EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
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THE XXXXXXXX AND XXXXXXXX COMPANY ("Seller"), THOROUGHBRED ACQUISITION,
INC. ("Purchaser") and INFOCURE CORPORATION ("Parent") agree as follows:
RECITALS:
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Seller, Purchaser and Parent have entered into an Asset Purchase Agreement
dated as of September 28, 1998 (the "Agreement") and a letter amending the
Agreement (the "Side Letter") dated as of the same date.
Capitalized terms used in this Amendment No. 1 (the "Amendment") that are
defined in the Agreement and not otherwise defined in this Amendment shall have
the meanings set forth in the Agreement.
The Parties desire by this Amendment to amend the Agreement and to
supersede and render null and void the Side Letter.
1. AMENDMENT. The Agreement shall be amended as set forth in this Section 1.
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Except as expressly set forth in this Section 1, the Agreement shall not be
amended, modified or otherwise affected by this Amendment and the Agreement
shall remain in full force and effect.
1.1 The List of Schedules shall be amended to add: "FF Section 22
Contracts". The List of Exhibits shall be amended to add the
following: "Exhibit 16 Form of Reimbursement Agreement", "Exhibit 17
Form of Assignment of Certain Employee Claims", and "Exhibit 18 Form
of Bridge Note", and to change Exhibit 14 to "Intentionally Omitted".
1.2 Sections 6.1 and 6.2 shall be amended to change (a) the references to
Xxxxxxxx Holdings' "Articles of Incorporation" to "Certificate of
Incorporation" and (b) the references to Xxxxxxxx Holdings' "Code of
Regulations" to "Bylaws".
1.3 Section 6.19 shall be deleted in its entirety and replaced with the
following:
"Xxxxxxxx Holdings is the sole party in interest as to the Parent Note
and the Bridge Note and any Converted Securities and is acquiring the
Parent Note and the Bridge Note and any Converted Securities for it's
own account, for investment only and not with a view toward the resale
or distribution thereof. Seller and Xxxxxxxx Holdings acknowledge that
none of the Parent Note, the Bridge Note or the Converted Securities
are registered under the Securities Act or the securities laws of any
state or other jurisdiction. Xxxxxxxx Holdings is an "accredited
investor" as defined in Regulation D promulgated under the Securities
Act. Seller agrees that Xxxxxxxx Holdings will not attempt to pledge,
transfer, convey or otherwise dispose of any of the Parent Note, the
Bridge Note or the Converted Securities or any interest therein except
in a transaction that is the subject of either (a) an effective
registration statement under the Securities Act and any applicable
state securities laws or (b) an opinion of counsel, which counsel and
which opinion of counsel shall be reasonably satisfactory to Parent,
to the effect that such registration is not required."
1.4 All references to Xxxxxxxx Holdings' being an Ohio corporation shall
be amended to refer to Xxxxxxxx Holdings as a Delaware corporation.
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1.5 Section 7.2(f) and Sections 16.6(f)(vii) and 16.6(f)(viii) shall be
amended to provide in each case that those Sections shall not limit
the remedies of Purchaser and Parent under Section 22.
1.6 Section 9.4 shall be deleted in its entirety and replaced with the
following:
"9.4 Consents, Waivers and Approvals. Seller, Purchaser and Parent
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will each use best efforts to obtain prior to the Closing (a) the
Lessor Documents from each lessor of any Acquired Business Leased Real
Property and (b) all other material consents (including under the
Section 22 Contracts), waivers, approvals, and releases, and to make
prior to the Closing all material filings (including Governmental
Authorizations and filings with Governmental Bodies), in each case as
necessary to effect the transactions contemplated hereby (provided,
that Seller shall not be obligated to obtain any consents, waivers,
approvals or releases from Customers). Seller, Purchaser and Parent
will each use best efforts to cause NEC to enter into an agreement
with Purchaser and Parent to continue Purchaser's right to use certain
equipment at Seller's San Diego facility on substantially the same
terms and conditions as currently in effect. To the extent such
agreement is not obtained, the Parties will act with respect to that
portion of Seller's existing agreement with NEC relative to such
equipment in a manner similar that contemplated by Section 9.11. All
such consents, waivers, releases, approvals and filings will be in
writing and in form and substance reasonably satisfactory to the other
Party."
1.7 Sections 9.13 and 9.14 shall be deleted in their entirety and replaced
with "Intentionally Omitted".
1.8 Section 10.12 shall be deleted and replaced in its entirety by the
following:
"10.12 Assignment of Certain Employee Claims. Seller shall have
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executed and delivered the Assignment of Certain Employee Claims."
1.9 Section 11.8 shall be amended by adding the following at the end on
the Section: "and the Bridge Note".
1.10 Section 11.11 shall be deleted and replaced in its entirety by the
following:
"11.11 Reimbursement Agreement. Purchaser and Parent shall have
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executed and delivered the Reimbursement Agreement."
1.11 A new Section 11.12 shall be added to the Agreement as follows:
"11.12 Estimated Section 22 Contract Costs. Seller shall have
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determined in its reasonable good faith discretion that the likely
amount of Section 22 Contract Costs payable by Seller under Section 22
is less than or equal to $500,000; provided, however, that if
Purchaser exercises its option under the following sentence, the
condition to closing set forth in this sentence shall be deemed waived
by Seller. In the event Seller determines in its reasonable good
faith discretion that the likely amount of Section 22 Contract Costs
payable by Seller under Section 22 is greater than $500,000 and
notifies Purchaser in writing of the same, Purchaser may cause the
condition in the first sentence of this Section to be deemed waived by
Seller by providing Seller with a written notice (within two (2)
business days after receipt of Seller's written notice) pursuant to
which
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Purchaser agrees to assume all liability for the Section 22
Contract Costs greater than $500,000 (in such event, Purchaser may
treat the Section 22 Contract Costs in excess of $500,000 as Customer
Claims Losses under Section 17)."
1.12 Section 12.1 shall be deleted and replaced in its entirety by the
following:
"12.1 Time and Place. The Closing will be held at the offices of
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Coolidge, Wall, Womsley & Lombard, Dayton Ohio, commencing at 9:00
a.m. on the later of (a) the second business day after satisfaction or
waiver of all of the conditions set forth in Sections 10 and 11, or
(b) the second business day after the earlier of October 12, 1998 or
delivery to Seller by Purchaser of the list contemplated by Section
13.1, or at such other place or time or on such other date as the
Parties may agree."
1.13 All references in Sections 13.1 and 19.1 to an "Escrowed Closing" or
the "Closing Escrow Termination Date" shall be deleted in their
entirety.
1.14 Section 18.12(a) shall be deleted and replaced in its entirety by the
following:
"Any controversy, dispute or claim arising out of or relating to this
Agreement or the Xxxxxxxx Holdings Transfer Agreement (except in
connection with the determination of a Purchase Price Adjustment
Amount or a Personal Property Tax Reimbursement Amount or enforcement
of the Parent Note or the Bridge Note or a breach of Section 19) will
be submitted to arbitration in accordance with the commercial rules of
the AAA, by which each Party will be bound."
1.15 A new Section 22 shall be added to the Agreement as follows:
"22. REIMBURSEMENT OF CERTAIN COSTS.
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22.1 General. Seller shall reimburse Purchaser and Parent for
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all "Section 22 Contract Costs" as described in Section 22.3.
22.2 Definitions and Limitations. "Section 22 Contract Costs"
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means the following costs paid by Purchaser as a result
of or as a condition to obtaining any required consents
to the assignment from Seller to Purchaser of the
"Section 22 Contracts": (a) all fees, costs and expenses
payable as a condition to such consent to assignment, and
(b) either (i) the difference of (A) all license and
support fees actually paid by Purchaser with respect to
that Third Party Distributed Software which is the
subject of the Section 22 Contracts that is distributed
during the period from the Effective Time until the
respective expiration dates of the Section 22 Contracts
(in their form as of the Effective Time) to former
customers of the Acquired Business or to customers of the
Acquired Business as of the Effective Time, less (B) the
license and support fees that would have been payable by
Seller under the Section 22 Contracts if the transactions
contemplated by this Agreement had not occurred and the
applicable Third Party Distributed Software was
distributed to such customers and former customers by
Seller, or (ii) if the other party to the Section 22
Contract refuses to grant an assignment, the difference
between (A) all license and support fees actually paid by
Purchaser with respect to a reasonably comparable
software product to the Third Party Distributed Software
which is the subject of the
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applicable Section 22 Contract that is distributed during
the period from the Effective Time until the expiration
date of the applicable Section 22 Contract (in its form
as of the Effective Time) to former customers of the
Acquired Business or to customers of the Acquired
Business as of the Effective Time, less (B) the license
and support fees that would have been payable by Seller
under the applicable Section 22 Contract if the
transactions contemplated by this Agreement had not
occurred and the applicable Third Party Software was
distributed to such customers and former customers by
Seller. "Section 22 Contracts" means those agreements,
contracts and licenses identified in Schedule FF.
Notwithstanding anything to the contrary under this
Agreement, Seller's obligations under this Section 22
shall expire on September 30, 2001.
22.3 Reimbursement Procedures. Purchaser shall provide Seller
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a monthly report of all Section 22 Contract Costs. All
such reports shall become final and binding on the
Parties unless Seller objects in writing within 30 days
after receipt of the report. To the extent that Seller
becomes obligated to pay any amounts under this Section,
Seller's payment shall be effected first through a
reduction of the Principal Sum (as defined in the Parent
Note) in accordance with the Parent Note, with any
remainder paid by Seller by wire transfer within thirty
(30) days after the applicable report becomes final
(whether by agreement, by failure of Seller to timely
object or by resolution under Section 18.12)."
1.16 Schedule A shall be amended to add the following definitions:
"Reimbursement Agreement" means an agreement in substantially the form
of Exhibit 16.
"Assignment of Certain Employee Claims" means an assignment in
substantially the form of Exhibit 17."
"Bridge Note" means an promissory note in substantially the form of
Exhibit 18."
1.17 Schedule A shall be amended to delete and replace certain definitions
as set forth below:
""Effective Time" means 12:01 a.m., Dayton, Ohio time, on October 23,
1998."
""Parent Agreements" means this Agreement, the Xxxxxxxx Holdings
Transfer Agreement and the other agreements, documents, certificates
and instruments executed by Parent pursuant to, or in connection with,
this Agreement or the Xxxxxxxx Holdings Transfer Agreement, including
the Parent Note, the Bridge Note and the Parent Guaranty."
""Purchaser Agreements" means this Agreement, the Xxxxxxxx Holdings
Transfer Agreement, the Reimbursement Agreement, the Assignment of
Certain Employee Claims and the other agreements, documents,
certificates and instruments executed by Purchaser pursuant to, or in
connection with, this Agreement or the Xxxxxxxx Holdings Transfer
Agreement, including the Transition Agreement."
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"Working Capital Acquired Assets" means those classes of Acquired
Assets (net of all applicable reserves and allowances) identified as
such on the Adjusted 6/30/98 Working Capital Statement.
"Working Capital Assumed Liabilities" means those classes of Assumed
Liabilities identified as such on the Adjusted 6/30/98 Working Capital
Statement.
1.18 Schedule A shall be amended to add the following at the end of the
definition of RH Intellectual Property Intangibles:
"provided that the RH Intellectual Property Intangibles shall not
include any right, title or interest of Xxxxxxxx Holdings in any
properties, rights or assets used exclusively in connection with HSD's
electronic medical records/clinical product line, including registered
trademarks and common law trademarks, inventions and discoveries,
copyrights in both published works and unpublished works, rights in
mask works and rights as owner or licensee of such know-how, trade
secrets, confidential information, customer lists, software, databases
technical information, documentation, technology, data, process
technology, plans, and drawings and the right to infringement and
other claims related to such properties, rights and assets."
1.19 Schedule A shall be amended to delete the following definitions:
"6/30/98 Closing Working Capital Statement", "Closing Escrow
Agreement", "Closing Escrow Termination Date", "Escrowed Closing", and
"Interim Period".
1.20 The reference to "6/30/98 Working Capital Statement" in the
definition in Schedule A of "Closing Working Capital Statement" shall
be changed to "Adjusted 6/30/98 Working Capital Statement".
1.21 The reference to the registration number of the "MEDPRINT+" in the
definition of RH Intellectual Property Intangibles shall read:
"2104073".
1.22 Schedule X shall be deleted and replaced by the attached Schedule X.
1.23 Schedule F shall be amended as follows:
1.23.1 Clause (a) of Section 6.5(a) shall be deleted and replaced by
the following: Bankruptcies: FPA Medical Management and its
affiliates, Gonzaga Medical Group, Sterling Medical Group and
Humana, Inc.
1.23.2 Clause (a) of Section 6.12(f) shall be deleted and replaced by
the following:
The following is a listing of customers with whom we are
attempting to resolve implementation/delivery/installation
issues: Xxxxx X. Xxxxxxx, MD, Radiology Group of New
Brunswick, Quantum Southwest Medical, SCH Management
Solutions, St. Tammany Parish Hospital, Xxxxxx Radiology
Medical, RMI Physicians Service Corp, Drs. Mori, Bean &
Xxxxxx, Assn. of Alexandria Radiologists, OB-GYN Associates,
Statesville-Iredell Radiologists, Retina Assoc. of Knoxville,
Consultants in Gastroenterology, Monterey Medical Group,
Catamount Associates, Metro Washington Ortho, Pocono Computer
Services, Associates on Radiology, Advanced Heathcare
Resources, Kentuckiana Allergy, Previa, Xxxxxx X. Xxxxxxxxxx,
M.D., Dr. Xxxxxxx Xxxxxx, Drs. Xxxxxx, Xxxxxx
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and Xxxxx, Drs. Black, Penn, Kanaya and Xxxxxxxxxxx and
Consulting Radiologists, Ltd. Presseia Services Corporation
has notified Seller that Presseia desires to terminate its
agreement with Seller as a result of the transactions
contemplated by this Agreement.
1.24 Schedule AA is deleted and replaced in its entirety by the attached
Schedule AA.
1.25 A new Schedule FF shall be added in the form of the attached Schedule
FF.
1.26 Exhibit 1 shall be deleted and replaced in its entirety by the
attached Exhibit 1.
1.27 Exhibit 7 shall be deleted and replaced in its entirety by the
attached Exhibit 7.
1.28 Exhibit 13 shall be deleted and replaced in its entirety by the
attached Exhibit 13.
1.29 Exhibit 14 shall be amended to read as follows: "Intentionally
Omitted".
1.30 New Exhibits 16, 17 and 18 shall be added in the form of the attached
Exhibits 16, 17 and 18.
2. MISCELLANEOUS. This Amendment will be governed by and construed and
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enforced in accordance with the laws of the state of Ohio as applied to
contracts between Ohio residents executed and performed wholly within that
state. The Side Letter is rendered null and void by this Amendment.
The parties have executed this Amendment effective as of the 22nd day of
October, 1998.
THE XXXXXXXX AND XXXXXXXX COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Assoc. Gen. Counsel & Asst. Sec.
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INFOCURE COPRORATION
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Chairman
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THOROUGHBRED ACQUISITION, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Chairman
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SCHEDULE X
See the attached Annexes 1 and 2
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SCHEDULE AA
Certain Contracts
See the attached Annex 1
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Annex 1 to Schedule AA
Contracts
NOTE: Many contracts listed in Sections (A) and (B) of this Annex are included
even though such contracts may not be "material" as defined in Section 6.12(a).
(A) Copies Provided to Parent:
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1. AIS Corporation
2. Xxxxxx Xxxxxxxx LLP
3. B & P Imaging
4. Chicago Title Insurance Company
5. Coverall Cleaning
6. Context Software Systems, Inc.
7. CyData, Inc.
8. Danka-American
9. Digital Information Systems Corporation (DISC) (nka Synergex)
10. Dynamic Concepts Incorporated
11. Enhanced Software Tech.
12. Envoy Services Networked Partner Agreement
13. Exclusive Software Services
14. Fort Xxxx Escrow Services, Inc. (Kredo)
15. Fort Xxxx Escrow Services, Inc. (ProMed)
16. Hewlett Packard (Support Services Agreement for Resellers)
17. Hewlett Packard (System Staging and Installation Agreement)
18. IBM Service Agreement (Sentinel)
19. IBM Service Agreement (R/2000 & ProMed)
20. ICX Corporation
21. Intermec Technologies Corporation
22. Intersolv Maintenance
23. Minolta Leasing Services
24. Xxxxx Xxxxxx Settlement Agreement
25. Pitney Xxxxx Credit Corp. (Birmingham)
26. Pitney Xxxxx Credit Corp. (Daytona Beach)
27. Pitney Xxxxx Software Systems (LPC, Inc.)
28. ProLogic
29. Remote Control International
30. Xxxxxx Xxxx
00. Silvon Software, Inc.
32. Software Clearinghouse, Inc.
33. Solutions Network, Inc.
34. SunSoft, Inc. (NOTE: has expired, continuing under P.O. basis)
35. Synergex (NOTE: has expired, continuing under a verbal arrangement, new
contract being negotiated and are currently operating under those
commercial terms)
36. Uniplex Integration Systems, Inc.
37. V Systems
38. Wysitech, Inc. (Only with respect to those contracts created by work orders
issued for projects exclusively for the Acquired Business)
39. Xerox Business Services (Document Source Client Services Agreement)
40. Xerox Business Services (Document Management Services Agreement)
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(B) Copies Not Provided to Parent:
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Xxxx South
Hewlett Packard (Miscellaneous Customer Specific Agreements)
Image Computer Group
Laurier Professional Services
Micro-Tel
Sales Consultants
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SCHEDULE FF
Section 22 Contracts
a. Context License Agreement
b. Enhanced Software Technologies, Inc. Software License Agreement
c. Uniplex License Agreement
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EXHIBIT 1
See attached Annex 1
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EXHIBIT 7
Form of Xxxxxxxx Holdings Transfer Agreement
See attached.
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EXHIBIT 13
Form of Transition Agreement
See attached.
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EXHIBIT 16
Form of Reimbursement Agreement
See attached.
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EXHIBIT 17
Form of Assignment of Certain Employee Claims
See attached.
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EXHIBIT 18
Form of Bridge Note
See attached.
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