THIRD AMENDMENT TO ASSET PURCHASE
AGREEMENT
This Third Amendment to Asset
Purchase Agreement (“ Amendment ”) is made and
entered into effective the 29th day of February, 2004, by and
between Amedisys, Inc., a Delaware corporation, and/or those wholly
owned (directly or indirectly) individual subsidiaries of Amedisys,
Inc. to which it assigns its rights under the Asset Purchase
Agreement referenced below prior to the Closing, as Purchaser
(hereinafter referred to collectively as “ Purchaser
”) and the individual entities executing this Amendment on
the execution page hereof, as Seller (hereinafter referred to
collectively as “ Seller ”). Purchaser and
Seller are referred to at times in this Amendment as a “
Party ” and collectively as the “ Parties
.”
RECITALS
WHEREAS, Purchaser and Seller entered into that certain
Asset Purchase Agreement dated January 5, 2004 (the “
Agreement ”); and
WHEREAS , the Parties, pursuant to the First Amendment
to Asset Purchase Agreement dated January 31, 2004, modified the
closing dates upon which certain of the Agencies’ assets
would by transferred by Seller to Purchaser; and
WHEREAS, the Parties, pursuant to the Second Amendment to
Asset Purchase Agreement dated February 25, 2004 modified the
schedule of closing dates to allow for the Closing of the sale of
assets of Spalding Regional Home Health to take place on April 1,
2004; and
WHEREAS, the Parties wish to again modify the Agreement
to reflect certain additional agreements reached by
them;
NOW THEREFORE
, the Parties, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged and confessed, agree as follows:
1. Section 1.07 is amended to read
as follows:
Liabilities
. Those liabilities of Seller to be
assumed by Purchaser at the respective Agency Transfer Dates
pursuant to this Agreement, which consists of such accounts payable
and other liabilities of Seller specifically disclosed on
Schedule 1.07 . Purchaser shall also assume the obligations
of Seller accruing after the respective Agency Transfer Dates on
the contracts and agreements comprising a part of the Assets, as
disclosed on Schedule 5.06 . Purchaser shall not assume any
other liabilities, contingent or certain, of Seller unless incurred
and disclosed in the manner provided in this Section 1.07 .
Without limiting the foregoing, Purchaser is not assuming (i) any
expenses, liabilities, or obligations of Seller arising out of the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby which are unpaid at the
respective Agency Transfer Dates, (nor may Seller pay any of such
expenses out of the Assets), (ii) any liabilities or obligations of
Seller relating to federal, state, or local income for the period
through the respective Agency Transfer Dates, or, except as set
forth in Section 15.04 , other taxes attributable to the
transactions contemplated hereby or the conduct of the Business,
(iii) any obligation of Seller to pay a fee to any agent, broker,
or finder relating to this transaction, (iv) any liabilities that
may accrue to Seller as a result of any present or
future
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Medicare and/or Medicaid audit related to the
provision of care by Seller prior to and up to the respective
Agency Transfer Dates, (v) and/or cost report liability and/or
partial episode payment (PEP) recoupment liability and/or any other
retroactive take-back liability related to the provision of care by
Seller at an Agency prior to and up to the respective Agency
Transfer Dates; or (vi) any other pre-Closing liability (based on
the respective Agency Transfer Dates) related to the provision of
care at an Agency arising prior to the respective Agency Transfer
Dates.
2. Section 2, clause (iv) is amended
to read as follows:
(iv) liens, claims and liabilities
accruing after the respective Agency Transfer Dates.
3. Section 3 is amended to change
the amount of the Purchase Price to Nineteen Million One Hundred
Ninety Thousand Six Hundred Forty-Three DOLLARS
($19,190,643).
4. Section 3.07 is amended to read
as follows:
Allocation of Episode of Care
Payments . Purchaser and
Seller acknowledge and agree that, as to episodes of Medicare (and
other non-Medicare payors) home health and hospice agency services
in progress during an episode or election periods of care prior to
an Agency Transfer Date (“ Straddle Episodes ”),
any billing or claims submissions to occur after the Closing Date
will be billed by or on behalf of Purchaser. Promptly following
each Agency Transfer Date, Seller will inform Purchaser of the
amount received (or to be received) by Seller based on the request
for anticipated payment (“ RAP ”) (or equivalent
billing (if any) for non-Medicare payors) filed by Seller with
respect to each Straddle Episode, together with necessary billing
and patient demographic information in Seller’s possession to
permit Purchaser to file the final claim for payment. Promptly
following each Agency Transfer Date for hospice agencies, Seller
will inform Purchaser of the amount received (or to be received) by
Seller during the election period of hospice care in which the
Agency Transfer Date has occurred for covered hospice care services
and covered Medicare non-hospice services filed by Seller with
respect to each Straddle Episode, together with necessary billing
and patient demographic information in Seller’s possession to
permit Purchaser to file claims for payment for services provided
following the Agency Transfer Date. Seller will also provide to
Purchaser billing and patient demographic information in
Seller’s possession related to non-Medicare covered services
provided to hospice agency patients receiving services during a
Straddle Episode in which the Agency Transfer Date falls. Purchaser
(or its agent) shall prepare, file and collect all final claims for
payment for services provided by an Agency following the respective
Agency Transfer Dates. Purchaser will use reasonable best efforts
to pay to Seller the Straddle Episode Payment, as defined below
within ninety (90) days after the respective Agency Transfer Dates;
but in any event a final reconciliation of Straddle Episode
Payments will be made by the Parties within one hundred fifty (150)
days following the last Agency Transfer Date. “ Straddle
Episode Payment ” shall mean an amount, for each Straddle
Episode, (a) for home health agencies equal to the final actual (if
payment has been received) or billed projected (if payment has not
been received) payment for the Straddle Episode, divided by the
number of days in the particular Straddle Episode, multiplied by
the number of days in the Straddle Episode from the first day of
the Straddle Episode to the Agency Transfer Date, and (b) for
hospice agencies for actual days of service and other compensable
services provided to a patient by Seller prior to the Agency
Transfer Date but for which billing may have been made by or on
behalf of Purchaser or
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payment was received by Purchaser, taking into
account the RAP payment made to Seller in determining the total
amount due Seller. For example, for home health agencies, if on the
day prior
