EXHIBIT 2.9
STOCK PURCHASE AGREEMENT
BY
AND
AMONG
AMEDISYS, ALTERNATE-SITE INFUSION THERAPY SERVICES, INC.,
A LOUISIANA CORPORATION, AS PURCHASER,
AND
INFUSIONCARE SOLUTIONS, INC.
A LOUISIANA CORPORATION, AS COMPANY,
AND
XXXXXX X. XXXXX, AS SELLER
DATED AS OF FEBRUARY 1, 1998
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement') is made effective as of
February 1, 1998, by and among AMEDISYS ALTERNATE-SITE INFUSION THERAPY
SERVICES, INC., a Louisiana corporation ("AMED" or "Purchaser"), with its
principal place of business at 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx., Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxxxx 00000, INFUSIONCARE SOLUTIONS, INC., a Louisiana
corporation (the "Company"), with its principal place of business at 00000 Xxx
Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000, and XXXXXX X. XXXXX (the
"Stockholder" or the "Seller"), with his principal place of business at 00000
Xxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000. AMED, the Company and the
Stockholder are sometimes referred to collectively as the "Parties" and singly,
a "Party".
RECITALS
WHEREAS, AMED desires to purchase 100% of the issued and outstanding
capital stock of the Company ("Company Stock") from the Stockholder as
hereinafter provided; and
WHEREAS, the Stockholder desires to sell the Company Stock to AMED as
hereinafter provided.
WHEREAS the parties expect that this Agreement will further advance their
respective business objectives, including without limitation, integration of the
business operations of the Company with the business operations of Purchaser in
order for Purchaser to more effectively compete in the marketplace.
NOW, THEREFORE, in consideration of the premises and the mutual promises
made herein, and in accordance with the representations, warranties and
covenants contained herein, the Parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
meanings indicated:
1.01 Closing: The consummation of the transactions contemplated by
this Agreement.
1.02 GAAP: Generally accepted accounting principles.
1.03 Health Care Laws: All federal, state and local health care related
laws, regulations and ordinances including but not limited to
Medicaid, Medicare and regulations of the Health Care Finance
Administration.
1.04 Knowledge: With respect to a Party, the actual knowledge of such
Party, its officers and directors, after reasonable inquiry.
1.05 Material Adverse Effect: Any change in the financial condition of
the Company or the operation of its business that would materially
affect the Company's business adversely, including, but not limited
to, material adverse changes to its business
condition or financial condition.
1.06 Operating Licenses: In the case of the Company or AMED, as the
case may be, the licenses, permits and registrations issued by the
appropriate state and federal agencies which are necessary to the
operation of its business. Such Operating Licenses are more fully
described in Schedule 3.11 hereto for the Company.
1.07 Prime: The prime interest rate as designated daily by The Wall
Street Journal.
1.08 Permitted Encumbrances: As to each of the following, for which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) liens for taxes, assessments and
governmental charges or levies not yet due and payable or which
are being contested in good faith which are not in excess of
$5,000.00 in the aggregate; (b) encumbrances imposed by law, such
as materialmen's, mechanics', carriers', workmen's and repairmen's
liens and other similar liens arising in the ordinary course of
business securing obligations that are being contested in good
faith or are not overdue for a period of more than 30 days
provided that they are not in excess of $5,000.00 in the case of a
single property $10,000.00 in the aggregate at any time or which
are being contested in good faith; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; (d)
minor survey exceptions, reciprocal easement agreements and other
customary encumbrances on title to real property that (i) were not
incurred in connection with any indebtedness, (ii) do not render
title to the property encumbered thereby unmarketable and (iii) do
not, individually or in the aggregate, materially adversely affect
the value or use of such property for its current purposes.
2. Terms of Stock Purchase. On the basis of the representations,
warranties, covenants and agreements contained in this Agreement and subject to
the terms and conditions of this Agreement:
2.01 Transfer. The Stockholder shall assign, transfer and convey at
the Closing the Company Stock, representing 100% of the issued and outstanding
capital stock of the Company, to AMED. The Stockholder shall deliver at Closing
a Stock Power in the form attached hereto as Schedule 2.01 and any other
documents required by this Agreement.
2.02 Purchase Price. AMED shall deliver and the Stockholder shall be
entitled to receive at the Closing from AMED in consideration of the sale and
transfer of the Company Stock, the sum of FIVE HUNDRED THOUSAND AND NO/100
($500,000.00) DOLLARS (the "Purchase Price") the adequacy of which is hereby
acknowledged by the Stockholder, payable as follows: (a) THREE HUNDRED SEVENTY
FIVE THOUSAND AND NO/100 ($375,000.00) DOLLARS, cash in hand; and (b) for the
balance of the Purchase Price, AMED will execute and deliver a promissory note
(the "Promissory Note") in the principal amount of ONE HUNDRED TWENTY FIVE
THOUSAND AND NO/100 ($125,000.00) DOLLARS, payable to the order of the
Stockholder in twenty-four
-2-
equal monthly payments of principal plus interest, bearing interest from
February 27, 1998 until paid on the unpaid principal balance at the rate of
Prime plus one (1%) percentage point. The Promissory Note shall be solidarily
guaranteed by Amedisys, Inc. (the "Guarantor"), shall provide for acceleration
of the entire principal balance in the event of default by Purchaser in the
payment of any installment thereunder or under this Agreement and shall provide
for the payment of the reasonable attorney fees incurred by Seller in the
collection thereof. The Company Stock referred to in Section 2.01 and the
consideration to be paid by AMED referred to in Section 2.02 shall constitute
all of the consideration to be paid in connection with the transactions
contemplated by this Agreement.
2.03 Reserved.
2.04. The Closing. The Closing of the transactions contemplated by
this Agreement shall be on February 27, 1998, to be effective February 1, 1998
at the AMED offices, 0000 X. Xxxxxxxx Xxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxx, to be effective on the 1/st/ day of February, 1998.
3. Representations and Warranties of the Company and the Stockholder.
The Company and the Stockholder hereby represent and warrant to AMED, as of the
date of this Agreement (unless another date is specified in this Section 3) that
the statements contained in this Section 3 are correct and complete:
3.01. Organization and Qualification. The Company does not own any
interest in any other business enterprise or legal entity, except as disclosed
in Schedule 3.01. Schedule 3.01 also correctly sets forth as to the Company its
state of incorporation, principal place of business, and jurisdictions in which
it is qualified to do business. The Company is a Louisiana corporation duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation, with all requisite power and authority to conduct
its business and is not in breach of, or in default with respect to, any term of
its Articles of Incorporation, Bylaws or other organizational documents. Except
for the consents required but not obtained identified in Schedule 3.03, the
Company has obtained all necessary consents, authorizations, approvals, orders,
licenses, certificates, and permits of and from, and declarations and filings
with, all federal, state, local, and other governmental authorities and all
courts and other tribunals, to own, lease, license, and use its properties and
assets and to carry on the business in which it is now engaged, except where the
failure to do so would not have a Material Adverse Effect. The Company is
duly qualified to transact the business in which it is engaged in every
jurisdiction in which its ownership, leasing, licensing, or use of its property
or assets or the conduct of its business makes such qualification necessary,
except where the failure to do so would not have a Material Adverse Effect.
3.02. Capitalization. The Stockholder owns 5,000 shares of the Company
Common Stock, which constitutes all of the outstanding capital stock of Company.
The Company Stock is not owned or held in violation of any preemptive right of
any other person or entity, is validly authorized, validly issued, fully paid
and non-assessable, and is owned of record and beneficially by the Stockholder.
The shares of Company Stock held by the Stockholder are free and clear of all
liens, security interests, pledges, charges, encumbrances, voting agreements,
and voting trusts. There is no commitment, plan, or arrangement to issue, and
no outstanding option, warrant, or other right
-3-
calling for the issuance of, any shares of capital stock of the Company or any
security or other instrument convertible into, exercisable for, or exchangeable
for capital stock of the Company. There is outstanding no security or other
instrument convertible into or exchangeable for capital stock of the Company.
3.03. Due Authorization; Third Party Consents. The Company and
Stockholder have the right, power, legal capacity, and authority to enter into
and perform their respective obligations under this Agreement and, except as set
forth on Schedule 3.03 to this Agreement, no approval or consent of any person
other than the Company is necessary in connection with the execution, delivery,
or performance of this Agreement. The execution, delivery, and performance of
this Agreement by the Company has been duly authorized by its board of directors
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or the consummation of the transactions contemplated
hereby. This Agreement constitutes a legal and binding obligation of the
Company and the Seller, and is valid and enforceable against the Company and the
Seller in accordance with its terms except that (i) the enforcement of certain
rights and remedies created by this Agreement is subject to bankruptcy,
insolvency, reorganization, and similar laws of general application affecting
the rights and remedies of parties, (ii) the enforceability of any particular
provision of this Agreement under principles of equity or the availability of
equitable remedies, such as specific performance, injunctive relief, waiver or
other equitable remedies, is subject to the discretion of courts of competent
jurisdiction, and (iii) any court or administrative body may refuse to enforce
the choice of law provision of Section 9.11 of this Agreement.
3.04. Litigation. Except as described in Schedule 3.04, there is not
any suit, action, arbitration, or legal, administrative, or other proceeding or
governmental investigation pending or, to the best of Company's or
Stockholder's Knowledge, threatened (in the form of threats made to
representatives of the Company or the Stockholder), with respect to the Company
or the Stockholder (as it relates to the business of the Company), including but
not limited to any action or claim under any federal, state, local or other
governmental act, rule, regulation, or any interpretations thereof, relating to
environmental matters or the protection of the safety and health of persons
connected with the Company's business (including but not limited to the
transportation, treatment, storage, recycling, disposal, or release into the
environment of hazardous or toxic materials or waste), or any basis on which any
proceeding or investigation against the Company or the Stockholder might
reasonably be undertaken or brought. The Company and the Stockholder have
informed AMED of, and upon request has furnished or made available to AMED
copies of all relevant court papers and other documents relating to, the matters
set forth in Schedule 3.04. Included in Schedule 3.04 is a list of all suits,
actions, arbitrations, or other proceedings or investigations in which the
Company has been a party to during the five year period immediately preceding
the Closing. The Company is not presently engaged in any legal action to
recover monies due to the Company, for damages sustained by the Company, or
amounts owed to the Company, except as set forth on Schedule 3.04. During the
five year period immediately preceding the Closing, the Company has neither
received nor been a party to any written notice of violations, orders, claims,
citations, complaints, penalties, assessments, court, or other proceedings,
administrative, civil or criminal, at law or in equity, against the Company or
Stockholder, with respect to any Health Care Law. In addition, to the Company's
and the Stockholder's Knowledge, the Company has neither received nor been party
to any written
-4-
notice of violations, orders, claims, citations, complaints, penalties,
assessments, court, or other proceedings, administrative, civil or criminal, at
law or in equity, with respect to any alleged violations of any other federal,
state, or local environmental law, regulation, ordinance, standard, permit, or
order in connection with the conduct of its business or otherwise during the
past five years.
3.05. Employees. The Company does not have, or contribute to, any
pension, profit-sharing, option, other incentive plan, or other Employee Benefit
Plan (as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974), or have any obligation to or customary arrangement with employees for
bonuses, incentive compensation, vacations, severance pay, insurance, or other
benefits, except as set forth in Schedule 3.05. Schedule 3.05. contains a true
and correct statement of the names, relationship with the Company, present rates
of compensation (whether in the form of salary, bonuses, commissions, or other
supplemental compensation now or hereafter payable), and aggregate compensation
for the fiscal year ended December 31, 1997 of each Stockholder, and the three
highest paid employees of the Company. Since December 31, 1997, the Company has
not changed the rate of compensation of the Stockholder or any of its employees,
agents, dealers or distributors, except as disclosed in Schedule 3.05.
3.06. No Violation of Employee Contracts. The Company is not, and to
the best of Company's and Stockholder's Knowledge, no employee of the Company is
in violation of any term of any employment contract, non-competition agreement,
or any other contract or agreement or any restrictive covenant with, or any
other common law obligation to, a former employer relating to the right of any
such employee to be employed by the Company because of the nature of the
business conducted by the Company or of the use of trade secrets or proprietary
information of others. There is neither pending nor, to the Knowledge of the
Company or the Stockholder, threatened, any actions, suits, proceedings, or
claims with respect to any contract, agreement, covenant, or obligation referred
to in the preceding sentence, except as listed in Schedule 3.04.
3.07. Insurance. Schedule 3.07 sets forth an accurate and complete
list and brief description of all policies of fire and extended coverage,
liability, and the forms of similar insurance or indemnity bonds held by the
Company. The Company is not in default with respect to any provisions of any
such policy or indemnity bond and has not failed to give any notice or present
any claim thereunder in due and timely fashion, which failure or failures to
give such notice or present such claim, individually or in the aggregate, will
have a Material Adverse Effect. All such policies and bonds are (i) in full
force and effect, (ii) with insurance companies believed by the Company and the
Stockholder to be financially sound and reputable, (iii) are sufficient for
compliance by the Company with all requirements of law and of all agreements and
instruments to which the Company is a party, (iv) provide that they will remain
in full force and effect through the respective dates set forth in Schedule
3.07, and (v) will not in any significant respect be affected by, and will not
terminate or lapse by reason of, the transactions contemplated by this
Agreement. Schedule 3.07 sets forth an accurate and complete list of all
accident or other liability claims received by or known by the Company and the
Stockholder for the three year period immediately preceding the Closing, as well
as a description of the status of each such claim. Such claims are covered by
one or more insurance policies set forth in Schedule 3.07.
-5-
3.08. Contracts, Agreements and Instruments. Schedule 3.08 contains a
list of the following, copies of which have been heretofore furnished by Seller
to Purchaser, which acknowledges receipt thereof:
3.08.01. The Articles of Incorporation, Bylaws and other
organizational documents of the Company and all amendments thereto, as
presently in effect, certified by the president of the Company;
3.08.02. True and correct copies of all material contracts, and other
agreements to which Company is a party;
3.08.03. True and correct written descriptions of all verbal material
contracts and/or agreements to which Company or Seller is a party.
Except for matters which, in the aggregate, would not have a Material Adverse
Effect or are otherwise disclosed in the Agreement, the Company is not, and to
the best of the Company's and the Stockholder's Knowledge, no other party to any
such contract, agreement, instrument, lease, or license is now in violation or
breach of, or in default with respect to complying with, any material provision
thereof, and each such contract, agreement, instrument, lease, or license by
which the Company is presently engaged is in full force and effect and is the
legal, valid, and binding obligation of the parties thereto and is enforceable
as to them in accordance with its terms, except that (i) the enforcement of
certain rights and remedies created thereby is subject to bankruptcy,
insolvency, reorganization, and similar laws of general application affecting
the rights and remedies of parties, and (ii) the enforceability of any
particular provision thereof under principles of equity or the availability of
equitable remedies, such as specific performance, injunctive relief, waiver, or
other equitable remedies, is subject to the discretion of courts of competent
jurisdiction. Each such service, supply, distribution, agency, financing, or
other arrangement, contract or understanding is a valid and continuing
arrangement, contract or understanding, except for matters which, in the
aggregate, will not have a Material Adverse Effect; neither the Stockholder,
nor any other party to any such arrangement, contract or understanding has given
notice of termination or taken any action inconsistent with the continuance of
such arrangement, contract or understanding, except for matters which, in the
aggregate, will not have a Material Adverse Effect; and, subject to obtaining
the consents described on Schedule 3.03, the execution, delivery, and
performance of this Agreement will not prejudice any such arrangement, contract
or understanding in any way, except for matters which, in the aggregate, will
not have a Material Adverse Effect.
3.09. Compliance With Laws. The Company has complied with, and is not
in violation of any (i) term or provision of its Articles of Incorporation or
Bylaws; or (ii) to the Company's and the Stockholder's Knowledge term or
provision of any applicable judgment, decree, order, statute, injunction, rule,
ordinance; (iii) to the Company's and the Stockholder's Knowledge any Health
Care Law; or (iv) or the Company's and the Stockholder's Knowledge, foreign,
United States, state or local statutes, laws, rules, or regulations, in each
case, except as described on the Schedules hereto or where such non-compliance
or violation will not have a Material Adverse Effect.
-6-
3.10. Financial Condition. The Company has delivered to AMED true and
correct copies of the following: the unaudited balance sheet of the Company
("the Company's Last Balance Sheet") dated as of January 31, 1998 ("the
Company's Last Balance Sheet Date"), and an unaudited balance sheet and income
statement of the Company for the twelve month period ended December 31, 1997,
1996 and 1995. Each such balance sheet presents fairly in all material respects
the financial condition, assets and liabilities of the Company as of its date;
and each such statement of income presents fairly in all material respects the
results of operations of the Company for the period indicated. The financial
statements referred to in this Section have been prepared in accordance with the
books and records of the Company.
3.11. Permits and Licenses. The Company has all permits, licenses, and
other similar authorizations necessary for the conduct of its business as now
being conducted by it, and it is not in default in any respect under any such
permits, licenses, or authorizations. All permits, licenses, and other similar
authorizations necessary for the conduct of the Company's business as now being
conducted by it are as set forth in Schedule 3.11. Except as set forth in
Schedule 3.11, no royalties, commissions, or fees are payable by the Company to
any person by reason of the ownership or use of any intangible property. The
Company is the sole and exclusive owner of all of its assets and, except as
disclosed in this Agreement and the Schedules hereto, does not use any of its
assets by the consent of any other person and is not required to and does not
make any payments to others with respect thereto. Except as set forth in
Schedule 3.11, there are no material licenses, sub-licenses, or agreements
relating to the use of any of its intangible property now in effect, and the
Company and the Stockholder have no Knowledge that any intangible property is
being infringed by others. Except as listed in Schedule 3.04, no claim that
would have a Material Adverse Effect on the business of the Company is pending
or threatened alleging the operation of the Company's business or any method,
process, part, or material that the Company employs, conflicts in any material
way with, or infringes in any material way upon any rights of the type
enumerated above, owned by others.
3.12. Properties. The Company has good and marketable title to all
properties and assets owned by it and used in its business (except such real and
other property and assets as are held pursuant to leases or licenses described
in Schedule 3.12), free and clear of all liens, mortgages, security interests,
pledges, charges, and encumbrances (except such as are disclosed in Schedule
3.12 or disclosed on the Company's Last Balance Sheet) other than Permitted
Encumbrances.
3.12.01. Attached as Schedule 3.12 is a true and complete list of all
properties and assets owned, leased, or licensed by the Company having an
individual or aggregate value of $5,000 or more, including with respect to
such properties and assets leased or licensed by the Company, a description
of such lease or license. All such properties and assets owned by the
Company are reflected on the Company's Last Balance Sheet. All properties
and assets owned, leased, or licensed by the Company are in good and usable
condition (reasonable wear and tear excepted);
3.12.02. The properties and assets owned, leased, or licensed by the
Company constitute all such properties and assets which are necessary to
the business
-7-
of the Company as presently conducted;
3.12.03. To the Knowledge of the Company or the Stockholder, no real
property owned, leased or licensed by the Company lies in an area which is,
or will be subjected to zoning, use or building code restrictions which
would prohibit, and no stated facts relating to the actions or inaction of
another person or entity of his or its ownership, licensing, leasing, or
use of any real or personal property exists which would prevent, the
continued effective ownership, leasing, licensing or use of such real
property in the business in which the Company is now engaged; and
3.12.04. All accounts and notes receivable reflected on the Company's Last
Balance Sheet, and arising since the Last Balance Sheet Date, arise from
services or products provided by the Company and have been collected, or
are valid, subject to the Company's reserve therefor as reflected on the
Company's Last Balance Sheet and adjustments consistent with the Company's
past practices.
3.13. Hazardous Materials. Except as disclosed on Schedule 3.13, the
Company is not in the business of possession, transportation, or disposal of
hazardous materials. If and to the extent that the Company's business has
involved the possession, transportation, or disposal of hazardous materials, to
the best of the Company's and the Stockholder's Knowledge the Company has
complied with any and all applicable laws, ordinances, rules, and regulations
with respect to the period prior to the Closing. To the best of Company's and
Stockholder's Knowledge, no employee of the Company has been exposed to
hazardous materials during the period of employment by Company such that
exposure could cause damage to such employee.
3.14. Interest in Competitors. Except as set forth in Schedule 3.14
to this Agreement, the Seller has no direct or indirect ownership interest in
any competitor, supplier, or customer of the Company or in any person from whom
or to whom the Company leases any real or personal property, or in any other
person with whom the Company is doing business.
3.15. Tax and Other Liabilities. The Company does not have any present
liability of any nature, accrued or contingent, for the period prior to the date
hereof, including, without limitation, liabilities for federal, state, local, or
foreign taxes and liabilities to customers or suppliers, which will have a
Material Adverse Effect upon the Company, other than the following:
i. Liabilities for which full provision has been made on the
Company's Last Balance Sheet as of the Company's Last Balance
Sheet Date; and
ii. Other liabilities arising since the Company Last Balance Sheet
Date and prior to the Closing in the ordinary course of business
which are not inconsistent with the representations and
warranties of the Company or any other provision of this
Agreement.
-8-
Without limiting the generality of the foregoing, the amounts set forth as
provisions for taxes on the Company's Last Balance Sheet are sufficient for all
accrued and unpaid taxes owed by the Company, whether or not due and payable
prior to or after such date and whether or not disputed, under tax laws, as in
effect on the Company's Last Balance Sheet Date or now in effect, for the period
ended on such date and for all fiscal years prior thereto. The Company has
filed all applicable tax returns required to be filed by it or has obtained
applicable extensions and is not delinquent with respect to such extensions; has
paid (or has established on the Company's Last Balance Sheet a reserve for) all
taxes, assessments, and other governmental charges payable or remittable by it
or levied upon it or its properties, assets, income, or franchises, which are
due and payable on or prior to the date hereof and has delivered to the Company
a true and correct copy of any report as to adjustments received by the Company
from any taxing authority during the past five years and a statement as to any
litigation, governmental or other proceeding (formal or informal), or
investigation pending.
3.16. Changes or Events. Except as set forth in Schedule 3.16, since
the Company's Last Balance Sheet Date, none of the following has occurred:
3.16.01. Other than the assignment by the Company of its Agreement for
Consulting Services dated as of February 1, 1997, with 164083 Canada,
Inc., the Purchaser hereby acknowledging that said agreement for
consulting services has been assigned by the Company and that the
Company has no intent therein, any material transaction by the Company
not in the ordinary course of business involving amounts in excess of
$5,000;
3.16.02. Any material capital expenditure by the Company involving
amounts in excess of $5,000;
3.16.03. Other than in the ordinary course of business, any changes in
the condition (financial or otherwise), liabilities, assets, or business
or in any business relationships of the Company, including relationships
with suppliers or customers, that, when considered individually or in
the aggregate, are reasonably expected to have a Material Adverse
Effect;
3.16.04. The destruction of, damage to, or loss of any asset of the
Company (regardless of whether covered by insurance) that, when
considered individually or in the aggregate, are reasonably expected to
have a Material Adverse Effect;
3.16.05. Any labor disputes that, when considered individually or in
the aggregate, are reasonably expected to have a Material Adverse
Effect;
3.16.06. Except as listed on Schedule 3.16.06, there have been no
changes in accounting methods or practices (including, without
limitation, any change in depreciation or amortization policies or
rates) by the Company, except for any such changes as were required by
law;
-9-
3.16.07. Other than in the ordinary course of business, any increase in
the salary or other compensation payable or to become payable by the
Company to any employee, or the declaration, payment, or commitment or
obligation of any kind for the payment by the Company of a bonus or
other additional salary or compensation to any such person;
3.16.08. The material amendment or termination of any material
contract, agreement, or license to which the Company is a party, except
in the ordinary course of business;
3.16.09. Any loan by the Company to any person or entity, or the
guaranteeing by the Company of any loan other than loans made in the
ordinary course of business;
3.16.10. Any mortgage, pledge, or other encumbrance of any asset of the
Company except in the ordinary course of business;
3.16.11. The waiver or release of any right or claim of the Company,
except in the ordinary course of business;
3.16.12. Reserved.
3.16.13. Any loss or, to the Knowledge of the Company or the
Stockholder, any threatened loss of any permit, license, qualification,
special charter or certificate of authority held or enjoyed or formerly
held or enjoyed by the Company which loss has had or upon occurrence is
reasonably expected to have a Material Adverse Effect;
3.16.14. To the Knowledge of the Company and the Stockholder, the
adoption or recession of any statute, regulation, order, ordinance or
other law wich are reasonably expected to have a Material Adverse
Effect;
3.16.15. Except for such matters undertaken in consultation with AMED
any failure on the part of the Company to operate its business in the
ordinary course and consistent with past practices so as to preserve its
business organization intact, to retain the services of its employees
and to preserve its goodwill and relationships with suppliers,
creditors, customers, and others having business relationships with it;
3.16.16. Any action taken or omitted to be taken by the Company which
would cause (after lapse of time, notice or both) the breach, default,
or acceleration of any right, contract, commitment, or other obligation
of the Company will have a Material Adverse Effect; or
3.16.17. Any agreement by the Company to do any of the things described
in
-10-
the preceding clauses 3.16.01 through 3.16.16.
3.17. No Defaults. Except as set forth in Schedule 3.17, the
consummation of the transactions contemplated by this Agreement will not result
in or constitute any of the following: (i) a breach of any term or provision of
any other agreement of the Company that will not be waived or released at
Closing; (ii) a default or an event that will not be waived or released at
Closing, and that, with notice or lapse of time or both, would be a default,
breach, or violation of the Articles of Incorporation or Bylaws of the Company
or of any lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust, or other agreement, instrument,
or arrangement to which the Company is a party or by which the Company or its
assets are bound; (iii) an event that will not be waived or released at Closing
and that would permit any party to terminate any agreement or to accelerate the
maturity of any indebtedness or other obligation of the Company; (iv) the
creation or imposition of any lien, charge, or encumbrance on any of the
Company's assets; or (v) a violation of any law or any rule or regulation of any
administrative agency or governmental body unrelated to the business or
profession of health care and any profession related to health care, of any
order, writ, injunction or decree of any court, administrative agency or
governmental body to which the Company is subject.
3.18. No Prohibited Payments. Neither the Company nor any employee, or
agent of the Company, has made or authorized any payment of funds of the Company
or on behalf of the Company prohibited by law and no funds of the Company have
been set aside to be used for any payment prohibited by law.
3.20. Completeness of Disclosure. No representation or warranty by
Company or Stockholder in this Agreement, including the Schedules, Exhibits, and
certificates incorporated herein and prepared by the Company or Stockholder
contains any untrue statement of a material fact or omits any material fact
necessary in order to make the statements contained herein not misleading.
4. Representations and Warranties of AMED. AMED, and with respect to
Sections 4.06, 4.07 and 4.08, Guarantor, hereby represents and warrants to the
Seller, as of the date of this Agreement, that the statements contained in this
Section 4 are correct and complete:
4.01. Organization. AMED is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Louisiana and is
authorized to carry on business in the State of Louisiana and in every other
jurisdiction in which its ownership, leasing, licensing, or use of property or
assets or the conduct of its business makes such qualification necessary, except
where the failure to do so would not have a Material Adverse Effect.
4.02. Due Authorization; Third Party Consents. AMED has the right,
power, legal capacity, and authority to enter into and perform its obligations
under this Agreement and, no approval or consent of any person other than AMED
is necessary in connection with the execution, delivery, or performance of this
Agreement. The execution, delivery, and performance of this Agreement by AMED
has been duly authorized by its board of directors and no other corporate
proceedings on the part of AMED are necessary to authorize this Agreement or the
consummation
-11-
of the transactions contemplated hereby. This Agreement constitutes a legal and
binding obligation of AMED, and is valid and enforceable against AMED in
accordance with its terms except that (i) the enforcement of certain rights and
remedies created by this Agreement is subject to bankruptcy, insolvency,
reorganization, and similar laws of general application affecting the rights and
remedies of parties, or (ii) the enforceability of any particular provision of
this Agreement under principles of equity or the availability of equitable
remedies, such as specific performance, injunctive relief, waiver or other
equitable remedies, is subject to the discretion of courts of competent
jurisdiction.
4.03. No Violation. The consummation of the transactions contemplated
by this Agreement will not result in or constitute any of the following: (i) a
breach of any term or provision of any other agreement of AMED that will not be
waived or released at Closing; (ii) a default or an event that will not be
waived or released at Closing and that, with notice or lapse of time or both,
would be a default, breach, or violation of the Articles of Incorporation or
Bylaws of AMED or of any lease, license, promissory note, conditional sales
contract, commitment, indenture, mortgage, deed of trust, or other agreement,
instrument, or arrangement to which AMED is a party or by which AMED or the
property of AMED is bound; or (iii) a violation of any law or any rule or
regulation of any administrative agency or governmental body or any order, writ,
injunction, or decree of any court, administrative agency or governmental body
to which AMED is subject.
4.04. Completeness of Disclosure. No representation or warranty and no
Schedule, Exhibit, or certificate prepared by AMED pursuant hereto and no
statement made or other document prepared by AMED and furnished to the Company
by AMED contains any untrue statement of a material fact or omits or will omit
any material fact necessary in order to make the statements contained therein
not misleading.
4.05 Investment Purpose, Etc. (a) Purchaser is acquiring the Company
Stock solely for the purpose of investment and not with a view to, or for offer
or sale in connection with, any distribution thereof. Purchaser is aware and
understand that the Company Stock has not been registered under the Securities
Act or under the securities laws of any state, that any transfer of the Company
Stock by Purchaser shall be restricted under the provision of the Securities Act
and such state laws, and that the certificates representing the Company Stock
will bear legends to such effect. Purchaser possesses such knowledge and
experience in financial and business matters generally and with respect to the
business of the Company so as to enable it to evaluate the risks and merits of
its purchase of the Company Stock.
(b) Purchaser is an "accredited investor" within the meaning of Rule 501(a)
of Regulation D promulgated under the Securities Act.
4.06 Organization of Guarantor. Guarantor is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and is authorized to do business in every other jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of it
business makes such qualification necessary, except where the failure to do so
would not have a Material Adverse Effect.
-12-
4.07 Due Authorization: Third Party Consents. Guarantor has the right,
power, legal capacity, and authority to enter into and perform its obligations
under this Agreement and, except as otherwise set forth herein, no approval or
consent of any person other than the Guarantor is necessary in connection with
the execution, delivery, or performance of this Agreement. The execution,
delivery, and performance of this Agreement by the Guarantor has been duly
authorized by its board of directors and no other corporate proceedings on the
part of Guarantor are necessary to authorize this Agreement or the consummation
of the transactions contemplated hereby. This Agreement constitutes a legal and
binding obligation of the Guarantor, and is valid and enforceable against the
Guarantor in accordance with its terms except that (i) the enforcement of
certain rights and remedies created by this Agreement is subject to bankruptcy,
insolvency, reorganization, and similar laws of general application affecting
the rights and remedies of parties, and (ii) the enforceability of any
particular provision of this Agreement under principles of equity or the
availability of equitable remedies, such as specific performance, injunctive
relief, waiver or other equitable remedies, is subject to the discretion of
courts of competent jurisdiction.
4.08 No Violation. The consummation of the transactions contemplated by
this Agreement will not result in or constitute any of the following: (i) a
breach of any term or provision of any other agreement of Guarantor that will
not be waived or released at the Closing; (ii) a default or an event that will
not be waived or released at the Closing and that, with notice or lapse of time
or both, would be a default, breach, or violation of the Certificate of
Incorporation or Bylaws of Guarantor or of any lease, license, promissory note,
conditional sales contract, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which Guarantor is a party or by
which Guarantor or the property of Guarantor is bound; or (iii) a violation of
any law or any rule or regulation of any administrative agency or governmental
body or any order, writ, injunction, or decree of any court, administrative
agency or governmental body to which Guarantor is subject.
5. Conditions to Obligations of AMED. The obligations of AMED under this
Agreement are subject, at the option of AMED, to the satisfaction of the
following conditions:
5.01. Accuracy of Representations and Compliance With Conditions. All
representations and warranties of Company or the Stockholder contained in this
Agreement shall be accurate when made and, in addition, shall be materially
accurate as of the Closing as though such representations and warranties were
then made by Company or such Stockholder on the part of Company or any
Stockholder. As of the Closing, the Company and the Stockholder shall have
performed and complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by any of them at or
before such time by this Agreement.
5.02. Other Closing Documents. In connection with the Closing, Seller
shall deliver to Purchaser such other instruments of transfer in form and
substance consistent with this Agreement and mutually satisfactory to Purchaser
and Seller in order to transfer all rights, title and interest of Seller in the
Company Stock to Purchaser;
5.03. Review of Proceedings. All actions, proceedings, instruments,
and documents
-13-
required to carry out this Agreement, or any agreement incidental thereto and
all other related legal matters shall be subject to the reasonable approval of
counsel to AMED, and the Company shall have furnished such counsel for AMED such
documents as such counsel may have reasonably requested for the purpose of
enabling them to pass upon such matters.
5.04. Legal Action. There shall not have been instituted or threatened
any legal proceeding relating to, or seeking to prohibit or otherwise
challenging the consummation of, the transactions contemplated by this Agreement
or related agreements or to obtain substantial damages with respect thereto,
except as listed in Schedule 3.04.
5.05. No Governmental Action. There shall not have been any action
taken, or any law, rule, regulation, order, or decree proposed, promulgated,
enacted, entered, enforced, or deemed applicable to the transactions
contemplated by this Agreement by any federal, state, local, or other
governmental authority or by any court or other tribunal, including the entry of
a preliminary or permanent injunction, which, in the reasonable judgment of
AMED:
5.05.01. Makes any of the transactions contemplated by this Agreement
illegal;
5.05.02. Results in a delay which affects the ability of AMED to
consummate any of the transactions contemplated by this
Agreement;
5.05.03. Requires the divestiture by AMED of a material portion of the
business of either AMED taken as a whole, or of the Company taken
as a whole; and
5.05.04. Otherwise prohibits, restricts, or delays consummation of any of
the transactions contemplated by this Agreement or impairs the
contemplated benefits to AMED of the transactions contemplated by
this Agreement.
5.06. Contractual Consents Needed. Except for the consents described
in Schedule 3.03, the Parties to this Agreement shall have obtained at or prior
to the Closing all consents required for the consummation of the transactions
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which any of them
or any subsidiary is a party, or to which any of their respective businesses,
properties, or assets are subject, except where the failure would not have a
Material Adverse Effect.
5.07. Other Agreements. Agreements set forth as exhibits or schedules
to this Agreement shall have been duly authorized, executed, and delivered by
the parties thereto at or prior to the Closing, shall be in full force and
effect, valid and binding upon the parties thereto, and enforceable by them in
accordance with their terms at the Closing, and no party thereto at any time
from the execution thereof until immediately after the Closing shall have been
in violation of or in default in complying with any material provision thereof.
5.08. Non-Competition and Non-Solicitation Agreement. Xxxxxx X. Xxxxx
shall have entered into the non-competition and non-solicitation agreement in
the form attached hereto as
-14-
Schedule 5.08.
5.09 Board and Shareholder Approval. The Board of Directors and
shareholders of the Company shall have approved the transactions contemplated
herein.
5.10 Legal Opinion. Company shall have received the opinion of Kantrow,
Spaht, Xxxxxx & Blitzer, dated the Closing Date, in the form of Schedule 5.10
attached hereto.
5.11 Public Statements. Before Seller shall execute or administer a press
release or public announcement related to consummation of this transaction,
Seller shall cooperate with Purchaser, shall furnish drafts of all documents or
proposed oral statements to Purchaser for comment, and shall not release any
such information without the written consent of Purchaser. Nothing contained
herein shall prevent Seller from furnishing any information to any governmental
authority if required to do so by law.
6. Conditions to Obligations of The Company. The obligations of the
Company under this Agreement are subject, at the option of the Company, to the
following conditions:
6.01. Accuracy of Representations and Compliance With Conditions. All
representations and warranties of AMED contained in this Agreement shall be
accurate when made and, in addition, shall be materially accurate as of the
Closing as though such representations and warranties were then made by AMED on
the part of AMED. As of the Closing, AMED shall have performed and complied
with all covenants and agreements and satisfied all conditions required to be
performed and complied with at or before such time by this Agreement.
6.02. Other Closing Documents. AMED shall have delivered to the
Company and the Stockholder, at or prior to the Closing, such other documents as
the Company and the Stockholder may reasonably request in order to enable the
Company and the Stockholder to determine whether the conditions to its
obligations under this Agreement have been met and otherwise to carry out the
provisions of this Agreement.
6.03. Review of Proceedings. All actions, proceedings, instruments,
and documents required to carry out this Agreement, or any agreement incidental
thereto and all other related legal matters shall be subject to the reasonable
approval of counsel to the Company and the Stockholder and AMED shall have
furnished such counsel such documents as such counsel may have reasonably
requested for the purpose of enabling them to pass upon such matters.
6.04. Legal Action. There shall not have been instituted or threatened
any legal proceeding relating to, or seeking to prohibit or otherwise
challenging the consummation of, the transactions contemplated by this Agreement
or related agreements set forth as an exhibit hereto, or to obtain substantial
damages with respect thereto.
6.05. No Governmental Action. There shall not have been any action
taken, or any law, rule, regulation, order, or decree proposed, promulgated,
enacted, entered, enforced, or deemed
-15-
applicable to the transactions contemplated by this Agreement by any federal,
state, local, or other governmental authority or by any court or other tribunal,
including the entry of a preliminary or permanent injunction, which, in the
reasonable judgment of the Company and the Stockholder:
6.05.01. Makes any of the transactions contemplated by this Agreement
illegal;
6.05.02. Results in a delay which affects the ability of the Company and
the Stockholder to consummate any of the transactions
contemplated by this Agreement;
6.05.03 Otherwise prohibits, restricts, or delays consummation of any of
the transactions contemplated by this Agreement or impairs the
contemplated benefits to the Company or the Stockholder of the
transactions contemplated by this Agreement.
6.06. Contractual Consents Needed. The Parties to this Agreement shall
have obtained at or prior to the Closing all consents required for the
consummation of the transactions contemplated by this Agreement from any party
to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which any of them is a party, or to which any of their
respective businesses, properties, or assets are subject, except where the
failure to obtain any such consent would not have a Material Adverse Effect on
such Party.
6.07. Other Agreements. Agreements set forth as exhibits or schedules
to this Agreement shall have been duly authorized, executed, and delivered by
the Parties thereto at or prior to the Closing, shall be in full force, valid
and binding upon the Parties thereto, and enforceable by them in accordance with
their terms at the Closing, and no party thereto at any time from the execution
thereof until immediately after the Closing shall have been in violation of or
in default in complying with any material provision thereof.
6.08. Board Approval. The Board of Directors of AMED and the Guarantor
shall have approved the transactions contemplated herein and certified copies of
the authorizing resolutions shall have been delivered to Seller.
7. Covenants and Agreements of AMED. AMED covenants and agrees as
follows:
7.01 Post-Closing Covenants. On and after the Closing, Purchaser agrees
to maintain in confidence and not to disclose, except in accordance
with and as permitted by applicable laws and regulations, the
records of the patients to whom the Company provided services.
7.02 Release of Stockholder. Subsequent to closing, Purchaser shall ensure
that Stockholder is released from any personal contract or agreement
guarantees which are active with respect to Seller's business.
7.03 Information Accessibility. Upon prior reasonable notice and at
reasonable times, Seller shall be allowed access to those business
records transferred herein.
-16-
8. Reserved.
9. Miscellaneous.
9.01. Brokerage and Other Fees. The Parties agree that there are no
brokerage arrangements or fee obligations, in writing or otherwise, with respect
to the transactions set forth in this Agreement. Each Party shall be
responsible for the fees of their respective professionals (including, without
limitation, legal and accounting fees) engaged to assist in the preparation,
negotiation and counseling with respect, and relating, to this Agreement and
consummation of the transactions contemplated herein, as well as their
respective out-of-pocket expenses except AMED agrees to pay for the preparation
of the necessary transfer documents to accomplish the transactions herein.
9.02. Further Actions. At any time and from time to time, the Parties
agree, at their expense, to take such actions and to execute and deliver such
documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
9.03. Survival. The representations and warranties contained in or made
pursuant to this Agreement by the Company, Seller and Purchaser shall survive
the Closing for a period of 24 months thereafter (the date which is 24 months
after the Closing Date, the "Survival Date"). No claim for indemnification or
otherwise may be brought by Purchaser, Seller or the Company against the other
unless asserted by written notice as provided herein by the party making such
claim for indemnification or otherwise on or before the Survival Date.
9.04. Entire Agreement; Modification. The Agreement and the Schedules
and Exhibits hereto set forth the entire understanding of the Parties with
respect to the subject matter hereof supersede all existing agreements among
them concerning such subject matter, and may be modified only by a written
instrument duly executed by the Parties.
9.05. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be given or made (and shall
be deemed to have been duly given or made upon receipt) by delivery in person,
by courier service, by telecopy (confirmed by telephone within twenty-four (24)
hours following receipt thereof), or by registered or certified mail, (postage
prepaid, return receipt requested) to the respective parties at the following
address (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 9.05:
(a) If to Seller:
Xxxxx X. Xxxxx
00000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
-17-
with copy to:
Kantrow, Spaht, Xxxxxx & Blitzer
(A Professional Law Corporation)
Suite 300, City Plaza
000 Xxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxx Xxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx X. Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(b) If to Purchaser:
Amedisys Alternate-Site Infusion Therapy Services, Inc.
0000 X. Xxxxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
9.06. Waiver. Any waiver by any Party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a Party to insist upon strict adherence to any term
of this Agreement on one or more occasions will not be considered a waiver or
deprive that Party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing
and, in the case of a corporate Party, be authorized by a resolution of the
Board of Directors or by an officer of the waiving Party.
9.07. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of each Party's respective successors and
assigns representatives.
9.08. No Third-Party Beneficiaries. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person not
a Party to this Agreement.
9.09. Separability. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
-18-
9.10. Headings. The headings of this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
9.11. Counterparts, Governing Law. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the State of Louisiana
without giving effect to conflict of laws.
9.12 Indemnification. Subject to the limitations set forth in Sections
9.13 and 9.14 hereof, Seller shall indemnify, defend and hold harmless Purchaser
and each of its officers, directors, agents and affiliates from and against any
damage, loss, claim, liability, cost or expense incurred by Purchaser, including
fees and disbursements of counsel, accountants, experts and other consultants
reasonably and necessarily incurred by Purchaser, net of any tax benefit to
which Purchaser is entitled and net of any and all amounts to which Purchaser is
entitled to from insurance, guarantees, indemnities, and contractual and legal
rights by, from or against other persons, firms or entities (collectively,
"Damages"), resulting from, arising out of, based upon or occasioned by the
inaccuracy of any warranty or any representation made by Company or Seller in
this Agreement, or any breach of any covenant or agreement of Company or Seller
contained herein. Purchaser shall indemnify, defend and hold harmless Seller
from and against any Damages, resulting from, arising out of, based upon or
occasioned by the inaccuracy of any warranty or representation made by the
Purchaser herein, or any breach of any covenant or agreement of Purchaser
contained herein.
9.13 Limitations on Indemnification and Other Claims. The maximum amount
of Damages for which Seller shall be responsible under this Agreement, whether
pursuant to a claim for indemnification or otherwise, shall not exceed the
unpaid principal balance of the Promissory Note, such maximum amount to be
reduced by principal payments made by the Purchaser or the Guarantor on the
Promissory Note and by amounts offset against the unpaid principal balance of
the Promissory Note in the manner permitted by this Agreement. Such right of
offset shall be the exclusive remedy of the Purchaser, and all other persons
entitled to indemnity against the Seller pursuant to Section 9.12 above, for
Damages under this Agreement and otherwise. It is understood and agreed that
Seller shall have no liability to return any part of the cash portion of the
Purchase Price or any payments of principal or interest on the Promissory Note
received by it or otherwise pay any amount of Damages (except pursuant to the
right of offset as permitted by this Agreement). The right of offset permitted
in this Agreement shall be exercised first against accrued but unpaid interest
and then against the unpaid principal installments of the Promissory Note in the
inverse order of their maturity.
9.14 Right of Off-Set. If Purchaser reasonably believes it is entitled to
indemnification under this Agreement, it shall be entitled to the right of
offset against amounts owing by it under the Promissory Note in accordance with
the following terms and provisions: Purchaser shall promptly notify Seller of
the matter for which it seeks indemnification and shall specify in reasonable
detail the facts and circumstances thereof and a good faith estimate of the
Damages occasioned thereby. Seller shall have ten (10) days from the receipt of
Purchaser's notice in which to cure the circumstance giving rise to the Damages
and provide evidence of such cure to the Purchaser. If the
-19-
circumstance is not cured within the ten day period, Purchaser shall have the
immediate right to deposit the monthly payment due and payable pursuant to the
Promissory Note into an escrow account at a bank mutually acceptable to the
parties to be held and invested pursuant to a mutually agreeable escrow
agreement. Monthly payments into said escrow account shall continue until the
amount of the Damages specified in Purchaser's notice is equal to the balance of
said escrow account, at which time payments to Seller under the Promissory Note
shall resume as originally contemplated. In the event the Purchaser's claim for
indemnification is disputed by Seller, such dispute shall be resolved by the
provisions of Section 9.15. If it is ultimately determined that Purchaser's
claim for indemnification was improper, the escrowed funds and earnings thereon
shall be distributed to Seller. If it is ultimately determined that Purchaser's
claim for indemnification was proper, the escrowed funds and earnings thereon
shall be distributed to Purchaser.
9.15 Arbitration Procedures. Any and every dispute of any nature
whatsoever that may arise between the parties hereto, whether sounding in
contract, statute, tort, fraud, misrepresentation, discrimination or any other
legal theory, or breach of this Agreement, or any schedule, certificate or other
document delivered by any party hereto or thereto, or those arising under any
federal, state or local law, regulation or ordinance, shall be determined by
binding arbitration in accordance with the then-current commercial arbitration
rules of the American Arbitration Association ("AAA"), to the extent such rules
do no conflict with the provision of this Section 9. The arbitration shall be
conducted by a single neutral arbitrator. The parties shall endeavor to select
neutral arbitrators by mutual agreement. If such agreement cannot be reached
within thirty (30) calendar days after a dispute has arisen which is to be
decided by arbitration, any party of the parties jointly shall request AAA to
submit to each party an identical panel of fifteen (15) persons. Alternate
strikes shall be made to the panel, commencing with the party bringing the
claim, until the name of one (1) person remains. The parties may, however, by
mutual agreement, request AAA to submit additional panels of possible
arbitrators. The arbitrator shall have the power to determine all matters
incident to the conduct of the arbitration, including without limitation all
procedural and evidentiary matters and the scheduling of any hearing. The award
made by the arbitrator shall be governed by the United States Arbitration Act, 9
U.S.C. (S)(S) 1-16, and judgment upon the award rendered by the arbitrator(s)
may be entered by any court having jurisdiction thereof. Unless otherwise
agreed by the parties, the arbitration shall be held in Baton Rouge, Louisiana.
9.16 Provision applicable to claims for injunctive relief. This agreement
to arbitrate shall specifically include, without limitation, an application for
injunctive relief under Section 9. In the event injunctive relief is sought,
the parties agree that Commercial Arbitration Rule 13 (as amended November 1,
1993, or its subsequent equivalent) shall not apply, and instead, a single
arbitrator shall be appointed within one business day after the filing of the
demand or submission. Such arbitrator shall then preside over the application
for injunctive relief and all other disputes then arising under this agreement.
The arbitrator appointed under this paragraph shall be appointed by JAMS
Endispute, Baton Rouge, Louisiana ("JAMS"), in the following manner: the case
administrator for the AAA shall contact JAMS immediately on receipt of the
demand for arbitration containing the claim for injunctive relief. The case
administrator shall provider JAMS with the names of the parties to, and a copy
of, this agreement. From its then current list of qualified, licensed, but non-
practicing attorneys who are former, sitting trial judges, the Baton Rouge
national account manager (or
-20-
equivalent position) of JAMS shall appoint one such individual as the arbitrator
to preside over the application for injunctive relief and all other disputes
between the parties. Except in the unlikely event of an actual conflict of
interest under the Rules of Professional Conduct or Code of Judicial Conduct,
neither party shall have any right to strike or object to the appointment of any
person so selected. The parties expressly agree and desire that the selection of
an arbitrator hereunder shall be effected within one business day of any
application for injunctive relief and agree that such application shall then be
considered at least as expeditiously as would be the case in the District Courts
for East Baton Rouge Parish. The parties further agree that any injunctive
relief granted by the arbitrator shall be separately enforceable in the District
Court for East Baton Rouge Parish, to the same extent as would be the case for a
final award of the arbitrator.
IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as
of the date written in the preamble of this Agreement.
AMEDISYS ALTERNATE-SITE INFUSION AMEDISYS, INC.
THERAPY SERVICES, INC.
By: By:
----------------------------------- ---------------------------------
Xxxxxxx Xxxxxxxxxxx, President Name:
-------------------------------
Title:
------------------------------
INFUSIONCARE SOLUTIONS, INC.
By:
---------------------------------- -------------------------------
Xxxxxx X. Xxxxx, President Xxxxxx Xxxxx, Stockholder
-21-
LIST OF SCHEDULES
Schedule No. Schedule Description
------------ --------------------
2.01 Stock Power
3.01 Organization and Qualification
3.03 Authorizations and Third Party Consents
3.04 Litigation
3.05 Employees and Compensation
3.07 Insurance
3.08 Contracts, Agreements and Instruments
3.11 Permits and Licenses
3.12 Properties
3.13 Hazardous Materials
3.14 Interest in Competitors
3.16 Changes or Events
3.17 Defaults
5.08 Non-Compete and Non-Solicitation Agreements
5.10 Legal Opinion of Kantrow, Spaht, Xxxxxx & Blitzer
-22-
