AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT to Asset Purchase Agreement is made as of October 31, 1997,
between XXXXX MEDICAL, INC. , a California Corporation, as "Buyer", and U.S.
MEDICAL PRODUCTS, INC., a Texas Corporation, as "Seller".
RECITALS
A. On May 20, 1997, buyer and Seller entered into an Asset Purchase
Agreement (the "Agreement"), pursuant to which Seller agreed to sell Buyer
certain tangible and intangible assets and Buyer agreed to purchase such
assets and assume specified and limited liabilities of Seller.
B. The parties now wish to amend the Agreement to expedite the Closing Date
to November 1, 1997, under the following conditions, which modify the
Agreement only as indicated below.
IT IS HEREBY AGREED AS FOLLOWS:
1. Section VII.1 is amended to define the Closing Date as November 1,
1997, provided all the Conditions set forth in Section VIII have been met.
2. Section III.2 is amended to permit Seller to deliver to Buyer on
November 1, 1997, an Updated Draft Closing Statement based on September 30,
1997 Financial Statements. By November 21, 1997, Seller shall deliver to
Buyer a Final Closing Statement based on October 31, 1997 Financial
Statements. By December 12, 1997, Buyer shall accept or object to the Final
Closing Statement. In all other respects, this Section shall remain unchanged.
3. Sections III.1 (a), (b) and VII.3 (a), (b) are amended to permit the
Closing on November 1, 1997, without delivery by Buyer of the Cash Payment
and Promissory Note, with such cash payment only becoming payable from Buyer
to Seller as follows: (1) $30,000.00 upon signing of this Amendment; (2) up
to $30,000.00 upon delivery of the Final Closing Statement from Seller to
Buyer provided the Assets exceed the Assumed Liabilities; and (3) when the
Final Closing Statement is agreed upon by both parties or is adjusted by an
independent certified auditor, if required, as set forth in Section III.2
(the "Reconciliation") and only to the extent the Assets exceed the Assumed
Liabilities.
4. The balance of the Note payable under the License Agreement (the
"License Note") will be offset to the extent the Assumed Liabilities exceed
the Assets.
5. At the completion of the Reconciliation, in the event the Assumed
Liabilities exceed the Assets plus the License Note (the "Excess
Liabilities"), at Buyer's option, Buyer may require Seller or its successor
to make a cash payment to Buyer within 10 days after the Reconciliation to
the extent of such Excess Liabilities, or Buyer may reject certain
liabilities or Acquired Contracts to the extent of such Excess Liabilities.
6. Accounts receivable from Buyer to Seller shall not be due at the
Closing and shall become an Asset on the Closing Statement; provided,
however, such accounts receivable shall not be subject to the 56.25% discount
set forth in paragraph III.1(b) of the Agreement.
7. The outstanding payable to the Scientific Advisory Board shall
become an Assumed Liability by Buyer, in the amount set forth according to
each contract.
8. Buyer shall assume the Xxxxxxxx Xxxx lease through the remainder of
the lease period, without any right of offset against the Assets. The lease
deposit shall be an Asset purchased by Buyer.
9. In all other respects, the Agreement shall remain unchanged and the
parties confirm all of their respective rights and obligations as described
therein.
SELLER BUYER
U.S. MEDICAL PRODUCTS, INC. XXXXX MEDICAL, INC.
By: By:
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Xxxxxxxxx X. Xxxxxxxxxx Xxxxxx X. X. Xxxxx, Xx.
CEO President and CEO
