Significant Payor will not be approved or that such Significant Payor will not
execute a new agreement with the LLC on terms reasonably acceptable to AmSurg.
10.11. SHAREHOLDER APPROVAL. All of the shareholders of Seller shall have
approved the transactions contemplated by this Agreement, and Seller shall have
furnished AmSurg with a certificate of the President of Seller evidencing such
10.12. FORM 8594. AmSurg initially will allocate the Purchase Price using the
methodology reflected on Exhibit 10.12. In the course of completing ASC's
consolidated federal income tax return, AmSurg shall provide Seller with an IRS
ARTICLE 11. CONDITIONS TO SELLER'S AND THE DOCTORS' OBLIGATIONS
Seller and the Doctors shall not be obligated to consummate the transactions
contemplated hereby unless each of the following conditions is fulfilled or
performed (unless expressly waived in writing by Seller) prior to or at the
11.1. COMPLIANCE. The representations and warranties made by AmSurg and ASC in
this Agreement and the statements contained in the Schedules attached hereto or
in any instrument, list, certificate or writing delivered by AmSurg and ASC
pursuant to this Agreement shall be true when made and at and as of the time of
the Closing as though such representations and warranties were made at and as of
11.2. PERFORMANCE BY AMSURG AND ASC. AmSurg and ASC shall have performed and
complied with all agreements, obligations and conditions required by this
Agreement to be so complied with or performed by AmSurg and ASC.
11.3. CERTIFICATE OF AMSURG AND ASC. AmSurg and ASC each shall have delivered to
Seller and the Doctors a certificate, dated the Closing Date, certifying as to
the fulfillment of the conditions specified in Sections 11.1 and 11.2 hereof.
11.4. OPINION OF COUNSEL. Seller and the Doctors shall have been furnished the
opinion of Bass, Berry & Sims PLC, counsel to AmSurg and ASC, in substantially
the form of Exhibit 11.4.
11.5. LEASES. Seller shall have assigned to the LLC, and the LLC shall have
assumed, the Leases, and Seller shall have amended the Leases pursuant to the
Lease Amendments attached hereto as Exhibits 10.7(a) and 10.7(b). In addition,
the LLC shall have assumed the equipment leases described on Schedule 1.2.
11.6. SHAREHOLDERS AGREEMENT. ASC and Seller shall have entered into the
ARTICLE 12. INDEMNIFICATION
12.1. INDEMNIFICATION BY SELLER AND THE DOCTORS. Seller and the Doctors,
severally and not jointly, hereby agree to defend, indemnify and hold harmless
AmSurg and ASC and shall reimburse AmSurg and ASC for, from and against each
claim, loss, liability, cost and expense (including without limitation,
interest, penalties, costs of preparation and investigation, and the reasonable
fees, disbursements and expenses of attorneys, accountants and other
professional advisors) (collectively, "Losses"), directly or indirectly relating
to, resulting from or arising out of:
(a) Any untrue representation, misrepresentation, breach of warranty or
nonfulfillment of any covenant, agreement or other obligation by or of Seller or
any Doctor contained herein, any Schedule hereto or in any certificate, document
or instrument delivered to AmSurg and ASC pursuant hereto.
(b) Any tax liability of Seller or the Centers not previously paid,
which may at any time be asserted or assessed against Seller or the Centers for
any event or period prior to the Closing Date (regardless of whether the
possibility of the assertion or assessment of any such tax liability shall have
been disclosed to AmSurg at or prior to the Closing).
(c) Liability for any amounts owed by Seller or the Centers to any
governmental third party or private payors because of overpayments to Seller or
the Centers prior to the Closing for services rendered to patients, which
liability is due to a recomputation of rates, field audit adjustments,
overpayments or otherwise.
(d) Any other Loss incidental to any of the foregoing.
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