ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE DOCTORS
Each of the Doctors, severally and not jointly, represents and warrants as
5.1. AUTHORITY. Such Doctor has full authority to enter into and carry out
the provisions of this Agreement, and this Agreement, when executed, will
constitute a valid and binding legal obligation enforceable against him in
accordance with its terms.
5.2. NO VIOLATION. The execution and delivery of this Agreement by such Doctor
does not, and the consummation of the transactions contemplated hereby will not,
(a) violate any provision of, or result in the creation of any lien or security
interest under, any agreement, indenture, instrument, lease, security agreement,
mortgage or lien to which such Doctor is a party or by which any of such
Doctors's assets or properties are bound; (b) violate any provision of the
charter or bylaws of Seller; (c) violate any order, arbitration award, judgment,
writ, injunction, decree, statute, rule or regulation applicable to such Doctor;
or (d) violate any other contractual or legal obligation or restriction to which
such Doctor is subject.
5.3. SHAREHOLDERS OF SELLER. The Doctors constitute all of the shareholders
5.4. RESTRICTIVE COVENANTS; CONFIDENTIALITY. Each Doctor agrees that he will not
have any direct or indirect ownership interest in any business or entity that
provides endoscopy services within Jackson or Clay County, Missouri until the
later of (a) one (1) year after the Doctor ceases to be a shareholder of Seller
or (b) five (5) years after the Closing Date. The foregoing shall not prohibit
the Doctors from owning shares of capital stock constituting less than 1% of the
outstanding capital stock of any corporation whose common stock is traded on a
national securities exchange or on The Nasdaq Stock Market. The Doctors
recognize and acknowledge that the ascertainment of damages in the event of a
breach of this Section 5.4 would be difficult, and agree that AmSurg, in
addition to all other remedies it may have, shall have the right to injunctive
relief if there is such a breach.
Notwithstanding the foregoing, the parties acknowledge and agree that Section
5.4 does not require the Doctors to perform endoscopy procedures at the Centers
or to refer patients to the Centers imposes no restrictions on where such
procedures are performed or where referrals are made, and does not prohibit the
Doctors from billing for any professional services rendered by the Doctors in
any other location.
5.5. NO BROKER'S FEES. Such Doctor has not done anything to cause or incur any
liability or obligation for investment banking, brokerage, finder's, agent's or
other fees, commissions, expenses or charges in connection with the negotiation,
preparation, execution or performance of this agreement or the consummation of
the transactions contemplated hereby, and Doctor does not know of any claim by
anyone for such a fee, commission, expense or charge.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF AMSURG
AmSurg represents and warrants as follows:
6.1. ORGANIZATION. AmSurg is a corporation duly organized, validly existing
and in good standing under the laws of the state of Tennessee. AmSurg has full
corporate power and corporate authority to carry on its business as now
conducted and to own, lease or operate its properties and assets as now owned,
leased or operated.
6.2. AUTHORIZATION. AmSurg has full corporate power and corporate authority to
enter into this Agreement and perform its obligations hereunder and carry out
the transactions contemplated hereby. The execution, delivery and performance by
AmSurg of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary corporate action.
This Agreement, when executed, will constitute a legal, valid and binding
obligation of AmSurg enforceable against it in accordance with its terms.
6.3. NO VIOLATION. The execution and delivery of this Agreement by AmSurg does
not, and the consummation of the transactions contemplated hereby will not, (a)
violate any provision of, or result in the creation of any lien or security
interest under, any material agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which AmSurg is a party or by which any of
AmSurg's assets or properties are bound which violation or lien would have a
material adverse effect on the business or operations of AmSurg;
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