**Exhibit 2.1****AMENDED AND RESTATED ASSET PURCHASE AGREEMENT**     This Amended and Restated Asset Purchase Agreement (the “**Agreement**”), made as of this 3rdday of September, 2005, by and among LINCARE INC., a corporation duly organized and existing underthe laws of the State of Delaware, having its principal place of business at 19387 U.S. 19 North,Clearwater, Florida 33764; MED 4 HOME INC., a corporation duly organized and existing under thelaws of the State of Delaware, having its principal place of business at 19387 U.S. 19 North,Clearwater, Florida 33764 (together hereinafter referred to as “**Buyer**”); UNITED STATESPHARMACEUTICAL GROUP, LLC, a limited liability company duly organized and existing under the lawsof the State of Delaware (hereinafter referred to as “**Seller**” or “**Company**”); and NATIONSHEALTH,INC., a corporation duly organized and existing under the laws of the State of Delaware, having itsprincipal place of business at 13650 N.W. 8th Street, Sunrise, Florida 33325(hereinafter referred to as “**Owner**”) amends, restates, and supercedes the Asset Purchase Agreementexecuted by the parties on September 2, 2005 (the “**Effective Date**”). Buyer desires to purchase,and Seller wishes to sell to Buyer, all of the assets and business related to the respiratoryequipment, aerosol inhalation therapy equipment and respiratory medications services and otherrespiratory therapy and respiratory-related durable medical equipment products, supplies, andservices that are specifically described below (the “**Business**”), upon the following terms andconditions:1. (a) Subject to the terms and conditions set forth in this Agreement, Seller hereby sells,conveys, transfers, assigns and delivers to Buyer, and Buyer hereby purchases and accepts fromSeller, the following tangible and intangible assets relating to the Business: (i) list of allcustomers of the Business delivered to Buyer electronically on September 1, 2005 (hereinafterreferred to as the “**Customer List**”); (ii) the original and all copies of customer files,(including, but not limited to, prescriptions and the original certificates of medical necessity,the original physicians orders and assignments of benefits and the original of any other evidenceof medical necessity related to equipment or services being rendered, and the original of any otherinformation supporting the billing), for all customers who are identified on the Customer List andwho are designated as having only respiratory illness but not diabetes or an ostomy-relatedcondition, except that without limiting the scope of Paragraph 9 hereof, Seller may retain a copyof such customer files; (iii) copies of customer files, (including, but not limited to, copies ofprescriptions and copies of certificates of medical necessity, copies of physicians orders andcopies of assignments of benefits and copies of any other evidence of medical necessity related toequipment or services being rendered, and copies of any other information supporting the billing),for all customers who are identified on the Customer List and who are designated as having bothrespiratory illness and diabetes or an ostomy-related condition, and Seller shall, without limitingthe scope of Paragraph 9 hereof, retain possession of all original customer files pertaining tocustomers who are identified on the Customer List and who are designated as having both respiratoryillness and diabetes or an ostomy-related condition, including without limitation the originalassignments of benefits for such customers; (iv) the current referral list of the Business, whichincludes the name of the referring physician; (v) all equipment, supplies, and medications ininventory related to the Business or resident with a customer of the Business (a listing of allequipment, supplies, and medications in inventory is set forth in Schedule I hereto); (vi) all ofthe business of the Business; and (vii) all other assets identified on Schedule II hereto. All ofsuch assets identified in these Paragraphs 1(a) and (b) are hereinafter referred to collectively asthe “**Assets**.”     (b) Seller represents that it has not billed and agrees that it will not bill for anyequipment, products, supplies or services provided relating to the Business and provided from andafter the Effective Date to any customers of the Business, it being agreed that the right to anyand all such billings shall be included in the Assets purchased by Buyer and shall be for the solebenefit of Buyer. Buyer acknowledges that Seller is not precluded by this Agreement from billingcustomers identified on the Customer List for equipment, products, supplies, and services (i) thatwere provided by Seller prior to the Effective Date or (ii) that were or are provided by Sellerbefore, on, or after the Effective Date and that are unrelated to the Business.     (c) Buyer shall not purchase and acquire, and same are specifically excluded under theAgreement, the following assets (“**Excluded Assets**”) of Seller in respect of the Business: (i) thecash and cash equivalents of the Business owned by Seller and on hand at the close of business onthe day immediately prior to the Effective Date (ii) all of the accounts receivable of the Businesson hand on the Effective Date, and all liabilities and obligations related thereto; (iii) any andall licenses, permits, supplier numbers or other regulatory approvals of Seller; (iv) all contractsof the Seller; and (v) any assets of the Seller or Owner not otherwise included among the Assetsas defined herein. For all assets not purchased, Buyer assumes no liability associated therewith.     (d) Seller shall have the obligation to pay off in full all Assets, including withoutlimitation any operating and capital leases and rental agreements related to the Business and thepayment of any purchase options or other similar payments relating to any of such Assets and todeliver to Buyer title to all Assets, including without limitation leased and rented Assets,
 

 
free and clear of any Encumbrances (as such term is defined herein). If the Encumbrances are notsatisfied prior to the Effective Date, Buyer, after written notice to Seller if feasible,providing Seller with five (5) business days to cure such obligations, will (i) make payment tosatisfy those obligations directly to the third parties and (ii) deduct that amount from thepurchase price paid to Seller on the Effective Date or deduct that amount from its other paymentobligations under this Agreement.2. In consideration of the purchase and sale of the Assets and Business hereunder, Buyer agrees topay to Seller, or its designee, a total purchase price of Sixteen Million and no/100 Dollars($16,000,000.00), payable as follows: (a) Fourteen Million Four Hundred Thousand and no/100Dollars ($14,400,000.00) will be paid by Buyer on the Effective Date; (b) Eight Hundred Thousandand no/100 Dollars ($800,000.00) shall be payable, without interest, six (6) months after theEffective Date, subject to the terms and conditions of this Agreement; and (c) Eight HundredThousand and no/100 Dollars ($800,000.00) shall be payable, without interest, twelve (12) monthsafter the Effective Date, subject to the terms and conditions of this Agreement.3. Buyer shall not assume nor be responsible for any debts, liabilities or obligations of Seller orOwner or the Business of any nature whatsoever, and Seller and Owner shall indemnify, jointly andseverally, Buyer from and against any such debts, liabilities or obligations in accordance with theprovisions of Paragraph 8 of this Agreement. If Buyer reasonably deems it necessary or appropriateto make payment of any such liability or debt, after written notice to Seller if feasible,providing Seller with five (5) business days to cure, Buyer shall have the right to deduct suchamount or amounts from its payment obligations under this Agreement.4. Seller and Owner represent, warrant and covenant, jointly and severally, as follows:     (a) Seller is a limited liability company, duly organized, validly existing, and in goodstanding under the laws of the State of Delaware and has all necessary limited liability companypowers to own the Assets and to operate the Business as now owned and operated by it. NeitherOwner nor Seller has knowledge of any fact which could give rise to any liability or obligation ofthe Seller whatsoever, liquidated or unliquidated, actual or contingent, criminal or civil, whetheror not covered by insurance, relating to the Business for which adequate provision has not beenmade by the Seller. Seller and Owner represent and warrant that there has been no material adversechange in the assets, liabilities, financial performance or capitalization of the Seller’s Businesssince June 30, 2005.     (b) The Assets are free and clear of any restrictions or conditions to sale, conveyance ortransfer and are free and clear of all liens, mortgages, pledges, encumbrances, leases, agreements,contracts, rental agreements, charges, claims, security interests, taxes, conditions orrestrictions of any nature or description whatsoever (all of the foregoing are referred to hereincollectively as “**Encumbrances**”). If the Assets are not free and clear of any Encumbrances on theEffective Date, after written notice to Seller if feasible, providing Seller with five (5) businessdays to cure, Buyer may make full payment to any appropriate third party to release the Encumbranceand deduct such amount or amounts from its payment obligations under this Agreement.     (c) Seller has complied with, and is not in violation of, any federal, state, or localstatutes, laws, ordinances, rules, regulations, codes or standards which affect the operation ofthe Business, including, without limitation, any federal or state government funded health careprogram and the provisions of the federal fraud and abuse statutes, laws, rules and regulations.Seller further represents, warrants, and covenants that, in respect of the transaction describedherein, Seller has complied with and will comply with any legal or regulatory requirements of theapplicable state board of pharmacy to include but not be limited to any notice and record-keepingobligations. All billings by Seller in respect to customers of the Business: (i) arose from validsales or rentals in the ordinary course of business; (ii) relate to equipment or products providedto customers covered under the Medicare, Medicaid or private insurance program, each of whichcustomers, who are among those set forth in the Customer List, were qualified under such programsto receive such products or services, or were provided on a direct bill basis; and (iii) wereprepared and submitted by Seller with all the complete and correct forms, documents, test resultsand other information necessary to receive payment with respect to each such billing in conformitywith all applicable legal and contractual requirements. There are no claims, lawsuits,arbitrations, government proceedings, investigations or audits pending relating to the Business towhich Seller or any of its directors, officers or employees is a party (as plaintiff, defendant orotherwise) or which relate to any of the ownership interests in the Business or the Assets. To thebest of Seller’s knowledge, there are no grounds for the filing or receipt of any other claim orthe commencement of any other lawsuit, arbitration or proceeding by or against, or investigationof, Seller in respect of the Business or involving the assets of, or equity interests in, theBusiness or the Assets. The parties understand and agree that Buyer does not assume the liabilityor responsibility for any such claim or litigation which has been asserted or which might beasserted and arose from actions prior to the Effective Date.     (d) Seller has not received nor has it applied for any cash advances in respect of theBusiness from any Medicare, Medicaid or third party public or private insurance program or carrier,whether or not any such cash advance has been repaid to or recouped by such insurance program orcarrier. Within ten (10) days of Seller’s receipt of Buyer’s invoice, Seller shall reimburse Buyerfor the amount of any such advances which are deducted by any such payor from amounts billed byBuyer after the Effective Date or, if Buyer still has payment obligations under the Agreement, Buyer shalldeduct such amount from its payment obligations.
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     (e) The Customer List is a complete list identifying each customer of the Business(identifying respiratory medications customers, identifying those customers with nebulizers, andidentifying those customers designated as having only respiratory illness and those customers withboth respiratory illness and diabetes or an ostomy-related condition) to whom Seller is currentlysupplying any equipment, products, supplies or services, and Seller has no reason to believe thatthe Customer List, in its electronic format, is incompatible with Buyer’s information systems. Foreach such customer, the Customer List includes the customer’s correct name, address and payoraccount number and the equipment, products (in the case of prescriptions, the prescriptioninformation, date of prescription, the initial date of service, the date of last shipment, theprescribing physician, next call-back date, next shop date, compliance call data and any otherinformation necessary to service the customer), supplies and services currently supplied to suchcustomer by Seller in connection with the Business. Except as otherwise indicated on the CustomerList, each customer included on the Customer List has been duly qualified by the appropriate payorfor reimbursement for services rendered by the Business or is on a direct bill basis. Seller andOwner represent and warrant that, as of the Effective Date, the Customer List is an accurate andcomplete list of 33,000 unique customers who have been shipped unit dose respiratory medicationsand who have not cancelled service. With respect to 30,878 of such customers, as of the EffectiveDate, Seller has all appropriate documentation necessary to bill the appropriate payor for same.In the event Buyer determines after the Effective Date that, as of the Effective Date, the Sellerwas providing respiratory medications to fewer than the represented number of unit dose respiratorymedications customers, Buyer shall have the right, in addition to its other rights hereunder(including its right to indemnification), to deduct an appropriate amount per missing or shortfallcustomer from its payment obligations under the Agreement.     (f) Seller is the only equitable and legal owner of the Business. The business of theBusiness has been conducted in substantially the same manner since June 30, 2005 and, except asotherwise disclosed on Schedule III hereto, there has not been any: (i) transaction by Sellerrelating to the Business except in the ordinary course of business as conducted on that date; (ii)material change in the condition (financial or otherwise) of the liabilities, assets, equity,properties, business, or prospects of the Business; (iii) change in business or accounting methodsor practices (including, without limitation, any change in depreciation or amortization policies orrates) by Seller in respect of the Business; (iv) revaluation by Seller of any of the Assets of theBusiness; (v) lease, sale or transfer of any tangible or intangible asset of the Business, exceptin the ordinary course of business and for fair market value; (vi) entry into, or amendment ortermination of, any contract, agreement, or license related to the Business, except in the ordinarycourse of business and upon fair market value, terms and conditions; (vii) waiver or release of anyright or claim of Seller in respect of the Business, except in the ordinary course of business andupon fair market value, terms and conditions; (viii) other event or condition of any character thathas, or might reasonably have, a material and adverse effect on the financial condition, business,assets, or prospects of the Business; and (ix) agreement by Seller to do any of the thingsdescribed in the preceding clauses (i) through (viii).     (g) Neither this Agreement nor the consummation of the transactions contemplated herebyviolate or shall violate any federal, state or local statute, law, regulation, rule, code,standard, ordinance, order, writ, judgment, injunction, decree, determination or award, including,without limitation, any provisions of the Federal Bankruptcy Act or any federal, state or local lawwith respect to fraudulent conveyances or transfers or any such similar law, or any term orprovision of the Certificate of Formation or operating agreement, or result in the breach of ordefault under any instrument or agreement to which Seller is a party, or require the consent orapproval of any third party, which has not been obtained.     (h) Seller has the right, power, legal capacity, and authority to enter into and perform itsobligations under this Agreement, and any required approvals or consents of any persons have beenobtained. The execution, delivery and performance of this Agreement has been duly authorized bySeller’s managers, and a copy of such resolutions so authorizing the execution, delivery andperformance of this Agreement, certified by the Secretary of Seller, has been delivered to Buyer.     (i) All representations, warranties, covenants and agreements made by Seller in this Agreementor in any writing, certificate, schedule, exhibit, statement, list (including without limitationthe Customer List), report, instrument, or other document furnished or delivered to Buyer inconnection with, or in contemplation of, this Agreement, or the purchase and sale of the Assetsshall be true on and as of the Effective Date with the same effect as if made on and as ofEffective Date, and shall survive the execution, delivery and performance of this Agreement and theEffective Date.5. Buyer represents, warrants and covenants as follows:     (a) Lincare Inc. and Med 4 Home Inc. are corporations duly organized, validly existing and ingood standing under the laws of the State of Delaware. Lincare Inc. and Med 4 Home Inc. are dulyqualified to do business in and are in good standing in all of the states of the United States inwhich, to the best of their knowledge and belief, the character of their properties or the natureof their businesses require them to be so qualified.     (b) Buyer has the right, power, legal capacity, and authority to enter into and perform itsobligations under this Agreement, and no approvals or consents of any persons are required. Theexecution, delivery and performance of this
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Agreement and the transactions contemplated hereby have been duly authorized by Lincare Inc.’s andMed 4 Home Inc.’s Boards of Directors.     (c) Buyer will duly observe proper confidentiality obligations in accordance with applicablelaw, rule or regulation with respect to any confidential customer records duly transferred bySeller to Buyer hereunder.     (d) Neither this Agreement nor the consummation of the transactions contemplated herebyviolate or shall violate any federal, state or local statute, law, regulation, rule, code,standard, ordinance, order, writ, judgment, injunction, decree, determination or award, or any termor provision of the Certificate of Incorporation or by-laws, or result in the breach of or defaultunder any instrument or agreement to which Buyer is a party, or require the consent or approval ofany third party, which has not been obtained.     (e) To Buyer’s knowledge, on the Effective Date, the data contained in the Customer List arecompatible with Buyer’s information systems. In the event Buyer reasonably determines after theEffective Date that such data are not compatible, without waiving its rights or remedies herein,Buyer may request Seller’s cooperation in achieving compatibility. In the event Buyer reasonablydetermines that supplemental data relating to the customers on the Customer List are required toensure Buyer may operate the Business, without waiving its rights or remedies herein, Buyer mayrequest that Seller provide such supplemental data. Seller agrees to cooperate promptly and ingood faith in the event Buyer makes such a request.     6. Buyer and Seller shall share equally the amount of all taxes, excises and other governmentalcharges and/or fees, if any, payable in connection with the sale, conveyance, transfer, assignmentand delivery of the Assets hereunder (including, without limitation, all sales, use, property,transfer, filing or recording taxes or fees). Seller shall be responsible for the costs ofobtaining all notices and consents and for the preparation of all necessary assignments inconnection with the sale, conveyance, transfer, assignment and delivery of the Assets to Buyerhereunder. If Buyer reasonably deems it necessary to pay any such charge on behalf of Seller,Buyer, after written notice to Seller if feasible, providing Seller with five (5) business days tocure, shall deduct such amount from its payment obligations under this Agreement.7. (a) Legal and equitable title to the Assets shall pass to Buyer effective as of 11:59 p.m. onthe Effective Date.     (b) Buyer, Seller, and Owner will, at any time, and from time to time, after the EffectiveDate, execute and deliver such further instruments of conveyance and transfer and take suchadditional action as may be reasonably necessary to effect, consummate, confirm or evidence thetransactions contemplated by this Agreement.     (c) Seller shall be responsible for all income, franchise, sales, property or other taxliabilities, including, without limitation, any interest and penalties thereon, which areattributable to operation or ownership of the Business or Assets for periods prior to the EffectiveDate. Buyer shall be responsible for any such taxes attributable to its operation or ownership ofthe Business or the Assets for periods on or following the Effective Date. Any such taxes requiringapportionment shall be pro-rated on the basis of the fiscal year covered by such taxes. If Sellershall have paid any taxes for which Buyer is responsible as aforesaid, or if Buyer will pay taxesfor which Seller is responsible as aforesaid, appropriate adjustments will be made by the partiesas promptly as practicable. However, if Buyer reasonably deems it necessary or appropriate, Buyer,after written notice to Seller if feasible, providing Seller with five (5) business days to cure,shall deduct such amount, if any, from its payment obligations under this Agreement.8. (a) Seller and Owner shall, jointly and severally, defend, indemnify and hold Buyer, its parent,subsidiaries, affiliates, directors, officers, and employees harmless from, against, and in respectof, any and all claims, demands, lawsuits, investigations, proceedings, losses, obligations,assessments, fines, penalties, administrative orders, costs, expenses, liabilities and damagesincluding interest, penalties and reasonable attorneys’ fees which arise or result from or relateto: (i) Seller’s or Owner’s breach of, or failure to perform, any of its respectiverepresentations, warranties, covenants, agreements or obligations contained in this Agreement or inany writing, certificate, exhibit, statement, list, report, instrument or other document furnishedor delivered to Buyer in connection with this Agreement; (ii) Buyer being required to assume ordischarge any debt, liability or obligation of Seller or Owner of any nature whatsoever (including,without limitation, any liability under any federal, state or local bulk transfer or fraudulentconveyance laws); or (iii) any debt, liability or obligation imposed upon Buyer as a result of, orwhich relates to Seller’s ownership or operation of the Business or the Assets prior to theEffective Date (including, without limitation, any liability under any federal, state or local bulktransfer or fraudulent conveyance laws).     (b) Buyer shall defend, indemnify and hold Owner, Seller, and Seller’s parent, subsidiaries,affiliates, managers, directors, officers, and employees harmless from, against, and in respectof, any and all claims, demands, lawsuits, proceedings, losses, obligations, assessments, fines,penalties, administrative orders, costs, expenses, liabilities and damages including interest,penalties and reasonable attorneys’ fees which arise or result from or relate to: (i) Buyer’sbreach of, or failure to perform, any of its representations, warranties, covenants, agreements orobligations contained in this Agreement or in any writing, certificate, exhibit, statement, list,report, instrument or other document furnished or delivered to Seller in connection with thisAgreement; (ii) Seller or Owner being required to assume or discharge any debt, liability orobligation of Buyer of any
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nature whatsoever; or (iii) any debt, liability or obligation imposed upon Seller or Owner as aresult of, or which relates to, Buyer’s ownership or operation of the Assets from and after theEffective Date.     (c) The indemnification rights provided for in this Paragraph 8 shall be in addition to, andshall not restrict or impair in any respect, any other rights or remedies of either party at law orequity.9. (a) In consideration of Buyer’s purchase of the Business and the Assets, Owner, Company, eachof Company’s parents and shareholders, and each of Owner’s and Company’s subsidiaries andaffiliates (for purposes of this Covenant Not to Compete, “affiliate” with respect to the Ownershall mean only a “controlled affiliate”) (singly hereinafter called the “**Covenantor**”), herebyagrees not to engage, directly or indirectly, in the business of marketing, advertising, selling,leasing, renting, distributing, or otherwise providing oxygen, oxygen equipment, aerosol inhalationtherapy equipment and respiratory medications that are delivered through a nebulizer in a unitdose, nasal continuous positive airway pressure devices, home sleep studies and related therapyequipment, or any other respiratory therapy or durable medical equipment, products or supplies(except as set forth in this paragraph immediately below) to customers in their homes or otheralternative site care facilities within the United States of America (the “**Competitive Business**”),for a period commencing on the Effective Date and continuing for a period of five (5) yearsthereafter (the “**Covenant Not to Compete**”). Notwithstanding anything in the foregoing to thecontrary, no Covenantor will be barred from engaging, directly or indirectly, in the business ofmarketing, advertising, selling, leasing, renting, distributing, or otherwise providing (i) insulinpumps, glucose monitors, test strips, and any other products, supplies, or services relating onlyto diabetics, (ii) ostomy supplies, and (iii) pharmaceutical products and services under MedicarePart D, except in no event shall any Covenantor engage directly or indirectly in the business ofmarketing, advertising, selling, leasing, renting, distributing, or otherwise providing unit doserespiratory medications that are delivered through a nebulizer for a period of five (5) years fromand after the Effective Date. Covenantor shall not be deemed to be engaging “directly orindirectly in the business of marketing” if Covenantor markets pharmaceutical products and servicesunder Medicare Part D on behalf of Cigna, pharmacy benefit managers, or any other insurancecompany, with which Covenantor is in privity.     (b) Without limiting the generality of the provisions of Paragraph 9(a) hereof, this CovenantNot to Compete shall be construed so that Covenantors shall also be in breach hereof if anyCovenantor is a shareholder, member, investor, trustee, agent, principal or partner of, consultantor advisor to or for, or a subcontractor or manager for, a person, firm, corporation, partnership,joint venture, association, trust or other entity which is engaged in the Competitive Business, orif any Covenantor receives any compensation or remuneration in exchange for products or servicesprovided to aid such person, firm, corporation, partnership, joint venture, association, trust orother entity’s Competitive Business or owns, directly or indirectly, any outstanding stock orshares or has a beneficial or other financial interest in the stock or assets of any such person,firm, corporation, partnership, joint venture, association, trust or other entity engaged in theCompetitive Business (except as otherwise allowed under Paragraph 9(a) hereof). Notwithstandinganything to the contrary contained in this Paragraph 9, Covenantors shall not be deemed to be inbreach hereof solely by reason of owning, in the aggregate, an interest of less than one percent(1%) of the shares of any company traded on a national securities exchange or in the over thecounter market. This Covenant Not to Compete shall also be construed to prohibit each Covenantorfrom engaging in any of the following: (i) hiring, offering to hire, enticing away or in any othermanner persuading or attempting to persuade any officer, employee or agent of Buyer to discontinuehis or her relationship with Buyer; and (ii) directly or indirectly soliciting, diverting or takingaway, or attempting to solicit, divert or take away any customers or business Seller had enjoyed orsolicited prior to the date hereof in respect of the Business or which Buyer may enjoy or solicitafter the date hereof; provided, however, that these provisions in no way restrict Seller fromsoliciting or otherwise engaging in activities with customers on the Customer List, so long as suchsolicitation and other activities are unrelated to the Competitive Business and so long as suchsolicitation is permitted under applicable law and governmental regulations. Covenantorsacknowledge and agree that the provisions of this Covenant Not to Compete are an inducement for,and a condition precedent to, Buyer’s entering into this Agreement and that Buyer is specificallyrelying on covenant in entering into and performing its obligations under this Agreement.     (c) It is expressly understood and agreed by Covenantors that it shall be a breach of thisCovenant Not to Compete for a Covenantor to assist in any way any affiliated group, any parent,subsidiary or affiliate, any business associate, or any other person, firm, corporation,partnership, joint venture, association, trust or other entity, to engage in any activity which aCovenantor is prohibited from engaging in by this Covenant Not to Compete.     (d) Covenantors agree that the remedy at law for any breach of any obligation under thisParagraph 9 will be inadequate and that in addition to any other rights and remedies to which itmay be entitled hereunder, at law or in equity, Buyer shall be entitled to injunctive relief, andreimbursement for all reasonable attorneys’ fees and other expenses incurred in connection with theenforcement hereof.     (e) Notwithstanding any provision herein to the contrary, in the event that all or a majorityof the stock in the Company or in its direct or indirect parent is sold, assigned, transferred orotherwise conveyed to an unaffiliated entity, or in the event that the Company or its direct orindirect parent undergoes any change through consolidation, merger, share exchange or similartransaction with an unaffilated entity resulting in a change in control of the Company or itsdirect or indirect parent, then
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the surviving entity shall not be deemed to be in violation of the Covenant Not to Compete if it isengaged in the business of marketing, advertising, selling, leasing, renting, distributing, orotherwise providing (1) respiratory medications to nursing homes or assisted living facilities; or(2) oxygen, oxygen equipment, aerosol inhalation therapy equipment, durable medical equipment, orrespiratory medications, so long as such service is not provided to patients that are billed bysuch surviving entity to the federal Medicare program.10. (a) In consideration of Company’s sale of the Business and Assets, Buyer, each of its parentsand shareholders, and each of its subsidiaries and affiliates (singly hereinafter called the “**BuyerCovenantor**”), hereby agrees not to engage directly in marketing, advertising, or otherwisepromoting to any customer on the Customer List, who has a respiratory illness and either a diabetesor an ostomy-related condition, or soliciting any such customers on the Customer List to obtainfrom Buyer Covenantor, any product or services relating to diabetes or any ostomy supplies orservices provided by Covenantor after the date hereof, for a period commencing on the EffectiveDate and continuing for a period of three (3) years from and after the Effective Date (the “**BuyerCovenant Not to Compete**”). Notwithstanding anything in the foregoing to the contrary, BuyerCovenantor shall not be in violation of this Buyer Covenant Not to Compete in the event any suchcustomer contacts Buyer, without having been solicited by Buyer, to provide either diabetes or anyostomy supplies or services. The parties hereto understand and agree that the Buyer Covenant Notto Compete is applicable only to those customers listed on the Customer List, who have arespiratory illness and either a diabetes or an ostomy-related condition, and is not applicable toany customers on the Customer List, who are identified as having neither a diabetes orostomy-related condition, and is not applicable to any other customers of the Buyer not included onsuch list, including without limitation any customers to whom Buyer may provide services in thefuture in connection with the Business.     (b) Without limiting the generality of the provisions of Paragraph 10(a) hereof, this BuyerCovenant Not to Compete shall be construed so that the Buyer Covenantor shall also be in breachhereof if any Buyer Covenantor is a shareholder, trustee, agent, principal or majority partner of,to, or for a person, firm, corporation, partnership, joint venture, association, trust or otherentity which is engaged in the activities prohibited under Paragraph 10(a) hereof, or owns,directly or indirectly, any outstanding stock or shares or has a beneficial or other financialinterest in the stock or assets of any such person, firm, corporation, partnership, joint venture,association, trust or other entity engaged in the activities prohibited under Paragraph 10(a)hereof. Notwithstanding anything to the contrary contained in this Paragraph 10, Buyer Covenantorshall not be deemed to be in breach hereof solely by reason of owning, in the aggregate, aninterest of less than one percent (1%) of the shares of any company traded on a national securitiesexchange or in the over the counter market. This Buyer Covenant Not to Compete shall also beconstrued to prohibit each Buyer Covenantor from engaging in directly soliciting, diverting ortaking away, or attempting to solicit, divert or take away any customers of Seller who are on theCustomer List and who are using Seller as a provider of diabetic supplies or ostomy products andsupplies. Notwithstanding anything to the contrary contained in this Paragraph 10, BuyerCovenantor shall not be deemed to be in breach hereof in the event any such customer contactsBuyer, without having been solicited by Buyer, for the provision of diabetic supplies or ostomyproducts and supplies. Buyer Covenantor acknowledges and agrees that the provisions of this BuyerCovenant Not to Compete are an inducement for, and a condition precedent to, Seller’s entering intothis Agreement and that Seller is specifically relying on covenant in entering into and performingits obligations under this Agreement.     (c) It is expressly understood and agreed by the Buyer Covenantor that it shall be a breach ofthis Buyer Covenant Not to Compete for a Buyer Covenantor to assist in any way any affiliatedgroup, any parent, subsidiary or affiliate, any business associate, or any other person, firm,corporation, partnership, joint venture, association, trust or other entity, to engage in anyactivity which a Buyer Covenantor is prohibited from engaging in by this Buyer Covenant Not toCompete.     (d) Buyer Covenantor agrees that the remedy at law for any breach of any obligation under thisParagraph 10 will be inadequate and that in addition to any other rights and remedies to which itmay be entitled hereunder, at law or in equity, Seller shall be entitled to injunctive relief, andreimbursement for all reasonable attorneys’ fees and other expenses incurred in connection with theenforcement hereof.11. Without limiting any other rights and remedies to which Buyer may be entitled, at law or inequity, if Seller materially breaches or misrepresents those warranties or representations ofmaterial fact set forth herein and such material breach or misrepresentation has an adverse effectupon Buyer, upon which the parties hereby agree Buyer relied, then the parties agree that Buyer hasinsufficient remedy at law and that, at any time from the Effective Date until ninety (90) daysafter the Effective Date, Buyer shall have the right to rescind this Agreement, including anyagreements and contracts executed therewith or on even date therewith, and the Agreement shall bevoid *ab initio*.12. For a period of three (3) years from and after the Effective Date, in the event a customerinquires telephonically with Seller as to the location of the Business, Seller will advise suchcustomer in substantial accordance with that certain script set forth in Schedule IV hereof.Notwithstanding anything in the foregoing to the contrary, after one year after the Effective Date,
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Seller may use commercially reasonable efforts in advising such customer in substantial accordancewith that certain script set forth in Schedule IV hereof. Seller agrees to cease providing theadvice set forth in the script promptly upon written notice from Buyer directing Seller to cease.The parties acknowledge that the script may require periodic updates to comport with then-existingcircumstances. The parties agree to cooperate in good faith in updating such script from time totime.13. (a) The parties acknowledge that there is no requirement, condition or agreement that Seller orany of its subsidiaries or affiliates, or any of their respective officers, directors, members,shareholders, or employees, or any other person or entity, refer any customers to Buyer for theprovision of equipment, products or services. The parties further acknowledge that no portion ofthe purchase price is to be in return for the purchasing, leasing, renting or ordering of anyproduct or services from Buyer or referring any customer to Buyer. Furthermore, any officer,director, member, shareholder or employee of Seller or any of its parents, subsidiaries oraffiliates who is in a position to refer patients to Buyer shall remain free to recommend care andtreatment for their patients to any supplier which in their medical judgment is in the patient’sbest interests.     (b) This Agreement shall be governed by, and construed in accordance with, the laws of theState of Florida.     (c) The terms and conditions of this Agreement (including the Schedules hereto) constitute theentire agreement between the parties with respect to the subject matter hereof and supersede anyprior understandings, agreements or representations by or between the parties, written or oral.The Schedules attached to this Agreement constitute an integral part hereof for all purposes,including, without limitation, the construction and interpretation of the respective rights andobligations of the parties hereto. This Agreement shall inure to the benefit of and be binding onthe parties and their respective successors, assigns, legal representatives and heirs. ThisAgreement shall not be assigned by any party hereto without the prior written consent of the otherparties, and any attempted assignment without such consent shall be void; provided, however, thatBuyer shall have the right at any time, and from time to time, to assign this Agreement to itsparent or any affiliate or subsidiary or any successor to its business, without the consent of theother parties to this Agreement and provided, however, that Buyer does not object to Seller orOwner granting a security interest in all payments under the Agreement to CapitalSource Finance,LLC. No amendment or modification of this Agreement or waiver of the terms or conditions hereofshall be binding upon any party unless approved in writing by such party or by an authorizedrepresentative of such party. The failure of any party hereto to enforce at any time any of theprovisions of this Agreement shall not be construed to be a waiver of any such provisions, nor inany way affect the validity of this Agreement or any part hereof or the right of any partythereafter to enforce any such provisions. This Agreement has been negotiated at arm’s lengthamong the parties, and each of the parties shall be deemed to have participated in the preparationof this Agreement and this Agreement shall not be construed more strictly against one party thanthe other.     (d) This Agreement may be executed in one or more counterparts, each of which shall be deemedan original but all of which together shall constitute one and the same instrument. This Agreementmay be executed by facsimile signature.     (e) All notices, requests, demands, reports, statements or other communications required to begiven hereunder or relating to this Agreement shall be in writing and shall be deemed to have beenduly given on the date of service if personally served on the party to whom notice is to be given,or on the date of receipt if mailed to the party to whom notice is to be given, by first classmail, registered or certified, return receipt requested, postage prepaid, and properly addressed toany such party at the address listed for such party in this section. Any party may at any timedirect in writing that all communications or particular communications or particular types ofcommunications be delivered to specific designees other than those specified herein by notifyingthe other parties in the manner prescribed herein. Notices hereunder shall be sent to thefollowing:To Seller:           NationsHealth, Inc.13650 N.W. 8th Street