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> Document 581 : INS 99-14 : Hearing Decision
VIA HAND DELIVERY
Alessandro A. Iuppa Superintendent of Insurance c/o Lyndy Morgan Docket No. INS-99-14 Maine Department of Professional & Financial Regulation Bureau of Insurance 124 Northern Avenue Gardiner, Maine 04345 Re: Anthem / Blue Cross Blue Shield of Maine: Executed Amendment No. 1 to the Asset Purchase Agreement Between Anthem Insurance Companies, Inc. and Associated Hospital Service of Maine
Dear Superintendent Iuppa: As a follow-up to the Applicants’ Response to the Order on Completeness (the "Response"), I enclose two executed copies of Amendment No. 1 to the Asset Purchase Agreement Between Anthem Insurance Companies, Inc. and Associated Hospital Service of Maine (the "Amendment"), which was previously provided in draft form at Tab 15A of the Response. The purpose of this filing is simply to provide the Superintendent with an executed copy of the Amendment. Except for the signatures of the parties, the enclosed Amendment is in substance the same as the copy provided as part of the Response. Please let me know if I can be of further assistance in this matter. Very truly yours,
James B. Zimpritch
Enclosure cc: Superintendent’s Consultant (via first class mail) Robert S. Frank, Esq. (via hand delivery) > Judith Chamberlain, Esq. (via hand delivery) William Laubenstein, Esq. (via hand delivery) Michele M. Garvin, Esq. (via email, without enclosure) Gordon H. Smith, Esq. (via email, without enclosure) Gregory A. Brodek, Esq. (via email, without enclosure) Joseph P. Ditre, Esq. (via email, without enclosure) Robert I. Goldman (via email, without enclosure) Bonnie Post (via email, without enclosure) John Dieffenbacher-Krall (via email, without enclosure) Donald E. Quigley, Esq. (via email, without enclosure) Sandra L. Parker, Esq. (via email, without enclosure) Kellie P. Miller, M.S. (via email, without enclosure) Edward Miller (via email, without enclosure)
CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 23, 2000, a copy of Amendment No. 1 to the Asset Purchase Agreement Between Anthem Insurance Companies, Inc. and Associated Hospital Service of Maine was served by electronic mail, without enclosure, or, where indicated, by hand delivery, on each of the persons listed below.
DATED: March 23, 2000
_____________________________ James B. Zimpritch, Esq. Jeffrey M. White, Esq. Catherine R. Connors, Esq. PIERCE ATWOOD Portland, Maine 04101 (207) 791-1100 Attorneys for Anthem Insurance Companies, Inc.
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 THIS AMENDMENT is entered into as of March 21, 2000, by and between Associated Hospital Service of Maine d/b/a Blue Cross and Blue Shield of Maine ("BCBS-ME") and Anthem Insurance Companies, Inc. ("Anthem"). Anthem and BCBS-ME are sometimes referred to herein as the "parties."
RECITALS: WHEREAS, the parties entered into that certain Asset Purchase Agreement dated as of July 13, 1999 (the "Agreement"); and
WHEREAS, the Agreement purports to bind the Foundation in certain respects and also requires BCBS-ME and the Foundation to bear certain liabilities; and
WHEREAS, the parties have agreed that the foregoing provisions of the Agreement should be amended as set forth below;
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the sufficiency of which is hereby acknowledged, and of the promises and the mutual covenants herein contained, the parties agree as follows:
1. Definitions. In the definition of "Foundation" in Article I, the last sentence, which reads, "[a]fter the Closing (assuming the designated Foundation is in existence), the Foundation shall represent the interests of Seller pursuant to this Agreement," shall be deleted.
2. Excluded Liabilities. The parties desire to modify BCBS-ME's obligations to indemnify Anthem after the Closing by making the following changes to the Agreement:
"Machigonne Stock Acquisition Cost" means $4.2 million, unless prior to Closing Purchaser and Blue Alliance agree upon (subject to Seller’s and the Superintendent of Insurance’s approval) a purchase price and terms for Purchaser’s acquisition of Blue Alliance’s equity interest in Machigonne, Inc., in which case the "Machigonne Stock Acquisition Cost" shall be the purchase price paid to Blue Alliance for such stock. In the event Purchaser and Blue Alliance do not agree prior to Closing upon a purchase price and terms for Purchaser’s acquisition of Blue Alliance’s equity interest in Machigonne, Inc., then Purchaser shall waive the condition to Closing set forth in Section 8.03(n); and "Medicare Liability Assumption Cost" means $5 million, unless prior to Closing Purchaser is able to secure insurance coverage acceptable to it insuring Purchaser from and against all Liabilities in excess of a $3 million deductible resulting from, relating to or otherwise associated with services/actions of BCBS-ME under Medicare, in which case the "Medicare Liability Assumption Cost" shall be the aggregate (expressed as a present value using the then-current interest yield on 10-year U.S. Treasury securities as the discount rate) of all premiums due or to be due in order to secure such insurance coverage for the applicable statutes of limitations, but in no event shall the same exceed $5 million. Purchaser and Seller shall use good faith efforts to secure such insurance coverage prior to Closing.
3. Adjustments of Total Consideration. Section 2.07 of the Agreement shall be modified as follows:
4. Access to Information. All references to the Foundation in Section 5.02(e) shall be deleted.
5. Confidentiality. The last sentence of Section 5.03, binding the Foundation to the terms of a confidentiality agreement, shall be deleted.
6. Covenant not to Compete. The covenant not to compete set forth in Section 5.10 of the Agreement shall be amended as follows:
7. Tax Matters. The first sentence of Section 7.06(a) shall be amended by deleting the second parenthetical and substituting the following language in its place:
8. Assumption by Foundation. Section 8.03(i) shall be deleted in its entirety and replaced with the following:
9. Indemnification by Seller. The words "and the Foundation, jointly and severally" in the first sentence of Section 9.01 shall be deleted. All other references to the Foundation in Section 9.01 shall also be deleted. The reference to indemnification by the Foundation in the first sentence of Section 9.03 shall also be deleted.
10. Notices. The last sentence of Section 11.02, which provided that all notices to Seller after the Closing Date shall also be copied to the Foundation, shall be deleted.
11. Miscellaneous.
[The next succeeding page is a signature page.]
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above appearing.
ASSOCIATED HOSPITAL SERVICE OF MAINE d/b/a BLUE CROSS AND BLUE SHIELD OF MAINE By: Name: Title:
ANTHEM INSURANCE COMPANIES, INC. By: David R. Frick Executive Vice President and Chief Legal and Administrative Officer 261204 v.02 Last Updated: December 8, 2011 |
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