AGREEMENT FOR SALE OF ASSETS
THIS AGREEMENT is made and entered into as of the 1st day of October,
2000, by and between HEALTHCHOICE OF CONNECTICUT, INC., a Connecticut
corporation, ("Seller") and WELLCARE OF CONNECTICUT, INC., a Connecticut
corporation ("Buyer").
RECITALS
WHEREAS, the parties have reached an understanding whereby Seller will
sell and Buyer will acquire the business and assets of the Medicaid and HUSKY
B business of Seller hereinafter described and as operated by Seller in the
State of Connecticut under the name of PREFERRED ONE (such Medicaid and
HUSKY B business is sometimes hereinafter referred to as the "BUSINESS"),
whereupon Seller will wind up its businesses;
NOW, THEREFORE, in consideration of the promises and subject to the
representations, warranties, covenants and conditions contained herein, the
parties hereto agree as follows:
ARTICLE I
ASSETS AND LIABILITIES
1.1 ASSETS TO BE SOLD AND RIGHTS GRANTED. Subject to the terms and
conditions stated herein, the Seller agrees to sell to Buyer and Buyer agrees
to purchase from the Seller the following described assets, and Seller agrees
to grant to Buyer and Buyer agrees to accept the following rights, which are
used in the operation of or are associated with the Business (the "PURCHASED
ASSETS") as they shall exist on the Closing Date ON AN AS-IS, WHERE-IS BASIS
WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1.1.1 Seller acknowledges that Buyer will obtain from the State of
Connecticut a contract (the "MEDICAID HMO CONTRACT") to permit Buyer to serve
the Members ("MEMBERS") covered under such Medicaid HMO Contract who reside
in the State of Connecticut. The Seller's contracts with the State of
Connecticut will be terminated and Buyer shall have no liability thereunder.
1.1.2 Seller hereby grants to Buyer a license to use, from and
after the Closing, any Medicaid provider contracts for Medicaid providers in
the State of Connecticut, and, to the extent consistent with Seller's legal
and contractual obligations, to use any and all credentialing data regarding
any and all Medicaid providers (the "MEDICAID PROVIDER CONTRACTS") in the
conduct of Buyer's Business, including but not limited to those listed on
Schedule 1.1.2 hereto. The Medicaid Provider Contracts are sometimes
hereinafter collectively referred to as the "CONTRACTS". The foregoing grant
is on the condition that Buyer will use its best efforts to re-contract
directly with providers and arrange for the distribution of member
identification cards without the "HealthChoice" name as quickly as possible,
and in any event the foregoing license will terminate no later than December
31, 2000.
1.1.3 To the extent permitted by law, and listed on Schedule 1.1.3
as "transferred records", Seller hereby transfers to Buyer all books and
records of Seller to the extent relating solely to the Business including
diskettes and contracts, records, hard copies of customer and subscriber
lists, directory listings, admissions history and any and all business
licenses that may be transferable. In addition, Buyer shall have the right
to inspect and copy records that do not pertain solely to the Business.
Seller also transfers to Buyer any other assets relating solely to the
business and listed as "other assets" on Schedule 1.1.3. For the avoidance of
doubt, it is noted that Seller will retain (i) items needed in connection
with Seller's commercial HMO business, (ii) cash on hand at Closing Date
relating to the Business, and (iii) accounts receivable relating to operation
of the Business through the Closing Date. In no event shall Seller be
required to release proprietary information with respect to Seller's
affiliates' business operations inside or outside the State of Connecticut.
Seller will retain the right to inspect and copy the foregoing at reasonable
times upon reasonable notice.
1.1.4 Seller hereby transfers to Buyer the furniture, fixtures and
equipment and other tangible assets set forth in Schedule 1.1.4 hereto.
1.2 ASSUMPTION OF LIABILITIES BY BUYER FOLLOWING THE CLOSING.
(a) From and after the Closing Date, Buyer shall assume and
faithfully discharge the following liabilities and obligations: (i) the
contractual obligations arising under the Medicaid HMO Contract following the
Closing Date, which shall include, but shall not be limited to, medical
claims under the Medicaid HMO Contract following the Closing, for services
rendered to Members after the Closing, but excluding any obligations for
such claims for Members who are hospital patients on the Closing for such
hospitalization, and who were covered by Seller immediately prior to Closing
(which claims shall remain the responsibility of Seller) ; and (ii) all
premium taxes, if any, incurred following the Closing in respect of the
Purchased Assets and the Business, and (iii) the lease for the Seller's
premises in North Haven, Connecticut and other liabilities related to the
Business listed on Schedule 1.2.. The foregoing obligations and liabilities
to be assumed and faithfully discharged by Buyer are hereinafter collectively
referred to as the "ASSUMED LIABILITIES".
(b) Buyer will not assume and Seller shall discharge when due any
and all other liabilities or obligations of Seller, in connection with the
Business arising or accruing prior to the Closing, including, without
limitation, any liability for contractual obligations under the Medicaid HMO
Contract arising prior to or on the Closing which shall include, but shall
not be limited to, medical claims for services rendered to Members on or
prior to the Closing (hereinafter the "NON-ASSUMED LIABILITIES"). In no
event shall Buyer assume any liabilities of Seller other than the Assumed
Liabilities discussed in Section 1.2.(a) above.
(c) The parties will cooperate to clarify and determine the date of
occurrence for those medical claims in respect of services rendered to
Members under the Medicaid HMO Contract prior to the Closing on the one hand,
and those following the Closing, on the other hand.
1.3 RUN-OUT SERVICES. From and after the Closing, Buyer shall
provide the administrative services set forth in Schedule 1.3 hereto ("Run-
Out Services") with respect to claims incurred by Seller in the Business
prior to Closing ("Run-Out Claims), using Nichols TXEN Corporation, the
Seller's current claims processing vendor ("TXEN"). Buyer shall be entitled
to the fees and reimbursements set forth in Schedule 1.3. and shall perform
all such services in a manner that meets the best standards of care and
professionalism. Seller shall, however, (and not Buyer) shall be
financially responsible for payment of the Run-Out Claims and for the fees of
TXEN.
ARTICLE II
PURCHASE PRICE
At the Closing, subject to the terms and conditions of this Agreement,
Buyer shall acquire the Purchased Assets from Seller, and Buyer shall agree
to pay to Seller at Closing the sum of ONE DOLLAR ($1.00) (the "Purchase
Price").
ARTICLE III
CLOSING
3.1 TIME, PLACE AND CONDITIONS. The closing of the sale of the Purchased
Assets ("CLOSING") shall occur at the office of Preferred One located at
______________, North Haven, Connecticut ________, three (3) business days
after the date on which all conditions precedent set forth in Articles VI and
VII hereof have been completed, satisfied or waived, including, but not
limited to, requisite federal, state and any other required governmental
approvals, to be effective at 12:01 A.M. on the following date, such date
herein referred to as the "CLOSING DATE." The parties anticipate that the
Closing will occur on or about October 1, 2000. In the event such conditions
precedent are not completed, satisfied or waived on or before October 1,
2000, this Agreement shall, at the option of Buyer or Seller by written
notice to the other, be terminated as of the date such notice is effective
and none of the parties shall be deemed to have any further liabilities or
obligations to one another except to the extent that the failure of the
conditions precedent to be completed or satisfied resulted from the willful
breach by a party hereto of any of its representations, warranties, covenants
or agreements set forth herein.
3.2 INSTRUMENTS OF CONVEYANCE AND TRANSFER.
3.2.1 The parties agree that the Purchase Price is being paid for the
Purchased Assets.
3.2.2 At the Closing, Seller shall deliver to Buyer instruments of
transfer and conveyance, in form and substance reasonably satisfactory to Buyer,
sufficient to further evidence the transfer to Buyer of the rights herein
conveyed.
3.3 MATERIAL ADVERSE EFFECT. For purposes of this Agreement, "MATERIAL
ADVERSE EFFECT" means:
(a) With respect to Seller, any change in, or effect on, the Business
which is, or which is reasonably likely to be, materially adverse to the
Business, its operations, assets, liabilities, results of operations, or
condition (financial or otherwise) taken as a whole, or which will, or is
reasonably likely to, prevent the transactions contemplated by this Agreement;
and
(b) With respect to Buyer, any change in, or effect on, Buyer which
is reasonably likely to, prevent the transactions contemplated by this
Agreement.
Notwithstanding the foregoing, there shall be no Material Adverse Effect if
the change in, or effect on, the Business, operations, assets, liabilities,
results of operations, or condition of a party hereto results from general
economic conditions or general insurance industry conditions in the United
States or in any other jurisdiction where such party's operations or assets are
located, or results from the identity of the other party to this Agreement.
3.4 AFFILIATE AND CONTROL. For purposes of this Agreement, the term
"AFFILIATE" shall mean any entity (a) that directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, an entity, or (b) five percent (5%) or more of the equity interests of any
entity who is beneficially owned or held by an entity or a subsidiary of an
entity. The term "CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting stock, by contract or otherwise.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Schedules attached, Seller hereby represents and
warrants to Buyer that:
4.1 Organization, Qualification and Corporate Power. The Seller is a
corporation duly incorporated, validly existing under the laws of the state of
its incorporation and is duly licensed and qualified to transact business and is
in good standing in each jurisdiction in which the ownership or leasing of
property by it or the conduct of its business requires such licensing or
qualification. The Seller has the full corporate power and authority to own,
lease and hold its properties and to carry on its business as now conducted and
as proposed to be conducted.
4.2 SELLER'S AUTHORITY. Seller is duly authorized to operate as a health
maintenance organization under the laws of the State of Connecticut.
4.3 VALIDITY. The Seller has full corporate power and authority to enter
into this Agreement and all other agreements and instruments contemplated hereby
and to consummate the transactions contemplated hereby and thereby. The board
of directors of Seller has taken all action required by law, its Articles of
Incorporation, By-Laws or otherwise to be taken by it to authorize the execution
and delivery of this Agreement and all other agreements and instruments
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby. No other proceedings on the part of the Seller is necessary to
approve the execution and delivery of this Agreement or any other agreement or
instrument contemplated hereby or consummation of the transactions contemplated
hereby and thereby. This Agreement is, and the other agreements and instruments
to be executed and delivered by the Seller at the Closing will be a valid and
binding agreement of it enforceable in accordance with its respective terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
4.4 LITIGATION AND INVESTIGATIONS. Except as set forth on SCHEDULE 4.4,
there is no action, suit, claim, proceeding, arbitration or investigation
pending or, to the best of Seller's knowledge and belief after due inquiry,
threatened against or affecting the Business which could have a Material Adverse
Effect.
4.5 CONTRACTS AND OTHER COMMITMENTS. Except as may be specifically set
forth herein, Seller disclaims all representations with respect to the Business,
or the Contracts, and without limiting the foregoing makes no representations as
to the suitability of the Contracts for the conduct of the Business, or as to
their assignability or enforceability.
4.6 FEES AND COMMISSIONS. Seller has not agreed to pay or become liable to
pay any broker's, finder's or originator's fees or commissions by reason of
services alleged to have been rendered for or at the instance of the Seller in
connection with this Agreement and the transactions contemplated hereby.
4.7 APPROVALS. Other than consents and approvals of or filings or
registrations pursuant to applicable provisions of Connecticut law respecting
health maintenance organizations, and approvals of the DOI and DSS, and except
as otherwise set forth in SCHEDULE 4.7, no filing or registration with, no
notice to and no permit, authorization, consent or approval of any third party
or any governmental authority is necessary for the consummation by Seller of the
transactions contemplated by this Agreement
4.8 DISCLOSURE. Except as may be specifically set forth herein, Seller
makes no representation or warranty regarding the Business or the rights and
assets herein transferred.
4.9 SELLER'S STATUTORY FINANCIAL STATEMENTS AND REPORTS. The statutory
financial statements of Seller filed with the Connecticut Department of
Insurance for the quarter ended June 30, 2000 have been delivered to Buyer or
made available for Buyer's inspection. In addition, Seller has delivered to or
made available for inspection by Buyer copies of all annual and other periodic
reports filed by the Seller with any governmental or regulatory authority since
January 1, 1999.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER.
Except as set forth in the Schedules attached, which Schedules make explicit
reference to the particular representation or warranty as to which exception is
taken, Buyer hereby represents and warrants to Seller that:
5.1 ORGANIZATION, QUALIFICATION AND CORPORATE POWER OF BUYER. Buyer is a
Connecticut corporation, duly incorporated, validly existing under the laws of
the State of Connecticut. Buyer is duly authorized to operate as a health
maintenance organization under the laws of the State of Connecticut. Buyer has
full power and authority to own, lease and hold its properties and to carry on
its businesses as now conducted and as proposed to be conducted.
5.2 CORPORATE ACTION OF BUYER. Buyer has full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby and thereby. The board of directors of Buyer has taken all
action required by law, its Articles of Incorporation, By-laws or otherwise to
be taken by it to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and thereby. No other
corporate proceedings are necessary on the part of Buyer to approve the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and thereby. This Agreement is a valid and
binding agreement of Buyer enforceable in accordance with its terms except that
(i) such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
5.3 REQUIRED APPROVALS. Other than consents and approvals of or filings or
registrations with the DOI and DSS, or as otherwise described in this Agreement,
no filing or registration with, no notice to and no permit, authorization,
consent or approval of any third party or any governmental authority is
necessary for the consummation by Buyer of the transactions contemplated by this
Agreement.
5.4 MATERIAL ADVERSE EFFECT. Except as disclosed on Schedule 5.4, since
July 31, 2000, there has been no Buyer Material Adverse Effect.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligation of Buyer to purchase and pay for the Purchased Assets on the
Closing Date is, at its option, subject to the satisfaction, on or before the
Closing Date, of the following conditions, all of which shall be deemed
conditions precedent to Buyer's obligations.
6.1 REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties contained in Article IV shall be true, complete
and correct in all material respects on and as of the date hereof and on and as
of the Closing Date, with the same effect as though such representations and
warranties had been made on and as of each such date, and an officer of Seller
shall have certified to such effect to Buyer in writing.
6.2 PERFORMANCE. Seller shall have performed and complied in all material
respects with all covenants, agreements and undertakings contained herein
required to be performed and complied with by it prior to or at the Closing Date
unless otherwise waived by Buyer, and an officer of Seller shall have certified
to such effect to Buyer in writing.
6.3 APPROVALS. To the extent required by Buyer, all required approvals,
authorizations, permits, waivers, approvals and consents from governmental and
regulatory bodies for the transfer of the rights and assets herein contemplated
shall have been obtained and shall be in full force and effect; provided, that
the granting of such approvals, authorizations, permits, waivers or consents
shall not have resulted in the imposition of any conditions, restrictions or
encumbrances which would materially and adversely affect Buyer's anticipated
ownership or operation of any of the Purchased Assets. Buyer shall have
received appropriate evidence, reasonably satisfactory to it and its counsel, of
the granting of such approvals, authorizations, permits, waivers and consents,
as Buyer shall require.
6.4 NO INJUNCTIONS, ETC. No injunction, restraining order or other ruling
or order issued by any court of competent jurisdiction or governmental authority
or regulatory body or other legal restraint or prohibition shall be in effect
and no proceeding, action, suit or claim brought by any governmental authority,
regulatory body or third party shall be pending or threatened which seeks any
injunction, restraining order or other order or other relief and no statute,
rule, regulation or executive order shall have been enacted, promulgated or
proposed, in each case which would prohibit or materially impair the
consummation of the transactions contemplated by this Agreement or impose
burdensome conditions upon or impair the ability of Buyer to own and operate the
Business or the Purchased Assets after the Closing Date as presently conducted.
6.5 DUE DILIGENCE. All due diligence documents requested by Buyer or
otherwise required to be provided by Seller under this Agreement shall have been
delivered to Buyer and its counsel and all documents that are required to be
provided to Buyer hereunder (unless waived by Buyer) shall be delivered to Buyer
and its counsel as soon as reasonably practicable but at least three (3)
business days prior to the Closing Date. Buyer shall have discovered no
encumbrance in respect of any of the Purchased Assets that would materially and
adversely affect Buyer's ownership or use of the Purchased Assets following the
Closing Date.
6.6 BOARD OF DIRECTOR RESOLUTIONS. Seller shall have furnished Buyer with
certified resolutions from of its Board of Directors authorizing Seller to enter
into this Agreement and take all actions necessary and proper to effectuate the
performance of this Agreement by Seller.
6.7 MATERIAL ADVERSE EFFECT. There shall have been no Seller Material
Adverse Effect.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of the Seller hereunder to sell the Purchased Assets on the
Closing Date are, at their option, subject to the satisfaction, on or before the
Closing Date, of the following conditions, all of which shall be deemed
conditions precedent to Seller's obligations.
7.1 REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties contained in Article V shall be true, complete
and correct in all material respects on and as of the date hereof and on and as
of the Closing Date with the same effect as though such representations and
warranties had been made on and as of such date, and an officer of Buyer shall
have certified to such effect to Seller in writing.
7.2 PERFORMANCE. Buyer shall have performed and complied in all material
respects with all covenants, agreements and undertakings contained herein
required to be performed or complied with by them prior to or at the Closing
Date unless otherwise waived by Seller and an officer of Buyer shall have
certified to such effect in writing.
7.3 APPROVALS. All required approvals, authorizations, permits, waivers,
approvals and consents from governmental and regulatory bodies and third parties
for the transactions herein contemplated shall have been obtained and shall be
in full force and effect; provided, that the granting of such approvals,
authorizations, permits, waivers or consents shall not have resulted in the
imposition of any conditions or restrictions which would materially and
adversely affect the Seller. Seller shall have received appropriate evidence,
reasonably satisfactory to them and their counsel, of the granting of such
approvals, authorizations, permits, waivers and consents.
7.4 NO INJUNCTIONS, ETC. No injunction, restraining order or other ruling
or order issued by any court of competent jurisdiction or governmental authority
or regulatory body or other legal restraint or prohibition shall be in effect
and no proceeding, action, suit or claim brought by any governmental authority,
regulatory body or third party shall be pending or threatened which seeks any
injunction, restraining order or other order or other relief and no statute,
rule, regulation or executive order shall have been enacted or promulgated or
proposed, in each case which would prohibit or materially impair the
consummation of the transactions contemplated by this Agreement.
7.5 BUYER RESOLUTION. Buyer shall have furnished Seller with a certified
resolution from its Board of Directors dated as of the Closing Date authorizing
Buyer to enter into this Agreement and take all actions necessary and proper to
effectuate the performance of this Agreement by Buyer.
7.6 LOCKBOX AGREEMENT. Buyer shall have executed a lockbox agreement
acceptable in form and substance to Seller and its counsel whereby arrangements
are made , from and after any failure by Buyer to pay clean claims incurred in
the Business within forty five (45) days of receipt, for all DSS payments for
coverage through December 31, 2000 to be made only to providers unless Seller
otherwise approves.
7.7 TRANSFER OF PERSONNEL. Buyer shall have hired all personnel currently
employed by Seller in the Business, including without limitation those
individuals listed on Schedule 7.7 hereto.
7.8 NOVATION. Seller shall have received evidence acceptable in form and
substance to Seller and its counsel of the agreement of DSS to waive all claims
against Seller for claims arising after the Closing.
7.9 EVIDENCE OF REINSURANCE. Seller shall have received evidence of
reinsurance coverage of Buyer's claims exposure in form and substance acceptable
to Seller and its counsel.
ARTICLE VIII
COVENANTS OF SELLER AND BUYER
8.1 PUBLIC ANNOUNCEMENTS. Any party shall have the ability to issue a
press release regarding the transactions contemplated by this Agreement if
approved by the other, which approval shall not be unreasonably withheld or
delayed; provided, that if a party is required by law or applicable listing
agreement with a securities exchange (including NASDAQ) or any securities
exchange (including NASDAQ) regulations, it may issue such press release without
the approval of the other party; provided, that if the circumstances permit,
such party shall obtain the prior approval of the other party.
8.2 DISCLOSURE SUPPLEMENTS. From time-to-time prior to the Closing or at
Closing, Seller will promptly supplement or amend the Schedules delivered in
connection herewith with respect to any matter hereafter arising which, if
existing, occurring or known at the date of this Agreement, would have been
required to be set forth or described in such Schedules or which is necessary to
correct any information in such Schedules which has been rendered inaccurate
thereby. Unless accepted by Buyer, no supplement or amendment shall have any
effect for the purpose of determining (a) satisfaction of the conditions set
forth in Article VI hereof, (b) the compliance by Seller with the covenants set
forth herein or (c) the accuracy of Seller's representations and warranties set
forth herein.
8.3 [intentionally deleted] 8.4 [intentionally deleted].
8.5 NON-COMPETITION.
As a material inducement to Buyer to purchase the Purchased Assets, Seller
agrees that it will not, for a two (2) year period following the Closing, obtain
or seek to obtain a contract with the State of Connecticut in respect to
Medicaid membership.
The obligations set forth in this section may be enforced by equitable as
well as legal proceedings at Buyer's discretion. If any part of the non-
competition agreements in this Section 8.6 shall be construed to be invalid or
unenforceable, it is the intention of Buyer and Seller that such part or
provision shall be construed in such a way as to render it valid and
enforceable, if possible, and, if not possible, that the remainder of this
Section 8.6 shall be deemed to continue to be valid and enforceable without
regard to the invalid and unenforceable part or portion.
ARTICLE IX
INDEMNIFICATION OF BUYER
9.1 INDEMNITY. Seller shall indemnify and hold Buyer and its directors,
officers, employees, agents, affiliates (including directors, officers,
employees and agents thereof), successors or assigns (collectively "Buyer
Indemnitees") harmless from and against any and all losses, costs, damages,
liabilities or expenses, including reasonable attorneys' fees (collectively
"Losses"), that any of them shall suffer arising out of any breach of warranty,
representation, covenant, agreement or undertaking made by Seller in this
Agreement, or Seller's ownership or operation of the Purchased Assets prior to
the Closing Date.
9.2 COOPERATION AND SETTLEMENT. In the event any claim, action, suit or
proceeding is brought against any Buyer Indemnitee with respect to which such
Buyer Indemnitee asserts Seller has liability in connection with the indemnity
contained in Section 9.1 hereof, such Buyer Indemnitee shall give prompt written
notice of such action, claim, suit or proceeding to Seller and, upon Seller's
written notification of its election to defend any such action, claim, suit or
proceeding by a third party, Seller shall assume the defense of any such action,
claim, suit or proceeding. Failure by Seller to notify such Buyer Indemnitee of
its election to defend any such action, claim, suit or proceeding by a third
party within thirty (30) days after the date of such Buyer Indemnitee's notice
to Seller shall be deemed to be a waiver of any such election. If Seller
assumes the defense of such action, claim, suit or proceeding resulting
therefrom, the obligations of Seller hereunder as to such action, claim, suit or
proceeding shall be fulfilled actively and diligently and shall include taking
all steps reasonably necessary in the defense or settlement of such action,
claim, suit or proceeding resulting therefrom, including the retention of
counsel reasonably satisfactory to such Buyer Indemnitee and Seller, and
indemnifying and holding such Buyer Indemnitee harmless from and against any and
all Losses resulting from, arising out of, or incurred with respect to any
settlement or any judgment in connection with such action, claim, suit or
proceeding resulting therefrom. Seller shall not, in the defense of such
action, claim, suit or proceeding, consent to the entry of any judgment (other
than a judgment of dismissal on the merits with cost) nor enter into any
settlement which does not provide for an unconditional release of such Buyer
Indemnitee without liability or adverse affect to such Buyer Indemnitee and
without subjecting Buyer or any of the Buyer's Indemnitees to any injunction or
other equitable remedy. In addition, in the event Seller assumes the defense of
any action, claim, suit or proceeding, pursuant to this Section that affects or
could affect Buyer's ownership or operation of the Business, Seller agrees to
consult with Buyer on matters relating to such action, claim, suit or
proceeding, and not to take any actions with respect thereto which would be
reasonably likely to have an adverse effect on the Business and Purchased Assets
without Buyer's written consent, which consent shall not be unreasonably
withheld or delayed. If Seller shall not assume the defense of any such action,
claim, suit or proceeding, such Buyer Indemnitee may defend against or settle
such action, claim, suit or proceeding in such manner as it deems appropriate.
ARTICLE X
INDEMNIFICATION OF SELLER
10.1 INDEMNITY. Buyer and The WellCare Management Group, Inc. shall
jointly and severally indemnify and hold Seller and its directors, officers,
employees, agents, affiliates, and shareholders (including directors, officers
employees and agents thereof), successors or assigns (collectively "SELLER'S
INDEMNITEES") harmless from and against any and all Losses that any of them
shall suffer arising out of any breach of warranty, representation, covenant,
agreement or undertaking made by Buyer in this Agreement, or Buyer's ownership
or operation of the Purchased Assets or the operation of the Business following
the Closing Date; provided, however, that the forgoing indemnity shall not
extend to matters arising under any provider agreements between Buyer and any
shareholder relating to provider services performed by such shareholder for
Buyer following the Closing Date.
10.2 ADDITIONAL INDEMNIFICATION. Without limiting the generality of the
foregoing, Buyer and The WellCare Management Group, Inc. shall jointly and
severally indemnify and hold the Seller's Indemnitees harmless against any
Losses that any Seller's Indemnitees shall suffer which relate to or arise out
of any failure by Buyer to pay and discharge the Assumed Liabilities.
10.3 COOPERATION AND SETTLEMENT. In the event any claim, action, suit or
proceeding is brought against any Seller's Indemnitee with respect to which such
Seller's Indemnitee asserts Buyer has liability in connection with the indemnity
contained in Section 10.1 or 10.2 hereof, such Seller's Indemnitee shall give
prompt written notice of such claim, action, suit or proceeding to Buyer and,
upon Buyer's written notification of its election to defend any such action,
claim, suit or proceeding by a third party, Buyer shall assume the defense of
any such action, claim, suit or proceeding. Failure by Buyer to notify Seller or
such Seller's Indemnitee of its election to defend any such action, claim, suit
or proceeding by a third party within thirty (30) days after the date of such
Seller's Indemnitee's notice to Buyer shall be deemed to be a waiver of any such
election. If the Buyer assumes the defense of such action, claim, suit or
proceeding resulting therefrom, the obligations of Buyer hereunder as to such
action, claim, suit or proceeding shall be fulfilled actively and diligently and
shall include taking all steps reasonably necessary in the defense or settlement
of such action, claim, suit or proceeding resulting therefrom, including the
retention of counsel reasonably satisfactory to such Seller's Indemnitee and
Buyer, and indemnifying and holding such Seller's Indemnitee harmless from and
against any and all Losses resulting from, arising out of, or incurred with
respect to any settlement or any judgment in connection with such action, claim,
suit or proceeding resulting therefrom. Buyer shall not, in the defense of such
action, claim, suit or proceeding, consent to the entry of any judgment (other
than a judgment of dismissal on the merits with cost) nor enter into any
settlement which does not provide for the unconditional release of such Seller's
Indemnitee without liability or adverse affect to Seller or any of the Seller's
Indemnitees and without subjecting Seller or any of the Seller's Indemnitees to
any injunction or other equitable remedy. In addition, in the event Buyer
assumes the defense of any action, claim, suit or proceeding, pursuant to this
Section that affects or could affect Seller's remaining assets and operations,
Buyer agrees to consult with Seller on matters relating to such action, claim,
suit or proceeding, and not to take any actions with respect thereto which would
be reasonably likely to have an adverse effect on the Seller's assets or
operations without Seller's written consent, which consent shall not be
unreasonably withheld or delayed. If Buyer shall not assume the defense of any
such action, claim, suit or proceeding, such Seller's Indemnitee may defend
against or settle such action, claim, suit or proceeding in such manner as it
deems appropriate.
ARTICLE XI
MISCELLANEOUS
11.1 AMENDMENTS. This Agreement may not be amended or modified without the
prior written consent of the parties hereto.
11.2 WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions of the Agreement at any one time shall not be
deemed a waiver of such term, covenant or condition, at any other time; nor
shall any waiver or relinquishment of any right or power herein at any time be
deemed a waiver or relinquishment of the same or any other right or power at any
other time.
11.3 NOTICES. All notices, requests, demands, consents or other
communications required or permitted hereunder shall be in writing and shall be
personally served, sent by electronic mail or by overnight mail, or sent by
certified United States Mail, postage prepaid, return receipt requested to the
parties, addressed as follows:
(a) If to Seller:
HealthChoice of Connecticut, Inc.
c/o William Gedge
Senior Vice President
Yale New Haven Health
789 Howard Avenue
New Haven, CT 06519
with a copy to:
Norman Fleming
Wiggin & Dana
One Century Tower
New Haven, CT 06510
(b) If to Buyer:
WellCare of Connecticut, Inc.
6800 North Dale Mabry Hwy.
Suite 268
Tampa, FL 33614
813-290-6353
Attn.:Kiran C. Patel, M.D., President
Telephone: 813-290-6200 ext. 1235
Fax: 813-290-6306
with a copy to:
Sandip I. Patel, P.A.
6800 North Dale Mabry Hwy.
Suite 268
Tampa, FL 33614
Attn: Sandip I. Patel, Esq.
Telephone: 813-290-6353
Facsimile: 813-262-2814
All notices and other communications required or permitted under this
Agreement which are addressed as provided above shall be effective upon delivery
if personally served, sent by electronic mail, the next business day if sent by
overnight mail, and three (3) business days after mailing if sent by certified
United States Mail. Any party may from time-to-time change its address for the
purpose of notices to that party by a similar notice specifying a new address,
but no such change shall be deemed to have been given until it is actually
received by the party sought to be charged with the contents.
11.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.5 ENFORCEABILITY AND SEVERABILITY. In the event any provisions of this
Agreement or portion thereof are found to be wholly or partially invalid,
illegal or unenforceable in any proceeding, then such provision shall be deemed
to be modified or restricted to the extent and in the manner necessary to render
the same valid and enforceable, or shall be deemed excised from this Agreement,
as the case may require, and this Agreement shall be construed and enforced to
the maximum extent permitted by law, as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provisions had
not been originally incorporated herein, as the case may be.
11.6 GOVERNING LAW AND SECTION HEADINGS. This Agreement shall be construed
in accordance with the internal laws of the State of Connecticut without regard
to its conflict of law provisions. The titles of the sections have been
inserted as a matter of convenience and reference only and shall not control or
affect the meaning or construction of this Agreement.
11.7 ASSIGNMENT. This Agreement shall not be assignable by any party
without the prior written consent of the other parties.
11.8 EXPENSES. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby, whether or not such transactions
shall be consummated.
11.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants, agreements, and indemnification of the parties contained
in this Agreement shall survive the Closing Date and will remain in full force
and effect through December 31, 2001 (not merging into any closing documents)
and shall be deemed to be material and to have been relied upon by the parties.
11.10 BROKERAGE. Each party hereto will indemnify and hold harmless the
others against and in respect of any claim for brokerage or other commissions
relative to this Agreement or to the transactions contemplated hereby, based in
any way on agreements, arrangements or understandings made or claimed to have
been made by such party with any third party.
11.11 PARTIES IN INTERESTS. All representations, warranties, covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
permitted assigns of the parties hereto whether so expressed or not.
11.12 ENTIRE AGREEMENT. This Agreement, including the schedules and
exhibits attached hereto, constitutes the sole and entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings of the parties in respect of
the subject matter hereof. All schedules and exhibits attached hereto are
incorporated herein by reference and made a part hereof.
11.13 DRAFTING AS A MATTER OF CONVENIENCE. This Agreement was drafted by
Buyer as a matter of convenience only and shall not be construed in favor of any
party on that account.
11.14 GENDER AND NUMBER REFERENCES. In this Agreement the singular means
the plural and the plural the singular, as appropriate, and the proper gender -
male, female, neuter - shall be deemed substituted as appropriate.
11.15 [intentionally omitted]
11.16 THIRD PARTIES. None of the provisions of this Agreement shall confer
rights or benefits as third party beneficiaries or otherwise upon any party that
is not expressly a party to this Agreement and the provisions of this Agreement
shall not be enforceable by any such third party.
11.17 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
11.18 RELEASE OF INFORMATION. Except as required by law, any release to
the public of information with respect to the matters set forth herein shall be
made only in the form and manner approved by the parties and their respective
legal counsel.
11.19 COOPERATION. The parties shall provide each other with appropriate
access to information following the Closing Date for litigation defense and
other legitimate business purposes.
11.20 SELLER'S KNOWLEDGE. For purposes of this Agreement, "TO THE BEST OF
SELLER'S KNOWLEDGE AFTER DUE INQUIRY" or words of like meaning shall mean to the
actual knowledge of the officers or senior managers of the Seller who are
working on the transactions contemplated herein. Such officers and senior
managers of Seller are listed on SCHEDULE 11.20.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
"SELLER"
HEALTHCHOICE OF CONNECTICUT, INC.
BY: /s/ William S. Gedge
ITS:
"BUYER"
WELLCARE OF CONNECTICUT, INC.
BY: /s/ Pradip C. Patel
ITS:
THE WELLCARE MANAGEMENT GROUP, INC.
(as to Article X only)
BY: /s/ Pradip C. Patel
ITS:
