellers or Parent will, directly or indirectly (including,
but not limited to, as a partner, shareholder, director,
officer or employee of, or lender or consultant to, any
other person or entity, or in any other capacity), unless
first authorized in writing by Buyer, which authorization
may be withheld in the sole and absolute discretion of
Buyer:
(i) within, into or from the Restricted Territory
(as defined below) engage or cause others to engage in
the Business, or any aspect thereof in competition with
Buyer, its subsidiaries or affiliates,
(ii) solicit in respect of the Business, any
person or entity that is or was within the twelve (12)
months preceding the date of this Agreement a customer,
supplier and/or patient of Sellers and/or Parent,
(iii) solicit in respect of the Business, any
person or other entity that becomes a customer,
supplier, and/or patient of Buyer or any of its
affiliates during the Restricted Period, or
(iv) solicit, take away, hire, employ or endeavor
to solicit, employ or hire any person who is an
employee of Buyer, any affiliate of Buyer or the
Business.
For purposes of this Agreement, the term "Restricted Period"
shall mean the period ending three (3) years from the date
hereof. For purposes of this Agreement, the term "Restricted
Territory" shall mean the State of Texas and the State of
Florida. If either of the Sellers or Parent violates any
obligation under this Section 9(a), then the Restricted
Period hereunder shall be extended by the period of time
equal to that period beginning when the activities
constituting such violation commenced and ending when the
activities constituting such violation terminated.
(b) Right of First Refusal. Notwithstanding the
foregoing, in the event any of the Sellers or Parent become
involved in the negotiations with, or begin to negotiate
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with, a third party to purchase the assets and/or stock of
such third party that includes products, assets and/or
services similar in nature to those included within the
definition of Business contained herein, then the Sellers
and/or Parent, as applicable, shall give Buyer notice of
such negotiations within five (5) days of the commencement
date of such negotiations and give Buyer or, in Buyer's sole
discretion, an affiliate of Buyer the ability to participate
in such negotiations and/or transaction, with respect to
those products, assets and/or services similar in nature to
the Business and/or the Purchased Assets. If Buyer or such
affiliate elects to participate in the negotiations and/or
transactions, it shall notify the Sellers and/or Parent of
such fact in writing, and Buyer and/or its affiliate, on the
one hand, and the Sellers and/or Parent, on the other hand,
shall proceed in good faith with such negotiations and/or
transactions. In the event that Buyer elects not to
participate or elects to participate, but fails to reach an
agreement with the proposed seller of such products, assets
and/or services, then the Sellers and/or Parent can enter
into such transaction with the proposed seller without being
in violation of Section 9(a)(i) of this Agreement.
(c) Confidentiality. From and after the Closing Date,
neither of the Sellers nor Parent shall, without the prior
written consent of Buyer, which consent may be given or
withheld in the sole discretion of Buyer, communicate or
divulge to, or use for the benefit of, any person, firm, or
corporation other than Buyer and/or its affiliates any
Confidential Information (defined below) of each of the
Sellers or related to or included within the meaning of the
Purchased Assets or the Business of each of the Sellers.
The term "Confidential Information" shall mean all of the
confidential and proprietary information of each of the
Sellers or related to or included within the meaning of the
Business or related to each of the Seller's customers and/or
patients, existing as of the date hereof or created in the
future, including, but not limited to, all information
relating to the financial condition, results of operations,
business, properties, assets, liabilities or future
prospects of each of the Sellers and/or their respective
Businesses or any customer, supplier or patient of each of
the Sellers and the Business, including, but not limited to,
special arrangements regarding pricing of products or
services, including pricing by customer and price protection
agreements, each of the Seller's and the Business' major
customers and/or patients, customer and/or patient lists,
sales and profit information for the Business with respect
to each service within the service lines, any trade secrets,
including, but not limited to, information concerning
products, developments, new product plans, inventions,
discoveries, ideas, designs, computer programs, methods,
research, procurement and sales activities and procedures,
promotion and pricing techniques and credit and financial
data concerning customers and/or patients of each of the
Sellers' or the Business, as well as information relating to
the management, operation or planning of each of the
Seller's Business, and technical proprietary information and
any other intangible assets, whether communicated orally,
electronically, in writing or in any other tangible media.
This Section 9(c) shall not apply to information that (i)
is, was, or becomes generally known or available to the
public or the industry other than as a result of a
disclosure in violation of this Agreement, (ii) is
independently developed by the Seller or the Parent after
the date hereof, as shown by credible evidence, (iii) is
required to be disclosed by law; or (iv) entered the public
domain subsequent to the time
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it was communicated to the Sellers and/or Parent by Buyer
through no fault of the Sellers or Parent. Each of the
Sellers and Parent shall advise Buyer of any request,
including a subpoena or similar legal inquiry, to disclose
by law any such confidential information prior to disclosing
such information, such that Buyer can seek appropriate legal
relief.
(d) Non-Interference; Non-Disparagement. Each of the
Sellers and Parent agree that they will not, at any time,
directly or indirectly, together or separately, take any
action that interferes with any relationship between the
Sellers or their respective Business and any other person or
entity. Each of the Sellers and Parent agree that they will
not, at any time, directly or indirectly, together or
separately, do anything that might result in the
disparagement to the name of each of the Sellers or the
Business or Buyer or the name or reputation of the products
and services sold, distributed and/or provided by the
Business or Buyer.
(e) Reasonableness and Remedies. Each of the Sellers
and Parent specifically acknowledge that (i) Buyer, in its
own capacity or through one or more of its affiliates,
currently operates, or will operate following the date
hereof, in the Restricted Territory; (ii) Buyer, in its own
capacity or through one or more of its affiliates, plans to
further expand their operations in the Business within and
throughout the Restricted Territory; (iii) the geographic
regions contained in Section 9(a) hereof, and the length of
time restrictions contained in Section 9(a) hereof are each
necessary and reasonable and were negotiated between the
Sellers, Parent and Buyer; and (iv) the provisions of
Sections 9(a), 9(b), 9(c) and 9(d) are integral to the
transactions contemplated by this Agreement, and Buyer would
not consummate such transactions without such provisions.
Each of the Sellers and Parent hereby acknowledge and agree
that the restrictions set forth in this Agreement are
reasonable and necessary, and that any violation thereof
would result in substantial and irreparable injury to Buyer
and its affiliates, and neither Buyer nor its affiliates
will have an adequate remedy at law with respect to any such
violation. Accordingly, each of the Sellers and Parent
agree that, in the event of any actual or threatened
violation thereof, Buyer and each of its affiliates shall
have the right and privilege to obtain, without the
necessity of posting bond therefor or demonstrating
irreparable injury, and in addition to any other remedies
that may be available, equitable relief, including temporary
and permanent injunctive relief, to cease or prevent any
actual or threatened violation of any provision hereof.
Further, in the event of a breach by either of the Sellers
or Parent of any of the provisions of this Agreement, Buyer
and each of its affiliates shall be entitled to an
accounting and repayment of all profits, compensation,
commissions, remunerations or other benefits that either of
the Sellers, Parent or any of them, directly or indirectly,
have realized and/or may realize as a result of, arising out
of or in connection with any such breach.
(f) Payment of Creditors. Within ninety (90) days of
the Closing Date, each of the Sellers shall pay off entirely
all of their respective creditors, except with respect to
the Assumed Liabilities. In the event Buyer receives notice
from any of Sellers' creditors that any debt not an Assumed
Liability has not been paid off subsequent to the ninety
(90) day period stated herein, Purchaser will notify the
appropriate Seller and the Parent
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in writing, with sufficient detail as to the name of the
Creditor and the amount due, and Seller and/or Parent will
pay said creditor any amounts properly due and owing with
five (5) business days of its receipt of said notice.
Notwithstanding anything to the contrary contained herein,
the Liability owing to Paragon Scientific Corporation shall
not be subject to the payment terms contained herein,
provided that the Sellers are actively pursuing a settlement
with Paragon Scientific Corporation.
(g) Use of Name. On the Closing Date, each of the
Sellers and Parent shall execute such documents and
resolutions as are necessary to change each of the Seller's
respective names to names which are not deceptively similar
to any names used by the Sellers prior to the Closing Date
(excluding the name "Amedisys," which Parent shall retain
for all purposes) and, within ninety (90) days thereafter,
each of the Sellers shall deliver to Buyer a copy of the
amendment to each of the Seller's Articles of Incorporation
reflecting each such change of name and certified by the
Secretary of the State of the State of Texas and/or the
State of Louisiana, as the case may be. Further, each of
the Sellers shall, within five (5) days following the
Closing, execute and file with the Secretary of State of the
State of Texas and/or Louisiana and/or such other
appropriate authorities, such documents and/or instruments
necessary to abandon PRN's use of the assumed name "Amedisys
Alternative-Site Infusion Therapy." Each of the Sellers and
Parent further agree not to operate any future or present
business activity under the assumed names "Home IV Therapy,"
and "Amedisys Alternative-Site Infusion Therapy."
Notwithstanding the foregoing, Seller and/or Parent shall
have the ability to use the names of their entities for a
period of ninety (90) days after Closing solely for purposes
of collecting any moneys owed to either of the Sellers or
Parent as a result of transactions incurred prior to and
related solely to the period prior to the Closing Date.
(h) Inspection of Records. Each of the Sellers and
Parent shall make it books and records applicable to its day-
to-day operations (including work papers in the possession
of their accountants), and with respect to Parent, only
those books and records relating to the Business or the
Purchased Assets available for inspection by Buyer, or by
Buyer's authorized representatives, for reasonable business
purposes at all reasonable times during normal business
hours, for a period of five (5) years after the Closing. As
used in this Section 11(h), the right of inspection shall
include the right to make extracts or copies at Buyer's
expense.
(i) Additional Covenants Regarding Closing. With
respect to the period from the Effective Date through and
continuing until the Closing Date, each of the Sellers and
the Parent represents and warrants that, except to the
extent that Buyer has consented in writing prior to the
Closing Date:
(i) Ordinary Course. Each of the Sellers
have carried on their respective Business in the
usual, regular and ordinary course consistent with
past practice and used their best efforts to
preserve intact their present business
organizations, and kept available, consistent with
past practice, the services of the Employees and
preserved the relationships with customers,
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<PAGE>
suppliers and others having business dealings
with the Business, it being understood, however,
that the failure or refusal of any Employee to
remain an employee of any of the Sellers during such
period shall not constitute a breach of this
representation and warranty covenant. Without
limiting the generality of the foregoing, the
Sellers and Parent have not permitted the Business
to incur any indebtedness for borrowed money that
would constitute an Assumed Liability.
(ii) Changes to Benefit Plans. Each of
the Sellers have not (aa) entered into, adopted,
amended (except as may be required by law) or
terminated any Benefit Plan and Benefit Agreement or
any agreement, arrangement, plan or policy between
any of the Sellers and one or more of their
respective Employees, or (bb) except for normal
increases in the ordinary course of business
consistent with past practice, increased in any
manner the compensation or fringe benefits of any
Employee or paid any benefit to any Employee or
required by any plan or arrangement in effect as of
the Effective Date or entered into any contract,
agreement, commitment or arrangement to do any of
the foregoing.
(iii) Sale of Purchased Assets. Each of
the Sellers have not sold, leased exchanged,
mortgaged, pledged, transferred or otherwise
disposed of, or, agreed to sell, lease, exchange,
mortgage, pledge, transfer or otherwise dispose of,
any of the Purchased Assets, except in each case for
dispositions of inventory in the ordinary course of
business and consistent with past practice.
10. Survival. The representations, warranties, covenants and
indemnifications set forth herein shall survive the execution and
delivery of this Agreement and all of the agreements contemplated
by this Agreement. The representations, warranties, covenants and
indemnifications contained herein shall not be affected by any
investigation, verification, approval or subsequent notice made
by or on behalf of any party hereto. No specific representation
or warranty shall limit the generality or applicability of a more
general representation or warranty.
11. Indemnification by Sellers and Parent; Offset; Third-Party
Claims.
(a) Indemnification by Sellers and Parent. Each of
the Sellers and Parent, jointly and severally, covenant and
agree to defend, indemnify and hold harmless Buyer, any
parent, subsidiary or affiliate of Buyer, and their
respective officers, directors, stockholders, partners,
employees, agents, representatives, successors and assignees
(collectively, the "Buyer Indemnified Group"), from and
against any and all damages (including any penalty or
punitive damages), losses, liabilities, fines, penalties,
claims, actions, proceedings, obligations, amounts paid in
settlement, costs and expenses (including, but not limited
to, reasonable counsel fees and costs and expenses incurred
in the investigation, defense or settlement of any claim
covered by this indemnity, but excluding any Assumed
Liability) (collectively, the "Buyer Losses"), as and when
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<PAGE>
incurred or suffered by any member of Buyer Indemnified
Group, by reason of, with respect to or arising out of the
following:
(i) any breach of, or any inaccuracy in, any
representation or warranty of any Seller, Parent and/or
any of the Named Individuals contained herein or in any
document or instrument executed and delivered pursuant
hereto or thereto, including any Operative Document
(including, without limitation, the Non-Competition,
Non-Solicitation and Confidentiality Agreements);
(ii) the non-performance of any covenant or obligation
to be performed by any Seller, Parent and/or any of the
Named Individuals contained herein or in any document
or instrument executed and delivered pursuant hereto or
thereto, including any Operative Document (including,
without limitation, the Non-Competition, Non-
Solicitation and Confidentiality Agreements);
(iii) any Liability of any Seller of any nature,
presently existing or arising out of any state of facts
existing on or prior to the Closing Date, or arising
after the Closing Date in connection herewith or
arising out of the conduct of the Business or any use
or ownership of any of the Purchased Assets on or prior
to the Closing Date;
(iv) any Liability of any nature, presently existing or
arising out of any pending or threatened litigation,
claims, investigations, inquiries, regulatory audits or
assessments, HCFA investigations or inquiries, or
similar proceedings against any Seller, Parent and/or
their respective directors, officers, shareholders,
employees, agents or representatives, as well as any
future litigation, claims, investigations, inquiries,
regulatory audits or assessments, or other similar
proceedings against any Seller, Parent and/or their
respective directors, officers, shareholders,
employees, agents or representatives;
(v) any Liability arising from any employment
relationship or for any salary or other compensation or
benefits attributable to service or employment with any
Seller or Parent or any of their respective affiliates
(including any employee benefit plan, all Liabilities
under the Occupational Safety and Health Act ("OSHA"),
any Liabilities under ERISA or the Code, and any
Liabilities to any governmental body or authority or
related to any failure to comply with applicable law,
regulations, etc. in each case arising from facts or
circumstances existing on or prior to the Closing Date;
(vi) any Excluded Liability, including, without
limitation, any Tax Liabilities;
(vii) the Excluded Assets;
(viii) any demand, inquiry, investigation,
proceeding, action or cause of action, environmental
assessment and/or remediation expenses that any member
of Buyer Indemnified Group may suffer or incur by
reason of:
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(A) any generation, transportation, storage,
treatment or disposal of industrial, toxic or
hazardous substances or solid or hazardous wastes
by, for the account, or for the benefit of any
Seller or Parent, occurring on or prior to the
Closing Date, including, but not limited to, any
waste or other disposal activities or discharges
that occurred at a facility on which any portion
of any Seller's or Parent's or its or their
respective predecessors' business was conducted,
any waste or other disposal activities or
discharges that occurred off of any such facility
with regard to wastes and other substances
generated at or on any such facility, and any
waste or other disposal activities or discharges
that occurred on real estate owned, leased or used
by any Seller or Parent or its or their respective
predecessors at any time whether or not any Seller
or its or their respective predecessor owned or
leased such real estate at the time such waste or
other disposal activities or discharges were
engaged in, and whether or not any such Seller or
Parent performed such waste or other disposal
activities or discharges;
(B) any spills, discharges, leaks, emissions,
injections, escapes, dumpings, or any releases or threatened
releases as defined now or in the future under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended or reauthorized from time to time, or any other
similar federal, state or local laws, statutes, rules or
regulations occurring on or prior to the Closing Date, including,
but not limited to, both those releases or incidents involving
potential or actual environmental contamination which required
notification or reporting to appropriate federal, state or local
officials or agencies, or clean-up or remedial activities and
those releases or incidents which occurred prior to the effective
date of any requirements imposing such notification or reporting
obligations or clean-up or remedial activities, but which would
have been subject to such obligations if they had occurred
subsequent to the effective date of such requirements;
(C) any discharges by, on behalf of, or for the
benefit of any Seller or Parent, to surface waters or ground
waters;
(D) any air emissions by, on behalf of, or for
the benefit of any Seller or Parent;
(E) the exposure of and resulting consequences
to any persons, including, but not limited to, employees of any
Seller or Parent, to any mineral, chemical or industrial
product, raw material intermediate, by-product or waste, or
substance created, generated, processed, handled or
originating at a facility at which any Seller or Parent (or
any of its or their respective predecessors) conducted
business prior to the Closing Date, or
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<PAGE>
otherwise used by any Seller or Parent
(or any of its or their respective predecessors)
in the conduct of its business;
(F) any violations by any Seller or Parent of any
federal, state or local (i) environmental laws, regulations,
etc., or (ii) occupational or employee health and safety laws,
regulations, etc.;
(G) any and all actions, failures to act and
negligence by any Seller, Parent or anyone acting for, or on
behalf of, any Seller or Parent in monitoring, maintaining and
upkeep of on-site storage, treatment and disposal facilities;
(H) any use, removal, maintenance or monitoring
of storage tanks by any Seller or Parent, or anyone acting for,
or on behalf of, any Seller or Parent; or
(I) any violations, fees, obligations or failure
by any Seller or Parent, or anyone acting for, or on behalf of,
any Seller or Parent to comply with any and all environmental and
operational permit requirements.
(b) Offset. In addition to Buyer's other rights under
this Agreement, or at law or in equity, Buyer shall be entitled
to offset against any sums now or at any time hereafter due and
owing to any Seller or Parent, any amounts due by either Seller
or Parent to Buyer as a result of this Agreement or otherwise,
whether arising out of an obligation for indemnification pursuant
to this Section 11 or otherwise.
(c) Third-Party Claims. Promptly upon receipt of
notice of any claim, demand or assessment or the commencement of
any suit, action or proceeding with respect to which indemnity
may be sought pursuant to this Section 11, Buyer or the
appropriate member of Buyer Indemnified Group shall notify in
writing, if possible, within sufficient time to respond to such
claim or answer or otherwise plea in such action, the party(ies)
from whom indemnification is sought (individually or
collectively, as applicable, the "Seller Group-Indemnitor"). In
case any claim, demand or assessment shall be asserted, or suit,
action or proceeding is commenced against any member of Buyer
Indemnified Group, the Seller Group-Indemnitor shall be entitled,
at the Seller Group-Indemnitor's expense, to participate therein,
and, to the extent that it or they may desire, to assume the
defense, conduct or settlement thereof, at its or their own
expense, with counsel satisfactory to Buyer (whose consent to the
selection of counsel shall not be unreasonably withheld or
delayed), provided that the Seller Group-Indemnitor confirms to
Buyer and the member of Buyer Indemnified Group, within five (5)
days of receiving notice from the member of Buyer Indemnified
Group, that it is a claim to which the rights of indemnification
apply with respect to the applicable member of Buyer Indemnified
Group. The Seller Group-Indemnitor shall have the right to
settle or compromise monetary claims; however, as to any other
claim, the Seller Group-Indemnitor shall first
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<PAGE>
obtain the prior written consent from the member
of Buyer Indemnified Group, which consent shall be exercised
in the member of Buyer Indemnified Group's sole discretion.
After notice from the Seller Group-Indemnitor to Buyer and
the appropriate member of Buyer Indemnified Group of the
Seller Group-Indemnitor's intent to so assume the defense,
conduct, settlement or compromise of such action, the Seller
Group-Indemnitor shall not be liable to the member of Buyer
Indemnified Group for any legal or other expenses
(including, without limitation, settlement costs)
subsequently incurred by the member of Buyer Indemnified
Group in connection with the defense, conduct or settlement
of such action by the member of Buyer Indemnified Group
while the Seller Group-Indemnitor is diligently defending,
conducting, settling or compromising such action. The Seller
Group-Indemnitor shall keep Buyer and the applicable member
of Buyer Indemnified Group apprised of the status of the
suit, action or proceeding and shall make the Seller Group-
Indemnitor's counsel available to Buyer and the member of
Buyer Indemnified Group, at the Seller Group-Indemnitor's
expense, upon the request of Buyer and/or the member of
Buyer Indemnified Group. Buyer and Buyer Indemnified Group
shall cooperate with the Seller Group-Indemnitor in
connection with any such claim and shall make personnel,
books and records and other information relevant to the
claim available to the Seller Group-Indemnitor to the extent
that such personnel, books and records and other information
are in the possession and/or control of Buyer or the member
of Buyer Indemnified Group. If the Seller Group-Indemnitor
decides not to participate or does not respond within five
(5) days of receiving notice from the member of Buyer
Indemnified Group, then the member of Buyer Indemnified
Group shall be entitled, at the Seller Group-Indemnitor's
expense, to defend, conduct, settle or compromise such
matter with counsel selected by the member of Buyer
Indemnified Group.
(d) Manner of Indemnification. All indemnification
pursuant to this Section 11 shall be effected upon demand by
Buyer or another appropriate member of Buyer Indemnified Group
for payment by the Seller Group-Indemnitor to the appropriate
member of Buyer Indemnified Group in the appropriate amount and
by delivery of cash or a certified or cashier's check in such
amount; and thereafter, to the extent that it is ultimately
determined or agreed that a member of Buyer Indemnified Group is
entitled to indemnification amounts under this Agreement, such
amounts shall accrue interest at the rate equal to the lesser of
twelve percent (12%) per annum or the maximum interest rate
allowed by law, from the date of notice by the member of Buyer
Indemnified Group to the Seller Group-Indemnitor of a claim
pursuant to this Section 11.
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12. Indemnification by Buyer.
(a) Indemnification by Buyer. Buyer covenants and
agrees to defend, indemnify and hold harmless Seller, any
parent, subsidiary or affiliate of the Seller, and their
respective officers, directors, stockholders, partners,
employees, agents, representatives, successors and
assignees, but excluding any party included within the Buyer
Indemnified Group (collectively, the "Seller Indemnified
Group"), from and against any and all damages (including any
penalty or punitive damages), losses, fines, penalties,
claims, actions, proceedings, obligations, amounts paid in
settlement, costs and expenses (including, but not limited
to, reasonable counsel fees and costs and expenses incurred
in the investigation, defense or settlement of any claim
covered by this indemnity) (collectively, the "Seller/Parent
Losses"), as and when incurred or suffered by any member of
the Seller Indemnified Group, relating to the Business and
the Purchased Assets as the direct result of actions taken
solely by Buyer after the Closing Date.
(b) Offset. In addition to any Seller's and/or
Parent's other rights under this Agreement, or at law or in
equity, any Seller and/or Parent shall be entitled to offset
against any sums, now or at any time hereafter due and owing to
Buyer, the amount of any liabilities owing by Buyer to any Seller
and/or Parent under this Agreement, whether arising out of an
obligation for indemnification pursuant to this Section 12 or
otherwise.
(c) Third-Party Claims. Promptly upon receipt of
notice of any claim, demand or assessment or the commencement of
any suit, action or proceeding with respect to which indemnity
may be sought pursuant to this Section 12, any Seller or Parent
or the appropriate member of the Seller Indemnified Group shall
notify in writing, if possible, within sufficient time to respond
to such claim or answer or otherwise plea in such action, the
party(ies) from whom indemnification is sought (individually or
collectively, as applicable, the "Buyer Group-Indemnitor"). In
case any claim, demand or assessment shall be asserted, or suit,
action or proceeding is commenced against any member of the
Seller Indemnified Group, the Buyer Group-Indemnitor shall be
entitled, at the Buyer Group-Indemnitor's expense, to participate
therein, and, to the extent that it or they may desire, to assume
the defense, conduct or settlement thereof, at its or their own
expense, with counsel satisfactory to any Seller and/or Parent
(whose consent to the selection of counsel shall not be
unreasonably withheld or delayed), provided that the Buyer Group-
Indemnitor confirms to Seller and/or Parent, as applicable, and
the member of the Seller Indemnified Group, within five (5) days
of receiving notice from the member of the Seller Indemnified
Group, that it is a claim to which the rights of indemnification
apply with respect to the applicable member of the Seller
Indemnified Group. The Buyer Group-Indemnitor shall have the
right to settle or compromise monetary claims; however, as to any
other claim, the Buyer Group-Indemnitor shall first obtain the
prior written consent from the member of the Seller Indemnified
Group, which consent shall be exercised in the member of the
Seller Indemnified Group's sole discretion. After notice from the
Buyer Group-Indemnitor to any Seller and/or Parent and the
appropriate member of the Seller Indemnified Group of the Buyer
Group-Indemnitor's intent to so assume the defense, conduct,
settlement or compromise of such
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<PAGE>
action, the Buyer Group-Indemnitor shall not be
liable to the member of the Seller Indemnified Group for any
legal or other expenses (including, without limitation,
settlement costs) subsequently incurred by the member of the
Seller Indemnified Group in connection with the defense,
conduct or settlement of such action by the member of the
Seller Indemnified Group while the Buyer Group-Indemnitor is
diligently defending, conducting, settling or compromising
such action. The Buyer Group-Indemnitor shall keep the
Seller and/or Parent and the applicable member of the Seller
Indemnified Group apprised of the status of the suit, action
or proceeding and shall make the Buyer Group-Indemnitor's
counsel available to the Seller and/or Parent and the member
of the Seller Indemnified Group, at the Buyer Group-
Indemnitor's expense, upon the request of the Seller and/or
the member of the Seller Indemnified Group. Seller and the
Seller Indemnified Group shall cooperate with the Buyer
Group-Indemnitor in connection with any such claim and shall
make personnel, books and records and other information
relevant to the claim available to the Buyer Group-
Indemnitor to the extent that such personnel, books and
records and other information are in the possession and/or
control of the Seller or the member of the Seller
Indemnified Group. If the Buyer Group-Indemnitor decides
not to participate or does not respond within five (5) days
of receiving notice from the member of the Seller
Indemnified Group, then the member of the Seller Indemnified
Group shall be entitled, at the Buyer Group-Indemnitor's
expense, to defend, conduct, settle or compromise such
matter with counsel selected by the member of the Seller
Indemnified Group.
(d) Manner of Indemnification. All indemnification
hereunder shall be effected upon demand by the Seller or another
appropriate member of the Seller Indemnified Group for payment by
the Buyer Group-Indemnitor to the appropriate member of the
Seller Indemnified Group in the appropriate amount and by
delivery of cash or a certified or cashier's check in such
amount; and thereafter, to the extent that it is ultimately
determined or agreed that a member of the Seller Indemnified
Group is entitled to indemnification amounts under this
Agreement, such amounts shall accrue interest at the rate equal
to the lesser of twelve percent (12%) per annum or the maximum
interest rate allowed by law, from the date of notice by the
member of the Seller Indemnified Group to the Buyer Group-
Indemnitor of a claim pursuant to this Section 12.
13. Parent's Guarantee of Obligations.
(a) Parent hereby unconditionally guarantees the full,
prompt and complete performance by each Seller of each and
every obligation of each such Seller arising out of and/or
pursuant to this Agreement and/or any of the Operative
Documents.
(b) Parent hereby expressly waives any right to
require Buyer to:
(i) proceed against any Seller; or
(ii) pursue any other remedy in Buyer's power.
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(c) Parent also expressly waives any defense arising
by reason of any disability or other defense of any Seller
or by reason of the cessation of or from any cause
whatsoever (other than full performance by any such Seller)
of the liability of any such Seller for all or any part of
the obligations hereunder. Each Seller waives due
diligence, presentment, notice of default, demand for
performance or payment, notice of non-performance, protest,
notice of dishonor and notice of acceptance of the
provisions of this Section 13, and all rights and privileges
that Parent might otherwise have to require Buyer to pursue
any other remedy available to it in any particular manner or
order.
(d) Parent agrees that the provisions of this
Section 13 shall apply to and be binding upon Parent and
Parent's successors, legal representatives and permitted
assigns. The provisions of this Section 13 shall inure to
the benefit of Buyer and its successors and assigns.
(e) No delay or failure of Buyer, in exercising any
right hereunder shall affect that right nor shall any single
or partial exercise of any right hereunder preclude further
exercise thereof.
14. Bill of Sale; Assumption of Liabilities. This Agreement is
intended to also operate as a bill of sale and shall be evidence
of the transfer of the Purchased Assets as provided for herein
and the assumption by Buyer of the Assumed Liabilities, and such
transfer and assumption is made based in substantial part on the
representations and warranties and obligations provided for
herein.
15. EXPENSES; BROKERS.
(a) Each of the parties hereto shall pay its own legal,
accounting and other expenses incurred in connection
herewith and the transactions contemplated hereby.
(b) Except for any payments and/or obligations owing to
Dillon Gage, Incorporated, by Buyer, each of the parties
hereto represents and warrants that no finder, broker or
other person is entitled to any commission, fee or other
compensation in connection with any of the transactions
contemplated by this Agreement.
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16. Severable Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of the parties under
this Agreement would not be materially and adversely affected
thereby, such provision shall be fully separable, and this
Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part
thereof, the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance
therefrom, and in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this
Agreement, a legal, valid and enforceable provision as similar in
terms to such illegal, invalid or unenforceable provision as may
be possible, and the parties hereto request the court or any
arbitrator to whom disputes relating to this Agreement are
submitted to reform the otherwise illegal, invalid or
unenforceable provision in accordance with this Section 16.
17. Enforceability. In the event of a breach or threatened
breach by any Seller or Parent of any representation, warranty or
covenant herein, Buyer shall be entitled to obtain, without the
necessity of posting any bond therefor, an order for specific
performance requiring any Seller and/or Parent to fully, promptly
and completely perform any of its and/or their respective
obligations hereunder. The remedies provided in this Section 17
shall be in addition to and not in lieu of any other remedies of
Buyer at law or in equity, which remedies shall be cumulative,
including specifically the recovery of damages. Venue for any
such action under this Section 17 shall be solely in the state or
federal courts located in Dallas County, Texas.
18. Arbitration. Except to the extent permitted by Section 17,
all disputes between the parties relating to this Agreement shall
be resolved as follows:
(a) If the parties are unable to resolve any
controversy, dispute or claim arising out of, or relating to,
this Agreement (any such controversy, claim or dispute, a
"Dispute") on or before the 30th day following the receipt by the
parties of written notice of such Dispute from the other party or
parties (the "Initial Dispute Period") (which notice describes in
reasonable detail the nature of the Dispute and the facts and
circumstances relating thereto), any one or more of the parties
may cause such Dispute to be settled by final and binding
arbitration in Dallas, Texas, by filing a written demand for
arbitration with the American Arbitration Association, with a
copy to the other party or parties, by submitting such Dispute
for arbitration within thirty (30) days following the expiration
of the Initial Dispute Period. Except as herein stated, the
arbitration will be conducted in accordance with the provisions
of the Commercial Arbitration Rules of American Arbitration
Association in effect at the time of filing of the demand for
arbitration; provided that the parties agree that each party to
the Dispute shall have discovery to the same extent as provided
under the Federal Rules of Civil Procedure. The arbitrator or
arbitrators shall be required to follow the applicable law as set
forth in the governing law section of this Agreement.
(b) Buyer, on the one hand, and the Sellers and/or
Parent, on the other hand, will appoint, within fifteen (15) days
after receipt of notice of arbitration from the noticing party,
one person as its or their respective representative to hear and
determine
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<PAGE>
the Dispute. The two persons so chosen will
select a third impartial arbitrator, and their majority
decision will be final and conclusive upon the parties
hereto. If either Buyer, on the one hand, or the Sellers
and Parent, on the other hand, fails to designate its
arbitrator within fifteen (15) days after the notice
provided for herein, then the arbitrator designated by the
one will act as the sole arbitrator and will be deemed to be
the single, mutually approved arbitrator to resolve the
controversy. In the event the parties are unable to agree
upon a rate of compensation for the arbitrators, they will
be compensated for their services at a rate to be determined
by the American Arbitration Association.
(c) This agreement to arbitrate shall be specifically
enforceable against the parties by any court of competent
jurisdiction, and may be challenged only upon the grounds
provided in Section 10 to the United States Arbitration Act, 9
U.S.C. Sec. 10. Application may also be made to such court to
confirm, modify or vacate any decision or award of the
arbitrators, for an order of enforcement and for any other
remedies, including equitable remedies, which may be necessary to
effectuate such decision or award. All the parties hereto hereby
consent to the jurisdiction of the arbitrators and of such court
and waive any objection to the jurisdiction of such arbitrator
and such court.
(d) One or more of the parties to any arbitration
proceeding commenced hereunder shall be entitled, as a part of
the arbitration award, to petition the arbitrators to award the
costs and expenses (including reasonable attorneys' fees and
interest from the date due until paid at the maximum rate
allowable by law on any award) of investigating, preparing and
pursuing an arbitration claim as such costs and expenses are
determined by the arbitrators.
(e) Buyer, on the one hand, and the Sellers and
Parent, on the other hand, shall each deposit one half of all
estimated fees and expenses of the arbitration proceeding with
the American Arbitration Association within fourteen (14) days
after a Dispute has been submitted to arbitration.
(f) THE ARBITRATOR OR ARBITRATORS SHALL BE EMPOWERED
TO AWARD DAMAGES IN EXCESS OF COMPENSATORY DAMAGES (WHICH
COMPENSATORY DAMAGES INCLUDE REASONABLE ATTORNEYS FEES AND EXPERT
WITNESS FEES)
(g) The arbitrators will, upon the request of any
party, issue a written opinion of their findings of fact and
conclusions of law.
(h) Upon receipt by the requesting party of said
written opinion, said party will have the right within twenty
(20) days thereof to file with the arbitrators a motion to
reconsider, and the arbitrators thereupon will reconsider the
issues raised by said motion and either confirm or change their
majority decision which will then be final and conclusive upon
both parties hereto. The costs of such a motion of
reconsideration and written opinion of the arbitrators will be
borne by the moving party.
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19. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF TEXAS, REGARDLESS OF ANY CONFLICT OF LAW RULES TO THE
CONTRARY. EXCEPT WITH RESPECT TO THE MATTERS SUBJECT TO
ARBITRATION, EACH OF THE PARTIES HEREBY CONSENTS TO THE SERVICE
OF PROCESS IN ANY SUCH ACTION OR LEGAL PROCEEDING BY MEANS OF
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN CARE
OF THE APPLICABLE ADDRESS SET FORTH IN SECTION 28 HEREOF.
20. Definition of Knowledge. As used herein, "know" or
"knowledge" shall mean such person's awareness or knowledge of
facts or other information related to the matter or issue at hand
to the extent that facts or circumstances exist that would cause
a reasonable person to know of a condition or event, and with the
further understanding that such person has made reasonable
investigation to determine if such facts or circumstances exist.
21. Entire Agreement. This Agreement and the exhibits and
schedules attached hereto constitute the entire agreement among
the parties with respect to the purchase and sale of the
Purchased Assets and the other matters referenced herein. This
Agreement, therefore, supersedes any and all prior agreements,
arrangements, communications, and representations, whether oral
or written, among the parties, or any of them, relating to the
subject matters hereof, including the Letter of Intent between
the parties dated June 29, 2000.
22. Construction. The parties hereto acknowledge that each
party was represented by legal counsel, or had the opportunity to
obtain legal counsel, in connection with this Agreement and that
each party and each party's counsel, as applicable, have reviewed
and revised this Agreement, or have had an opportunity to do so,
and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement and the
Operative Documents.
23. Further Assurances. Each party hereto agrees to do all
acts and things and to make, execute, and deliver such written
instruments as shall from time to time be reasonably required to
further evidence the sale and transfer of the Purchased Assets,
and to carry out the terms and provisions of this Agreement.
24. Press Release or Public Statements. Before either
party shall execute or administer a press release or public
announcement related to the consummation of the transaction
contemplated by this Agreement, the parties shall cooperate with
each other and shall furnish to the other party drafts of all
documents or proposed oral statements to the other party for
comment and shall not release any such information without the
written consent of the other party. Nothing contained herein
shall prevent either party from furnishing any information to any
governmental authority if required to do so by law.
25. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective permitted assigns and successors. Notwithstanding any
provision hereof, Buyer may assign all or part of its rights
under this
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Agreement to any of Buyer's direct or indirect subsidiaries or
affiliates or to a successor by merger, consolidation or other
business combination, and such assignee of Buyer shall thereafter
receive and enjoy all of the benefits of each Seller's and
Parent's obligations hereunder with respect to the rights so
assigned.
26. Amendment, Modification or Waiver. No amendment,
modification or waiver of any condition, provision or term of
this Agreement shall be valid or of any effect unless made in
writing, signed by the party or parties to be bound and
specifying with particularity the nature and extent of such
amendment, modification or waiver.
27. Headings. Headings of the articles and sections of
this Agreement are for the convenience of the parties only and
shall be given no substantive or interpretive effect whatsoever.
28. Notices. Any notice or other communication required or
permitted to be given to any party pursuant to this Agreement
shall be in writing and shall be deemed to have been delivered:
(a) if mailed, three (3) days after deposited in the United
States mail, postage prepaid; (b) if telecopied, upon delivery;
(c) if hand-delivered, upon delivery against receipt or upon
refusal to accept the notice; or (d) if delivered by Federal
Express or other similar courier, one (1) day after deposited
with such courier, postage prepaid, in each case, addressed to
such party at the address set forth below:
(i) If to PRN, AASI and/or Parent:
Amedisys, Inc.
11100 Mead Road
Baton Rouge, LA 70816
Attention: John Joffrion, Senior Vice President
Telephone: 225.292.2031
Facsimile: 225.295.9624
With a copy to:
--------------
Amedisys, Inc.
11100 Mead Road
Baton Rouge, LA 70816
Attention: Mike Lutgring, Esq.
Telephone: 225.292.2031
Facsimile: 225.292.8163
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<PAGE>
(iv) If to Buyer:
Park Pharmacy Corporation
10711 Preston Road, Suite 250
Dallas, TX 75230
Attn: Thomas R. Baker, President and Chief
Executive Officer
Telephone: 214.692.9921
Facsimile: 214.692.9924
With a copy to:
--------------
Bracewell & Patterson, LLP
500 N. Akard, Suite 4000
Dallas, TX 75201
Attention: Janice Z. Davis, Esq.
Telephone: 214-758-1088
Facsimile: 214-758-1010
or to such other place as the respective addressee may
have designated in a written notice to the other party
as provided in this Section. Notices may be given by
each party's respective legal counsel.
29. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original.
30. Execution by Facsimile; Delivery of Original Signed
Agreement. This Agreement may be executed by facsimile, and shall
be deemed effectively executed upon the receipt by Buyer, Sellers
and Parent of the last page of this Agreement duly executed by
the other parties hereto. Each party to this Agreement agrees to
deliver four (4) original, inked and signed copies of this
Agreement within four (4) days of faxing the executed last page
hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, Buyer, Sellers and Parent have executed
and delivered this Agreement as of the day and year first above
written.
BUYER:
-----
PARK INFUSION SERVICES, LP, a Texas
limited partnership
By: PARK OPERATING GP, LLC,
a Texas limited liability
company, its sole general
partner
By:/s/ Thomas R. Baker
--------------------------
Thomas R. Baker, President
SELLERS:
-------
AASI:
----
AMEDISYS ALTERNATE-SITE INFUSION
THERAPY SERVICES, INC., a Louisiana
corporation
By: /s/ Michael D. Lutgring
--------------------------------
Name: Michael D. Lutgring
------------------------------
Its: Secretary
------------------------------
PRN:
---
PRN, INC., a Texas corporation
By: /s/ Michael D. Lutgring
--------------------------------
Name: Michael D. Lutgring
------------------------------
Title: Secretary
------------------------------
PARENT:
------
AMEDISYS, INC., a Delaware
corporation
By: /s/ Michael D. Lutgring
--------------------------------
Name: Michael D. Lutgring
------------------------------
Title: Secretary & General Counsel
------------------------------
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