EXHIBIT 10.48
AMENDMENT NO. 1 TO STOCK FOR STOCK EXCHANGE AGREEMENT
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This AMENDMENT NO. 1 (the "Amendment") is made and entered into as of the
13th day of February, 2002, by and among The Bio Balance Corp., a Delaware
corporation ("Bio Balance"), for itself and for the benefit of the shareholders
and warrantholders of Bio Balance, and New York Health Care, Inc., a New York
corporation ("NYHC").
WHEREAS, Bio Balance and NYHC (the "Parties") entered into a "Stock For
Stock Exchange Agreement" dated October 11, 2001 ("Agreement"); and
WHEREAS, the Parties have agreed to amend the Agreement as provided for in
this Amendment;
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises made in the Agreement and in this Amendment and in consideration of the
covenants, representations, warranties and conditions set forth therein and
herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as follows:
1. Article 2.1 of the Agreement is hereby amended to read as follows:
"2.1. THE CLOSING. Subject to the conditions precedent contained
herein, the Exchange ("Closing") shall take place at the offices of
Scheichet & Xxxxx, P.C., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
at 1:00 p.m. (local time) at a date mutually agreed between the parties not
later than August 13, 2002 (the "Closing Date")."
2. Article 3.1 of the Agreement is hereby amended to read as follows:
"3.1. NASDAQ APPROVAL. NYHC shall promptly submit this Agreement
and other documents delivered herewith to The Nasdaq Stock Market, Inc.
("NASDAQ") pursuant to the rules and regulations governing companies with a
class of stock listed for trading on the NASDAQ SmallCap Market
("Smallcap"). As of the Closing, NYHC must receive "no objections" from
NASDAQ for the Exchange and other transactions set forth in this Agreement,
subject only to NYHC obtaining the approval of NYHC Shareholders of the
Exchange ("NASDAQ Approval"). The NASDAQ Approval may be conditioned on
NYHC being required to apply for a SmallCap listing based on NASDAQ's "new
listing" requirements.
3. Article 3.2a.(v) and 3.2b.of the Agreement are hereby amended to read as
follows:
"3.2. SHAREHOLDER CONSENT.
a. (v) The approval of an amendment to the New York Health Care,
Inc. Performance Incentive Plan (the "Stock Option Plan") authorizing the
reservation of an additional 2,230,000 shares of the Company's $.01 par
value common stock for issuance under the Stock Option Plan after the
meeting of the NYHC Shareholders referred to in Article 3.2b. below.
b. Proxy Statement. NYHC will file a Form S-4 Registration
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Statement (the "Registration Statement") with the Securities and Exchange
Commission as promptly as reasonably possible. The Company further
covenants to use its best efforts to prosecute the Registration Statement
to an "effective date" to enable the meeting of NYHC Shareholders to be
held on or before the Closing Date."
4. Article 3.4 of the Agreement is hereby amended to read as follows:
"3.4. PRIVATE PLACEMENT. Bio Balance shall complete a private
placement of its common stock on the terms more particularly described in
Schedule 3.4 ("Private Placement") at Bio Balance's sole cost and expense
in which it shall raise not less than $6,000,000 of gross proceeds prior to
the Closing Date. NYHC shall cooperate with Bio Balance in the preparation
of the documents necessary to conduct the Private Placement and all filings
required to be made in connection with the Private Placement. All proceeds
from the Private Placement will be employed to pay expenses of the Private
Placement and then exclusively for use by Bio Balance in furtherance of its
business. "
5. Schedule 3.5a of the Agreement is hereby amended to read as follows:
"SCHEDULE 3.5A
NYHC LOCKUP
1,501,985 NYHC Common Shares owned by Xxxxx Xxxxx and Xxxxx Xxxxxxxxx will
be restricted from sale, transfer or hypothecation until 120 days after the
effective date of the S-4 Registration Statement referred to in Section 3.3 of
the Agreement (the "Effective Date"), provided all such Shares owned and
transferred by them which Share are subject to the irrevocable proxies described
in Section 3.2(c) remain subject to the irrevocable proxies through the Closing
Date or termination of this Agreement. Thereafter, for so long as each such
holder is a director of NYHC each calendar month, each such holder may convey
not more than 10% of the NYHC Common Shares owned by him on the Effective Date.
Each such holder may transfer NYHC Common Shares owned by them as of the
date of this Agreement to family trusts and registered charities provided such
transferred NYHC Common Shares remain subject to restriction from further sale,
transfer or hypothecation until 120 days after the Effective Date. Thereafter,
for so long as each such holder is a director of NYHC each calendar month, each
such transferee may convey not more than 10% of the NYHC Common Shares received
by the transferee. The foregoing notwithstanding, registered charities who
receive NYHC Common Shares may sell up to 1,000 NYHC Shares per trading day
commencing on the Effective Date and until 120 days thereafter."
6. The execution, delivery and performance of this Amendment has been duly
authorized, adopted and approved by the Parties. Each of the Parties has taken
all necessary corporate action and has all of the necessary corporate power to
enter into this Amendment and to consummate the transactions described in this
Amendment. This Amendment has been duly and validly executed and delivered by an
authorized officer of each of the Parties and is the valid and binding
obligation of each of the Parties, enforceable against each of them in
accordance with its terms.
7. All of the other provisions, terms and conditions of the Agreement and
the schedules annexed thereto remain unimpaired and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
THE BIO BALANCE CORP.
Attest:
/S/ Xxxxxx Xxxxxx By: /S/ Xxxx Xxxxx
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Xxxxxx Xxxxxx, Secretary Xxxx Xxxxx
Its: President and Director
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NEW YORK HEALTH CARE, INC.
Attest:
/S/ Xxxxx Xxxxxxxxx By: /S/ Xxxxx Xxxxx
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Xxxxx Xxxxxxxxx, Xxxxx Xxxxx
Secretary
Its: President and CEO
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