Exhibit 2.1(2)
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (the "RELEASE") is made and entered into as of
October 1, 2005 (the "CLOSING Date"), by and among Union Hospital (the
"PURCHASER"), Orion HealthCorp, Inc. ("ORION"), and each of the physicians whose
names appear on the signature page hereof (each a "SELLING INVESTOR" and
together with Orion, the "SELLERS") (the Purchaser, Orion and the Selling
Investors, each a "PARTY" and together the "PARTIES").
WHEREAS, certain of the Sellers own partnership interests in TUSCARAWAS
OPEN MRI, L.P. ("▇▇▇"), which is organized as an Ohio limited partnership;
WHEREAS, certain of the Sellers own units in TUSCARAWAS AMBULATORY
SURGERY CENTER, L.L.C. ("TASC"), which is organized as an Ohio limited liability
corporation;
WHEREAS, effective as of the Closing Date, the Sellers will
collectively sell 70% or more of the ownership interests in TASC and ▇▇▇,
respectively, to the Purchaser (the "TRANSACTIONS");
WHEREAS, each of the Sellers desires to release the Hospital from those
existing or threatened claims existing prior to the date hereof as set forth in
this Release; and
WHEREAS, the Hospital desires to release each of the Sellers from those
existing or threatened claims existing prior to the date hereof as set forth in
this Release.
NOW, THEREFORE, in consideration of the foregoing as well as the mutual
promises, covenants and undertakings set forth below, the receipt, adequacy and
sufficiency of which consideration is acknowledged by each Party to the other,
the Parties hereto do hereby agree as follows:
1. PREAMBLES. The preambles hereto are incorporated herein and made an
integral part hereof by this reference.
2. RELEASE.
a. Except as set forth below, upon delivery of the
consideration for the purchase of the interests in connection with the
Transactions, each Seller does hereby as of the Closing Date, fully, finally,
and unconditionally release and forever discharge the Purchaser, its directors,
trustees, officers, agents, employees, contractors and anyone acting on its
behalf, and Valley Health Care, Inc., its directors, trustees, officers, agents,
employees and contractors and anyone acting on its behalf from any and all
claims, rights, grievances, obligations, charges, damages, costs, expenses,
attorneys' fees, suits, actions and demands, of any and every kind, nature, and
character, known or unknown, in law or equity, enforceable under any local,
state, or federal common law, constitution, statute, regulation, or ordinance,
which may have accrued to the Sellers prior to the Closing Date. Notwithstanding
the preceding, this Release shall not act to exclude nor bar any action, claim,
cross-claim and/or demand which involves, directly or indirectly, a matter
involving professional liability, medical negligence, malfeasance and/or
malpractice, whether the same has or has not been asserted by a patient or other
party as of the date of this Release, including without limitation, an action
for contribution and/or indemnification with respect to the same.
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b. Except as set forth below, upon delivery of the
consideration for the purchase of the interests in connection with the
Transactions, the Purchaser does hereby as of the Closing Date, fully, finally,
and unconditionally release and forever discharge each of the Sellers,
individually and their directors, trustees, officers, agents, employees,
contractors and anyone acting on their behalf from any and all claims, rights,
grievances, obligations, charges, damages, costs, expenses, attorneys' fees,
suits, actions and demands, of any and every kind, nature, and character, known
or unknown, in law or equity, enforceable under any local, state, or federal
common law, constitution, statute, regulation, or ordinance, which may have
accrued to the Purchaser prior to the Closing Date. Notwithstanding the
preceding, this Release shall not act to exclude nor bar any action, claim,
cross-claim and/or demand which involves, directly or indirectly, a matter
involving professional liability, medical negligence, malfeasance and/or
malpractice, whether the same has or has not been asserted by a patient or other
party as of the date of this Release, including without limitation, an action
for contribution and/or indemnification with respect to the same.
3. CONSIDERATION. The consideration for this Release is the fulfillment
by the Parties on the Closing Date of their obligations to close the sale of the
Transactions and the receipt and delivery of this Release by the Parties.
4. ENTIRE AGREEMENT; MODIFICATION. This Release constitutes the entire
agreement between the Parties hereto with respect to the subject matter hereof
and supersedes any prior agreements and understandings, written or oral,
concerning the subject matter hereof. Neither this Release nor any term or
provision thereof may be changed, modified, waived, discharged or terminated
except through an instrument in writing signed by the Party against which the
enforcement has been changed, modified, waived, discharged or terminated.
5. ACKNOWLEDGMENT. The Parties declare that this entire Release has
been carefully reviewed by them, and that they had the opportunity to seek the
benefit of legal counsel with respect thereto, and that the contents thereof are
fully known and understood by them, that they have had the opportunity to ask
questions about its terms, and that this Release is signed by a duly authorized
representative of each Party with the intent to be legally bound thereby.
6. SEVERABILITY. If any portion or portions of this Release shall be,
for any reason, invalid or unenforceable, the remaining portion or portions
shall nevertheless be valid, enforceable and carried into effect, unless to do
so would clearly violate the present legal and valid intentions of the Parties
hereto.
7. WARRANTY OF AUTHORITY. The persons signing below for and on behalf
of the Purchaser and Orion, respectively, represent and warrant that he/she has
the authority to sign this Release for and on its behalf and to legally bind the
same.
8. DENIAL OF ALLEGATIONS AND LIABILITY. Each Party agrees that nothing
contained in this Release and/or in any action taken by any Party in connection
herewith shall constitute, be construed as or be deemed to be an admission of
fault, liability or wrongdoing of any kind whatsoever on his part.
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9. EXECUTION IN COUNTERPARTS. This Release may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute a single Release.
[signature page to follow]
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IN WITNESS WHEREOF, the Parties have executed this Release as of the
day and date first above written.
UNION HOSPITAL
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: VP FINANCE
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ORION HEALTHCORP, INC. (FORMERLY KNOWN AS SURGICARE, INC.)
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its: PRESIDENT
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SELLING INVESTORS:
/S/ ▇▇▇ ▇▇▇▇▇▇▇, M.D. /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
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▇▇▇ ▇▇▇▇▇▇▇, M.D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇, M.D. /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, D.P.M.
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▇▇▇▇▇ ▇▇▇▇▇▇, M.D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, D.P.M.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇, M.D. /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
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▇▇▇▇▇ ▇▇▇▇▇▇, M.D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
/S/ ▇▇▇▇▇▇▇ ▇▇▇, M.D. /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇▇▇, M.D. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D. /S/ ▇▇▇▇▇ ▇▇▇▇▇, M.D.
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D. ▇▇▇▇▇ ▇▇▇▇▇, M.D.
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D.
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