EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
BY
AND
BETWEEN
AMEDISYS SPECIALIZED MEDICAL SERVICES, INC. AS PURCHASER
AND
PRECISION HOME HEALTH CARE, INC., AS SELLER
DATED AS OF MAY 1, 1998
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into and made
effective as of 1st day of May, 1998, by and between AMEDISYS SPECIALIZED
MEDICAL SERVICES, INC., a Louisiana corporation, with its principal place of
business at 3029 South Sherwood Forest Blvd., Suite 300, Baton Rouge, Louisiana
70816 (hereinafter referred to as "Purchaser") and , PRECISION HOME HEALTH CARE,
INC. a Louisiana corporation having its principal place of business at 10473 Old
Hammond Highway, Baton Rouge, Louisiana 70816 (hereinafter referred to as
"Seller").
RECITALS
WHEREAS, Seller conducts a home health care business which provides
services to Medicare and Medicaid patients and whose offices are located at
10473 Old Hammond Highway, Baton Rouge, Louisiana;
WHEREAS, Purchaser desires to buy and Seller desires to sell certain of the
assets of Seller's business enterprise; and
WHEREAS, the parties expect that this Agreement will further advance their
respective business objectives, including without limitation, integration of the
business operations of Seller with the business operations of Purchaser in order
for Purchaser to more effectively compete in the marketplace.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
meanings indicated:
1.01 Assets: The assets to be sold and transferred by Seller to Purchaser
pursuant to this Agreement consisting of the assets owned by Seller as
of the Closing that are described in clauses (a) - (i) below and that
are more specifically detailed in Schedule 1.01 of this Agreement,
provided however, the Excluded Assets are specifically excluded from
the assets to be sold under this Agreement.
a) All furniture, fixtures, equipment, leasehold improvements and
supplies owned by Seller located at and used by Seller in the
operation of Seller's Business at the address stated above, which
are further identified in Schedule 1.01;
b) All inventory owned by Seller and used by Seller in the operation
of Seller's Business at the address stated above, which are
further identified in Schedule 1.01;
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c) Seller's right to use the name "Precision Home Health, Inc.", any
d/b/a or other name utilized to market its service and products,
and all trademarks, trade names, signage, marketing symbols and
logos;
d) All of Seller's current patient lists of present or former
patients, all of Seller's mailing lists, all business records
relating to the operations of Seller's Business (including all
records relating to patients), and all telephone numbers and
listings used by Seller in Seller's Business, and all intangibles
and other rights and privileges of Seller currently used in
Seller's Business;
e) Seller's leasehold interest in the premises occupied by Seller in
Baton Rouge, Louisiana, in accordance with the Sublease Agreement
described in Schedule 1.01 of this Agreement;
f) The goodwill and going concern of Seller;
g) The benefits of all amounts previously paid by Seller for
advertising, design, fees, rent services, or interest relating to
Seller's Business or the Assets, to the extent that they extend
or are to be performed after the Closing;
h) All of Seller's rights under the agreements described in Schedule
5.08 (other than those described in Section 5.08.01), and the
rights given therein;
i) Seller's rights under all other contracts, including all leases
and non-competition agreements relating to Seller's Business;
j) All technical outlines and records (including all plans,
drawings, diagrams, notes, reports, memoranda, and other similar
documents), and any and all know-how and software and other
technology, including all contracts, licenses, authorizations,
permits, and other documents necessary for Seller's Business that
are owned by Seller; and
k) All trade secrets, inventions, patents, copyrights, trade names,
business names, trademarks, and other intangible assets used by
Seller for Seller's Business that are owned by Seller.
1.02 Closing. The consummation of the transactions contemplated by this
Agreement.
1.03 Excluded Assets. The assets of Seller in which are not to be sold and
transferred to Purchaser pursuant to this Agreement and which consists of the
following: organizational documents of Seller, insurance policies providing
coverage to Seller and all rights under such policies, Seller's tax
identification number, all cash on hand, Seller's depositary accounts and the
agreements between Seller and Seller's
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bank(s), all licenses of Seller, Medicare or Medicaid provider numbers
of Seller, all accounts receivables and all other indebetedness owing
to Seller, and cost report receivables which are further identified in
Schedule 1.03.
1.04 GAPP. Generally accepted accounting principles.
1.05 Reserved
1.06 Inventory . All inventory of the Seller as of the Closing, including
Seller's interest in equipment which has been expensed but not capitalized, more
fully described in Schedule 1.06.
1.07 Accounts Payable. All accounts payable of the Seller as of the
Closing, including but not limited to, trade payables and account payables of
Seller, except those more fully described in Schedule 1.07.
1.08 Liabilities. Those liabilities of Seller to be assumed by Purchaser at
the Closing pursuant to this Agreement, which consist of those liabilities of
Seller specifically disclosed on Schedule 1.08. Purchaser shall also assume the
obligations of Seller accruing after the Closing Date on the contracts and
agreements comprising a part of the Assets, as disclosed on Schedule 1.08.
Purchaser shall not assume any other liabilities, contingent or certain, of
Seller unless incurred and disclosed in the manner provided in this Section
1.08. Without limiting the foregoing, Purchaser is noT assuming (i) any
expenses, liabilities, or obligations of Seller arising out of the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby which are unpaid at the Closing, (nor may Seller pay any of such expenses
out of the Assets), except for its payment as provided in Section 3.03, (ii) any
liabilities or obligations of Seller relating to federal, state, or local income
for the period through the Closing, or other taxes attributable to the
transactions contemplated hereby or the conduct of Seller's Business , (iii) any
obligation of Seller to pay a fee to any agent, broker, or finder relating to
this transaction, or (iv) any liabilities that may accrue to Seller as a result
of any present or future Medicare and/or Medicaid audit.
1.09 Material Adverse Effect. Any change in the financial condition of
Seller or operation of its business that would materially effect the Seller's
Business adversely, including, but not limited to, material changes to its
business condition or financial condition.
1.10 Purchaser's Knowledge. The actual knowledge of Purchaser's officers
and directors after reasonable inquiry.
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1.12 Seller's Business. The home health care business which provides
services to Medicare and Medicaid patients as presently carried on by Seller at
Seller's address stated above.
1.13 Seller's Knowledge. The actual knowledge of Seller or Seller's
President, Daniel D. Brown, after reasonable inquiry.
2. Agreement to Purchase and Sell. Subject to the terms and conditions of
this Agreement, Purchaser agrees to purchase from Seller, and Seller agrees to
sell, transfer, convey, assign, and deliver to Purchaser, at the Closing, the
Assets, free and clear of all liens, claims, liabilities, restrictions on
transfer and encumbrances, except (i) those liabilities listed in Schedule 1.08,
(ii) the restrictions set forth in the agreements and contracts identified in
Schedule 1.01, copies of which are attached thereto; (iii) the consents required
but not obtained identified in Schedule 5.03 and (iv) liens, claims and
liabilities accruing after the Closing.
2.01 The Closing. The Closing of the transactions contemplated by this
Agreement shall occur on April 23, 1998, to be effective the 1st day of May,
1998.
3. Purchase Price. The purchase price for the sale, transfer, conveyance,
assignment, and delivery of the Assets to Purchaser, subject to the terms and
conditions of this Agreement, shall be ONE MILLION TWO HUNDRED THOUSAND AND
NO/100 ($1,200,000.00) DOLLARS, to be paid to Seller by the Purchaser as
follows:
3.01 Purchaser will deliver and execute a promissory note ("Primary
Promissory Note"), the form of which is attached hereto as Schedule 3.01,
payable to the order of Seller, for the principal amount of EIGHT HUNDRED
THOUSAND AND NO/100 ($800,000.00) DOLLARS. The Primary Promissory Note shall
bear interest from May 1, 1998 until paid on the unpaid principal balance at a
per annum interest rate equal to the prime interest rate designated in the Wall
Street Journal plus one percentage point, adjusted on an annual basis, and shall
be payable in one lump sum payment, on July 1, 1998. The Primary Promissory Note
shall be solidarity 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.
3.02 Purchaser will deliver and execute a promissory note ("Secondary
Promissory Note"), the form of which is attached hereto as Schedule 3.02,
payable to the order of Seller, for the principal amount of FOUR HUNDRED
THOUSAND AND NO/100 ($400,000.00) DOLLARS. The Secondary Promissory Note shall
bear interest from May 1, 1998 until paid on the unpaid principal balance at a
per annum interest rate equal to the prime interest rate designated in the Wall
Street Journal plus one percentage point, adjusted on an annual basis, and shall
be payable, principal
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plus interest, in twenty-four (24) equal monthly installments. The Secondary
Promissory Note shall be solidarity 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.
3.03 In addition to the Purchase Price, Purchaser will pay up to FIFTY
THOUSAND AND NO/100 ($50,000.00) DOLLARS to Seller's landlord for leasehold
improvements, if requested by Landlord from Seller or Purchaser, and if said
improvements are to be actually commenced.
3.04 The consideration to be paid pursuant to the provisions of this
Section 3 and the Liabilities to be assumed by Purchaser pursuant to Section 4
shall constitute all the consideration to be paid by Purchaser in connection
with the purchase of the Assets contemplated by this Agreement.
4. Assumption of Liabilities. In connection with the purchase of the
Assets hereunder, Purchaser shall specifically assume at Closing the Liabilities
listed on Schedule 1.08. Purchaser shall not assume any other liabilities,
contingent or certain, of Seller.
5. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser, as of the date of this Agreement (unless another date is
expressly provided in this Section 5) that the statements contained in this
Section 5 are correct and complete:
5.01 Ownership. Seller is the beneficial owner of the Assets and has good
and marketable title to, and/or a valid leasehold interest in, and the right to
sell, assign, and transfer the Assets to Purchaser, free and clear of any
security interest, claims, liens, pledges, penalties, charges, restrictions on
transfer, encumbrances whatsoever of every kind and character, other than (i)
the restrictions set forth in the agreements and contracts identified in
Schedule 1.01, copies of which are attached thereto; (ii) the consents required
but not obtained identified in Schedule 5.03; and (iii) those accruing after the
Closing. Upon the execution of this Agreement and obtaining the consents
described on Schedule 5.03, good and marketable title to, or valid leasehold
interest in, the Assets shall be delivered to Purchaser, free and clear of any
security interest, claims, liens, pledges, penalties, charges, encumbrances,
whatsoever, other than the liabilities set forth in Schedule 1.08, the
restrictions set forth in the agreements and contracts identified in Schedule
1.01, copies of which are attached thereto, and those accruing after the
Closing.
5.02 Valid Expense. Seller is duly organized, validly existing, and in good
standing as a a corporation under the laws of the State of Louisiana and has
full power and authority (including all licenses, franchises, permits, and other
authorizations that are
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legally required) to own the Assets, its properties and to engage in the
business and activities now conducted by it. Seller is in good standing in each
jurisdiction in which it conducts business.
5.03 Due Authorization: Consent of Third Parties. Seller has the right,
power, legal capacity and authority to enter into and perform Seller's
obligations under this Agreement, and no approval or consent of any person other
than the Seller is necessary in connection with the execution, delivery, or
performance of this Agreement by the Seller, except for the consents set forth
in Schedule 5.03. This Agreement constitutes a legal and binding obligation of
the Seller, and is valid and enforceable against 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, 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.
5.04 Use of Assets. All of the Assets which are tangible personal property
are located at the above stated address of Seller and are free and clear from
defects, are maintained in accordance with normal industry practice and are in
good operating condition and repair, normal wear and tear excepted. Seller has
had no other business address within the three years prior to the Closing. The
Assets are being utilized by Seller in conformity with all applicable federal,
local and state health care related and imposed rules, regulations, laws,
statutes, and permits ("Health Care Laws") applicable to Seller, and to the best
of Seller's Knowledge all other federal, state and local rules, regulations,
laws, statutes and permits, except where failure to so conform will not have a
Material Adverse Effect.
5.05 Reserved.
5.06 Litigation. Except as described on Schedule 5.06, there is not any
suit, action, arbitration, or legal, administrative, or other proceeding or
governmental investigation pending or, to the best of Seller's Knowledge,
threatened (in the form of threats made to representatives of Seller), against
or affecting Seller or any of the Assets or other assets of Seller, 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 Seller'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 Seller might reasonably be undertaken or
brought.
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The Seller has informed Purchaser of, and upon request has furnished or made
available to Purchaser, copies of all relevant court papers and other documents
relating to, the matters set forth in this Section. Seller has described on
Schedule 5.06 all suits, actions, arbitrations, or other proceedings or
investigations in which Seller has been a party to during the five year period
immediately preceding the Closing. Except as described on Schedule 5.06, Seller
is not in default with respect to any order, writ, injunction, or decree of any
Health Care Law. In addition, to Seller's Knowledge, it is not in violation of
any other federal, state, local law, rule or regulation, or foreign court,
department, agency, or instrumentality. Except as set forth on Schedule 5.06,
Seller is not presently engaged in any legal action to recover monies due to the
Seller, for damages sustained by the Seller, or amounts owed to the Seller.
During the five year period immediately preceding the Closing, except as
described on Schedule 5.06, Seller 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, with respect to any Health Care Law. In addition, to Seller's
Knowledge, except as described on Schedule 5.06, it has neither received nor
been 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, 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.
5.07 Contracts, Agreements and Instruments. Schedule 5.08 contains a list
of the following, copies of which have been heretofore furnished by Seller to
Purchaser, which acknowledges receipt thereof:
5.08.01 The Articles of Incorporation, Bylaws and other organizational
documents of Seller and all amendments thereto, as presently in effect,
certified by a member of Seller;
5.08.02 True and correct copies of all material contracts, agreements
and other instruments to which Seller is a party;
5.08.03 True and correct written descriptions of all verbal material
contracts and/or agreements to which Seller is a party.
Except for matters which, in the aggregate, would not have a Material
Adverse Effect or age otherwise disclosed in the Agreement, Seller is no, and to
the best of Seller'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 Seller 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
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them in accordance with its terms, except that (i) the enforcement of certain
rights and remedies created thereby and 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 matter which, in the aggregate, will not have a
Material Adverse Effect; neither Seller, 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 5.03, 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.
5.09 Compliance With Law; Taxes. Seller has complied with, and is not in
violation of any (i) term or provision of its Articles of Incorporation or
Bylaws; (ii) term or provision of any applicable judgment, decree, order,
statute, injunction, rule, ordinance known to it; (iii) any Health Care Law; or
(iv) to the best of Seller's Knowledge, foreign, United States, state or local
statutes, laws, rules or regulations except where such non-compliance or
violation will not have a Material Adverse Effect. Seller has timely filed all
federal, state, and local tax returns required to be filed and all such returns
are complete and correct. Except as described on Schedule 5.06, the Seller has
made timely payment of all such taxes when due and payable and has paid all
interest, penalties, deficiencies, and assessments, if any, levied or assessed
against it. Except as described on Schedule 5.06, Seller has duly withheld,
collected, and timely paid to the proper governmental authorities all taxes
required to be withheld and collected by it. There are no agreements for
extension of the time of assessment of payment of any taxes of Seller, except as
otherwise disclosed by Seller. No waiver of any statue of limitations has been
executed by the Seller. There are no examinations by the Internal Revenue
Service of Seller presently in process of the tax returns of Seller for any
year(s) open to such examination.
5.10 Permits and Licenses. Seller 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. No royalties, commissions, or fees are payable by
Seller to any person by reason of the ownership or use of any intangible
property, except as set forth in the contracts described on Schedule 5.08. There
are no material licenses, sublicenses, or agreements relating to the use by
Seller of any intangible property now in effect, except as set forth in the
contracts described on Schedule 5.08, and Seller has no knowledge that any
intangible property is being infringed by others. No claim that
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will have a Material Adverse Effect on the business of the Seller is pending or,
to the best of Seller's Knowledge, threatened, that the operation of Seller's
Business or any method, process, part, or material that Seller employs,
conflicts in any material way with, or infringes in any material way upon any
rights of the type enumerated above, owned by others.
5.11 Employees. Schedule 5.11 is a list of names of all employees of
Seller, stating the amounts or rates of compensation payable to each, the
employee benefits enjoyed by each, and whether or not each respective employee
has executed any employment agreement with Seller. Purchaser has no obligation
to employ any of Seller's employees.
5.12 No Violation of Employee Contracts. Seller is not, and to the best of
Seller's knowledge, no employee of Seller 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 of such employee relating to the right of any such
employee to be employed by Seller because of the nature of the business
conducted by Seller or of the use of trade secrets or proprietary information of
others. There is no pending nor, to the best of Seller's Knowledge, threatened,
any actions, suits, proceedings, or claims with respect to any contract,
agreement, covenant, or obligation referred to in the preceding sentence.
5.13 Hazardous Materials. The Seller is not in the business of possession,
transportation, or disposal of hazardous materials. If and to the extent that
Seller's Business has involved the possession, transportation, or disposal of
hazardous materials, to Seller's Knowledge, the Seller has complied with any and
all applicable laws, ordinances, rules, and regulations and has not and will not
be the basis of any claim or proceeding against, or any liability of, Seller
with respect to the period prior to the Closing. To the best of Seller's
Knowledge, no employee of Seller has been exposed to hazardous materials during
the period of employment by Seller such that exposure could cause damage to such
employee.
5.14 Interest in Competitors. To Seller's Knowledge, except as disclosed on
Schedule 5.14, Daniel D. Brown has no direct or indirect ownership interest in
any competitor, supplier, or customer of Seller or in any person from whom or to
whom Seller leases any real or personal property, or in any other person with
whom Seller is doing business.
5.15 Financial Condition. Seller has delivered to Purchaser true and
correct copies of the following: the unaudited balance sheet and income
statement of Seller for the fiscal year ended December 31, 1997; and an
unaudited balance sheet ("Seller's Last Balance Sheet"), and income statement
for the three months ended March 31, 1998 ("Seller's Last Balance Sheet Date").
Each such balance sheet presents fairly in all material respects the financial
condition, assets and liabilities of Seller as of its date; and, except for
unrecorded revenue, each such statement of income presents fairly in all
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material respects the results of operations of Seller for the period indicated.
The financial statements referred to in this section have been prepared in
accordance with the books and records of Seller.
5.16 Changes of Events. Since April 1, 1998, except as described on
Schedule 5.16, none of the following has occurred:
5.16.01 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 Seller, including relationships with
suppliers or customers, that, when considered individually or in the
aggregate, are reasonably expected to have a Material Adverse Effect;
5.16.02 The destruction of, damage to, or loss of any asset of Seller
(regardless of whether covered by insurance) that, when considered
individually or in the aggregate, are reasonably expected to have a
Material Adverse Effect;
5.16.03 Any labor disputes that, when considered individually or in
the aggregate, are reasonably expected to have a Material Adverse Effect;
5.16.04 There have been no change in accounting methods or practices
(including, without limitation, any change in depreciation or amortization
policies or rates) by Seller, except for any such changes as were required
by law;
5.16.05 Other than in the ordinary course of business, any increase in
the salary or other compensation payable or to become payable by Seller to
any employee, or the declaration, payment, or commitment or obligation of
any kind for the payment by Seller of a bonus or other additional salary or
compensation to any such person;
5.16.06 Any mortgage, pledge, or other encumbrance of any asset of
Seller except in the ordinary course of business;
5.16.07 The material amendment or termination of any material contract
or agreement to which Seller is a party, except in the ordinary course of
business;
5.16.08 The waiver or release of any right or claim of Seller, except
in the ordinary course of business;
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5.16.09 Except such matters undertaken in consultation with Purchaser,
any failure on the part of Seller 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;
5.16.10 Any action taken or omitted to be taken by Seller which would
clause (after lapse of time, notice or both) the breach, default, or
acceleration of any right, contract, commitment, or other obligation of
Seller; or
5.16.11 Any agreement by Seller to do any of the things described in
the preceding clauses in this section.
5.17 No Defaults. Subject to obtaining the consents described on
Schedule 5.03, 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 to which Seller is a party that
will not be waived or released at the Closing, (ii) a default on 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 Articles of
Incorporation or Bylaws of Seller or of any lease, license, promissory note,
conditional sales contract, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which Seller is a party or by
which Seller or its assets is bound; (iii) an event that will 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 Seller;
(iv) the creation or imposition of any lien, charge, or encumbrance on any of
the 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 Seller is subject.
5.18 Liabilities. No liabilities of Seller will be assumed by or
transferred to Purchaser pursuant to the transactions contemplated by this
Agreement, except as provided in Section 1.08, those listed in Schedule 1.08, or
as provided in Section 4, nor will any of the Assets to be acquired by Purchaser
to this Agreement be subject to any pre-Closing liabilities, nor will Purchaser
otherwise be liable for any other liabilities of Seller.
5.19 No Prohibited Payments. Neither Seller nor any employee or agent of
Seller had made or authorized any payment of funds of Seller or on behalf of
Seller prohibited by law or no funds of Seller have been set aside to be used
for any payment prohibited by law.
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5.20 Completeness of Disclosure. No representation or warranty by Seller in
this Agreement including the Schedules, Exhibits, and certificates prepared by
Seller incorporated herein, contains any untrue statement of a material fact or
omits any material fact necessary in order to make the statements contained
herein not misleading.
6. Representation and Warranties of Purchaser and Guarantor. Purchaser,
and with respect to Sections 6.05, 6.06 and 6.07, Guarantor, hereby represents
and warrants to Seller, as of the date of this Agreement, that the statements
contained in this Section 6 are correct and complete:
6.01 Organization. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Louisiana and is
authorized to do business in every other jurisdiction in which its ownership,
leasing, licensing, or use of property 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. Purchaser is a wholly owned subsidiary of
Guarantor.
6.02 Due Authorization: Third Party Consents. Purchaser 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 Purchaser is necessary in connection with
the execution, delivery, or performance of this Agreement. The execution,
delivery, and performance of this Agreement by the Purchaser has been duly
authorized by its board of directors and no other corporate proceedings on the
part of Purchaser are necessary to authorize this Agreement or the consummation
of the transactions contemplated hereby. This Agreement constitutes a legal and
binding obligation of the Purchaser, and is valid and enforceable against the
purchaser 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.
6.03 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 or Purchaser 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 Certification of
Incorporation or Bylaws or Purchaser or of any lease, license, promissory, not
conditional sales contract, commitment, indenture, mortgage, deed of trust, or
other agreement, instrument, or arrangement to which Purchaser is a party or by
which Purchaser or the property of Purchaser is bound; or (iii) a
13
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 Purchaser is subject.
6.04 Completeness of Disclosure. No representation or warranty and no
Schedule, Exhibit, or certificate incorporated herein and prepared by Purchaser
pursuant hereto and no statement made or other document prepared by Purchaser
and furnished to Seller by Purchaser 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.
6.05 Organization of Guarantor. Guarantor is a corporation duly organized,
validly existing, and in good standing under the laws of the Sate 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.
6.06 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
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 right 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.
6.07 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 of 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
14
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.
7. Condition to Obligations of Purchaser. The obligations of Purchaser
under this Agreement are subject, at the option of Purchaser, to the
satisfaction of the following conditions:
7.01 Accuracy of Representations and Compliance With Conditions. All
representations and warranties of Seller 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 Seller,
other than such representations and warranties that are made as to another date.
As of the Closing, Seller shall have performed and complied with all covenants
and agreements and satisfied all conditions required to be performed and
complied with by Seller at or before such time by this Agreement.
7.02 Closing Documents. In connection with the Closing, Seller shall
deliver to Purchaser the following items:
7.02.01 Bills of sale, endorsements, assignments, drafts, checks, and
other instruments of transfer in form and substance consistent with this
Agreement and mutually satisfactory to Purchaser and Seller in order to
transfer all right, title and interest of Seller in the Assets to
Purchaser;
7.02.02 To the extent applicable, original evidences of title or
ownership of the Assets, including drafts, warehouse receipts and licenses;
7.02.03 Evidence (including, if applicable, the delivery of duly
executed UCC-3 Termination Statements) reasonably satisfactory to Purchaser
and its counsel, of the satisfaction and discharge by Seller of all
existing liens, claims, and encumbrances upon or affecting the Assets; and
7.02.04 Such other instruments and documents in form and content
consistent with the terms of this Agreement and mutually satisfactory to
Seller and Purchaser, as may be necessary or appropriate to (i) effectively
transfer and assign to and vest in Purchaser good and marketable title to
the Assets and/or to consummate more effectively the transactions
contemplated hereby and (ii) in order to enable Purchaser to determine
whether the conditions to Seller's obligations under this Agreement have
been met and otherwise to carry out the provisions of this Agreement.
15
7.03 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 Purchaser, and Seller shall have furnished such counsel
for Purchaser such documents as such counsel may have reasonably requested for
the purpose of enabling them to pass upon such matters.
7.04 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.
7.05 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 judgement of Purchaser:
7.05.01 Makes any of the transactions contemplated by this Agreement
illegal;
7.05.02 Results in a dely which affects the ability of Purchaser to
consummate any of the transactions contemplated by this Agreement;
7.05.03 Requires the divestiture by Purchaser of a material portion of
the business of either Purchaser taken as a whole, or of Seller taken as a
whole; and
7.05.04 Otherwise prohibits, restricts, or delays consummation of any
of the transactions contemplated by this Agreement or impairs the
contemplated benefits to Purchaser of the transactions contemplated by this
Agreement.
7.06 Contractual Consents Needed. Except for the consents described in
Schedule 5.03, 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 either of
them is a party, or to which any of their respective businesses, properties, or
assets are subject, except where the failure to obtain the same would not have a
Material Adverse Effect on such party.
7.07 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
16
immediately after the Closing shall have been in violation of or in default in
complying with any material provision thereof.
7.08 Board of Director Approval. The Board of Directors of Seller shall
have approved the transactions contemplated herein.
7.09 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.
8. Conditions to Obligations of Seller. The obligations of Seller under
Agreement are subject, at the option of Seller, to the satisfaction of the
following conditions:
8.01 Accuracy of Representations and Compliance With Conditions. All
representations and warranties of Purchaser contained in this Agreement shall be
accurate when and shall be accurate as of the Closing as though such
representations and warranties as are made as to another date. As of the
Closing, Purchaser 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 or before such time by this Agreement.
8.02 Other Closing Documents. Purchaser shall have delivered to Seller, at
or prior to the Closing, such other documents as Seller may reasonably request
in order to enable Seller to determine whether the conditions to its obligations
under this Agreement have been met and otherwise to carry out the provision of
this Agreement.
8.03 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 Seller and Purchaser 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.
8.04 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.
8.05 No Governmental Action. There shall not have been any action taken, or
any law, rule, regulation, order, or decree proposed, promulgated, enacted,
entered, enforced,
17
or deemed applicable to the transactions contemplated by this Agreement by any
federal, state, local, or other governmental authority or by any court of other
tribunal, including the entry of a preliminary or permanent injunction, which,
in the reasonable judgment of Seller:
8.05.01 Makes any of the transactions contemplated by this Agreement
illegal;
8.05.02 Results in a delay which affects the ability of Seller to
consummate any of the transactions contemplated by this Agreement;
8.05.03 Otherwise, prohibits, restricts, or delays consummation of any
of the transactions contemplated by this Agreement or impairs the
contemplated benefits to Seller or the Stockholders of the transactions
contemplated by this Agreement.
8.06 Contractual Consents Needed. The parties to this Agreement shall have
obtained at or prior to the Closing the consents described on Schedule 5.03 and
all other 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 either of
them 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.
8.07 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 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.
8.08 Board Approval. The Boards of Directors of Purchaser and Guarantor
shall have approved the transactions contemplated herein and certified copies or
authorizing resolutions shall have been delivered to Seller.
9. Covenants and Agreements of Purchaser. Purchaser covenants and agrees
as follows:
9.01 Payment of Sales Taxes. Any sales tax incurred as a result of this
transaction will be paid by Purchaser to Seller at the Closing for remittance to
the appropriate taxing authority.
9.02 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
18
applicable laws and regulations, the records of the patients to whom Seller
provided services.
9.03 Release of Daniel D. Brown. Subsequent to Closing, Purchaser shall
use its best faith efforts to ensure that Daniel D. Brown is released from any
personal contract, lease or agreement guarantees which are active with respect
to Seller's Business and are assumed by Purchaser.
9.04 Information Accessibility. Upon prior reasonable notice and at
reasonable times, Seller shall be allowed access to those patient records
transferred herein.
10. Covenants and Agreements of Seller. Seller covenants and agrees as
follows:
10.01 Payment of Taxes. Except City sales taxes in the amount shown on
Seller's Last Balance Sheet, all accrued but unpaid federal, state, and local
income and other taxes of Seller for the period ended as of the Closing and all
prior periods will be paid by Seller.
10.02 Post-Closing Consents. Seller agrees to use its best good faith
effort to secure and/or assist Purchaser in securing post-Closing third party
consents material to the ongoing operation of Seller's Business.
11. Miscellaneous.
11.01 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 Purchaser agrees to pay for the preparation of the necessary
transfer documents to accomplish the transactions herein.
11.02 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.
11.03 Reserved.
11.04 Survival. The representations, and warranties contained in or made
pursuant to this Agreement by the parties hereto shall survive for a period of
24 months from the date of the Closing, irrespective of any investigation made
by or on behalf of any party
19
(the "Survival Date"). No claim for indemnification or otherwise may be brought
by a party hereto against another party hereto unless asserted by written notice
as provided herein by the party claiming indemnification or otherwise on or
before the Survival Date.
11.05 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 between them
concerning such subject matter, and may be modified only by a written instrument
duly executed by the parties.
11.06 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 services, 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 11.06):
(a) If to Seller
Precision Home Health Care, Inc.
10473 Old Hammond Highway,
Baton Rouge, Louisiana 70816
Attention: Danny D. Brown
Telecopy: (504) 928-2183
with copy to:
Kantrow, Spaht, Weaver & Blitzer
(A Professional Law Corporation)
Suite 300, City Plaza
445 North Boulevard
P.O. Box 2997
Baton Rouge, Louisiana 70821-2997
Attention: Lee C. Kantrow
Telecopy: (504) 343-0637
Telephone: (504) 383-4703
(b) If to Purchaser
Amedisys Specialized Medical Services, Inc.
20
3029 S. Sherwood Forest Blvd.
Suite 300
Baton Rouge, Louisiana 70816
Attention: Stephen Taglianetti
Telecopy: (504) 292-8163
Telephone: (504) 292-2031
11.07 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 case of a corporate party, be authorized by a resolution of the Board of
Directors or by an officer of the waiving party.
11.08 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of each party's respective successors and assigns;
provided, however, any such assignment by Purchaser shall not release Purchaser
of any of its obligations under this Agreement.
11.09 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.
11.10 Severability. 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.
11.11 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.
11.12 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 on 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.
11.13 Indemnification. Subject to the limitations set forth in Sections
11.14 and 11.15 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
21
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 Seller in this Agreement, or any breach of any
covenant or agreement of Seller contained herein. Purchaser shall indemnify,
defend and hold harmless Seller and each of its shareholders, officers,
directors, agents and affiliates 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.
11.14 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 the amount due by Purchaser under the Consulting Agreement with Seller's
affiliate of even date hereof (the "Consulting Agreement"), such maximum amount
to be reduced by payments made by the Purchaser on the Consulting Agreement and
by amounts offset against the unpaid amount of the Consulting Agreement 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 11.13 above, for Damages under this Agreement and
otherwise. It is understood and agreed that Seller shall have no liability to
return any portion of the Purchaser Price or any amount paid under the
Consulting Agreement 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 solely against the unpaid
payments due under the Consulting Agreement .
11.15 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 Consulting Agreement 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 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 Consulting Agreement
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
22
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 Consulting Agreement 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. Buyer specifically understands and agrees that it
shall not have the right of offset for damages or otherwise with respect to the
Primary Promissory Note or Secondary Promissory Note outlined in 3.01 and 3.02
herein.
11.16 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 thereto or thereto, or those arising under any
federal, state or local law, regulation or ordinance, shall be subject to the
limitations of Section 11.14 and 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 not conflict this
the provision of this Section 11. The arbitration shall be conducted by a single
neutral arbitrator. The parties shall endeavor to select a neutral arbitrator 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 or 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. 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.
11.17 Provision applicable to claims for injunctive relief. This agreement
to arbitrate shall specifically include, without limitation, an application for
injunctive relief under Section 11. 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 10(b) shall be appointed by
23
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 provide 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 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 any 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 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 SPECIALIZED MEDICAL SERVICES, INC.
By: /s/MICHAEL MCMAUDE
-----------------------------------
Michael A. McMaude, President
AMEDISYS, INC.
By: /s/LARRY GRAHAM
----------------------------------
Larry Graham, VP Operations
PRECISION HOME HEALTH CARE, INC.
By: /s/DANIEL D. BROWN
----------------------------------
Daniel D. Brown, President
24