Attached files
file | filename |
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8-K - FORM 8-K - AMSURG CORP | g28056e8vk.htm |
EX-10.1 - EX-10.1 - AMSURG CORP | g28056exv10w1.htm |
EX-10.2 - EX-10.2 - AMSURG CORP | g28056exv10w2.htm |
Exhibit 2.1
AMENDMENT NO. 1
TO ASSET PURCHASE AGREEMENT
TO ASSET PURCHASE AGREEMENT
This Amendment (the Amendment) to the Asset Purchase Agreement (as defined below) is entered
into as of this 1st day of September, 2011 by and among AmSurg Corp., a Tennessee corporation
(Parent), AmSurg Holdings, Inc., a Tennessee corporation and wholly-owned subsidiary of Parent
(Holdings), and National Surgical Care, Inc., a Delaware corporation (the Company).
RECITALS
A. The parties have entered into an Asset Purchase Agreement, dated as of August 23, 2011 (the
Asset Purchase Agreement).
B. The parties wish to amend the Asset Purchase Agreement to reflect the terms of this
Amendment.
C. Capitalized terms used but not defined herein shall have the meanings ascribed to them in
the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements expressed herein and in
the Asset Purchase Agreement, the parties hereto agree as follows:
1. Amendments.
(a) Section 1.2 of the Asset Purchase Agreement shall be amended by deleting and at the end
of Section 1.2(i), deleting the period at the end of Section 1.2(j), and adding the following to
the end of Section 1.2(j):
; and
(k) all cash and cash equivalents of the Company and all checks and funds received by
the Company or its banks (e.g., checks deposited or funds paid to lock-box accounts), and
the bank accounts associated therewith.
(b) Section 1.2(f) of the Asset Purchase Agreement shall be deleted in its entirety and
replaced with the following:
(f) any attorneys notes or other work-product held by the Company, and any other
correspondence, books and records that relate to the transactions contemplated by the Merger
Agreement and this Agreement.
(c) Section 1.4 of the Asset Purchase Agreement shall be amended by deleting and at
the end of Section 1.4(i), deleting the period at the end of Section 1.4(j), and adding the
following at the end of Section 1.4(j):
; and
(k) all outstanding checks and payments by the Company.
(d) The definition of Cash in Section 11.1(b) of the Asset Purchase Agreement shall be
deleted in its entirety and replaced with the following:
Cash means, as of the close of business on the day immediately preceding the
Closing Date, the difference between (a) the pro rata portion (based upon the Companys
direct or indirect percentage ownership) of the cash and cash equivalents of each of the
Acquired Entities and Center Entities and all checks and funds received by each of the
Acquired Entities and Center Entities or their respective banks (e.g., checks deposited or
funds paid to lock-box accounts), but, in each case, shall exclude any cash which is subject
to capital maintenance or capital surplus rules or similar statutory restrictions which
require the holding of specific assets or separate accounts and the like (but excluding any
cash securing Indebtedness), minus (b) the pro rata portion (based upon the
Companys direct or indirect percentage ownership) of all outstanding checks and payments
made by the Acquired Entities and Center Entities, minus (c) the Cash-in-Transit
(without duplication of amounts included in clause (b)).
(e) A new definition will be added to Section 11.1(b) after Cash as follows:
Cash-in-Transit shall mean the cash in the amounts set forth on Annex E;
provided, that Cash-in-Transit shall not include any management or similar fees payable by the
Center Entities to the Company for periods from and after September 1, 2011.
(f) The definition of Working Capital in Section 11.1(b) of the Asset Purchase Agreement
shall be deleted in its entirety and replaced with the following:
Working Capital means (a) the consolidated current assets (which shall be
calculated excluding the items set forth in Section 1.2(k) of this Agreement, Cash
and any assets related to Taxes or Tax items) of the Company and the Acquired Entities and
Center Entities set forth on Schedule I, less (b) the consolidated current
liabilities of the Company and the Acquired Entities and Center Entities set forth on
Schedule I (which shall be calculated excluding (i) Indebtedness, (ii) the items set
forth in clause (b) of the definition of Cash, (iii) the aggregate amount of all outstanding
checks and payments by the Company and (iv) the Cash-in-Transit) as of the close of business
on the day immediately preceding the Closing Date and calculated pursuant to the Accounting
Policies. An example of the application of this Working Capital definition as of a
hypothetical Closing Date is set forth on Schedule I. For the avoidance of doubt,
Working Capital shall exclude all Excluded Assets and Excluded Liabilities.
(g) Section 1.12(b)(vi) shall be deleted in its entirety and replaced with the following:
[Intentionally Omitted]
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(h) Section 6.3(d) of the Asset Purchase Agreement shall be deleted in its entirety and
replaced with the following:
The Company will adopt, or will cause to be adopted, all necessary resolutions to
terminate the National Surgical Care, Inc. Paychex Section 125 Cafeteria Plan (the Company
Cafeteria Plan), effective September 5, 2011 (the FSA Termination Date). Effective
immediately following the Closing, any Continuing Employee who was employed by the Company
shall be eligible to participate in the applicable cafeteria and/or flexible spending
account plan in which similarly situated employees of Parent participate (collectively, the
Parent Cafeteria Plan). Effective October 1, 2011, any Continuing Employee who was
employed by an Acquired Entity or Center Entity shall become eligible to participate in the
Parent Cafeteria Plan. Following the FSA Termination Date, no transfer of any Continuing
Employees flexible spending account balances under the Company Cafeteria Plan shall be made
to the Parent Cafeteria Plan. Additionally, no expenses incurred by a Continuing Employee
on or after the FSA Termination Date shall be eligible for reimbursement under the Company
Cafeteria Plan; provided, however, both Parties agree that any eligible expenses incurred by
the Continuing Employees prior to the FSA Termination Date may continue to be submitted and
eligible for reimbursement under the Company Cafeteria Plan until December 5, 2011 (the
Claim Run-out Period), with the cost of such expenses reimbursed for the Continuing
Employees to be paid for by Parent or its Affiliates. Parent shall be responsible for the
payment of any required fees charged by Paychex for the administration of the Company
Cafeteria Plan from the FSA Termination Date until the expiration of the Claim Run-out
Period. Following the expiration of the Claim Run-out Period, Parent shall, in good faith,
determine any unspent amounts which remain in the Continuing Employees flexible spending
accounts under the Company Cafeteria Plan as of the end of the Claim Run-out Period and
shall reimburse the Continuing Employees for such amounts, including an additional amount to
reflect any lost tax savings incurred by the Continuing Employees due to the termination of
the Company Cafeteria Plan. Such reimbursement shall occur prior to December 31, 2011.
Both Parties agree to make any necessary amendments to the applicable plan documents and
take such further actions as may be required to ensure the provisions of this Section
6.3(d) are carried out.
(i) A new sentence will be added to the end of Section 6.4 as follows:
Following the Closing, Parent and the Acquired Entities shall cause all Cash-in-Transit as of
the close of business on the business day preceding the Closing Date between the Acquired Entities
and Center Entities, on the one hand, and the Company, on the other hand, to be delivered promptly
to the Company, and in any event prior to September 9, 2011.
(j) Section 6.6(b) of the Asset Purchase Agreement shall be deleted in its entirety and
replaced with the following:
(b) Prior to the Closing, the Company shall purchase and pay the full premium for an extended
reporting period endorsement under the Companys existing directors
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and officers liability insurance coverage for the directors and officers of the Acquired Entities
and Center Entities in a form reasonably satisfactory to Parent that shall provide such directors
and officers with coverage for six (6) years following the Closing of not less than the existing
coverage and have other terms not materially less favorable to the insured than the directors and
officers insurance currently maintained by the Company. After the Closing, neither Parent nor the
Company or their Affiliates shall take, or cause to be taken, any action to terminate such
insurance coverage.
(k) A new Section 6.8 shall be added to the Asset Purchase Agreement as follows:
Section 6.8 Indemnification for Letter of Credit. Prior to the Closing, Parent
shall have sent to the landlord for the facility lease for Fullerton Surgical Center a replacement
letter of credit for the Standby Letter of Credit Number 3114672, dated October 14, 2010; Issuing
Bank: Bank of America, N.A.; Applicant: NSC; Beneficiary: Seaside Ranchos and The Lynda Ward Trust
as successors in interest to DDR Properties (the Letter of Credit). Parent agrees that
it shall reimburse the Company for any sums provided to the beneficiary of the Letter of Credit by
Bank of America, N.A. in the event that the beneficiary makes any demand for payment pursuant to
the Letter of Credit following the Closing Date and prior to the return of the Letter of Credit to
Bank of America, N.A. Parent and the Company shall use commercially reasonable efforts to cause
the beneficiary of the Letter of Credit to return the Letter of Credit to Bank of America, N.A. as
soon as practicable following the Closing Date.
(l) Annex A to the Asset Purchase Agreement shall be deleted in its entirety and replaced with
the Annex A attached hereto.
(m) Annex B attached hereto shall be added as Annex E to the Asset Purchase Agreement.
(n) The Estimated Closing Statement delivered by the Company to Parent and Holdings on August
26, 2011 shall be void and of no further effect and the Estimated Closing Statement in the form
attached hereto as Annex C shall constitute the Estimated Closing Statement for purposes of the
Asset Purchase Agreement.
2. General Provisions.
(a) Effect of Amendment. Except as specifically amended hereby, all of the terms of
the Asset Purchase Agreement shall remain in full force and effect.
(b) Entire Agreement; Amendment. This Amendment and the Asset Purchase Agreement
(together with the Annexes, Schedules and Exhibits attached thereto) embody the entire agreement
and understanding of the parties hereto with respect to the subject matter hereof, and supersede
all prior and contemporaneous agreements and understandings relative to such subject matter. This
Amendment may be modified only by a written amendment signed by the parties hereto.
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(c) Governing Law. This Amendment, and any claims that arise out of or result from
this Amendment, will be governed by and construed under the laws of the State of Delaware, without
reference to any conflicts of laws principles that would require the application of any other law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above
written.
AmSurg Corp. | ||||||
By: Name: |
/s/ Claire Gulmi
|
|||||
Its: | Vice President | |||||
AmSurg Holdings, Inc. | ||||||
By: Name: |
/s/ Claire Gulmi
|
|||||
Its: | Vice President | |||||
National Surgical Care, Inc. | ||||||
By: Name: |
/s/ Sami Abbasi
|
|||||
Its: | Chief Executive Officer |
Annex A
Working Capital Accounting Policies
[Please see attached.]
Annex B
Cash-in-Transit
Annex C
Estimated Closing Statement
[Please see attached.]