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AMENDMENT NO.1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is
entered into on February 5, 1998 by and among NATIONAL MEDICAL SYSTEMS, INC., an
Arkansas corporation, (the "Company"), XXXXX X. XXXXXX ("JGM"), XXXXX X. XXXXXX
("JSM"), and WM. XXXX XXXXXX ("WKM"), residents of the State of Arkansas, and
JSM INVESTMENTS, LIMITED PARTNERSHIP, JGM INVESTMENTS, LIMITED PARTNERSHIP, and
WKM INVESTMENTS, LIMITED PARTNERSHIP, each an Arkansas limited partnership (each
of the foregoing limited partnerships are collectively referred to herein as,
the "Partnership Shareholders"), and NATIONAL MEDICAL SYSTEMS, INC. EMPLOYEE
STOCK OWNERSHIP TRUST, XXXXX XXXX XXXXXX TRUST, UTA 8-12-97, XXXXXXX XXXXXXX
XXXXXX TRUST, UTA 8-12-97, ASHLEY XXXXX XXXXXX TRUST, CRYSTAL XXXXXX XXXXXX
TRUST, and XXXXXX XXXXXX XXXXXX TRUST (the foregoing trusts are collectively
referred to herein as the "Trust Shareholders" and, together with the
Partnership Shareholders, collectively as the "Sellers"), AMERICAN HOMEPATIENT,
INC., a Tennessee corporation ("Buyer") and AMERICAN HOMEPATIENT, INC., a
Delaware corporation ("Parent").
RECITALS:
A. On or about December 23,1997, the parties entered into that certain
Stock Purchase Agreement (the "Agreement") in connection with the sale
by Sellers and the purchase by Buyer of all the outstanding common
stock of the Company.
B. The parties desire to amend the Agreement as set forth herein, (i) to
more clearly describe the action contemplated to be taken by the
Company prior to the Closing with respect to its Benefit Plans, (ii)
to alter the payees under the Purchase Price Note, and (iii) to
replace certain Exhibits to the Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment and not
otherwise defined shall have the meanings ascribed to such terms in the
Agreement.
2. Correction of Reference to Payees on Purchase Price Note. The identity
of the payees on the Purchase Price Note is hereby modified by deleting Section
1.2(2) of the Agreement in its entirety, and inserting and substituting in its
place the following language:
"(2) One Million and No/100 Dollars ($1,000,000.00) by a
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purchase price note (the "Purchase Price Note"), the form of which is
attached as Replacement Exhibit 1.2(2) which Purchase Price Note is to
be payable to the Sellers, excluding the National Medical Systems,
Inc. Employee Stock Ownership Trust, in the respective percentages set
forth in the Purchase Price Note; and".
3. Benefit Plan Amendments/Termination. Section 5.12 of the Agreement is
deleted in its entirety, and the following language shall be substituted in its
place:
"5.12 Termination of Participation in Benefit Plans; Buyer
Responsibility Post-Closing. JGM, JSM, WKM and the Partnership
Shareholders will cause the Company and Subsidiaries to take all
necessary action prior to Closing (1) to permit immediate termination
of the National Medical Systems, Inc. Employee Stock Ownership Plan
(the "ESOP Plan") and, as promptly as practicable following a
subsequent favorable determination from the Internal Revenue Service,
distribute the assets in the ESOP Plan to the participants thereunder
in accordance with its terms and pursuant to the provisions of
applicable law, (2) to permit an immediate "freeze" the National
Medical Rentals, Inc. 401(k) Plan and Trust (the "401(k) Plan") and
authorize the trustee under the 401(k) Plan to administer the 401(k)
Plan as a frozen plan with a permanent discontinuance of all employer
and employee contributions thereunder, and a freezing of all future
benefit accruals, in accordance with its terms and the provisions of
applicable law, without further cost to the Company, (3) to ensure
that all Benefit Plans are in compliance with all applicable laws and
(4) to ensure that the transaction contemplated by this Agreement will
not cause the disqualification of the Benefit Plans. Buyer shall be
responsible for providing employee benefits for all employees of
Company and Subsidiaries who continue with the Company or Subsidiaries
after Closing, pursuant to Buyer's employee benefit plans, on terms
and conditions substantially equivalent to those provided for Buyer's
employees similarly situated, except where otherwise contemplated by
this Agreement."
4. Replacement of Exhibits. Exhibits 1.2, 1.2(2), 1.2(3) and 5.14 to the
Agreement are each hereby deleted, and replacement Exhibits in the forms
attached hereto shall be substituted in their entirety for the respective
exhibits so replaced.
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5. Other Provisions of Agreement Unaffected. Except to the extent
specifically amended by the provisions of this Amendment, the Agreement as
originally executed and delivered among the parties shall continue unabated in
its entirety and in full force and effect in all respects.
6. Controlling Law. This Amendment will be construed, interpreted and
enforced in accordance with the substantive laws of the State of Tennessee,
without giving effect to its conflicts of laws provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"COMPANY":
NATIONAL MEDICAL SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Chairman & CEO
/s/ Xxxxx X. Xxxxxx
---------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
---------------------------------------
XXXXX X. XXXXXX
/s/ Wm. Xxxx Xxxxxx
---------------------------------------
WM. XXXX XXXXXX
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"SELLERS":
NATIONAL MEDICAL SYSTEMS, INC.
EMPLOYEE STOCK OWNERSHIP TRUST
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
XXXXX XXXXXX XXXXXX, TRUSTEE
XXXXX XXXX XXXXXX TRUST, UTA 8-12-97
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
XXXX XXXXXXXXXX, TRUSTEE
XXXXXXX XXXXXXX XXXXXX TRUST, UTA 8-12-97
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
XXXX XXXXXXXXXX, TRUSTEE
ASHLEY XXXXX XXXXXX TRUST
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------
XXXX XXXXXXXXXX, TRUSTEE
CRYSTAL XXXXXX XXXXXX TRUST
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
XXXX XXXXXXXXXX, TRUSTEE
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XXXXXX XXXXXX XXXXXX TRUST
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
XXXX XXXXXXXXXX, TRUSTEE
JSM INVESTMENTS, LIMITED
PARTNERSHIP
By: XXXXX XXXXXX XXXXXX
ENTERPRISE, INC., general partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Its: President
JGM INVESTMENTS, LIMITED
PARTNERSHIP
By: XXXXX XXXXXX XXXXXX
ENTERPRISE, INC., general partner
By: /s/ Xxxxx Xxxxxx
-------------------------------
Its: President
WKM INVESTMENTS, LIMITED
PARTNERSHIP
By: WM. XXXX XXXXXX ENTERPRISE,
INC., general partner
By: /s/ Wm. Xxxx Xxxxxx
---------------------------------
Its: President
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"BUYER":
AMERICAN HOMEPATIENT, INC., a
Tennessee corporation
By: /s/ Xxxx Xxxx
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Title: Sr. Vice President
"PARENT":
AMERICAN HOMEPATIENT, INC., a
Delaware corporation
By: /s/ Xxxx Xxxx
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Title: Sr. Vice President
