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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): November 13, 1998
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 November 13, 1998, AmSurg Naples, Inc. ("AmSurg"), a
subsidiary of AmSurg Corp. (the "Company"), acquired from Endoscopy Center of
Naples, Inc., a Florida corporation ("Seller"), a sixty percent ownership
interest in the assets comprising the business operations of an ambulatory
surgery center (the "Center") in Naples, Florida.
Pursuant to the terms of the Asset Purchase Agreement dated November 13,
1998, by and between AmSurg and the Seller, AmSurg paid an initial purchase
price of $4,528,813 in cash, subject to adjustment as set forth in the Asset
Purchase Agreement. The cash used in the purchase transaction was provided
primarily 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 AmSurg and the shareholders of the
Seller. Following the asset purchase, AmSurg and the Seller contributed their
respective ownership in the assets of the Center into a newly formed limited
liability company, The Naples Endoscopy ASC, L.P., and received proportionate
ownership 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 January 27, 1999.
(c) Exhibits:
2 Asset Purchase Agreement dated November 13, 1998 by and between
AmSurg Naples, Inc. and Endoscopy Center of Naples, Inc.
2
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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: November 25, 1998
3
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
2 Asset Purchase Agreement dated November 13, 1998 by and between
AmSurg Naples, Inc. and Endoscopy Center of Naples, Inc.
</TABLE>
4
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EXHIBIT 2
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated November 13,
1998, is by and among AmSurg Naples, Inc., a Tennessee corporation ("AmSurg"),
Endoscopy Center of Naples, Inc., a Florida 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
ambulatory surgery center (the "Center") owned and operated by Seller and
located in Naples, Florida, tangible or intangible, recorded or unrecorded,
known or unknown, of whatsoever type, kind, description, or nature owned,
leased, held, possessed, vested in or claimed in whole or in part by Seller on
the Closing Date (the "Purchased Assets"), which Purchased Assets shall
specifically include the accounts receivable of the Center, but which shall
specifically exclude cash, investments and cash equivalents.
1.2. ASSUMPTION OF LIABILITIES. Except as described herein, AmSurg will not
assume any debts, liabilities, obligations, expenses, taxes, contracts or
commitments of Seller or the Center of any kind, character or description,
whether accrued, absolute, contingent or otherwise ("Liabilities"), no matter
whether arising before or after the Closing, and whether or not reflected or
reserved against in Seller's or the Center's financial statements, books of
account or records. Seller will indemnify AmSurg against and hold it harmless
from any such Liabilities. AmSurg will cause The Naples Endoscopy ASC, L.P., a
Tennessee limited partnership (the "Partnership"), to assume all Liabilities
arising after the effective date of the transaction which relate to supplies
received by the Center or services rendered to the Center after the effective
date of the transaction, regardless of the date such Liabilities arose.
ARTICLE 2. PURCHASE PRICE
The initial purchase price ("Initial Purchase Price") for the Purchased
Assets shall be $4,479,504.00, payable in cash.
AmSurg and Seller acknowledge that the rule proposed in June 1998 by
the Health Care Financing Administration ("HCFA") providing in part for a change
in the payment methodology and payment rates utilized by HCFA to reimburse
ambulatory surgery centers as it may be adopted or amended (the "Proposed
Rule"), could have a negative effect on the future revenues and earnings of the
Center. In order to address the uncertainty regarding the Proposed Rule and its
effect on the Center, the Initial Purchase Price has been calculated based on
the financial statements for the Center for the 12 months ended September 30,
1998 and the annualized procedure volume for Medicare cases performed in the
Center from January 1, 1998 through September 30, 1998. The Medicare procedure
volume and the potential percentage reduction in Medicare reimbursement rate
changes are set forth in Exhibit 2(a). Exhibit 2(b) sets forth what the purchase
price would have been without any adjustment for the proposed Medicare
reimbursement rate changes (the "Potential Purchase Price"), and the difference
between the Initial Purchase Price and the Potential Purchase Price (the
"Purchase Price Differential").
Of the Purchase Price Differential, on the Closing Date AmSurg will pay
$49,309.00, payable in cash. During the six (6) years following the Closing,
commencing January 1, 2000, at the end of each six (6) month period thereafter,
if a final version of the Proposed Rule has not been adopted during such period,
then AmSurg will pay as additional consideration ("Additional Purchase Price")
an amount in cash equal to one twelfth (1/12) of the Purchase Price Differential
as set forth on Exhibit 2(b), together with interest thereon at the rate equal
to the prime rate as published from time to time by SunTrust Bank in Nashville,
Tennessee, accruing from the Closing Date. In the event that a final version of
the Proposed Rule is adopted during the six (6) years following the Closing,
then the purchase price will be recalculated and adjusted utilizing the formula
set forth on Exhibits 2(a) and 2(b) and substituting the final
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Medicare reimbursement rates for the proposed Medicare reimbursement rates set
forth therein (the "Adjusted Purchase Price"). If the Adjusted Purchase Price
exceeds the sum of (a) the Initial Purchase Price and (b) any Additional
Purchase Price previously paid by AmSurg (including the payment made at Closing
out of the Purchase Price Differential), AmSurg will pay in cash such amount as
additional consideration within sixty (60) days after such determination. In no
event will the purchase price recalculation cause (x) Seller to return any
portion of the purchase price previously paid to Seller by AmSurg or (y) the
aggregate consideration paid by AmSurg to exceed the Potential Purchase Price.
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 Quarles & Brady, LLP, 4501 Tamiami
Trail North, Naples, Florida, 33940 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 November
30, 1998, or at such other time as shall be agreed upon by all the parties
hereto (the "Closing Date").
3.2. OBLIGATIONS OF THE PARTIES AT THE CLOSING.
(a) At the Closing, AmSurg shall deliver to Seller:
(i) the consideration as specified in Article 2;
(ii) a copy of resolutions of the Board of Directors of AmSurg,
certified by its Secretary, authorizing the execution, delivery and
performance of this Agreement and the other documents referred to herein to
be executed by AmSurg, and the consummation of the transactions
contemplated hereby;
(iii) a certificate of AmSurg certifying as to the accuracy of the
representations and warranties of AmSurg at and as of the Closing and that
AmSurg has performed or complied with all of the covenants, agreements,
terms, provisions and conditions to be performed or complied with by AmSurg
at or before the Closing;
(iv) the opinion of Bass, Berry & Sims PLC, legal counsel for AmSurg,
the terms of which are substantially as set forth in Exhibit 10.4;
(v) an executed Agreement of Limited Partnership of the Partnership
and a Contribution Agreement by which AmSurg contributes its undivided 60%
interest in the assets of the Center to the Partnership; and
(vi) 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 reasonably 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;
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Asset Purchase Agreement/Page 2
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(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 Quarles & Brady, LLP, legal counsel to Seller and
the Doctors, in substantially the form of Exhibit 9.6;
(vi) an executed Agreement of Limited Partnership of the Partnership
by Seller and a Contribution Agreement by which Seller contributes its
undivided 40% interest in the assets of the Center to the Partnership; and
(vii) 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 Florida with full power and
authority to conduct its business as now conducted and to own, lease or operate
its properties and assets as now owned, leased or operated.
4.2. AUTHORIZATION. Seller has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby, including the conveyance, assignment, transfer and delivery of the
Purchased Assets, have been duly authorized and approved by all necessary
corporate action, and this Agreement, when executed, will constitute a valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms.
4.3. NO VIOLATION. The execution and delivery of this Agreement by Seller does
not, and the consummation of the transactions contemplated hereby will not, (a)
violate any provision of, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage or lien to which Seller is a party or by which any of Seller's assets
or properties are bound which violation or lien would have a material adverse
effect on the business or operations of Seller or the Center; (b) violate any
provision of the charter or bylaws of Seller; (c) violate any order, arbitration
award, judgment, writ, injunction, decree, statute, rule or regulation
applicable to Seller which violation would have a material adverse effect on the
business or operations of Seller or the Center; or (d) violate any other
contractual or legal obligation or restriction to which Seller is subject which
violation would have a material adverse effect on the business or operations of
Seller or the Center.
4.4. FINANCIAL INFORMATION. Seller has delivered to AmSurg: (a) statements of
Center charges and cash receipts by month for the year ended December 31, 1997
and the nine months ended September 30, 1998, (b) cash basis unaudited
statements of income for the Center for the year ended December 31, 1997 and the
nine months ended September 30, 1998, (c) cash basis unaudited balance sheets of
the Center at September 30, 1998 and December 31, 1997, and (d) details of
patient accounts receivable for the Center at the Closing (hereinafter
collectively referred to as "Financial Information"), all of which are attached
as Schedule 4.4. The Financial Information fairly presents the assets,
liabilities, financial condition and results of operation of the Center as at
the respective dates thereof and for the periods therein referred to, prepared
on a cash basis and accurately reflects the revenues and expenses of the Center
for the periods covered thereby and, in particular, reflects all expenses
necessary for the operation of the Center as a stand-alone entity as it is
currently being operated. The Financial Information reflects the consistent
application of such accounting principles throughout the periods involved.
4.5. OWNERSHIP OF PURCHASED ASSETS. Seller owns and possesses and has good and
marketable title to all of the Purchased Assets, free and clear of all
mortgages, pledges, liens, security interests, conditional sale agreements,
defects, charges, encumbrances and rights of third parties, and no conditions
exist which could give rise to any such mortgage, pledge, lien, security
interest, defect, charge, encumbrance on, or right of any such third party to,
the Purchased Assets.
Schedule 4.5 contains an accurate and complete description of the
Purchased Assets, which include, but are not limited to, supplies, inventory,
uncollected accounts receivable and equipment owned by Seller, and which are all
of the assets which are in any way
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Asset Purchase Agreement/Page 3
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necessary to the continued operation of the Center as it is now being conducted.
All of the Purchased Assets are in good working condition and repair, normal
wear and tear excepted, and are adequate for the uses for which they are used in
the current operation of the Center. 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 or otherwise
reflected in the Schedules attached to this Agreement, Seller does not have any
material liabilities or obligations of any nature with respect to the Center,
whether, absolute, accrued, contingent or otherwise and whether due or to become
due (including, without limitation, liabilities for taxes and interest,
penalties and other charges payable with respect thereto).
Furthermore, Seller does not know or have reason to know of any basis
for the assertion against Seller of any such liability or obligation of any
nature not fully reflected in the Financial Information or otherwise reflected
in the Schedules attached to this Agreement. There are no conditions existing
with respect to any of Seller's facilities, properties, assets or personnel,
which might materially and adversely affect any of the Center's properties,
business or prospects.
4.7. ABSENCE OF CERTAIN CHANGES. Since September 30, 1998, with respect to the
Center, Seller has not:
(a) suffered any material adverse change in its working capital, financial
condition, assets, liabilities, business or prospects, or suffered any material
casualty loss (whether or not insured);
(b) made any change in its business or operations or in the manner of
conducting its business, other than changes in the ordinary course of business;
(c) incurred any obligations or liabilities (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except items incurred
in the ordinary course of business and consistent with past practice, or
experienced any change in any assumptions or methods of calculating any bad
debt, contingency or other reserve;
(d) paid, discharged or satisfied any claim, lien, encumbrance or liability
(whether absolute, accrued, contingent or otherwise and whether due or to become
due), other than claims, liens, encumbrances, or liabilities:
(i) which are reflected in the Financial Information and which
were paid, discharged or satisfied since the date thereof in the
ordinary course of business consistent with past practice, or
(ii) which were incurred and paid, discharged or satisfied
since September 30, 1998 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) canceled any other debts or claims, or waived any rights, of
substantial value;
(g) sold, transferred or conveyed any of its properties or assets, except
in the ordinary course of business consistent with past practice;
(h) made any capital expenditures or commitments in excess of $10,000 in
the aggregate for replacements or additions to property, plant, equipment or
intangible capital assets;
(i) declared, paid or made or set aside for payment of, any distribution in
respect of its outstanding common stock, other than distributions made in the
ordinary course of business consistent with past practice, or directly or
indirectly redeemed, purchased or otherwise acquired any of its common stock;
(j) made any change in any method of accounting or accounting practice;
(k) granted any increase in the compensation of any officer, employee or
agent of Seller who performs services for or on behalf of the Center, (including
without limitation any increase pursuant to any bonus, pension, profit sharing
or other plan or commitment), other than increases in the ordinary course of
business consistent with past practice, or adopted any such plan or other
arrangement; and no such increase or the adoption of any such plan or
arrangement, is planned or required; and
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Asset Purchase Agreement/Page 4
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(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 Center
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 Center. Schedule 4.9 sets forth a true and accurate
description of all claims, actions, investigations or proceedings relating to
the Center and its operations initiated since January 1, 1995.
4.10. COMPLIANCE WITH LAWS AND OTHER REGULATIONS. Seller is in compliance in all
material respects with all requirements of applicable laws, rules, regulations,
orders, ordinances, judgments and decrees of all governmental bodies or agencies
(federal, state or local) (collectively, "Laws") relating to or affecting the
operations of the Center. Seller has not received any notice of, or notice of
any investigation of, a possible violation of any applicable Laws, or any other
Law or requirement relating to or affecting the operations of the Center.
Seller has all required licenses, permits, certificates, authorizations and
agreements needed for the ownership and operation of the Center as it is
currently being operated, all of which are listed on Schedule 4.10. Seller knows
of no act or omission occurring on or before the date hereof which would subject
Seller or the Center to the likelihood of any fine or suspension of any license,
permit, certificate, authorization or agreement.
4.11. CONTRACTS; SIGNIFICANT PAYORS. Schedule 4.11 is a complete and accurate
list of all individual payors, or group of affiliated payors, that accounted for
more than 2% of the Center's revenues in any two of the previous three years or
is expected to account for more than 2% of the Center's revenues in the current
year or the next year ("Significant Payors").
All contracts, agreements and instruments, including, but not limited to,
third party provider agreements and agreements with Significant Payors, to which
Seller is a party and which are necessary for the ownership and efficient
operation of the Center, are in full force and effect; Seller knows of 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 Partnership by
Seller.
4.12. ACCOUNTS RECEIVABLE. All accounts and notes receivable of the Center,
whether reflected in the Financial Information or otherwise, represent services
actually provided in the ordinary course of business; all such receivables are
current and collectible in all material respects in accordance with their
respective terms (taking into account the likelihood of collectibility based on
the age of such receivables and the historical payment practices of such
payors); and none of such receivables is subject to any counterclaim or set-off,
other than normal discounts, allowances and bad debts consistent with past
practice.
4.13. REPORTS AND RETURNS. All reports and returns heretofore required by
federal, state or municipal authorities with respect to the operations of the
Center and all reports and returns to the various governmental authorities which
control, directly or indirectly, any of the Center's activities, have been filed
and all sums heretofore due with respect to such reports and returns have been
paid.
4.14. DEFAULTS. Seller is not in default under, and no event has occurred which,
with the giving of notice or the passage of time, or both, would result in a
default under, any outstanding indenture, mortgage, contract, agreement or other
instrument with respect to the Center to which Seller is a party which default
would have a material adverse effect on the business or operations of the
Center.
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Asset Purchase Agreement/Page 5
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The execution, delivery and performance by Seller of this Agreement and the
transactions contemplated hereby will not violate any provision of, or result in
the breach of, or constitute a default under, or require any consent under, any
law, or any order, writ, injunction or decree of any court, governmental agency
or arbitration tribunal, or any material contract, agreement or instrument with
respect to the Center to which Seller is a party or by which Seller is bound.
4.15. EMPLOYEES; INDEPENDENT CONTRACTORS.
(a) Schedule 4.15(a) sets forth the names and titles of all employees
of Seller who perform services in or on behalf of the Center, and the annual
rate of compensation (including bonuses) being paid to each such employee as of
the most recent practicable date. The employees listed on Schedule 4.15(a),
constitute all of the employees who are in any way necessary to the continued
operation of the Center as it is now being conducted.
(b) Schedule 4.15(b) hereto contains a list of each employment, bonus,
deferred compensation, pension, stock option, stock appreciation right, profit
sharing or retirement plan, arrangement or practice and each other agreement or
fringe benefit plan, arrangement or practice of Seller, whether formal or
informal, whether legally binding or not and whether affecting one or more of
its employees who perform services in or on behalf of the Center. Copies of each
such agreement or plan have hereto been delivered to AmSurg. Seller does not
have any commitment, whether formal or informal, and whether legally binding or
not (i) to create any additional such agreement, plan, arrangement or practice;
(ii) to modify or change any such agreement, arrangement, plan or practice; or
(iii) to maintain for any period of time any such agreement, arrangement, plan
or practice, except as described on Schedule 4.15(b).
(c) Schedule 4.15(c) hereto contains a list of all services provided to
the Center for which Seller contracts with third parties. Copies of each such
agreement previously have been provided to AmSurg. Schedule 4.15(c) contains a
description of each such oral agreement.
4.16. CONSENTS AND APPROVALS. Seller has obtained all consents, approvals,
authorizations and orders of third parties, including governmental authorities,
necessary for the authorization, execution and performance of this Agreement by
Seller, which consents, approvals, authorizations and orders are listed on
Schedule 4.16.
4.17. YEAR 2000 COMPLIANCE. Each system, comprised of software, hardware,
databases or embedded control systems (microprocessor controlled or controlled
by any robotic or other device) (collectively, a "System") that constitutes any
material part of, or is used in connection with the business operations of the
Center will not be materially adversely affected by the advent of the year 2000,
the advent of the twenty-first century or the transition from the twentieth
century through the year 2000 and into the twenty-first century. Seller has no
reason to believe that it or the Partnership may incur material expenses arising
from or relating to the failure of any of its Systems as a result of the advent
of the year 2000, the advent to the twenty-first century or the transition from
the twentieth century through the year 2000 and into the twenty-first century.
Each System of the Seller is able to accurately process date data, including,
but not limited to, calculating, comparing and sequencing from, into and between
the twentieth century (though year 1999), the year 2000 and the twenty-first
century, including leap year calculations.
4.18. SHAREHOLDERS OF SELLER. The Doctors constitute all of the shareholders of
Seller.
4.19. OPERATING EXPENSES. Exhibit 2 sets forth the current expenses of operating
the Center. Seller acknowledges and agrees that the categories and allocations
of expenses for the operation of the Center on a going forward basis will be as
set forth on Exhibit 2 unless Seller and AmSurg agree otherwise.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE DOCTORS
Each of the Doctors, severally and not jointly, represents and warrants as
follows:
5.1. AUTHORITY. Such Doctor has full authority to enter into and carry out the
provisions of this Agreement, and this Agreement, when executed, will constitute
a valid and binding legal obligation enforceable against him in accordance with
its terms.
5.2. NO VIOLATION. The execution and delivery of this Agreement by the Doctors
does not, and the consummation of the transactions contemplated hereby will not,
(a) violate any provision of, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage or lien to which such Doctor is a party or by which any of such
Doctors's assets or properties are bound; (b) violate any provision of the
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Asset Purchase Agreement/Page 6
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partnership agreement 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. RESTRICTIVE COVENANTS; CONFIDENTIALITY. Each Doctor agrees that he will not
be an officer, director or employee or consultant of or have any direct or
indirect ownership interest in, or manage, lease, develop or otherwise have any
financial interest in, or receive any compensation from any business or entity
competing with the Partnership within 25 miles of the Center until the later of
(a) one (1) year after the Doctor ceases to be a shareholder of Seller or (b)
five (5) years after the Closing Date. The foregoing shall not prohibit (a) 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; (b) development and
ownership by Dr. Meckstroth and/or Dr. Wiesen of an ambulatory surgery center in
Bonita Springs, Florida in a joint venture with AmSurg Corp. or an affiliate;
(c) the existing ownership interest of Dr. Buysse and Dr. Spano in Naples Day
Surgery Center; or (d) any ownership by Dr. Buysse, through his ownership
interest in Naples Medical Center, P.A. (but not any individual ownership
interest) of an interest in an ambulatory surgery center that Naples Medical
Center, P.A. might acquire in the future. The Doctors recognize and acknowledge
that the ascertainment of damages in the event of a breach of this Section 5.3
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 5.3 does not require the Doctors to perform endoscopy procedures at the
Center or to refer patients to the Center, and imposes no restrictions on where
such procedures are performed or where referrals are made.
5.4. NO BROKER'S FEES. Such Doctor has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this agreement or the consummation of
the transactions contemplated hereby, and Doctor does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF AMSURG
AmSurg represents and warrants as follows:
6.1. ORGANIZATION. AmSurg is a corporation duly organized, validly existing and
in good standing under the laws of the state of Tennessee. AmSurg has full
corporate power and corporate authority to carry on its business as now
conducted and to own, lease or operate its properties and assets as now owned,
leased or operated.
6.2. AUTHORIZATION. AmSurg has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
AmSurg of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
This Agreement, when executed, will constitute a legal, valid and binding
obligation of AmSurg enforceable against it in accordance with its terms.
6.3. NO VIOLATION. The execution and delivery of this Agreement by AmSurg does
not, and the consummation of the transactions contemplated hereby will not, (a)
violate any provision of, or result in the creation of any lien or security
interest under, any material agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which AmSurg is a party or by which any of
AmSurg's assets or properties are bound which violation or lien would have a
material adverse effect on the business or operations of AmSurg; (b) violate any
provision of the Charter or Bylaws of AmSurg; (c) violate any order, arbitration
award, judgment, writ, injunction, decree, statute, rule or regulation
applicable to AmSurg which violation would have a material adverse effect on the
business or operations of AmSurg; or (d) violate any other contractual or legal
obligation or restriction to which AmSurg is subject which violation would have
a material adverse effect on the business or operations of AmSurg.
6.4. 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
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Asset Purchase Agreement/Page 7
<PAGE> 8
fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this Agreement or the consummation of
the transactions contemplated hereby, and AmSurg does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 7. 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:
7.1. ACCESS; FURTHER ASSURANCES.
(a) Seller will accord to AmSurg, its counsel, accountants, and other
representatives, from the date hereof and at any time after the Closing, full
access to all of the properties, books, contracts, commitments, financial
information and records of the Center, and will furnish AmSurg during such
period with all such information concerning the business and operations of the
Center, as AmSurg reasonably may request. At any time and from time to time
after the Closing, at AmSurg's request and without further consideration, Seller
and the Doctors agree to execute and deliver such certificates and documents as
may be reasonably required in connection with any audit of the Center or its
operations.
(b) From the date hereof until the Closing, as soon as reasonably
practicable after the end of each quarter, but not later than the 15th day of
the next succeeding month, Seller will deliver to AmSurg an unaudited statement
of income for the Center for the quarter and the period then ended, and an
unaudited balance sheet and a detail of patient accounts receivable for the
Center as at the quarter then ended ("Ongoing Quarterly Financial Information").
In addition, as soon as reasonably practicable after the end of each month, but
not later than the 15th day of the next succeeding month, Seller will deliver to
AmSurg a statement of (i) the number of procedures performed, (ii) the billed
charges, and (iii) the cash collections, all with respect to the prior month
("Ongoing Monthly Financial Information") (the Ongoing Quarterly Financial
Information and the Ongoing Monthly Financial Information are collectively
referred to as the "Ongoing Financial Information"). All such Ongoing Financial
Information shall be prepared in accordance with generally accepted accounting
principles consistent with prior practice.
(c) At any time and from time to time after the Closing, at AmSurg's
request and without further consideration, Seller will execute and deliver such
other instruments of sale, transfer, conveyance, assignment and delivery and
confirmation and take such action as AmSurg may reasonably deem necessary 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 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.
7.2. 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 all records and information provided to Seller from AmSurg, 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 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.
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Asset Purchase Agreement/Page 8
<PAGE> 9
7.3. 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, normal wear and tear excepted, (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.
7.4. INSURANCE. Seller will use its best efforts to include AmSurg and the
Partnership as additional insureds on Seller's professional liability, general
property and workers' compensation insurance policies, and will provide AmSurg
with written evidence of such coverage. AmSurg will pay the additional cost, if
any, for such insurance coverage.
7.5. TRANSFER OF SIGNIFICANT PAYOR AGREEMENTS. Seller and the Doctors will use
their best efforts to effect the valid assignment to the Partnership of all
agreements with Significant Payors effective as of the Closing Date or within a
reasonable time thereafter.
7.6. 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.
7.7. SCHEDULES. Until the Closing, 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 8. COVENANTS AND AGREEMENTS OF AMSURG
AmSurg further covenants and agrees that from the date hereof until the
Closing, unless otherwise consented to by Seller in writing, they will fulfill
the following covenants and agreements:
8.1. CONFIDENTIALITY.
(a) In the event the transactions contemplated by this Agreement are
not consummated for any reason, AmSurg promptly will return to Seller all
records and information (or copies made by AmSurg) provided to AmSurg from
Seller, and AmSurg will treat all such records and information as confidential.
(b) Except as otherwise required by law, AmSurg will not disclose at
any time to any other person not an employee of AmSurg 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.
8.2. NOTICE OF ADVERSE CHANGE. AmSurg will notify Seller and the Doctors in
writing of any material adverse change in the business, assets, operations,
conditions or prospects of AmSurg from the date of this Agreement to the
Closing Date.
8.3. SCHEDULES. Until the Closing, 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 9. CONDITIONS TO AMSURG'S OBLIGATIONS
AmSurg 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) prior to or at the
Closing:
9.1. 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.
9.2. PERFORMANCE BY SELLER AND THE DOCTORS. Seller and the Doctors shall have
performed and complied
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Asset Purchase Agreement/Page 9
<PAGE> 10
with all covenants, agreements, obligations and conditions required by this
Agreement to be so complied with or performed by each of them.
9.3. 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 9.1 and 9.2 hereof.
9.4. 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 9.1 and 9.2 hereof.
9.5. 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 Florida Agency for Health Care Administration and by
applicable Medicare and state Medicaid agencies, for the continued operation and
third-party reimbursement of the Center by the Partnership following the
consummation of the transactions contemplated hereby, shall have been issued to
the Partnership or notice of issuance shall have been provided.
9.6. OPINION OF COUNSEL. AmSurg shall have been furnished with the opinion of
Quarles & Brady, LLP, counsel to Seller and the Doctors, in substantially the
form of Exhibit 9.6.
9.7. LEASE. The Partnership and HCW Partnership ("Landlord") shall have entered
into an amendment to the existing lease ("Lease") for the Center, in
substantially the form of Exhibit 9.7(a), and the Partnership, Seller and
Landlord shall have entered into an Assignment and Assumption Agreement, in
substantially the form of Exhibit 9.7(b).
9.8. SIGNIFICANT PAYOR AGREEMENTS. All of the Significant Payor agreements shall
have been validly assigned to the Partnership or Seller and AmSurg shall have no
reason to believe that any such agreement with a Significant Payor will not be
approved or that such Significant Payor will not execute a new agreement with
the Partnership on terms reasonably acceptable to AmSurg.
9.9. SHAREHOLDER APPROVAL. All of the shareholders of Seller shall have approved
the transactions contemplated by this Agreement, and Seller shall have furnished
AmSurg with a certificate of the President of Seller evidencing such approval.
9.10. FORM 8594. AmSurg initially will allocate the Purchase Price using the
methodology reflected on Exhibit 9.10. In the course of completing the
consolidated federal income tax return of AmSurg Corp., AmSurg shall provide
Seller with an IRS Form 8594.
ARTICLE 10. 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:
10.1. COMPLIANCE. The representations and warranties made by AmSurg in this
Agreement and the statements contained in the Schedules attached hereto or in
any instrument, list, certificate or writing delivered by AmSurg 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 AMSURG. AmSurg shall have performed and complied with all
covenants, agreements, obligations and conditions required by this Agreement to
be so complied with or performed by AmSurg.
10.3. CERTIFICATE OF AMSURG. AmSurg 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 10.1 and 10.2 hereof.
10.4. OPINION OF COUNSEL. Seller and the Doctors shall have been furnished the
opinion of Bass, Berry & Sims PLC, counsel to AmSurg, in substantially the form
of Exhibit 10.4.
10.5. LEASE. The Partnership and Landlord shall have entered into the amendment
to the Lease and the Partnership, Seller and Landlord shall have entered into
the Assignment and Assumption Agreement.
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Asset Purchase Agreement/Page 10
<PAGE> 11
ARTICLE 11. INDEMNIFICATION
11.1. INDEMNIFICATION BY SELLER AND THE DOCTORS. Seller and the Doctors, jointly
and severally, hereby agree to defend, indemnify and hold harmless AmSurg and
shall reimburse AmSurg 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 pursuant hereto.
(b) Any tax liability of Seller or the Center not previously paid,
which may at any time be asserted or assessed against Seller or the Center for
any event or period prior to the Closing Date (regardless of whether the
possibility of the assertion or assessment of any such tax liability shall have
been disclosed to AmSurg at or prior to the Closing).
(c) Liability for any amounts owed by Seller or the Center to any
governmental third party or private payors because of overpayments to Seller or
the Center prior to the Closing for services rendered to patients, which
liability is due to a recomputation of rates, field audit adjustments,
overpayments or otherwise.
(d) Any other Loss incidental to any of the foregoing.
11.2. INDEMNIFICATION BY AMSURG. AmSurg hereby agrees 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 or of AmSurg
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.
11.3. 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 11.1 or 11.2 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, 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, which
consent shall not be unreasonably withheld or delayed. 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; (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; and (iii) the indemnified party shall pay
all attorneys' fees and legal costs and expenses incurred after rejection of
such settlement, but if the amount thereafter recovered by such third party from
the indemnified party is less than the amount of the proposed settlement, the
indemnified party shall also be reimbursed by the indemnifying party for such
attorneys' fees and legal costs and expenses to make up such differences.
(b) Any claim of indemnity of any party against the other with respect
to Section 11.1 hereof may in the indemnified party's discretion be discharged
by setoff against any amounts owed or owing to the
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Asset Purchase Agreement/Page 11
<PAGE> 12
indemnifying party or any affiliate thereof under the Agreement of Limited
Partnership between Seller and AmSurg.
(c) Notwithstanding the foregoing, no Doctor shall be required to
indemnify AmSurg for any amount in excess of his pro rata portion of the
Purchase Price, and Seller shall not be required to indemnify AmSurg for any
amount in excess of the Purchase Price, except in circumstances involving fraud.
(d) Notwithstanding the foregoing, Seller and the Doctors shall not be
obligated to make any indemnification under Section 11.1 unless the aggregate
amount of Losses exceeds $15,000 (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 12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
12.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein (and the right of any party to make a claim for
indemnification pursuant to Article 11 hereof) 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 11.1(b), which shall survive for the applicable statute of
limitations, including any waivers thereof, Section 11.1(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 all of the Partnership, AmSurg or their
successors or assigns, dissolves, liquidates or otherwise ceases to exist, the
provisions of Section 5.3 hereof shall terminate and be of no further force or
effect.
12.2. 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 13. 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 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 Seller;
(d) By either AmSurg or Seller if the transactions contemplated by this
Agreement shall not have been consummated on or before December 31, 1998; or
(e) By either AmSurg or Seller if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving the other.
ARTICLE 14. MISCELLANEOUS
14.1. 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, including without limitation, legal fees and expenses, in
connection with this Agreement will be borne by AmSurg.
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Asset Purchase Agreement/Page 12
<PAGE> 13
14.2. 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 ASC, 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; but any such assignment
shall not relieve AmSurg of its liabilities and obligations 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.
14.3. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the exhibits,
Schedules, lists and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by all parties or their respective heirs, successors, assigns or legal
personal representatives. Any condition to a party's obligations hereunder may
be waived but only by a written instrument signed by the party entitled to the
benefits thereof. The failure or delay of any party at any time or times to
require performance of any provision or to exercise its rights with respect to
any provision hereof, shall in no manner operate as a waiver of or affect such
party's right at a later time to enforce the same.
14.4. 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.
14.5. 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:
Endoscopy Center of Naples, Inc.
150 Tamiami Trail North
Suite 2
Naples, FL 34102
Attn: Keith P. Hussey, M.D.
----------------------
with a copy to:
Quarles & Brady, LLP
4501 Tamiami Trail North
Suite 300
Naples, FL 34103
Attn: Kimberly L. Johnson, Esq.
If to AmSurg:
AmSurg Naples, 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.
14.6. 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.
14.7. 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,
Seller and each of the Doctors. All of such executed counterparts shall
constitute one and the same instrument.
14.8. PARTIES IN INTEREST. This Agreement shall inure to the benefit of and be
binding upon the parties hereto
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Asset Purchase Agreement/Page 13
<PAGE> 14
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.
14.9. 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.
[SIGNATURES CONTINUED ON NEXT PAGE]
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Asset Purchase Agreement/Page 14
<PAGE> 15
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
AMSURG NAPLES, INC.
By: /s/Claire M. Gulmi
------------------------------
Title: Secretary
----------------------------
ENDOSCOPY CENTER OF NAPLES, INC.
By: /s/ Keith P. Hussey, M.D.
-------------------------------
Title: Secretary
----------------------------
By their execution of this Agreement, the Doctors hereby consent to the
execution hereof by Seller and agree to be bound by the provisions hereof:
DOCTORS:
/s/ Charles J. Buysse, M.D.
- ----------------------------------
Charles J. Buysse, M.D.
/s/ Keith P. Hussey, M.D.
- ----------------------------------
Keith P. Hussey, M.D.
/s/ Steven A. Meckstroth, M.D.
- ----------------------------------
Steven A. Meckstroth, M.D.
/s/ Joseph G. Spano, M.D.
- ----------------------------------
Joseph G. Spano, M.D.
/s/ Scott L. Wiesen, M.D.
- ----------------------------------
Scott L. Wiesen, M.D.
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Asset Purchase Agreement/Page 15
<PAGE> 16
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.
16
