BY,
OR IS UNDER COMMON CONTROL WITH, A SPECIFIED PERSON. FOR PURPOSES OF THIS
DEFINITION, "CONTROL" MEANS THE POSSESSION, DIRECTLY OR INDIRECTLY, OF THE POWER
TO ELECT AT LEAST 50% OF THE GOVERNING BOARD OF SUCH PERSON OR TO DIRECT TO
CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF THE PERSON, WHETHER
THROUGH OWNERSHIP OF VOTING SECURITIES, PARTNERSHIP OR LIMITED LIABILITY
INTERESTS, NONPROFIT MEMBERSHIP, CONTRACT OR OTHERWISE.
(D)
"APPROVAL" MEANS ANY APPROVAL,
AUTHORIZATION, ASSIGNMENT OR CONSENT, OR ANY WAIVER OF ANY OF THE FOREGOING,
REQUIRED TO BE OBTAINED FROM, OR ANY NOTICE, STATEMENT OR
OTHER COMMUNICATION REQUIRED TO BE FILED WITH OR DELIVERED TO ANY PERSON, THE
RECEIPT OF WHICH IS NECESSARY TO THE CONTINUED OPERATION OF THE BUSINESS AS IT
HAS BEEN OPERATED PRIOR TO THE CLOSING DATE.
(E)
"BUSINESS" MEANS, WITH RESPECT TO A
SPECIFIED SELLER OR THE SELLERS COLLECTIVELY, THE BUSINESS OF PROVIDING
SPECIALTY INJECTABLE AND ORAL MEDICATIONS, INCLUDING, WITHOUT LIMITATION, THOSE
RELATING TO ONCOLOGY, RA/DERM, HEPATITIS C, TRANSPLANTS AND RESPIRATORY
ILLNESSES (INCLUDING SYNAGIS) FROM THE SPECIFIC LOCATIONS LISTED ON SCHEDULE
1.1(E) TO PATIENTS AND PROVIDERS AS CONDUCTED BY SELLERS IMMEDIATELY PRIOR TO
THE CLOSING DATE IN SELLERS' CURRENT SERVICE AREAS IN AND AROUND ALBANY, NEW
YORK, BIRMINGHAM, ALABAMA, LAKE CHARLES, LOUISIANA; HURRICANE, WEST VIRGINIA AND
COLUMBUS MISSISSIPPI; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED
TO INCLUDE IN THE TERM "BUSINESS" ANY HOME INFUSION OR OTHER BUSINESS CONDUCTED
BY ANY SELLER OR ANY AFFILIATE OF ANY SELLER, INCLUDING IN BIRMINGHAM, ALABAMA.
(F)
"CODE" MEANS THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
(G)
"CONSENT" MEANS A DULY EXECUTED, WRITTEN
CONSENT TO THE ASSIGNMENT TO BUYER OF AN ASSUMED CONTRACT OR LEASE WHICH, UNDER
THE TERMS OF SUCH ASSUMED CONTRACT OR LEASE, IS REQUIRED TO BE OBTAINED FROM A
PARTY OR PARTIES OTHER THAN BUYER OR ANY SELLER IN CONNECTION WITH SUCH
ASSIGNMENT.
(H)
"ENCUMBRANCE" MEANS ANY CLAIM, CHARGE,
EASEMENT, ENCUMBRANCE, LEASE, COVENANT, SECURITY INTEREST, LIEN, OPTION, PLEDGE,
RIGHTS OF OTHERS, OR RESTRICTION (WHETHER ON SALE, TRANSFER, DISPOSITION OR
OTHERWISE), WHETHER IMPOSED BY AGREEMENT, UNDERSTANDING, LAW, EQUITY OR
OTHERWISE.
(I)
"ERISA" MEANS THE U.S. EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND THE RELATED REGULATIONS
AND PUBLISHED INTERPRETATIONS.
(J)
"GOVERNMENT PAYMENT PROGRAM" MEANS
MEDICARE, TRICARE, MEDICAID, AND ALL OTHER GOVERNMENT-SPONSORED HEALTHCARE
REIMBURSEMENT AND PAYMENT PROGRAMS.
(K)
"GOVERNMENTAL ENTITY" MEANS ANY GOVERNMENT
OR ANY AGENCY, BUREAU, BOARD, COMMISSION, COURT, DEPARTMENT, OFFICIAL, POLITICAL
SUBDIVISION, TRIBUNAL OR OTHER INSTRUMENTALITY OF ANY GOVERNMENT, WHETHER
FEDERAL, STATE OR LOCAL, DOMESTIC OR FOREIGN.
(L)
"INDEMNIFIED PARTY" MEANS THE BUYER
INDEMNIFIED PARTY OR SELLER INDEMNIFIED PARTY WHO IS ENTITLED TO INDEMNITY
HEREUNDER.
(M)
"INDEMNIFYING PARTY" MEANS THE PARTY OBLIGATED
TO PROVIDE INDEMNIFICATION HEREUNDER.
(N)
"KNOWLEDGE OF BUYER" MEANS THE ACTUAL
KNOWLEDGE OF THE GENERAL MANAGERS FOR THE BRANCHES, BASED UPON DUE INQUIRY. NO
CONSTRUCTIVE OR IMPUTED KNOWLEDGE SHALL BE ATTRIBUTED BY VIRTUE OF ANY POSITION
HELD, RELATIONSHIP TO ANY OTHER PERSON, OR FOR ANY OTHER REASON, EXCEPT TO THE
EXTENT DUE INQUIRY WAS NOT CONDUCTED.
2
(O)
"KNOWLEDGE OF