Exhibit 2.3
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
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THIS FIRST AMENDMENT ("Amendment"), dated as of the 18th day of June, 2001,
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to the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated as of
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April 1, 2001, by and between HEALTHPLAN HOLDINGS, INC., a Delaware corporation
(the "Purchaser"), and PLANVISTA CORPORATION ("PVC") (f/k/a HealthPlan Services
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Corporation), a Delaware corporation (the "Stockholder").
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WHEREAS, the Purchaser and the Stockholder desire to amend the Stock
Purchase Agreement to reflect certain changes to the structure and terms of the
transaction and to make clear that the Purchaser has agreed to make a loan to
the Stockholder, in the form of an assumption of certain obligations, and to
amend the Stock Purchase Agreement as hereinafter provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Purchaser and the Stockholder hereby agree as follows:
Section 1. Amendment to Section 1.1. Section 1.1 of the Stock Purchase
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Agreement is hereby deleted in its entirety and replaced with the following
provision:
1.1 Purchase and Sale of Company Stock, PVC Stock and PVC
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Promissory Note. Subject to the terms and conditions set forth in this
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Agreement, the Stockholder hereby agrees to sell, transfer, convey, assign
and deliver to the Purchaser at the Closing (as defined in Section 1.5
hereof), and the Purchaser hereby agrees to purchase, accept and acquire
from the Stockholder at the Closing: (a) one hundred percent (100%) of the
issued and outstanding shares of capital stock of HPSI, consisting of 500
shares of common stock, $1.00 par value per share (the "HPSI Stock"), free
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and clear of all Liens (as defined in Section 9.16 hereof); (b) a number of
shares of the common capital stock of PVC (the "PVC Common Shares")
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determined by adding one hundred thousand shares to the number of shares
(rounded up to the nearest whole share) obtained by dividing Five Million
Dollars ($5,000,000.00) by the weighted average daily closing price of one
share of the common stock of PVC on the New York Stock Exchange determined
over the ten trading days ending three trading days prior to Closing; and
(c) a Subordinated Convertible Promissory Note of the Stockholder with
terms and conditions and substantially in the form of Exhibit 5.1 (r)(1)
hereto (the "Promissory Note").
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Section 2. Amendment to Section 1.2. Section 1.2 of the Stock Purchase
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Agreement is hereby deleted in its entirety and replaced with the following
provision:
"1.2 Purchase Price. (A) The consideration for the HPSI Stock (the "HPSI
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Stock Purchase Price") shall be the sum of (i) One Dollar ($1.00), in cash,
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(ii) the assumption by the Purchaser of up to Thirty Million Dollars
($30,000,000.00) of the Closing Working Capital Deficit of the Companies
(as defined in Section 1.4 hereof). (B) The consideration for the PVC
Common Shares shall be the assumption of an additional Five Million Dollars
($5,000,000.00) of the Closing Working Capital Deficit of the Companies (as
defined in Section 1.4 hereof). (C) The Consideration for the Promissory
Note shall be the assumption by the Purchaser of another Five Million
Dollars ($5,000,000.00) of the Closing Working Capital Deficit of the
Companies. Notwithstanding any provision of this Agreement to the contrary,
in no event shall the Purchaser assume, pursuant to this Section 1.2, any
portion of the Closing Working Capital Deficit of the Companies in excess
of Forty
Million Dollars ($40,000,000.00).
Section 3. Amendment to Section 1.3. Section 1.3 of the Stock Purchase
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Agreement is hereby deleted in its entirety and replaced with the following
provision:
"(a) At the Closing, the Purchaser shall: (i) pay $1.00, in cash, to the
Stockholder; (ii) assume up to Thirty Million Dollars ($30,000,000.00) of
the Closing Working Capital Deficit of the Companies for the HPSI Stock;
(iii) purchase the PVC Common Shares by the assumption of an additional
Five Million Dollars ($5,000,000.00) of the Closing Working Capital Deficit
of the Companies; (iv) subject to the terms and conditions of the
Promissory Note, loan the Stockholder Five Million Dollars ($5,000,000.00)
through the assumption of another Five Million Dollars ($5,000,000.00) of
the Closing Working Capital Deficit of the Companies; and (v) satisfy a
portion of the Closing Working Capital Deficit that it assumes pursuant
hereto by (A) paying to New England Financial ("NEF"), Eleven Million
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Dollars ($11,000,000.00) in cash and (B) delivering to NEF a promissory
note in the principal amount of Five Million Dollars ($5,000,000.00) (the
"NEF Note"). The Stockholder agrees that the payments described in clause
(v) of this Section 3 (a) will be applied as follows: (i) Three Million
Five Hundred Thousand Dollars of the cash payment will be applied against
the payment due to NEF from HPSI on June 30, 2001; and (ii) Seven Million
Five Hundred Thousand Dollars ($7,500,000.00) of the cash payment and the
entire NEF Note shall be applied against the past due payables amount due
to NEF from HPSI, all in accordance with the release letter from NEF to be
delivered at Closing.
(b) At the Closing, the Stockholder shall: (i) assume the Indebtedness of
the Companies to the Persons, and in the amounts, set forth on Schedule 1.3
hereto and deliver to the Purchaser a release from such Persons releasing
the Companies from all of the outstanding Indebtedness of the Companies to
such Persons as of the Closing and terminating any Liens which such Persons
may hold encumbering the assets of the Companies; (ii) pay to HPSI an
amount in cash equal to the amount, if any, by which the Estimated Closing
Working Capital Deficit (as defined in Section 9.16 hereof) exceeds the
Target Amount; (iii) deliver to the Purchaser certificates representing the
PVC Common Shares (or in the alternative an instruction letter to the
Stockholder's transfer agent instructing the transfer agent to issue and
deliver a certificate representing the PVC Common Shares to Purchaser) and
(iv) deliver to the Purchaser a fully executed Promissory Note.
(c) All payments and deliveries to be made at the Closing pursuant to this
Section 1.3 shall be made as follows: (x) in the case of payments of cash,
by wire transfer on the Closing Date (as defined in Section 1.5) of
immediately available funds to the account(s) specified by each payee no
later than two (2) business days prior to the Closing Date (unless such
payee specifies another acceptable method of payment no later than two (2)
business days prior to the Closing Date), (y) in the case of the Promissory
Note, by delivery of the Promissory Note to the Purchaser or its designee
on the Closing Date and (z) in the case of the PVC Common Shares either by
delivery of the Certificates if available or if not available by delivery
of the transfer agent instruction letter as specified in 1.3(b) above.
(d) The Stockholder shall be entitled to apply the amount, if any, by
which the Estimated Closing Working Capital Deficit as defined in Section
9.16 is less than Thirty Nine Million Five Hundred Thousand Dollars
($39,500,000.00) (the "Estimated Closing Working Capital Stockholder
Credit") adjusted by the amount, if any, of any Final Adjusted Stockholder
Credit as defined in Section 1.4(d), to any payments which may be due from
the Stockholder to Purchaser or HPSI at or after the Closing (i) under the
Transition Services Agreement, (ii) against the Stockholder's obligation to
reimburse Purchaser for $25,000.00 per month until October 30, 2001of the
payments to Trewit under the Trewit Data Processing Agreement, and (iii)
against any payment or
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reimbursement obligation of the Stockholder to pay any fees payable by HPSI
to Computer Associates in the event that Trewit does not pay such fee in
connection with its renewal of the HPSI Data Processing Agreement with
Trewit (collectively, the "Stockholder Offsets") provided that (x) there
shall be no Stockholder Offset applied against amounts due under the
Transition Services Agreement after December 31, 2001, and (y) if the PVC
Common Shares have not been registered for sale pursuant to an effective
registration statement with the Securities Exchange Commission on or prior
to October 30, 2001, the Stockholder shall not utilize Stockholder Offsets,
which would be otherwise usable, from and after October 30, 2001, until the
PVC Common Shares have been so registered pursuant to an effective
registration statement. (The amount of such unused Stockholder Offsets
which, but for clause (y) above, could have been used is hereinafter
referred to as "Suspended Stockholder Offsets.") Additionally, when the
Purchaser is able to sell the PVC Common Shares the Purchaser will
reimburse the Stockholder for the amount of any Suspended Stockholder
Offsets which could otherwise have been used by the Stockholder but for the
provisions of clause (y) above. Usable Stockholder Offsets may be applied
in such order and in such amounts as shall be directed by the Stockholder;
provided, that the foregoing notwithstanding, the Stockholder may not apply
any portion of the Stockholder Offsets to the rent due to HPSI under the
Stockholder's sublease of space at the Concourse Center offices in Tampa,
Florida; and provided further that once the Final Adjusted Stockholder
Credit or the Final Adjusted Purchaser Credit, as defined in Section
1.4(d), has been determined as provided in Section 1.4(d) no further
applications of the Estimated Closing Working Capital Stockholder Credit
may be so applied by the Stockholder except to the extent that such
applications were taken into account in determining the Final Adjusted
Stockholder Credit, or Final Adjusted Purchaser Credit, if any, as the case
may be.
Section 4. Amendment to Section 1.4(d). Sections 1.4 (d) of the Stock
Purchase Agreement is hereby deleted in its entirety and replaced with the
following provisions:
1.4 (d) Final Closing Working Capital Adjustments. The Closing
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Working Capital Deficit Statement shall calculate the amount, if any, by
which the Final Working Capital Deficit exceeds the Target Amount (a
"Purchaser Credit") which amount, if any, shall be due to HPSI from the
Stockholder and payable in cash subject to the adjustments set forth below.
If, in the alternative, the amount of the Closing Working Capital Deficit
is less than Thirty Nine Million Five Hundred Thousand Dollars
($39,500,000.00) the amount by which it is less than Thirty Nine Million
Five Hundred Thousand Dollars ($39,500,000.00) (a "Stockholder Credit") may
be used by the Stockholder for Stockholder Offsets as specified in Section
1.3 (d) above subject to the adjustments set forth below. Within three (3)
days after the Closing Working Capital Deficit Statement is delivered or
otherwise becomes final in accordance with Section 1.4(b), the Purchaser
Credit or Stockholder Credit so determined shall be adjusted to give credit
to the Stockholder for (i) any cash payments previously made to Purchaser
by Stockholder at Closing based on the Estimated Closing Working Capital as
required by Section 1.3(b) of the Agreement and (ii) the amount of any
Stockholder Paid HPSI Accounts (as defined below) and to charge the
Stockholder for any Stockholder Offsets, based on the Estimated Closing
Working Capital, previously utilized by the Stockholder between the Closing
and the date of such calculation pursuant to Section 1.3(d) of this
Agreement. Once such reconciliation is performed if there remains any
Purchaser Credit which is unpaid (the "Final Adjusted Purchaser Credit"),
the amount of such Final Adjusted Purchaser Credit shall immediately be
paid to HPSI in cash by wire transfer of immediately available funds. If on
the other hand there is a Stockholder Credit (the "Final Adjusted
Stockholder Credit"), the Stockholder may utilize the amount of such Final
Adjusted Stockholder Credit for Stockholder Offsets as permitted by Section
1.3(d). For purposes of the foregoing a "Stockholder Paid HPSI Account"
shall mean any accounts payable which is reflected on the Closing Balance
Sheet which was paid by the Stockholder between Closing and the date that
the foregoing reconciliation is performed (because the Stockholder believed
it was a Stockholder expense). Examples of the
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operation of the foregoing reconciliation are attached hereto as Exhibit
1.4(d) to this Agreement.
Section 5. Amendment to Article II. Article II is amended by deleting
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Section 2.4 thereof and substituting therefor the following:
"3. INVESTMENT REPRESENTATIONS. The Purchaser understands that the
HPSI Shares, the PVC Common Shares, the Promissory Note, and the stock
issuable upon conversion of the Promissory Note (the "Purchased
Securities"), are being sold under one or more exemptions from registration
provided in the Securities Act of 1933, as amended (the "Act"), and limited
offering exemptions contained in the securities laws of other
jurisdictions; that it is purchasing the Purchased Securities, without
being furnished any offering literature, prospectus, or business plan other
than the documents of the Company which have been filed with the Securities
and Exchange Commission pursuant to the Securities and Exchange Act of 1934
as amended (the "Filed Documents"), that this transaction has not been
examined by the United States Securities and Exchange Commission or by any
administrative agency charged with the administration of the securities
laws of any other jurisdiction; that all documents, records, and books
pertaining to this investment requested by the Purchaser have been made
available by the Company to the Stockholder and its representatives,
including its attorney, its accountant, and/or its authorized
representatives. The Purchaser hereby further represents and warrants as
follows:
(a) the Purchaser is a business corporation organized under the
laws of Delaware;
(b) the Purchaser understands and has fully considered for the
purposes of the investment in the Purchased Securities that there are
substantial restrictions on the transferability of the Purchased Securities
and any stock into which the Purchased Securities may be convertible under
the Act and applicable state securities laws and subject to the
Registration Rights Agreement attached hereto as Exhibit 5.1(v), such
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registration may not be available;
(c) the Purchaser confirms that it is able to bear the economic
risk of its investment in the Purchased Securities and has such knowledge
and experience in financial and business matters that the Stockholder is
capable of evaluating the merits and risks of an investment in the
Purchased Securities;
(d) the Purchaser consents to the placement of a legend on the
Purchased Securities including the notes or certificates representing the
Purchased Securities, which legend will be in substantially the following
form (adapted, as appropriate, in the case of a note):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
OTHER JURISDICTION. THE SALE OR OTHER DISPOSITION OF THESE
SHARES IS PROHIBITED UNLESS SUCH SALE OR OTHER DISPOSITION IS IN
ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND THE
SECURITIES LAWS OF ANY OTHER APPLICABLE JURISDICTION OR PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS."
The foregoing representations, warranties, and undertakings are made by the
Purchaser with the intent that they be relied upon in determining its
suitability as an investor in the Company, and the Purchaser hereby agrees
that such representations and warranties shall survive the issuance of the
Purchased
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Securities."
Section 6. Amendment to Section 3.9. Section 3.9 of the Stock Purchase
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Agreement is hereby amended by adding thereto the following provisions
immediately after Section 3.9(b):
"(c) Each of the Companies has satisfied and is currently in compliance
with the performance standards, criteria and other similar requirements set
forth in the agreements, leases, licenses, contracts and commitments listed
on Schedule 3.9(a) hereto, and except as provided in Schedule 3.9, no
penalty, fine or other similar payment is due or owed by any of the
Companies by virtue of its failure to comply with or otherwise satisfy any
such performance standard, criteria or other similar requirement."
(d) The Stockholder and each of the Companies have satisfied and are
currently in compliance with the terms and conditions of the software
licensing agreements listed on Schedule 3.9(a) hereto (including without
limitation any and all provisions which require any of them to notify the
licensors thereunder of any upgrades or other similar improvements to their
respective computer systems and as a result thereof pay increased licensing
or similar fees).
(e) Each of the Companies maintains (i) fidelity bonds, (ii) general
liability, errors and omissions and directors and officers insurance
policies and (iii) all other bonding and insurance policies, in the amounts
required under the terms of the agreements, leases, licenses, contracts and
commitments listed on Schedule 3.9(a) hereto. Except as otherwise provided
in Schedule 4.16(d) hereto, none of the Companies has posted, or is
required to post, any cash collateral in connection with any of the items
referenced in clauses (i), (ii) or (iii) of this Section 3.9(e)."
Section 7. Amendment to Section 4.8. Section 4.8 shall be amended by
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adding to the end of the existing Section 4.8 the following "or in the
alternative the Stockholder may retain non exclusive use of the names "HPS
of Delaware LLC", "HPS of Louisiana, Inc." and "HPS of Missouri, Inc." to
the extent required (only for UCC filings and corporate filings) by its
lenders so long as each such entity files fictitious trade names for such
entity not containing "HPS" and operates from and after Closing using
solely such fictitious trade names until such time as it is permitted to
change its name by its lenders to remove "HPS" therefrom.
Section 8. Amendments to Section 4.13. All references in Section 4.13 to
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Article VI are hereby changed to Article VII. Sections 4.13(a)(iv) and (v) of
the Stock Purchase Agreement are hereby deleted in their entirety and replaced
with the following provisions:
"(iv) all liabilities, debts and other obligations not reflected on the
Latest Balance Sheets or the Closing Working Capital Deficit Statement
attributable to any period prior to Closing, regardless of whether such
liabilities, debts or other obligations are Contingent Liabilities (as
defined in Section 9.16 hereof), including without limitation, any and all
liabilities, debts, charges and other obligations resulting from or that
were otherwise attributable to "restructuring charges" or "reserves" (as
such terms are described under GAAP) in the financial statements of the
Stockholder that were filed with the Securities and Exchange Commission
prior to the Closing.
(v) all severance and similar obligations owed by the Companies to: (1)
those employees terminated prior to June 1, 2001, (2) up to a maximum
aggregate of $500,000 of severance and similar obligations owed by the
Companies to those employees who are terminated by the Companies between
June 1, 2001 and ninety (90) days after the Closing Date, a list of whom
shall be delivered to the Stockholder no later than one hundred twenty
(120) days after the Closing Date, provided that such severance and similar
obligations to be assumed and paid by the Stockholder for
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terminations occurring after the Closing Date shall not include any
obligation associated with any failure to give required WARN Act notices or
to otherwise comply with the WARN Act or similar state statutes with regard
to terminations occurring after the Closing Date. In satisfying its
obligations under clauses (1) and (2) of this section 4.13(v) and subject
to the cap set forth in clause (2) of this Section 4.13(v) with respect to
the Stockholder's reimbursement obligations under that section, the
Stockholder shall reimburse HPSI for the severance payments covered thereby
and HPSI shall pay such severance payments directly to the affected former
employees of HPSI. Stockholder's maximum reimbursement obligation under
clauses (1) and (2) of this Section 4.13(v) for any month shall not exceed
Seventy Five Thousand Dollars ($75,000.00) per month and shall be payable
at the end of each month for covered severance obligations incurred by HPSI
through the end of such month including any covered unreimbursed
obligations from any previous month which to the extent not reimbursed in
any month shall carry over to the succeeding months until HPSI is
reimbursed for all such amounts up to the Five Hundred Thousand Dollar
($500,000.00) severance cap described in Section 4.13 (a)(v)(2) hereof.
The Stockholder shall not be obligated to pay any severance obligation
which is not consistent with HPSI's current severance payment policies in
place prior to the Closing. Finally, the Stockholder may hire any severed
employee and if it does so, to the extent legally permitted, neither
Stockholder or HPSI shall be obligated to pay severance to such employee.
Section 9. Amendment to Schedule 4.13. Schedule 4.13 of the Stock
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Purchase Agreement is hereby deleted in its entirety and replaced with the
revised Schedule 4.13 which is attached hereto.
Section 10. Amendment to Section 4.15. Section 4.15 of the Stock Purchase
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Agreement is hereby deleted in its entirety and replaced with the following
provision:
"4.15 Tampa Facility. If requested by Stockholder after the
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Closing, the Purchaser shall use commercially reasonable efforts to cause
the landlords to release the Stockholder from any guaranty of (i) the
existing lease for the Stockholder's offices located at 0000 Xxxxxxxx Xxxx,
Xxxxx, Xxxxxxx 00000, and (ii) all other existing leases for office space
used, as of the date of this Agreement, by the Companies in the conduct of
their respective businesses. Additionally, the Stockholder will sublease
certain space at the Tampa office space pursuant to the terms of the
Sublease attached as Exhibit 5.1 (x).
Section 11. Amendment to Section 4.16(d). Section 4.16(d) of the Stock
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Purchase Agreement is hereby deleted in its entirety and replaced with the
following provision:
"(d) Stockholder hereby surrenders and disclaims any right it may
have to a return of the $3,804,500 of cash collateral which either it or
HPSI has posted for the surety and fidelity bonds listed on Schedule
4.16(d). The agreements with the bonding company issuing such bonds shall
remain in place after Closing as obligations of HPSI and all applicable
schedules to this Agreement shall be amended to include such bonds and
agreements. HPSI shall be solely responsible for such bonds from and after
Closing and for any payments due under such agreements.
Section 12. Amendment to Section 4.16. Section 4.16 of the Stock Purchase
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Agreement is hereby amended by inserting the following Sections 4.16(k) and (l)
immediately after Section 4.16(j):
"(k) Payables. From and after May 14, 2001 through the Closing Date, the
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Stockholder shall use its best efforts to cause each of the Companies to
pay their respective accounts payable and all other similar items,
including, without limitation, premiums payable to carriers (other than NEF
whose premiums payable are currently past due) and commissions payable
(collectively, the "Payables") on or before their respective due dates. The
Stockholder further covenants and agrees that it shall
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use its best efforts to cause the Companies to continue to make weekly
remittances to NEF, consistent with recent practices, in order to prevent
any further deterioration or extension of the NEF Payables. The Stockholder
represents and warrants that the amount of past due payables owed by the
Companies to NEF as of the Closing Date shall not be more than Thirty Eight
Million Seven Hundred Thousand Dollars ($38,700,000.00), in the aggregate.
Additionally, the Stockholder agrees that it will reimburse the Purchaser,
as payment is made, for any payroll expense related to payroll for
employees of the Companies which will be due after the Closing for periods
from the last payroll prior to Closing through the Closing Date.
(l) Small Group Billing. The Stockholder represents and warrants that,
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since May 14, 2001 (the "May Billing Date"), neither it nor the Companies
has billed, or caused others to xxxx, the Companies' small group customers
for any premiums due and payable. The Stockholder covenants and agrees that
on June 15, 2001, which is the next regularly scheduled billing date, it or
the Companies billed, or caused others to xxxx, the Companies' small group
customers for any premiums due and payable in respect of any period after
the May Billing Date. The Stockholder further covenants and agrees that
until June 15, 2001, neither it nor any of the Companies billed, or caused
others to xxxx, the Companies' small group customers for any premiums due
and payable in respect of any period after the May Billing Date.
Section 13. Amendment to Section 5.1. Section 5.1 of the Stock Purchase
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Agreement is hereby amended by deleting section (r) in its entirety and
inserting the following Sections 5.1 (r) immediately before Section 5.1 (s) and
Sections 5.1(t), (u), (v), (w), (x), (y), (z) and (aa) immediately after Section
5.1(s):
"(r) Promissory Note and Subordination Agreement. The
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Stockholder shall have delivered the Promissory Note, and the Stockholder
and First Union as Agent for the Stockholder's Lenders shall have executed
and delivered the Subordination Agreement to the Purchaser in substantially
the form and substance of attached Exhibit 5.1 (r) (1) and (2)
respectively.
"(t) Assignment and Assumption Agreement. The Stockholder shall
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have executed and delivered to the Purchaser an Assignment and Assumption
Agreement, in substantially the form and substance of attached Exhibit 5.1
(t) (the "Assignment and Assumption Agreement").
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(u) Premium Payments. No customer of any of the Companies shall
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have notified the Stockholder, any of the Companies or the Purchaser, or
threatened, that either (i) such customer intends to collect the premiums
from any insurance policies issued by it, or on its behalf, or (ii) the
Companies shall no longer be permitted to collect the premiums from any
insurance policies issued by or on behalf of such customer."
(v) Registration Rights Agreement. The Stockholder shall have
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executed and delivered to Purchaser a Registration Rights Agreement in
substantially the form and content of Exhibit 5.1 (v) attached hereto.
(w) Asset Transfer Agreement. The Stockholder shall have
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executed and delivered to the Purchaser the Asset Transfer Agreement in
substantially the form and content of Exhibit 5.1 (w) attached hereto.
(x) Sublease For Concourse Center Space. The Stockholder shall
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have executed and delivered to the Purchaser the Sublease for the Concourse
Center Space to be occupied by the Stockholder after Closing which shall be
in substantially the form and content of Exhibit 5.1 (x) attached hereto.
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(y) Security Agreement and UCC-1s. The Stockholder and its
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subsidiaries shall have executed and delivered to the Purchaser, Security
Agreements in substantially the form of Exhibit 5.1 (y) attached hereto and
the UCC-1s called for thereby.
(z) NEF Draw on Six Million Dollar Letter of Credit. NEF shall
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have drawn on the letter of credit issued by the Stockholders lender group
and applied at least six million ($6,000,000.00) dollars of the proceeds
thereof to reduce the premiums payable by the Stockholder or its Affiliates
to NEF.
(aa) NEF Release Letter. NEF shall have delivered a release in
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form and substance satisfactory to the Purchaser.
Section 14. Amendment to Section 6.1. Section 6.1 of the Stock Purchase
------------------------
Agreement is hereby amended by deleting section 6.1(h) in its entirety and
inserting the following Sections 6.1(k), (l), (m), and (n) immediately after
Section 6.1(j):
"(k) Subordination Agreement. The Purchaser and First Union as
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Agent for the Stockholder's Lenders shall have executed and delivered the
Subordination Agreement to the Stockholder in substantially the form and
substance of Exhibit 5.1 (r) (2) attached hereto.
"(l) Assignment and Assumption Agreement. The Purchaser shall have
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executed and delivered to the Stockholder an Assignment and Assumption
Agreement, in substantially the form and substance of attached Exhibit 5.1
(t) (the "Assignment and Assumption Agreement").
(m) Asset Transfer Agreement. The Purchaser shall have executed
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and delivered to Stockholder the Asset Transfer Agreement in substantially
the form and content of Exhibit 5.1 (w) attached hereto.
(n) Sublease For Concourse Center Space. The Purchaser shall have
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executed and delivered to the Stockholder the Sublease for the Concourse
Center Space to be occupied by the Stockholder after Closing which shall be
in substantially the form and content of Exhibit 5.1 (x) attached hereto.
Section 15. Amendment to Section 8.1. Section 8.1 is amended by changing
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the reference to June 15, 2001 contained therein to July 3, 2001. Otherwise the
provisions of Section 8.1 shall remain unchanged.
Section 16. Amendment to Section 9.12. Section 9.12 is amended by
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deleting the notice address for the Purchaser contained therein and substituting
therefor the following:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Section 17. Amendment to Section 9.16(j). Section 9.16(j) is amended by
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changing the reference to three business days contained therein to one business
day. Otherwise the provisions of Section 9.16(j) shall remain unchanged.
Section 18. Amendment to Section 9.19. Section 9.19 shall be amended by
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deleting the 10 day and 5 day notification requirements contained therein and
substituting therefor that the substituted
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schedules may be delivered on or before the third day prior to Closing and the
objection if any may be delivered at Closing. Otherwise the provisions of
Section 9.19 shall remain unchanged.
Section 19. General.
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(a) The Purchaser represents and warrants that this Amendment has been
duly authorized, executed and delivered by the Purchaser and is a legal, valid
and binding obligation of the Purchaser, enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
(b) The Stockholder represents and warrants that this Amendment has
been duly authorized, executed and delivered by the Stockholder and is a legal,
valid and binding obligation of the Stockholder, enforceable in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or conveyance or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
(c) This Amendment shall be governed by, interpreted under, and
construed in accordance with the internal laws of the State of Delaware
applicable to agreements made and to be performed within the State of Delaware,
without giving effect to any choice-of-law provisions thereof that would compel
the application of the substantive laws of any other jurisdiction.
(d) This Amendment may be executed in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
document.
(e) The Closing Date of April 30, 2001 contained in Section 1.5 of
the Agreement shall be changed to June 18, 2001.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this First Amendment to Stock
Purchase Agreement to be executed and delivered by their duly authorized
representatives as of the date first written above.
HEALTHPLAN HOLDINGS, INC.,
a Delaware corporation
By: /s/ M. Xxxxxx Xxxx
-------------------------
Name: M. Xxxxxx Xxxx
Title:
PLANVISTA CORPORATION (f/k/a HealthPlan Services
Corporation), a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
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Schedule 4.13
Actions and Claims
------------------
1. The matters set forth on Schedule 3.13 are hereby incorporated by this
reference.
2. All liabilities, debts, costs and other obligations attributable to any
defalcation or fraud arising on or before the Closing.
3. All liabilities, debts, costs and other obligations attributable to the
disclosure to MCI Telecommunications, Inc. or its Affiliates, on or before
the Closing, of any information concerning the customers (including,
without limitation, their names) of any of the Companies, the Stockholder
or their respective Affiliates.
4. All liabilities, debts, costs and other obligations attributable to any
obligation, as a result of the transactions contemplated hereby, to amend,
modify, replace, update or otherwise change the financing statements in
favor of GATX Corporation under that certain Master Lease Agreement #1928,
dated September 16, 1999, by and between GATX Technology Services
Corporation and HealthPlan Services Corporation
5. All liabilities, debts, costs and other obligations to pay, as a result of
the transactions contemplated hereby, a software license fee or any other
fee to HBO & Company under Section 4(b) of Addendum #1 to Schedule #1 to
HBOC Master Software Licensing Agreement and Master Agreement, dated April
16, 1993 through June 30, 1996, by and between HBO & Company and HealthPlan
Services, Inc.
6. All liabilities, debts, costs and other obligations attributable to MMC One
Corp., MMC Two Corp. and MMC Pennsylvania, L. P., including without
limitation the dissolution of such entities.
7. All liabilities, debts, costs, penalties, fines and other similar payments
attributable to the failure of the Stockholder or any of the Companies, at
any time prior to the Closing, to have satisfied and complied with the
performance standards, criteria and other similar requirements set forth in
the agreements, leases, licenses, contracts and commitments listed on
Schedule 3.9(a) hereto, including without limitation those penalties,
fines, or other similar payments listed on Schedule 3.9.
8. All liabilities, debts, costs, obligations and other payments attributable
to the failure of the Stockholder or any of the Companies, at any time
prior to the Closing, to have satisfied and complied with the terms and
conditions of (i) the software licensing agreements listed on Schedule
3.9(a) hereto (including without limitation any and all provisions which
require any of them to notify the licensors thereunder of any upgrades or
other similar improvements to their respective computer systems and as a
result thereof pay increased licensing or similar fees) or (ii) the Merck-
Medco Agreement as defined and listed on Schedule 3.9(a) hereto.
9. All fees and other amounts payable to Computer Associates International,
Inc. under the terms of the License Agreement, dated as of September 30,
2000, by and between Computer Associates International, Inc. and HealthPlan
Services Inc., from and after the date on which Trewit, Inc. ceases to be a
Data Center client.
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EXHIBIT 1.4(d)
EXAMPLES OF RECONCILIATION OF PURCHASE PRICE ADJUSTMENT
EXAMPLE 1
Estimated Closing Working Capital Deficit $41,000,000.00
Target Amount $40,000,000.00
--------------
Excess Payable in Cash by Stockholder to Purchaser at Closing $ 1,000,000.00
Final Closing Working Capital Deficit $39,500,000.00
Result is a Final Adjusted Shareholder Credit of $ 1,000,000.00*
*Since the Final Working Capital Deficit is not less than $39,500,000.00 there
would be no Shareholder Credit except for that generated by the required return
of the cash closing payment made by Stockholder based on the Estimated Working
Capital Deficit. Had the Final Closing Working Capital Deficit been below
$39,500,000.00 the amount by which it was below $39,500,000.00 would be added to
the Final Adjusted Shareholder Credit amount.
EXAMPLE 2
Estimated Closing Working Capital Deficit $39,000,000.00
Contact Floor Amount $39,500,000.00
--------------
Estimated Closing Working Capital Stockholder Credit $ 500,000.00
Final Closing Working Capital Deficit $38,000,000.00
Shareholder Credit $ 1,500,000.00
Amount of Estimated Closing Working Capital Stockholder
Credit already used by Shareholder at final determination $ 500,000.00
Result is a Final Adjusted Shareholder Credit of $ 1,000,000.00*
If the Shareholder Credit had turned out to be less than the Amount of the
Estimated Closing Working Capital Stockholder Credit already used by Shareholder
at final determination, the result would have been a Final Adjusted Purchaser
Credit in the amount of the difference between the Amount of the Estimated
Closing Working Capital Stockholder Credit already used and the amount of the
Shareholder Credit and the Stockholder would have to pay the Final Adjusted
Purchaser Credit amount to the Purchaser immediately.
EXAMPLE 3
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Estimated Closing Working Capital Deficit $38,000,000.00
Contact Floor Amount $39,500,000.00
--------------
Estimated Closing Working Capital Stockholder Credit $ 1,500,000.00
Final Closing Working Capital Deficit $39,500,000.00
Shareholder Credit $ 0
Amount of Estimated Closing Working Capital Stockholder
Credit already used by Shareholder at final determination $ 500,000.00
Result is Shareholder owes Purchaser an immediate cash payment
of $ 500,000.00
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