Exhibit 10.67
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT
FOR PURCHASE AND SALE OF ASSETS
This is an amendment (this "Amendment") dated July 30, 2003 to the
Amended and Restated Agreement for Purchase and Sale of Assets dated as of April
10, 2003 (the "Purchase Agreement") by and among American CareSource
Corporation, an Indiana corporation ("ACS"), Patient Infosystems, Inc., a
Delaware corporation ("PATI") and the stockholders signatory thereto.
RECITALS
A. ACS, PATI and others are parties to the Purchase Agreement.
B. ACS and PATI have agreed to amend the Credit Agreement to increase the
maximum loan amount thereunder to an aggregate of $3.4 million pursuant to a
series of promissory notes (the "Notes").
C. The parties wish to amend the Purchase Agreement on the terms and conditions
set forth herein to reflect changes in the terms of the transaction resulting
from the additional loans by PATI to ACS made in accordance with the Credit
Agreement, as amended.
NOW, THEREFORE, in consideration of the agreement of the parties
contained herein, and intending to be legally bound, the parties hereto agree as
follows:
1. Recitals and Definitions.
ACS and PATI acknowledge and agree that the foregoing recitals are true
and correct as of the date of this Amendment. Capitalized terms used herein and
not defined shall have the meanings assigned to them in the Purchase Agreement
as amended by any prior amendments.
2. Total Consideration to be Issued to ACS.
The following sections of the Purchase Agreement hereby are amended to
reflect a reduction in the number of shares of Common Stock of PATI to be issued
to ACS, referred to in the Purchase Agreement as the Initial Consideration from
2,971,915 to 2,091,366.
a. Recitals "C."
b. Section 1.1.
c. Section 2.1.
3. Amendments to Credit Agreement.
a. The aggregate amount of the loans from PATI to ACS that may be made in
accordance with the Credit Agreement has been increased from $2.25
million to $3.4 million. Accordingly, the following section of the
Purchase Agreement is amended to reflect the increase in the loans from
$2,250,000 to $3,400,000:
1. Recitals "F."
4. Raising of Additional Funds.
Section 5.10 of the Purchase Agreement is hereby replaced in its
entirety and amended to read as follows:
"5.10 Raising of Additional Funds
TFC and Xx. Xxxxxx, personally, agree to raise from investors (or
invest personally) an aggregate of $1,500,000 (excluding debt conversion) for
investment in Series D Preferred Stock in accordance with Section 7.10 by a date
that is no later than October 1, 2003. In addition, each of TFC and Xxxx Xxxxxx,
personally and Xxxx Xxxxxxxxx, personally, agrees to use their reasonable best
efforts to raise additional new capital of an aggregate of up to $1,000,000 (in
addition to the amounts set forth herein) for investment in Series D Preferred
Stock in accordance with Section 7.10 hereof."
5. Private Placement.
(a) Section 7.10 of the Purchase Agreement is hereby replaced in
its entirety and amended to read as follows:
"7.10 Private Placement.
TFC and Xx. Xxxxxx, personally, agree to raise from investors
(or invest personally) an aggregate of $1,500,000 (excluding debt conversion)
for investment in Series D Preferred Stock in accordance herewith by a date that
is no later than October 1, 2003. In addition, each of TFC and Xxxx Xxxxxx,
personally and Xxxx Xxxxxxxxx, personally, agrees to use their reasonable best
efforts to raise additional new capital of an aggregate of up to $1,000,000 (in
addition to the amounts set forth herein) for investment in Series D Preferred
Stock in accordance hereof. The issuance of the Series D Preferred Stock in the
private placement will occur following the Closing and the ownership percentages
of each of the PATI Stockholders and ACS Stockholders will be reduced
accordingly (inclusive of any anti-dilution adjustments). The proposed form of
Certificate of Designation for the Series D Preferred Stock shall be in the form
attached hereto as Exhibit 7.10. The form of Certificate of Designation may be
subject to revision at the discretion of PATI."
(b) A new Section 3.2.8 shall be added to the Purchase Agreement that
shall provide that the satisfaction of the obligations of TFC and Xxxx Xxxxxx
under Section 5.10 of the Purchase Agreement shall be additional conditions
precedent of the obligations of PATI to consummate the Closing, which shall be
as follows:
"3.2.8 Private Placement.
All amounts to be raised by TFC and Xxxx Xxxxxx as
referred to in Section 5.10 of this Agreement shall be
deposited into an escrow account to be released to PATI upon the aggregate
amount of $1,500,000 being raised by TFC, Xx. Xxxxxx and/or other ACS investors
immediately following the Closing."
6. General.
The parties hereto acknowledge that all provisions of the Purchase
Agreement, except as amended hereby, shall remain in full force and effect.
7. Definitions.
Whenever appearing in the Purchase Agreement or any other agreement,
the term "Purchase Agreement" shall be deemed to mean the Purchase Agreement as
amended.
8. Representations and Warranties.
ACS represents and warrants to PATI that: (i) it has the power, and has
taken all necessary action to authorize, execute and deliver this Amendment and
perform its obligations in accordance with the terms hereunder, (ii) this
Amendment and the Purchase Agreement as amended by the Amendment is the legal,
valid and binding obligation of ACS enforceable against ACS, (iii) the
execution, delivery and performance of this Amendment by ACS will not (a)
require any governmental approval or any other consent or approval; or (b)
violate or conflict with any agreement to which it is a party, or result in or
require the creation of any lien upon any of the assets of ACS, and (iv) the
financial information provided by ACS to PATI in connection with the request of
ACS that PATI enter into this Amendment is true and correct in all material
respects.
9. Fees of PATI's Counsel.
ACS shall pay the fees and expenses of XxXxxxxx & English in connection
with the preparation and negotiation of this Amendment and all related documents
at the closing.
10. Intergration.
This Amendment together with the Purchase Agreement constitute the
entire agreement and understanding among the parties relating to the subject
matter hereof and thereof and supersedes all prior proposals, negotiations,
agreements and understandings relating to such subject matter.
11. Severability.
If any provision of this Amendment shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
enforceability without in any manner affecting the validity or enforceability of
such provision in any other jurisdiction or the remaining provisions of this
Amendment in any other jurisdiction.
12. No Forfeiture of Rights.
The parties hereto acknowledge that by agreeing to this Amendment, they
are not waiving any rights or remedies they may have under this agreement or any
prior agreement by or among the parties.
13. Incorporation by Reference.
This Amendment is incorporated by reference into the Purchase
Agreement. Except as otherwise provided herein, all of the other provisions of
the Purchase Agreement shall remain in full force and effect as of the date of
this Amendment.
14. Governing Law; Successors and Assigns.
This Amendment is governed by the laws of the State of Texas and is
binding upon ACS, PATI and the signatories to the Purchase Agreement and this
Agreement.
15. Counterparts.
This Amendment may be executed by one or more of the parties on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, on the date
first above written.
PATI
By: /s/Xxxxx X. Xxxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxxx
Title: President
ACS
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
ACS STOCKHOLDERS
ACSC, Inc.
By: /s/Xxx Xxxxxxx
Xxx Xxxxxxx, President
/s/Xxxx Xxxxxx
Xxxx Xxxxxx, individually
/s/Xxxx Xxxxxx
Xxxx Xxxxxx, individually and as the ultimate beneficial and
majority owner and affiliate of ACSC, Inc.
PATI STOCKHOLDERS
/s/Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, individually
/s/Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, individually
NWK3: 756714.02
