Exhibit 99.2
Amendment to
ASSET PURCHASE AGREEMENT
AMENDMENT dated as of January 2, 2004, (the "Amendment") to the Asset
Purchase Agreement ("Agreement"), dated as of November 10, 2003, is by and among
HUMANA TRANS SERVICES HOLDING CORP., a Delaware corporation doing business at
0000 Xxx Xxxxx Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000 ("HTSC" or "Buyer") and
CORPORATE PROGRAM ADMINISTRATORS, INC., a Pennsylvania Corporation, doing
business at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000, ("Seller").
WHEREAS, the Purchaser and Seller previously entered into an Asset Purchase
Agreement ("Agreement"), --------- dated as of November 10, 2003, is by and
among HUMANA TRANS SERVICES HOLDING CORP., ("HTSC" or "Buyer") and -----
CORPORATE PROGRAM ADMINISTRATORS, INC. ("Seller"); ------
WHEREAS, the Purchaser and Seller desire to Amend the Agreement to reflect
that the effective date of the Agreement is to be January 2, 2004; and
WHEREAS, the Parties also desire to set forth the terms and conditions upon
which the Purchaser and Seller shall operate the assets of the Seller prior to
the amended effective date of the Agreement pursuant to this Amendment to the
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I: DEFINITIONS
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1.1 Defined Terms. Unless expressly set forth in this Amendment, all
Definitions, Defined Terms and Terms of the Purchase, shall have the same
meaning as in the Agreement.
1.2 "Balance Sheet" shall mean the balance sheet of Seller at the date
indicated thereon, together with the notes thereon for the periods ended
December 31, 2002 and December 31, 2003.
1.3 "Year-End Financial Statements" shall mean the Balance Sheets and
income statements dated as the Seller's fiscal years ended December 31, 2002 and
December 31, 2003.
1.4 Other Defined Terms. The following terms shall have the meanings
defined for such terms in the Sections set forth below:
ARTICLE II: PURCHASE AND SALE OF ASSETS
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2.1 Purchase Price.
2.1.1 Purchase Price. Upon the terms and subject to the conditions set
forth herein, at the Closing, the Buyer shall pay to Seller, in consideration
for the Assets, the following (the "Purchase Price") and issue to Seller the
total amount of THREE HUNDRED SIX THOUSAND SHARES (306,000) of HTSC's common
stock , $0.001 par value, bearing a restrictive legend pursuant to Rule 144.
Such amount of shares shall include any and all payments as set forth in the
Agreement for cash and fixed assets.
2.1.2 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets in the manner required by Section 1060 of the Code and
regulations thereunder. Buyer and Seller agree to each prepare and file on a
timely basis with the Internal Revenue Service substantially identical initial
and supplemental Internal Revenue Service Forms 8594 "Asset Acquisition
Statements Under Section 1060."
2.2 Closing Date.
The transaction shall close as effective as of January 1, 2004.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF SELLER
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All Representations of Seller and Buyer as set forth in the Agreement are
to remain in full force and effect.
ARTICLE IV: MANAGEMENT AGREEMENT
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4.1 Prior to the execution of a Definitive Agreement for the purchase of
SELLER by HTSC, the parties shall operate as pursuant to the terms of a
Management Agreement, as set forth in subsection 4.2, below, whereby the wholly
owned subsidiary of the Purchaser, Humana National Program Administrator Corp.
("HNPA") shall manage all the operations and accounts of SELLER. All operations
are to be continued to be processed by SELLER, but shall be in the name of HNPA.
SELLER shall retain ownership of all accounts and responsibility for all
liabilities until the date of closing.
4.2 It is understood and agreed that the parties for this agreement that in
the interest of time the Definitive Purchase agreement will take time in
completing and wish to include a management section to this term sheet. This
management section will allow the transfer of certain assets specifically the
accounts of SELLER to be transferred to HTSC to allow a correct accounting on
payroll related liabilities and statutory benefits to begin on November 10,
2003, at 12:01 A.M., and continue until the definitive agreement replaces this
term sheet. During this interim period SELLER will continue to process the said
accounts on behalf of HTSC and as compensation for doing so shall retain the net
profit of said accounts processing except a amount equaling one half of one
percent (0.5%) of the total gross payroll processed during that term this shall
be referred to as the interim term.
ARTICLE V: MISCELLANEOUS
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5.1 Assignment. Neither this Amendment or the Agreement nor any of the
rights or obligations hereunder may be assigned by any party without the prior
written consent of the other parties; except that Buyer may, without such
consent, assign all such rights to any lender as collateral security and assign
all such rights and obligations to a wholly-owned subsidiary (or a partnership
or other entity controlled by Buyer) or subsidiaries of Buyer or to a successor
in interest to Buyer which shall assume all obligations and liabilities of Buyer
under this Agreement. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, and no other person shall have any right,
benefit or obligation under this Agreement as a third party beneficiary or
otherwise.
5.2 Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a domestic
address by recognized overnight delivery service (e.g., Federal Express); and
upon receipt, if sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
If to Buyer, addressed to:
Mr. Xxxx Xxxx, President
Humana Trans Services Holding Corp.
0000 Xxx Xxxxx Xxxx, Xxxxx 0
Xxxxxxx, Xxxxxxxx 00000
If to Seller, addressed to:
Mr. Xxxxxxx Xxxxxx, President
Corporate Program Administrators, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
or to such other place and with such other copies as either party may
designate as to itself by written notice to the others.
5.3 Choice of Law. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of New
York (without reference to the choice of law provisions thereof), except with
respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and as to
those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern.
5.4 Entire Agreement; Amendments and Waivers. This Amendment and the
Agreement, together with all exhibits and schedules hereto, constitutes the
entire agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. No amendment, supplement, modification or waiver of this Agreement shall
be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
5.5 Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.6 Expenses. Except as otherwise specified in this Agreement, each party
hereto shall pay its own legal, accounting, out-of-pocket and other expenses
incident to this Agreement and to any action taken by such party in preparation
for carrying this Agreement into effect.
5.7 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
5.8 Titles. The titles, captions or headings of the Articles, Sections and
subsections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
5.9 Cumulative Remedies. All rights and remedies of either party hereto are
cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed on their respective behalf, by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
HUMANA TRANS SERVICES HOLDING CORP.,
By:
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Name: Xxxx Xxxx
Its: President
CORPORATE PROGRAM ADMINISTRATORS, INC.,
By:
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Name: Xxxxxxx Xxxxxx
Its: President