SEC Filings

8-K
AMSURG CORP filed this Form 8-K on 09/16/1997
Entire Document
 
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12.2. INDEMNIFICATION BY AMSURG AND ASC. AmSurg and ASC, severally and not
jointly, hereby agree to defend, indemnify and hold harmless Seller and the
Doctors, and shall reimburse Seller and the Doctors for, from and against 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 AmSurg or ASC,
as the case may be, contained herein or in any certificate, document or
instrument delivered to Seller and the Doctors pursuant hereto.

         (b) Any other Loss incidental to the foregoing.

12.3.    PROCEDURE.

         (a) The indemnified party shall promptly notify the indemnifying party
of any claim, demand, action or proceeding for which indemnification will be
sought under Sections 12.1 or 12.2 of this Agreement, and, if such claim,
demand, action or proceeding is a third party claim, demand, action or
proceeding, the indemnifying party will have the right at its expense to assume
the defense thereof using counsel reasonably acceptable to the indemnified
party. The indemnified party shall have the right to participate, at its own
expense, with respect to any such third party claim, demand, action or
proceeding. In connection with any such third party claim, demand, action or
proceeding, AmSurg, ASC, Seller and the Doctors shall cooperate with each other
and provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action or proceeding shall be
settled without the prior written consent of the indemnified party. If a firm
written offer is made to settle any such third party claim, demand, action or
proceeding and the indemnifying party proposes to accept such settlement and the
indemnified party refuses to consent to such settlement, then: (i) the
indemnifying party shall be excused from, and the indemnified party shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding; and (ii) the maximum liability of the indemnifying party
relating to such third party claim, demand, action or proceeding shall be the
amount of the proposed settlement if the amount thereafter recovered from the
indemnified party on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement. At no time shall any party
be required to admit guilt or liability for any illegal acts pursuant to the
terms of this Article 12.

         (b) Any claim of indemnity of AmSurg or ASC against Seller or the
Doctors with respect to Section 12.1 hereof may in AmSurg's discretion be
discharged by setoff against any amounts owed or owing to Seller or any
affiliate thereof under the Operating Agreement between Seller and AmSurg. Any
claim of indemnity of Seller or the Doctors against AmSurg or ASC with respect
to Section 12.2 hereof may in Seller's discretion be discharged by setoff
against any amounts owed or owing to AmSurg under the Operating Agreement
between Seller and AmSurg.

         (c) Notwithstanding the foregoing, no Doctor shall be required to
indemnify AmSurg or ASC for any amount in excess of his pro rata portion of the
Purchase Price.

         (d) Notwithstanding the foregoing, Seller and the Doctors shall not be
obligated to make any indemnification under Section 12.1 unless the aggregate
amount of Losses exceeds $10,000 (the "Basket"), and such indemnification with
respect to such Losses shall be made by Seller and the Doctors only to the
extent of such excess over the Basket.

ARTICLE 13.       SURVIVAL OF REPRESENTATIONS AND WARRANTIES

13.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein shall survive the Closing Date and any investigation
made by or on behalf of any party hereto, and shall survive for a period of 24
months after the Closing Date (except for any Losses described in Section
12.1(b), which shall survive for the applicable statute of limitations,
including any waivers thereof, Section 12.1(c), which shall not terminate, and
any breach of the representations and warranties contained in Sections 4.6 and
4.9 with respect to professional malpractice claims arising before the Closing
Date, which shall not terminate).

In addition, in the event that the LLC dissolves, liquidates or otherwise ceases
to exist, the provisions of Section 5.4 hereof shall terminate and be of no
further force or effect.


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