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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 2, 1997
AMSURG CORP.
(Exact Name of Registrant as Specified in its Charter)
Tennessee 000-22217 62-1493316
(State or other jurisdiction of (Commission (I.R.S. employer
incorporation or organization) File Number) identification no.)
One Burton Hills Boulevard
Suite 350
Nashville, TN 37215
(Address of principal executive offices) (Zip code)
(615) 665-1283
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets.
Effective September 1, 1997, AmSurg Holdings, Inc. ("Holdings"), a
subsidiary of AmSurg Corp. (the "Company") acquired from The Endoscopy Center,
Inc. (the "Seller"), a Missouri corporation and unrelated party, a sixty percent
ownership interest in the assets comprising the business operations of two
gastrointestinal surgery centers (the "Centers") in Independence and Kansas
City, Missouri.
Pursuant to the terms of the Asset Purchase Agreement, dated as of
September 2, 1997, by and among Holdings, the Company and the Seller, Holdings
paid $5,652,205 in cash and the Company issued 280,367 shares of its common
stock to the Seller. The cash used in the purchase transaction was provided from
borrowings under the Company's revolving credit agreement with SunTrust Bank,
Nashville. The consideration paid to the Seller was determined through
arm's-length negotiations between the Company and the shareholders of the
Seller. Following the asset purchase, Holdings and the Seller contributed their
respective ownership in the assets of the Centers into a newly formed limited
liability company, The Independence ASC, LLC, and received proportionate
membership therein.
Item 7. Financial Statements and Exhibits.
It is impractical to provide at this time the financial statements and
pro forma financial information required by Items 7(a) and 7(b). The Company
anticipates filing this information in an amendment to this Form 8-K on or prior
to November 17, 1997.
(c) Exhibits:
2 Asset Purchase Agreement, dated as of September 2, 1997, by and
among AmSurg Corp., AmSurg Holdings, Inc., The Endoscopy Center, Inc.
and the shareholders thereof.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMSURG CORP.
By: /s/ Claire M. Gulmi
------------------------------------------------
Claire M. Gulmi
Senior Vice President and Chief Financial Officer
(Principal Financial and Duly Authorized Officer)
Date: September 16, 1997
2
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
2 Asset Purchase Agreement, dated as of September 2, 1997, by and among AmSurg Corp.,
AmSurg Holdings, Inc., The Endoscopy Center, Inc. and the shareholders thereof.
</TABLE>
3
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ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated September 2, 1997, is by
and among AmSurg Holdings, Inc., a Tennessee corporation ("AmSurg"), AmSurg
Corp., a Tennessee corporation and the owner of all the outstanding capital
stock of AmSurg ("ASC"), The Endoscopy Center, Inc., a Missouri corporation
("Seller"), and the individuals set forth on the signature pages attached hereto
(individually "Doctor" and collectively "Doctors").
WHEREAS, AmSurg desires to purchase and Seller desires to sell certain of its
assets, as more fully described herein, upon and subject to the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations,
warranties and covenants of the parties hereinafter set forth, the parties agree
as follows:
ARTICLE 1. PURCHASE AND SALE OF ASSETS
1.1. PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of this
Agreement, at the Closing, Seller shall sell, transfer, convey, assign and
deliver to AmSurg and AmSurg shall purchase, acquire and accept from Seller an
undivided 60% interest in the assets comprising the business operations of the
gastroenterology ambulatory surgery centers (the "Centers") owned and operated
by Seller and located in Independence and Kansas City, Missouri, tangible or
intangible, recorded or unrecorded, known or unknown, of whatsoever type, kind,
description, or nature owned, held, possessed, vested in or claimed in whole or
in part by Seller on the Closing Date (the "Purchased Assets"), which Purchased
Assets shall specifically include the accounts receivable, and any owned
equipment of the Centers, but which shall specifically exclude real estate and
cash.
1.2. ASSUMPTION OF LIABILITIES. Except as described herein and on Schedule 1.2,
AmSurg will not assume any debts, liabilities, obligations, expenses, taxes,
contracts or commitments of Seller or the Centers of any kind, character or
description, whether accrued, absolute, contingent or otherwise ("Liabilities"),
no matter whether arising before or after the Closing, and whether or not
reflected or reserved against in Seller's or the Centers' financial statements,
books of account or records. Seller will indemnify AmSurg against and hold it
harmless from any such Liabilities. AmSurg will cause The Independence ASC, LLC,
a Tennessee limited liability company (the "LLC"), to assume all Liabilities
arising after the effective date of the transaction which relate to supplies
received by the Centers or services rendered to the Centers after the effective
date of the transaction, regardless of the date such Liabilities arose. The
parties acknowledge that Seller leases substantially all of the equipment used
by the Centers, and that Seller will assign to the LLC all equipment leases to
which Seller is a party.
ARTICLE 2. PURCHASE PRICE
The purchase price ("Purchase Price") for the Purchased Assets shall be (a)
$5,652,206 cash and (b) 280,367 shares of the common stock (the "AmSurg Common
Stock") of ASC. The Purchase Price was determined based on an assumption that
the current expenses of operating the Centers and on a going forward basis are
and will be as set forth on Exhibit 2.
ARTICLE 3. CLOSING
3.1. CLOSING. The closing ("Closing") of the sale and purchase of the Purchased
Assets shall take place at the offices of Bass, Berry & Sims PLC, First American
Center, Nashville, Tennessee 37238, within 10 business days after the
satisfaction of all conditions to the parties' obligations to consummate the
transactions contemplated hereby, which shall in no event be later than
September 30, 1997, or at such other time as shall be agreed upon by all the
parties hereto (the "Closing Date"). The Closing shall be effective as of
September 1, 1997.
3.2. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, AmSurg shall deliver to Seller:
(i) the consideration as specified in Article 2;
(ii) a copy of resolutions of the Board of Directors of
AmSurg, certified by its Secretary, authorizing the execution, delivery
and performance of this Agreement and the other documents referred to
herein to be executed by AmSurg, and the consummation of the
transactions contemplated hereby;
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(iii) a certificate of AmSurg certifying as to the accuracy of
the representations and warranties of AmSurg at and as of the Closing
and that AmSurg has performed or complied with all of the covenants,
agreements, terms, provisions and conditions to be performed or
complied with by AmSurg at or before the Closing;
(iv) the opinion of Bass, Berry & Sims PLC, legal counsel
for AmSurg, the terms of which are substantially as set forth in
Exhibit 11.4; and
(v) such other certificates and documents as Seller or its
counsel may reasonably request.
(b) At the Closing, Seller and the Doctors will deliver to AmSurg:
(i) a copy of resolutions of the Board of Directors of Seller,
certified by its Secretary, authorizing the execution, delivery and
performance of this Agreement and the other documents referred to
herein to be executed by Seller, and the consummation of the
transactions contemplated hereby;
(ii) such deeds, bills of sale, endorsements, assignments and
other good and sufficient instruments of conveyance and transfer, in
form and substance reasonably satisfactory to AmSurg, as shall be
effective to vest in AmSurg all of Seller's title to and interest in
the Purchased Assets, all of Seller's books, records and other data
relating to the Purchased Assets (except corporate records and any
other documents and records which Seller is required by law to retain
in its possession), and, simultaneously with such delivery, will take
such steps as may be necessary to put AmSurg in actual possession and
operating control of the Purchased Assets;
(iii) a certificate of the Seller certifying as to the
accuracy of Seller's representations and warranties at and as of the
Closing and that it has performed or complied with all of the
covenants, agreements, terms, provisions and conditions to be performed
or complied with by Seller at or before the Closing;
(iv) a certificate of each of the Doctors certifying as to the
accuracy of the Doctors' representations and warranties at and as of
the Closing and that they have performed or complied with all of the
covenants, agreements, terms, provisions and conditions to be performed
or complied with by each of them at or before the Closing;
(v) the opinion of Shughart, Thomson & Kilroy, P.C., legal
counsel to Seller and the Doctors, in substantially the form of
Exhibit 10.6; and
(vi) such other certificates and documents as AmSurg or its
counsel may reasonably request.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY SELLER
Seller represents and warrants as follows:
4.1. ORGANIZATION. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Missouri with full power and
authority to conduct its business as now conducted and to own, lease or operate
its properties and assets as now owned, leased or operated.
4.2. AUTHORIZATION. Seller has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby, including the conveyance, assignment, transfer and delivery of the
Purchased Assets, have been duly authorized and approved by all necessary
corporate action, and this Agreement, when executed, will constitute a valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms.
4.3. NO VIOLATION. The execution and delivery of this Agreement by Seller does
not, and the consummation of the transactions contemplated hereby will not,
(a) violate any provision of, or result in the creation of any lien or security
interest under, any agreement,
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Asset Purchase Agreement/Page 2
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indenture, instrument, lease, security agreement, mortgage or lien to which
Seller is a party or by which any of Seller's assets or properties are bound
which violation or lien would have a material adverse effect on the business or
operations of Seller or the Centers; (b) violate any provision of the charter or
bylaws of Seller; (c) violate any order, arbitration award, judgment, writ,
injunction, decree, statute, rule or regulation applicable to Seller which
violation would have a material adverse effect on the business or operations of
Seller or the Centers; or (d) violate any other contractual or legal obligation
or restriction to which Seller is subject which violation would have a material
adverse effect on the business or operations of Seller or the Centers.
4.4. FINANCIAL INFORMATION. Seller has delivered to AmSurg: (a) statements of
Centers charges and related collections by month for the year ended December 31,
1996 and the six (6) months ended June 30, 1997, (b) cash basis unaudited
statements of income for the Centers for the year ended December 31, 1996 and
the six (6) months ended June 30, 1997, (c) a cash basis unaudited balance sheet
of the Centers at December 31, 1996 and June 30, 1997, and (d) details of
patient accounts receivable for the Centers at December 31, 1996 and June 30,
1997 (hereinafter collectively referred to as "Financial Information"), all of
which are attached as Schedule 4.4. The Financial Information fairly presents
the assets, liabilities, financial condition and results of operation of the
Centers as at the respective dates thereof and for the periods therein referred
to, prepared on a cash basis and accurately reflects the revenues and expenses
of the Centers for the periods covered thereby and, in particular, reflects all
expenses necessary for the efficient operation of the Centers as stand-alone
entities. The Financial Information reflects the consistent application of such
accounting principles throughout the periods involved.
4.5. OWNERSHIP OF PURCHASED AND LEASED ASSETS. Seller owns and possesses and has
good and marketable title to all of the Purchased Assets, free and clear of all
mortgages, pledges, liens, security interests, conditional sale agreements,
defects, charges, encumbrances and rights of third parties, and no conditions
exist which could give rise to any such mortgage, pledge, lien, security
interest, defect, charge, encumbrance on, or right of any such third party to,
the Purchased Assets.
Schedule 4.5 contains an accurate and complete description of the Purchased
Assets and leased assets, which include, but are not limited to, supplies,
inventory, uncollected accounts receivable and equipment owned and leased by
Seller, and which are all of the assets which are in any way necessary to the
continued operation of the Centers as they are now being conducted. All of the
Purchased Assets and leased assets are in good working condition and repair,
normal wear and tear excepted, and are adequate for the uses for which they are
intended. Schedule 4.5 also sets forth the current book value of all equipment
included in the Purchased Assets.
4.6. NO LIABILITIES OR ADVERSE CONDITIONS. Except as and to the extent of the
amounts specifically reflected in the Financial Information, Seller does not
have any material liabilities or obligations of any nature with respect to the
Centers, whether, absolute, accrued, contingent or otherwise and whether due or
to become due (including, without limitation, liabilities for taxes and
interest, penalties and other charges payable with respect thereto).
Furthermore, Seller does not know or have reason to know of any basis for the
assertion against Seller of any such liability or obligation of any nature not
fully reflected in the Financial Information. There are no conditions existing
with respect to any of Seller's facilities, properties, assets or personnel,
which might materially and adversely affect any of the Centers' properties,
business or prospects.
4.7. ABSENCE OF CERTAIN CHANGES. Since December 31, 1996, Seller has not:
(a) suffered any material adverse change in its working capital,
financial condition, assets, liabilities, business or prospects, or suffered any
material casualty loss (whether or not insured);
(b) made any change in its business or operations or in the manner of
conducting its business, other than changes in the ordinary course of business;
(c) incurred any obligations or liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except items incurred
in the ordinary course of business and consistent with past practice, or
experienced any change in any assumptions or methods of calculating any bad
debt, contingency or other reserve;
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Asset Purchase Agreement/Page 3
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(d) paid, discharged or satisfied any claim, lien, encumbrance or
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), other than claims, liens, encumbrances, or liabilities:
(i) which are reflected in the Financial Information and which
were paid, discharged or satisfied since the date thereof in the
ordinary course of business consistent with past practice, or
(ii) which were incurred and paid, discharged or satisfied
since December 31, 1996 in the ordinary course of business consistent
with past practice;
(e) written off as uncollectible any notes or accounts receivable
or any portion thereof, except for immaterial write-offs made in the ordinary
course of business consistent with past practice;
(f) cancelled any other debts or claims, or waived any rights, of
substantial value;
(g) sold, transferred or conveyed any of its properties or assets,
except in the ordinary course of business consistent with past practice;
(h) made any capital expenditures or commitments in excess of $10,000
in the aggregate for replacements or additions to property, plant, equipment
or intangible capital assets;
(i) declared, paid or made or set aside for payment of, any
distribution in respect of its outstanding common stock, other than
distributions made in the ordinary course of business consistent with past
practice, or directly or indirectly redeemed, purchased or otherwise acquired
any of its common stock;
(j) made any change in any method of accounting or accounting practice;
(k) granted any increase in the compensation of any officer, employee
or agent of Seller who performs services for or on behalf of the Centers, other
than the Doctors (including without limitation any increase pursuant to any
bonus, pension, profit sharing or other plan or commitment), other than
increases in the ordinary course of business consistent with past practice, or
adopted any such plan or other arrangement; and no such increase or the adoption
of any such plan or arrangement, is planned or required; and
(l) agreed, whether in writing or otherwise, to take any action
described in this Section 4.7.
4.8. TAXES. Seller has filed all federal, state and local tax returns required
to be filed by it through the date hereof and has paid all taxes and assessments
(including, without limitation, income, excise, unemployment, social security,
occupation, franchise, property, sales and use taxes, services taxes, import
duties or charges, and all penalties and interest with respect thereto) due and
payable therefrom. Seller has not signed any extension agreement with any taxing
authority and knows of no open or questionable matters for any prior periods.
All taxes and assessments relating to or affecting the operations of the Centers
through the date hereof have been paid.
4.9. LITIGATION. There is no claim, litigation, investigation or proceeding
pending or, to Seller's knowledge, threatened at law or in equity or before any
court, legislative or administrative tribunal or governmental agency which
questions the validity of this Agreement or which, if adversely determined or
publicly disclosed, would have a material adverse effect on the business or
operations of the Centers. Schedule 4.9 sets forth a true and accurate
description of all claims, actions, investigations or proceedings relating to
the Centers and their operations initiated since January 1, 1994.
4.10. COMPLIANCE WITH LAWS AND OTHER REGULATIONS. Seller is in compliance in all
material respects with all requirements of applicable laws, rules, regulations,
orders, ordinances, judgments and decrees of all governmental bodies or agencies
(federal, state or local) (collectively, "Laws") relating to or affecting the
operations of the Centers. Seller has not received any notice of, or notice of
any investigation of, a possible violation of any applicable Laws, or any other
Law or requirement relating to or affecting the operations of the Centers.
Seller has all required licenses, permits, certificates, authorizations and
agreements needed for the ownership and efficient operation of the Centers, all
of which are listed on Schedule 4.10. Seller knows of no act or
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Asset Purchase Agreement/Page 4
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omission occurring on or before the date hereof which would subject Seller or
the Centers to the likelihood of any fine or suspension of any license, permit,
certificate, authorization or agreement.
4.11. CONTRACTS; SIGNIFICANT PAYORS. Schedule 4.11 is a complete and accurate
list of all individual payors, or group of affiliated payors, that accounted for
more than 5% of either the Centers' revenues in any two of the previous three
years or is expected to account for more than 5% of either of the Centers'
revenues in the current year or the next year ("Significant Payors").
All contracts, agreements and instruments, including, but not limited to, third
party provider agreements and agreements with Significant Payors, to which
Seller is a party and which are necessary for the ownership and efficient
operation of the Centers, are in full force and effect; there have been no
threatened cancellations thereof nor outstanding disputes thereunder, and Seller
has not breached any provision of, nor does there exist any default in any
material respect under, or event (including the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby) which
is, or with the giving of notice or the passage of time or both would become, a
breach or default in any material respect under the terms of any such contract,
instrument or agreement. Seller has no reason to believe that any Significant
Payor intends to terminate any such contract, instrument or agreement, or
intends to withhold its consent to the assignment thereof, to the LLC by Seller.
4.12. ACCOUNTS RECEIVABLE. All accounts and notes receivable of the Centers,
whether reflected in the Financial Information or otherwise, represent services
actually provided in the ordinary course of business; all such receivables are
current and collectible in accordance with their respective terms; and none of
such receivables is subject to any counterclaim or set-off, other than normal
discounts, allowances and bad debts consistent with past practice.
4.13. REPORTS AND RETURNS. All reports and returns heretofore required by
federal, state or municipal authorities with respect to the operations of the
Centers and all reports and returns to the various governmental authorities
which control, directly or indirectly, any of the Centers' activities, have been
filed and all sums heretofore due with respect to such reports and returns have
been paid.
4.14. DEFAULTS. Seller is not in default under, and no event has occurred
which, with the giving of notice or the passage of time, or both, would result
in a default under, any outstanding indenture, mortgage, contract, agreement or
other instrument to which Seller is a party which default would have a material
adverse effect on the business or operations of the Centers. The execution,
delivery and performance by Seller of this Agreement and the transactions
contemplated hereby will not violate any provision of, or result in the breach
of, or constitute a default under, or require any consent under, any law, or
any order, writ, injunction or decree of any court, governmental agency or
arbitration tribunal, or any material contract, agreement or instrument with
respect to the Centers to which Seller is a party or by which Seller is bound.
4.15. EMPLOYEES; INDEPENDENT CONTRACTORS.
(a) Schedule 4.15(a) sets forth the names and titles of all employees
of Seller who perform services in or on behalf of the Centers, and the annual
rate of compensation (including bonuses) being paid to each such employee as of
the most recent practicable date. The employees listed on Schedule 4.15(a),
constitute all of the employees who are in any way necessary to the continued
operation of the Centers as they are now being conducted.
(b) Schedule 4.15(b) hereto contains a list of each employment, bonus,
deferred compensation, pension, stock option, stock appreciation right, profit
sharing or retirement plan, arrangement or practice and each other agreement or
fringe benefit plan, arrangement or practice of Seller, whether formal or
informal, whether legally binding or not and whether affecting one or more of
its employees who perform services in or on behalf of the Centers. Copies of
each such agreement or plan have hereto been delivered to AmSurg. Seller does
not have any commitment, whether formal or informal, and whether legally binding
or not (i) to create any additional such agreement, plan, arrangement or
practice; (ii) to modify or change any such agreement, arrangement, plan or
practice; or (iii) to maintain for any period of time any such agreement,
arrangement, plan or practice, except as described on Schedule 4.15(b).
(c) Schedule 4.15(c) hereto contains a list of all services provided to
the Centers for which Seller contracts with third parties. Copies of each such
agreement previously have been provided to AmSurg.
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Asset Purchase Agreement/Page 5
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Schedule 4.15(c) contains a description of each such oral agreement.
4.16. CONSENTS AND APPROVALS. Seller has obtained all consents, approvals,
authorizations and orders of third parties, including governmental authorities,
necessary for the authorization, execution and performance of this Agreement by
Seller, which consents, approvals, authorizations and orders are listed on
Schedule 4.16.
4.17. ACQUISITION FOR INVESTMENT. Seller represents that it is acquiring the
AmSurg Common Stock for its own account for investment with no present intention
of reselling any such AmSurg Common Stock, and not with a view to the resale or
distribution in whole or in part thereof in violation of the Securities Act of
1933, as amended (the "Securities Act").
4.18. SUITABILITY OF INVESTMENT. Seller has carefully considered and has, to the
extent it believes necessary, obtained professional legal, tax and financial
advice concerning the suitability of its acquisition of the AmSurg Common Stock
for its particular tax and financial situation. Seller is capable of evaluating
and has evaluated carefully the merits and risks of its purchase of the AmSurg
Common Stock and is able to bear the economic risk of an investment therein.
4.19. ACCESS TO INFORMATION. Seller has had access during the course of this
transaction and prior to its purchase of the AmSurg Common Stock to such
information relating to AmSurg and ASC as it has desired. It has had the
opportunity to ask questions of and receive answers from AmSurg and ASC and
their representatives concerning the terms and conditions of the acquisition of
the AmSurg Common Stock and to obtain such additional information about the
business and financial condition of AmSurg and AmSurg Corp. as Seller has
requested (to the extent that AmSurg or ASC possessed such information or could
acquire it without unreasonable effort or expense).
4.20. RESTRICTIONS ON TRANSFER OF THE AMSURG COMMON STOCK. Seller understands
that the AmSurg Common Stock has not been registered under the Securities Act or
any applicable state securities law, and may not be transferred or sold unless
it is subsequently registered under the Securities Act or an exemption from such
registration is available.
4.21. LEGEND ON CERTIFICATES. Seller is aware that the certificates representing
the AmSurg Common Stock shall bear the following legend and that appropriate
stop transfer instructions will be entered in the stock records of ASC:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR
ANY APPLICABLE STATE SECURITIES LAW. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE
DISTRIBUTION THEREOF. NO DISPOSITION OF THE SHARES MAY BE MADE IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR (ii) AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
DISPOSITION WITHOUT REGISTRATION IS IN COMPLIANCE WITH THE SECURITIES
ACT.
4.22. FULL DISCLOSURE. Neither this Agreement, nor any schedule, exhibit, list,
certificate or other instrument or document delivered to AmSurg pursuant to this
Agreement by or on behalf of Seller, contains any untrue statement of a material
fact or omits to state any material fact required to be stated herein or therein
or necessary to make the statements, representations or warranties and
information contained herein or therein not misleading. Seller has not withheld
from AmSurg disclosure of any event, condition or fact which Seller knows, or
has reasonable grounds to know, may materially adversely affect the Purchased
Assets or the operations of the Centers.
4.23. NO BROKER'S FEES. Seller has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and Seller does not know of any claim by
anyone for such a fee, commission, expense or charge.
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Asset Purchase Agreement/Page 6
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ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE DOCTORS
Each of the Doctors, severally and not jointly, represents and warrants as
follows:
5.1. AUTHORITY. Such Doctor has full authority to enter into and carry out
the provisions of this Agreement, and this Agreement, when executed, will
constitute a valid and binding legal obligation enforceable against him in
accordance with its terms.
5.2. NO VIOLATION. The execution and delivery of this Agreement by such Doctor
does not, and the consummation of the transactions contemplated hereby will not,
(a) violate any provision of, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage or lien to which such Doctor is a party or by which any of such
Doctors's assets or properties are bound; (b) violate any provision of the
charter or bylaws of Seller; (c) violate any order, arbitration award, judgment,
writ, injunction, decree, statute, rule or regulation applicable to such Doctor;
or (d) violate any other contractual or legal obligation or restriction to which
such Doctor is subject.
5.3. SHAREHOLDERS OF SELLER. The Doctors constitute all of the shareholders
of Seller.
5.4. RESTRICTIVE COVENANTS; CONFIDENTIALITY. Each Doctor agrees that he will not
have any direct or indirect ownership interest in any business or entity that
provides endoscopy services within Jackson or Clay County, Missouri until the
later of (a) one (1) year after the Doctor ceases to be a shareholder of Seller
or (b) five (5) years after the Closing Date. The foregoing shall not prohibit
the Doctors from owning shares of capital stock constituting less than 1% of the
outstanding capital stock of any corporation whose common stock is traded on a
national securities exchange or on The Nasdaq Stock Market. The Doctors
recognize and acknowledge that the ascertainment of damages in the event of a
breach of this Section 5.4 would be difficult, and agree that AmSurg, in
addition to all other remedies it may have, shall have the right to injunctive
relief if there is such a breach.
Notwithstanding the foregoing, the parties acknowledge and agree that Section
5.4 does not require the Doctors to perform endoscopy procedures at the Centers
or to refer patients to the Centers imposes no restrictions on where such
procedures are performed or where referrals are made, and does not prohibit the
Doctors from billing for any professional services rendered by the Doctors in
any other location.
5.5. NO BROKER'S FEES. Such Doctor has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this agreement or the consummation of
the transactions contemplated hereby, and Doctor does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF AMSURG
AmSurg represents and warrants as follows:
6.1. ORGANIZATION. AmSurg is a corporation duly organized, validly existing
and in good standing under the laws of the state of Tennessee. AmSurg has full
corporate power and corporate authority to carry on its business as now
conducted and to own, lease or operate its properties and assets as now owned,
leased or operated.
6.2. AUTHORIZATION. AmSurg has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
AmSurg of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
This Agreement, when executed, will constitute a legal, valid and binding
obligation of AmSurg enforceable against it in accordance with its terms.
6.3. NO VIOLATION. The execution and delivery of this Agreement by AmSurg does
not, and the consummation of the transactions contemplated hereby will not, (a)
violate any provision of, or result in the creation of any lien or security
interest under, any material agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which AmSurg is a party or by which any of
AmSurg's assets or properties are bound which violation or lien would have a
material adverse effect on the business or operations of AmSurg;
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Asset Purchase Agreement/Page 7
<PAGE> 8
(b) violate any provision of the Charter or Bylaws of AmSurg; (c) violate any
order, arbitration award, judgment, writ, injunction, decree, statute, rule or
regulation applicable to AmSurg which violation would have a material adverse
effect on the business or operations of AmSurg; or (d) violate any other
contractual or legal obligation or restriction to which AmSurg is subject which
violation would have a material adverse effect on the business or operations of
AmSurg.
6.4. TAXES. AmSurg has filed all federal, state and local tax returns required
to be filed by it through the date hereof (or has obtained an extension for such
filing) and has paid all taxes and assessments (including without limitation
income, excise, unemployment, social security, occupation, franchise, property,
sales and use taxes, import duties or charges, and all penalties and interest in
respect thereof) due and payable therefrom. AmSurg has not signed any extension
agreement with any taxing authority and knows of no open or questionable matters
for any prior periods.
6.5. LITIGATION. There is no claim, litigation, investigation or proceeding
pending or, to AmSurg's knowledge, threatened against AmSurg at law or in equity
or before any court, legislative or administrative tribunal or governmental
agency which questions the validity of this Agreement or which, if adversely
determined or publicly disclosed, would have a material adverse effect on the
business or operations of AmSurg.
6.6. COMPLIANCE WITH LAW AND OTHER REGULATIONS. AmSurg is in compliance in all
material respects with all requirements of applicable Laws. AmSurg possesses all
required licenses, permits, certificates, and authorizations needed for the
conduct of its business as presently conducted. AmSurg knows of no act or
omission occurring on or before the date hereof which would subject AmSurg to
the likelihood of any fine or suspension of any license, permit, certificate or
authorization.
6.7. REPORTS AND RETURNS. AmSurg has filed all reports and returns heretofore
required by federal, state or municipal authorities and all reports and returns
to the various governmental authorities which control, directly or indirectly,
any of its activities, and has paid all sums heretofore due with respect to such
reports and returns.
6.8. DEFAULTS. AmSurg is not in default under, and no event has occurred which,
with the giving of notice or the passage of time, or both, would result in a
default under, any outstanding indenture, mortgage, contract or agreement to
which AmSurg is a party, which default would have a material adverse effect on
the business or operations of AmSurg.
The execution, delivery and performance by AmSurg of this Agreement and the
transactions contemplated hereby will not violate any provision of, or result in
the breach of, or constitute a default under, or require any consent under, any
law, or any order, writ, injunction or decree of any court, governmental agency
or arbitration tribunal, or any material contract, agreement or instrument to
which AmSurg is a party or by which AmSurg is bound.
6.9. CORPORATE DOCUMENTS. AmSurg has made available to Seller and the Doctors
for inspection by Seller and its authorized representatives, a copy of its
Charter, as amended to the date hereof, certified to be a true and correct copy
thereof by the Secretary of State of Tennessee, and the minute books of AmSurg
containing the bylaws and all records of the proceedings, meeting, actions and
consents of the shareholders and the board of directors (and any committees
thereof) of AmSurg.
6.10. FULL DISCLOSURE. Neither this Agreement, nor any Schedule, exhibit, list,
certificate or other instrument or document delivered to Seller and the Doctors
pursuant to this Agreement by or on behalf of AmSurg contains any untrue
statement of a material fact or omits to state any material fact required to be
stated herein or therein in order to make the statements, representations or
warranties contained herein or therein not misleading.
6.11. NO BROKER'S FEES. AmSurg has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and AmSurg does not know of any claim by
anyone for such a fee, commission, expense or charge.
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Asset Purchase Agreement/Page 8
<PAGE> 9
ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF ASC
ASC represents and warrants as follows:
7.1. ORGANIZATION. ASC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Tennessee. ASC has full corporate
power and corporate authority to carry on its business as now conducted and to
own, lease or operate its properties and assets as now owned, leased or
operated.
7.2. AUTHORIZATION. ASC has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
ASC of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
The Agreement, when executed, will constitute a legal, valid and binding
obligation of ASC enforceable against it in accordance with its terms.
7.3. CORPORATE DOCUMENTS. ASC has made available to Seller and the Doctors for
inspection by Seller and its authorized representatives, a copy of its Charter,
as amended to the date hereof, certified to be a true and correct thereof by the
Secretary of State of Tennessee, and the minute books of ASC containing the
Bylaws and all records of the proceedings, minutes, actions and consents of the
shareholders and the board of directors (and any committees thereof) of ASC.
7.4. FULL DISCLOSURE. Neither this Agreement, nor any exhibit, list, certificate
or other instrument or document delivered to Seller and the Doctors pursuant to
this Agreement, by or on behalf of ASC, contains any untrue statement of a
material fact or omits to state any material fact required to be stated herein
or therein in order to make the statements, representations or warranties
contained herein or therein not misleading.
7.5. VALID ISSUANCE. All shares of AmSurg Common Stock issued to Seller on
the Closing Date will be validly issued, fully paid and nonassessable.
ARTICLE 8. COVENANTS AND AGREEMENTS OF SELLER AND THE DOCTORS
Seller and the Doctors further covenant and agree that from the date hereof
until the Closing, and thereafter if so specified, they will fulfill the
following covenants and agreements unless otherwise consented to by AmSurg in
writing:
8.1. ACCESS; FURTHER ASSURANCES.
(a) Seller will accord to AmSurg, its counsel, accountants, and other
representatives, from the date hereof and at any time after the Closing, full
access to all of the properties, books, contracts, commitments, financial
information and records of the Centers, and will furnish AmSurg during such
period with all such infor mation concerning the business and operations of the
Centers, as AmSurg reasonably may request. At any time and from time to time
after the Closing, at AmSurg's request and without further consideration, Seller
and the Doctors agree to execute and deliver such certificates and documents as
may be required in connection with any audit of the Centers or its operations.
(b) From the date hereof until the Closing, as soon as reasonably
practicable after the end of each quarter, but not later than the 15th day of
the next succeeding month, Seller will deliver to AmSurg an unaudited statement
of income for the Centers for the quarter and the period then ended, and an
unaudited balance sheet and a detail of patient accounts receivable for the
Centers as at the quarter then ended ("Ongoing Quarterly Financial
Information"). In addition, as soon as reasonably practicable after the end of
each month, but not later than the 15th day of the next succeeding month, Seller
will deliver to AmSurg a statement of (i) the number of procedures performed,
(ii) the billed charges, and (iii) the cash collections, all with respect to the
prior month ("Ongoing Monthly Financial Information") (the Ongoing Quarterly
Financial Information and the Ongoing Monthly Financial Information are
collectively referred to as the "Ongoing Financial Information"). All such
Ongoing Financial Information shall be prepared in accordance with generally
accepted accounting principles consistent with prior practice.
(c) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, Seller will execute and deliver such
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<PAGE> 10
other instruments of sale, transfer, conveyance, assignment and delivery and
confirmation and take such action as AmSurg may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to AmSurg and
to place AmSurg in possession and control of and to confirm AmSurg's title to,
the Purchased Assets, and to assist AmSurg in exercising all rights and enjoying
all benefits with respect thereto.
(d) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, the Doctors will execute and deliver
such other instruments of sale, transfer, conveyance, assignment and delivery
and confirmation and take such action as AmSurg may reasonably deem necessary or
desirable in order more effectively to transfer, convey and assign to AmSurg and
to place AmSurg in possession and control of and to confirm AmSurg's title to,
the Purchased Assets, and to assist AmSurg in exercising all rights and enjoying
all benefits with respect thereto.
8.2. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are
not consummated for any reason, Seller and the Doctors promptly will return to
AmSurg and ASC all records and information provided to Seller from AmSurg and
ASC, and Seller and the Doctors will treat all such records and information as
confidential.
(b) Except as otherwise required by law, Seller and the Doctors will
not disclose at any time to any other person not an employee of AmSurg, ASC or
Seller (or a person otherwise involved in the carrying out of the transactions
contemplated by this Agreement), nor make any public announcement of, the
transactions or terms of the transactions contemplated by this Agreement.
8.3. CONDUCT OF BUSINESS PENDING THE CLOSING. From the date hereof until the
Closing, and except as otherwise consented to by AmSurg in writing, Seller shall
not:
(a) fail to maintain in effect adequate insurance coverage of the
Purchased Assets; or
(b) fail to use its best efforts to (i) maintain the Purchased Assets
in their present condition, (ii) comply with all applicable laws, rules and
regulations of governmental agencies or authorities, and (iii) operate its
business in the manner necessary to maintain the good will of its patients and
physicians and its reputation.
8.4. INSURANCE. Seller will use its best efforts to include AmSurg and the LLC
as additional insureds on Seller's professional liability, general property and
workers' compensation insurance policies, and will provide AmSurg with written
evidence of such coverage. AmSurg and ASC will pay the additional cost, if any,
for such insurance coverage.
8.5. TRANSFER OF SIGNIFICANT PAYOR AGREEMENTS. Seller and the Doctors will
use their best efforts to effect the valid assignment to the LLC of all
agreements with Significant Payors effective as of the Closing Date or within a
reasonable time thereafter.
8.6. NOTICE OF ADVERSE CHANGE. Seller will advise AmSurg in writing of any
material adverse change in the Purchased Assets from the date of this Agreement
to the Closing Date.
8.7. SCHEDULES. Seller shall have the continuing obligation to supplement or
amend promptly the Schedules being delivered by Seller pursuant to this
Agreement with respect to any matter hereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been required to be
set forth or described in these Schedules.
ARTICLE 9. COVENANTS AND AGREEMENTS OF AMSURG AND ASC
AmSurg and ASC further covenant and agree that from the date hereof until the
Closing, unless otherwise consented to by Seller in writing, they will fulfill
the following covenants and agreements:
9.1. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are
not consummated for any reason, AmSurg and ASC promptly will return to Seller
all records and information provided to AmSurg and ASC from Seller, and AmSurg
and ASC will treat all such records and information as confidential.
(b) Except as otherwise required by law, AmSurg will not disclose at
any time to any other person
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Asset Purchase Agreement/Page 10
<PAGE> 11
not an employee of AmSurg, ASC or Seller (or a person otherwise involved in the
carrying out of the transactions contemplated by this Agreement), nor make any
public announcement of, the transactions or terms of the transactions
contemplated by this Agreement.
9.2. NOTICE OF ADVERSE CHANGE. AmSurg and ASC each will notify Seller and the
Doctors in writing of any material adverse change in the business, assets,
operations, conditions or prospects of AmSurg or ASC, as the case may be, from
the date of this Agreement to the Closing Date.
9.3. SCHEDULES. AmSurg shall have the continuing obligation to supplement or
amend promptly the Schedules being delivered by AmSurg pursuant to this
Agreement with respect to any matter hereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been required to be
set forth or described in these Schedules.
ARTICLE 10. CONDITIONS TO AMSURG'S AND ASC'S OBLIGATIONS
AmSurg and ASC shall not be obligated to consummate the transactions
contemplated hereby, unless each of the following conditions is fulfilled or
performed (unless expressly waived in writing by AmSurg and ASC) prior to or at
the Closing:
10.1. COMPLIANCE. The representations and warranties made by Seller and the
Doctors in this Agreement and the statements contained in the Schedules attached
hereto or in any instrument, list, certificate or writing delivered by Seller or
the Doctors pursuant to this Agreement shall be true when made and at and as of
the time of the Closing as though such representations and warranties were made
at and as of the Closing.
10.2. PERFORMANCE BY SELLER AND THE DOCTORS. Seller and the Doctors shall have
performed and complied with all covenants, agreements, obligations and
conditions required by this Agreement to be so complied with or performed by
each of them.
10.3. CERTIFICATE OF SELLER. Seller shall have delivered to AmSurg a
certificate, dated the Closing Date, certifying as to the fulfillment by Seller
of the conditions specified in Sections 10.1 and 10.2 hereof.
10.4. CERTIFICATE OF DOCTORS. Each of the Doctors shall have delivered to
AmSurg a certificate, dated the Closing Date, certifying as to the fulfillment
by such Doctor of the conditions specified in Sections 10.1 and 10.2 hereof.
10.5. CONSENTS AND LICENSES. All necessary consents, licenses, permits,
approvals, authorizations, orders and agreements from federal, state and local
governmental units and any other entity which are listed on Schedule 4.16,
including approval by the Missouri Department of Health and by applicable
Medicare and state Medicaid agencies, for the continued operation and
third-party reimbursement of the Centers by the LLC following the consummation
of the transactions contemplated hereby, shall have been issued to the LLC or
notice of issuance shall have been provided. AmSurg will assist Seller in
obtaining any licenses necessary for the LLC to own the Centers and any Medicare
and Medicaid provider numbers and/or participation agreements.
10.6. OPINION OF COUNSEL. AmSurg shall have been furnished with the opinion of
Shughart, Thomson & Kilroy, P.C., counsel to Seller and the Doctors, in
substantially the form of Exhibit 10.6.
10.7. LEASES. Seller shall have assigned to the LLC, and the LLC shall have
assumed, the leases for the Centers (the "Leases"), and Seller shall have
amended the Leases pursuant to the Lease Amendments attached hereto as Exhibits
10.7(a) and 10.7(b). In addition, the LLC shall have assumed the equipment
leases described on Schedule 1.2.
10.8. SHAREHOLDERS AGREEMENT. ASC and Seller shall have entered into a
shareholders agreement ("Shareholders Agreement"), which shall be in
substantially the form of Exhibit 10.8.
10.9. OFFERING MEMORANDUM. Seller and the Doctors shall have received an
offering memorandum relating to the AmSurg Common Stock and the LLC. Seller and
the Doctors each shall have executed and delivered to ASC an offeree
questionnaire in form and substance reasonably satisfactory to ASC and its
counsel.
10.10. SIGNIFICANT PAYOR AGREEMENTS. All of the Significant Payor agreements
shall have been validly assigned to the LLC or Seller and AmSurg shall have no
reason to believe that any such agreement with a
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Asset Purchase Agreement/Page 11
<PAGE> 12
Significant Payor will not be approved or that such Significant Payor will not
execute a new agreement with the LLC on terms reasonably acceptable to AmSurg.
10.11. SHAREHOLDER APPROVAL. All of the shareholders of Seller shall have
approved the transactions contemplated by this Agreement, and Seller shall have
furnished AmSurg with a certificate of the President of Seller evidencing such
approval.
10.12. FORM 8594. AmSurg initially will allocate the Purchase Price using the
methodology reflected on Exhibit 10.12. In the course of completing ASC's
consolidated federal income tax return, AmSurg shall provide Seller with an IRS
Form 8594.
ARTICLE 11. CONDITIONS TO SELLER'S AND THE DOCTORS' OBLIGATIONS
Seller and the Doctors shall not be obligated to consummate the transactions
contemplated hereby unless each of the following conditions is fulfilled or
performed (unless expressly waived in writing by Seller) prior to or at the
Closing:
11.1. COMPLIANCE. The representations and warranties made by AmSurg and ASC in
this Agreement and the statements contained in the Schedules attached hereto or
in any instrument, list, certificate or writing delivered by AmSurg and ASC
pursuant to this Agreement shall be true when made and at and as of the time of
the Closing as though such representations and warranties were made at and as of
the Closing.
11.2. PERFORMANCE BY AMSURG AND ASC. AmSurg and ASC shall have performed and
complied with all agreements, obligations and conditions required by this
Agreement to be so complied with or performed by AmSurg and ASC.
11.3. CERTIFICATE OF AMSURG AND ASC. AmSurg and ASC each shall have delivered to
Seller and the Doctors a certificate, dated the Closing Date, certifying as to
the fulfillment of the conditions specified in Sections 11.1 and 11.2 hereof.
11.4. OPINION OF COUNSEL. Seller and the Doctors shall have been furnished the
opinion of Bass, Berry & Sims PLC, counsel to AmSurg and ASC, in substantially
the form of Exhibit 11.4.
11.5. LEASES. Seller shall have assigned to the LLC, and the LLC shall have
assumed, the Leases, and Seller shall have amended the Leases pursuant to the
Lease Amendments attached hereto as Exhibits 10.7(a) and 10.7(b). In addition,
the LLC shall have assumed the equipment leases described on Schedule 1.2.
11.6. SHAREHOLDERS AGREEMENT. ASC and Seller shall have entered into the
Shareholders Agreement.
ARTICLE 12. INDEMNIFICATION
12.1. INDEMNIFICATION BY SELLER AND THE DOCTORS. Seller and the Doctors,
severally and not jointly, hereby agree to defend, indemnify and hold harmless
AmSurg and ASC and shall reimburse AmSurg and ASC for, from and against each
claim, loss, liability, cost and expense (including without limitation,
interest, penalties, costs of preparation and investigation, and the reasonable
fees, disbursements and expenses of attorneys, accountants and other
professional advisors) (collectively, "Losses"), directly or indirectly relating
to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by or of Seller or
any Doctor contained herein, any Schedule hereto or in any certificate, document
or instrument delivered to AmSurg and ASC pursuant hereto.
(b) Any tax liability of Seller or the Centers not previously paid,
which may at any time be asserted or assessed against Seller or the Centers for
any event or period prior to the Closing Date (regardless of whether the
possibility of the assertion or assessment of any such tax liability shall have
been disclosed to AmSurg at or prior to the Closing).
(c) Liability for any amounts owed by Seller or the Centers to any
governmental third party or private payors because of overpayments to Seller or
the Centers prior to the Closing for services rendered to patients, which
liability is due to a recomputation of rates, field audit adjustments,
overpayments or otherwise.
(d) Any other Loss incidental to any of the foregoing.
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Asset Purchase Agreement/Page 12
<PAGE> 13
12.2. INDEMNIFICATION BY AMSURG AND ASC. AmSurg and ASC, severally and not
jointly, hereby agree to defend, indemnify and hold harmless Seller and the
Doctors, and shall reimburse Seller and the Doctors for, from and against Losses
directly or indirectly relating to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by AmSurg or ASC,
as the case may be, contained herein or in any certificate, document or
instrument delivered to Seller and the Doctors pursuant hereto.
(b) Any other Loss incidental to the foregoing.
12.3. PROCEDURE.
(a) The indemnified party shall promptly notify the indemnifying party
of any claim, demand, action or proceeding for which indemnification will be
sought under Sections 12.1 or 12.2 of this Agreement, and, if such claim,
demand, action or proceeding is a third party claim, demand, action or
proceeding, the indemnifying party will have the right at its expense to assume
the defense thereof using counsel reasonably acceptable to the indemnified
party. The indemnified party shall have the right to participate, at its own
expense, with respect to any such third party claim, demand, action or
proceeding. In connection with any such third party claim, demand, action or
proceeding, AmSurg, ASC, Seller and the Doctors shall cooperate with each other
and provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action or proceeding shall be
settled without the prior written consent of the indemnified party. If a firm
written offer is made to settle any such third party claim, demand, action or
proceeding and the indemnifying party proposes to accept such settlement and the
indemnified party refuses to consent to such settlement, then: (i) the
indemnifying party shall be excused from, and the indemnified party shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding; and (ii) the maximum liability of the indemnifying party
relating to such third party claim, demand, action or proceeding shall be the
amount of the proposed settlement if the amount thereafter recovered from the
indemnified party on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement. At no time shall any party
be required to admit guilt or liability for any illegal acts pursuant to the
terms of this Article 12.
(b) Any claim of indemnity of AmSurg or ASC against Seller or the
Doctors with respect to Section 12.1 hereof may in AmSurg's discretion be
discharged by setoff against any amounts owed or owing to Seller or any
affiliate thereof under the Operating Agreement between Seller and AmSurg. Any
claim of indemnity of Seller or the Doctors against AmSurg or ASC with respect
to Section 12.2 hereof may in Seller's discretion be discharged by setoff
against any amounts owed or owing to AmSurg under the Operating Agreement
between Seller and AmSurg.
(c) Notwithstanding the foregoing, no Doctor shall be required to
indemnify AmSurg or ASC for any amount in excess of his pro rata portion of the
Purchase Price.
(d) Notwithstanding the foregoing, Seller and the Doctors shall not be
obligated to make any indemnification under Section 12.1 unless the aggregate
amount of Losses exceeds $10,000 (the "Basket"), and such indemnification with
respect to such Losses shall be made by Seller and the Doctors only to the
extent of such excess over the Basket.
ARTICLE 13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
13.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein shall survive the Closing Date and any investigation
made by or on behalf of any party hereto, and shall survive for a period of 24
months after the Closing Date (except for any Losses described in Section
12.1(b), which shall survive for the applicable statute of limitations,
including any waivers thereof, Section 12.1(c), which shall not terminate, and
any breach of the representations and warranties contained in Sections 4.6 and
4.9 with respect to professional malpractice claims arising before the Closing
Date, which shall not terminate).
In addition, in the event that the LLC dissolves, liquidates or otherwise ceases
to exist, the provisions of Section 5.4 hereof shall terminate and be of no
further force or effect.
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Asset Purchase Agreement/Page 13
<PAGE> 14
13.2. REMEDIES CUMULATIVE. The remedies provided herein shall be cumulative and
shall not preclude the assertion by any party hereto of any other rights or the
seeking of any other remedies against the other party hereto.
ARTICLE 14. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing:
(a) by mutual agreement of Seller and AmSurg;
(b) by AmSurg, if there has been a material violation or breach by
Seller or the Doctors of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing, or if any of
the conditions set forth in Article 10 hereof have not been satisfied by the
Closing or have not been waived in writing by AmSurg;
(c) by Seller, if there has been a material violation or breach by
AmSurg or ASC of any of the agreements, representations or warranties contained
in this Agreement which has not been waived in writing, or if any of the
conditions set forth in Article 11 hereof have not been satisfied by the Closing
or have not been waived in writing by Seller;
(d) By either AmSurg or Seller if the transactions contemplated by this
Agreement shall not have been consummated on or before September 30, 1997; or
(e) By either AmSurg or Seller if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving the other.
ARTICLE 15. MISCELLANEOUS
15.1. EXPENSES. All fees and expenses incurred by Seller and the Doctors,
including without limitation, legal fees and expenses, in connection with this
Agreement will be borne by Seller and the Doctors and all fees and expenses
incurred by AmSurg and ASC, including without limitation, legal fees and
expenses, in connection with this Agreement will be borne by AmSurg and ASC.
15.2. ASSIGNABILITY; PARTIES IN INTEREST.
(a) AmSurg may assign any or all of its rights hereunder to any
affiliate or any direct or indirect subsidiary of AmSurg, and AmSurg shall
advise Seller of any such assignment and shall designate such party as the
assignee and transferee of the Purchased Assets. Any such assignee shall assume
all of AmSurg's duties, obligations and undertakings hereunder.
(b) Seller and the Doctors may not assign, transfer or otherwise
dispose of any of their respective rights hereunder without the prior written
consent of AmSurg.
(c) All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
heirs, successors, assigns and legal or personal representatives of the parties
hereto.
15.3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the exhibits,
Schedules, lists and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by all parties or their respective heirs, successors, assigns or legal
personal representatives. Any condition to a party's obligations hereunder may
be waived but only by a written instrument signed by the party entitled to the
benefits thereof. The failure or delay of any party at any time or times to
require performance of any provision or to exercise its rights with respect to
any provision hereof,
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Asset Purchase Agreement/Page 14
<PAGE> 15
shall in no manner operate as a waiver of or affect such party's right at a
later time to enforce the same.
15.4. SEVERABILITY. The invalidity of any term or terms of this Agreement shall
not affect any other term of this Agreement, which shall remain in full force
and effect.
15.5. NOTICES. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed (registered or certified mail, postage prepaid, return
receipt requested or by overnight courier service) as follows:
If to Seller:
The Endoscopy Center, Inc.
600 North West Murray
Lee's Summit, MO 64081
Attn: Marc K. Taormina, M.D.
and to:
3800 S. Whitney Avenue
Independence, MO 64055
Attn: ________________
and
5330 North Oak Trafficway
Kansas City, MO 64118
Attn: ________________
with a copy to:
Shughart, Thomson, & Kilroy
120 W. 12th St.
Suite 1800
Kansas City, MO 64105
Attn: Randal L. Schultz, Esq.
If to AmSurg or ASC:
AmSurg Holdings, Inc.
One Burton Hills Boulevard
Suite 350
Nashville, TN 37215
Attn: Claire M. Gulmi
with a copy to:
Bass, Berry & Sims PLC
First American Center
Nashville, TN 37238
Attn: Cynthia Y. Reisz, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
15.6. SECTION AND OTHER HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
15.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, provided, however, that
the several executed counterparts shall together have been signed by AmSurg,
ASC, Seller and each of the Doctors. All of such executed counterparts shall
constitute one and the same instrument.
15.8. PARTIES IN INTEREST. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns. The parties acknowledge that they have
independently negotiated the provisions of this Agreement, that they have relied
upon their own counsel as to matters of law and application and that neither
party has relied on the other party with regard to such matters. The parties
expressly agree that there shall be no presumption created as a result of either
party having prepared in whole or in part any provisions of this Agreement.
15.9. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Tennessee, without regard
to its conflict of laws rules.
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Asset Purchase Agreement/Page 15
<PAGE> 16
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
AMSURG CORP.
By: /s/ Claire M. Gulmi
--------------------------
Title: Senior Vice President
THE ENDOSCOPY CENTER, INC.
By: /s/ Joseph B. Eisenach, M.D.
----------------------------
Title: President
By their execution of this Agreement, the Doctors hereby consent to the
execution hereof by Seller and agree to be bound by the provisions of Section
5.4 hereof:
DOCTORS:
/s/ Gregory B. Barber, M.D.
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Gregory B. Barber, M.D.
/s/ Arthur Lee Brock, M.D.
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Arthur Lee Brock, M.D.
/s/ Terrence W. Coleman, M.D.
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Terrence W. Coleman, M.D.
/s/ Gary L. Cornette, D.O.
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Gary L. Cornette, D.O.
/s/ Joseph B. Eisenach, M.D.
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Joseph B. Eisenach, M.D.
/s/ Burnell Landers, M.D.
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Burnell Landers, M.D.
/s/ Jeffrey L. Schlachter, D.O.
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Jeffrey L. Schlachter, D.O.
/s/ Marc K. Taormina, M.D.
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Marc K. Taormina, M.D.
/s/ J. Anthony Woltjen, M.D.
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J. Anthony Woltjen, M.D.
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Asset Purchase Agreement/Page 16
<PAGE> 17
The Schedules and Exhibits to the Asset Purchase Agreement have been
omitted in accordance with Item 601(b)(2) of Regulation S-K, but will be
furnished to the Commission supplementally upon request. The contents of the
omitted Schedules and Exhibits are described in the Asset Purchase Agreement.
