EXHIBIT 10-B
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this
"Amendment"), dated as of January 3, 2000, is made and entered
into by and among XXXXX & XXXXX, INC., a Florida corporation
("BUYER"); XXXXXXX CORPORATION, a New York corporation
("SELLER"); and each of the shareholders of Seller listed on the
signature pages hereto (each a "SHAREHOLDER" and collectively the
"SHAREHOLDERS").
WHEREAS, each of Buyer, Seller and the Shareholders are
parties to that certain Asset Purchase Agreement, dated as of
September 11, 2000 (the "PURCHASE AGREEMENT"; capitalized terms
used herein and not otherwise defined shall have the meaning
ascribed to such term in the Purchase Agreement);
WHEREAS, pursuant to the Purchase Agreement, Buyer and
Seller have agreed to Buyer's purchase and Seller's sale of
substantially all of the assets (other than cash, accounts
receivable and other excluded assets described herein) used in
connection with Seller's Business (as more fully described in the
Purchase Agreement, the "ACQUIRED ASSETS");
WHEREAS, certain of the assets that Buyer contemplates
purchasing from Seller under the Purchase Agreement are in fact
owned by Xxxxxxx Insurance of Wyoming, Inc., a Wyoming
corporation and wholly-owned subsidiary of Seller ("XXXXXXX
WYOMING"), and Buyer, through its wholly-owned subsidiary, Xxxxx
& Xxxxx of Wyoming, Inc., a Wyoming corporation ("XXXXX & XXXXX
WYOMING"), wishes to purchase those assets owned by Xxxxxxx
Wyoming pursuant to a separate agreement, and the parties wish to
amend the Purchase Agreement accordingly;
WHEREAS, Xxxxxx Xxxxxx, a New York resident and employee of
Seller ("MELONI"), has developed personal goodwill with respect
to certain insurance accounts in connection with Seller's
Business, which personal goodwill constitutes a separate asset
from the Acquired Assets (such accounts are collectively referred
to herein as the "MELONI ACCOUNTS");
WHEREAS, the parties agree that Meloni's person goodwill in
the Meloni Accounts constitutes a separate asset, apart from the
Acquired Assets which Buyer is purchasing from Seller pursuant to
the Purchase Agreement, and which goodwill accordingly Buyer
desires to purchase directly from Meloni by separate agreement,
simultaneously with the Closing of the transactions contemplated
by the Purchase Agreement;
WHEREAS, the parties desire to amend the Purchase Agreement
to revise the Acquired Assets and the Total Purchase Price, as
those terms are defined and used under the Purchase Agreement,
and to make certain ancillary amendments;
NOW THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. ACQUIRED ASSETS. (a) Section 1.2 of the Purchase
Agreement is amended to insert after the introductory clause "In
this Agreement, the phrase `ACQUIRED ASSETS' means, subject to
SECTION 1.4, all of the assets of Seller described below", the
following language:
(PROVIDED, HOWEVER, that the parties agree that such assets
shall specifically exclude those assets (the "WYOMING
ASSETS") owned by Xxxxxxx Insurance of Wyoming, Inc., a
Wyoming corporation and wholly-owned subsidiary of Seller
("XXXXXXX WYOMING"), which assets shall be subject to a
separate purchase agreement (the "WYOMING AGREEMENT")
between Xxxxxxx Wyoming, as seller, and Xxxxx & Xxxxx of
Wyoming, Inc., a Wyoming corporation and wholly-owned
subsidiary of Buyer, as buyer):
(b) Section 1.2(b)(ii) of the Purchase Agreement shall
be amended by deleting such clause in its entirety and inserting
in lieu thereof the following:
(ii) the goodwill of the Business, including the
corporate name and the name "XXXXXXX INSURANCE" and all
derivatives thereof, and any other fictitious names and
trade names that are currently in use by Seller (except the
corporate or trade name of "Xxxxxxx Corporation," and
"Vision Financial Corporation," a Delaware corporation and
partly-owned subsidiary of Seller), and all telephone
listings, post office boxes, mailing addresses, and
advertising signs and materials; PROVIDED, HOWEVER, that
such goodwill shall expressly exclude any goodwill
associated with those accounts set forth in SCHEDULE
1.2(B)(II) (the "MELONI ACCOUNTS"), which goodwill the
parties agree is the personal property of Xxxxxx Xxxxxx, a
New York resident and employee of Seller;
2. Section 1.5(a) of the Purchase Agreement shall be
amended by deleting clauses (v) and (vi) and in lieu thereof
inserting the following new clauses (v), (vi), (vii) and (viii):
(v) amounts representing remaining payment obligations
pursuant to the Assumed Acquisition Agreements (as set forth
in SCHEDULE 1.2(C)(I)) and Assumed Operating Expenses (as
set forth in SCHEDULE 1.2(C)(II)), whether owed to Seller,
third parties or otherwise, discounted at a rate of 8.5% per
annum; PLUS OR MINUS (as the case may be)
(vi) any Adjustments; MINUS
(vii) the purchase price of the Wyoming Assets, as
set forth in the Wyoming Agreement; and MINUS
(viii) $320,000.00, the value of the goodwill
associated with the Meloni Accounts, which goodwill is expressly
excluded from the Acquired Assets pursuant to SECTION 1.2(B)(II)
hereof and which Buyer shall acquire directly from Meloni by
separate agreement, simultaneously with the Closing of the
transactions contemplated by this Agreement.
3. The Schedules and Exhibits table at the end of the
Purchase Agreement shall be amended by inserting "SCHEDULE
1.2(B)(II) Meloni Accounts" between SCHEDULE 1.1(B)
(Permitted Liens and Encumbrances) and SCHEDULE 1.2(C)(I)
(Assumed Acquisition Agreements).
4. This First Amendment may be executed in two or more counterparts,
each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
5. Except as specifically modified hereby, the Agreement
shall remain in full force and effect.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have signed or caused this
Amendment to be signed by their respective officers thereunto
duly authorized as of the date first written above.
BUYER:
XXXXX & XXXXX, INC.
By: /S/ X. XXXXX XXXXX
_________________________________
Name: X. XXXXX XXXXX
Title: CHAIRMAN, PRESIDENT & CEO
SELLER:
XXXXXXX CORPORATION
By: /S/ XXXX X. XXXXXXX
________________________________
Name: XXXX X. XXXXXXX
Title: CHAIRMAN
SHAREHOLDERS:
/S/ XXXX X. XXXXXXX
__________________________________
Xxxx X. Xxxxxxx, individually
/S/ XXXXX X. XXXXXXX
__________________________________
Xxxxx X. Xxxxxxx, individually
/S/ XXXXXXXXX XXXXXXXX
__________________________________
Xxxxxxxxx Xxxxxxxx, individually
/S/ XXXXX X. XXXXXXXX
__________________________________
Xxxxx Xxxxxxxx, individually
/S/ XXXXX XXXXXXX
__________________________________
Xxxxx Xxxxxxx, individually
/S/ XXXXX X. XXXX
___________________________________
Xxxxx X. Xxxx, individually
/S/ XXXXXX X. XXXXXX
______________________________________
Xxxxxx X. Xxxxxx, as Trustee for the Xxxx X.
Xxxxxxx Irrevocable Trust for Xxxxx X. Xxxxxxx
/S/ XXXXXX X. XXXXXX
______________________________________
Xxxxxx X. Xxxxxx, as Trustee for the Xxxx X.
Xxxxxxx Irrevocable Trust for Xxxxx Xxxxxxxx
/S/ XXXXXX X. XXXXXX
______________________________________
Xxxxxx X. Xxxxxx, as Trustee for the Xxxx X.
Xxxxxxx Irrevocable Trust for Xxxxx Xxxxxxxx
/S/ XXXXXX X. XXXXXX
_______________________________________
Xxxxxx X. Xxxxxx, as Trustee for the Xxxx X.
Xxxxxxx Irrevocable Trust for Xxxxx Xxxxxxx
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