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ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, Global Health Acquisition Corp. ("Assignor"), a
Delaware corporation and a wholly-owned subsidiary of Health Management Systems,
Inc. ("HMS"), a New York corporation, does hereby sell, assign and transfer to
HSA Managed Care Systems, Inc. ("Assignee"), a Delaware corporation and a
wholly-owned subsidiary of HMS, all of the rights of Assignor and delegates to
Assignee all of the duties of Assignor under the Asset Purchase Agreement, dated
as of March 10, 1997 (the "Purchase Agreement"; capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Purchase
Agreement), by and among GHS, Inc., Global Health Systems, Inc., GHS Management
Services, Inc. and HMS and Assignor, and the Ancillary Agreements required to be
executed by the Buyers thereunder.
Assignee hereby assumes and agrees to perform all of Assignor's
obligations under the Purchase Agreement and the Ancillary Agreements.
Assignee represents and warrants to Assignor and to Sellers as follows:
(a) Organization, Corporate Power, Etc. Assignee is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and is duly qualified to do business as
a foreign corporation in each jurisdiction in which it is required to be so
qualified, except where the failure to be so qualified would not have a material
adverse effect on the properties, results of operations or financial condition
of Assignee. Assignee has all requisite corporate power and authority to
acquire, own, lease and operate the Assets and the Business, to execute and
deliver this Agreement and to perform its obligations under the Purchase
Agreement and the Ancillary Agreements.
(b) Authorization of Agreements. The execution, delivery and
performance by Assignee of this Agreement and the Ancillary Agreements, and the
consummation by Assignee of the transactions contemplated hereunder and under
the Purchase Agreement and the Ancillary Agreements, have been duly authorized
by all requisite corporate action. This Agreement has been duly and validly
executed by Assignee and constitutes the legal, valid and binding obligation of
Assignee, enforceable in accordance with its terms, and the Ancillary
Agreements, when duly executed and delivered in accordance with this Agreement
and the Purchase Agreement, will constitute legal, valid and binding obligations
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of Assignee, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws from time to
time in effect affecting the enforcement of creditors' rights generally. All of
the issued and outstanding capital stock of Assignee is owned by HMS. Except for
the affirmative vote of HMS, under the laws of the State of Delaware, the
authorization of no other person or entity is required to consummate the
transactions contemplated hereby or by the Purchase Agreement or the Ancillary
Agreements by virtue of any such person or entity having an equitable or
beneficial interest in Assignee.
(c) Effect of Agreements. The execution and delivery by
Assignee of this Agreement and the Ancillary Agreements, and the performance by
Assignee of its obligations hereunder and under the Purchase Agreement and the
Ancillary Agreements, will not violate any provision of law, any order of any
court or other agency of government, the Certificate of Incorporation or By-laws
of Assignee or any judgment, award or decree or any indenture, agreement or
other instrument to which Assignee is a party or by which Assignee or its
properties or assets are bound or affected, or conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a default under, any
such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of Assignee.
(d) Litigation. There is no action, suit, investigation or
proceeding pending or, to the knowledge of Assignee, threatened against or
affecting Assignee before any court or by or before any governmental body or
arbitration board or tribunal that might enjoin or prevent the consummation of
the transactions contemplated by this Agreement and the Purchase Agreement. For
purposes of this Agreement, "to the knowledge of Assignee" shall mean the
collective knowledge of Assignee's Officers. "Knowledge" when used in this
context shall mean, as to the facts or circumstances represented: (i) actual
knowledge of any one of Assignee's Officers; and (ii) knowledge that any one of
Assignee's Officers should reasonably be expected to possess after due inquiry.
(e) Governmental Approvals. No approval, authorization,
consent or order or action of or filing with any court, administrative agency or
other governmental authority is required for the execution and delivery by
Assignee of this Agreement or the Ancillary Agreements or the consummation by
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Assignee of the transactions contemplated hereby or by the Purchase Agreement or
the Ancillary Agreements.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto as of ____ day of July, 1997.
GLOBAL HEALTH ACQUISITION CORP.
By:__________________________________
Phillip Siegel, Vice President
HSA MANAGED CARE SYSTEMS, INC.
By:__________________________________
Phillip Siegel, Vice President
Accepted and Agreed to, as of the above date, pursuant to Section 9.11 of the
Purchase Agreement.
GHS, INC.
By:____________________________
Alan Gold, President
GLOBAL HEALTH SYSTEMS, INC.
By:____________________________
Alan Gold, President
GHS MANAGEMENT SERVICES, INC.
By:____________________________
Alan Gold, President