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Exhibit 2.3
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
This Amendment No. 1 to the Asset Purchase Agreement by and between IHS,
Sellers and Buyer (each as defined therein), dated as of June 19, 1996 (the
"Purchase Agreement") is made this 30th day of July, 1996 by and between the
parties to the Purchase Agreement. All terms used but not defined herein shall
have the meaning given such terms in the Purchase Agreement.
WHEREAS, the parties hereto have previously entered into the Purchase
Agreement to sell Assets of the Sellers to Buyer;
WHEREAS, the parties desire to amend the Purchase Agreement to amend the
registration rights granted to IHS therein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending to be legally bound, agree as
follows:
1. Existing Registration Rights.
IHS has piggyback registration rights with respect to certain registrations
of Buyer common stock, which rights may apply to previously filed registration
statements ("Registrations") of Buyer. IHS and Buyer desire to reflect their
agreement that the piggyback registration rights of IHS, to the extent they
exist, are waived with respect to the Registrations, in exchange for the
amendments reflected herein.
2. Amendment to Section 2.5(a).
The parties hereby amend Section 2.5(a) of the Purchase Agreement by
deleting it in its entirety and replacing it with the following:
(a) Initial Registration. Unless all of the Buyer Stock has been registered
pursuant to the terms of Section 2.5(b), as soon as is reasonably
practicable but in any event by December 31, 1996, Buyer will cause to be
prepared and filed with the Securities and Exchange Commission (the
"Commission") (and will thereafter use its best efforts to have declared
effective as soon as possible) an underwritten registration statement of
all of the Buyer Stock on Form S-3 or its equivalent and such other
documents, including a prospectus, as may be necessary in the opinion of
both counsel for Buyer and counsel for the holders of the Buyer Stock in
order to comply with the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), so as to permit an underwritten public
offering and sale by IHS of all or a portion of the Buyer Stock as elected
by IHS. Buyer shall give IHS at least
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30 days notice prior to filing a registration statement. Buyer shall be
entitled to select the underwriter or underwriters for such registration
statement. In the event that IHS elects, in its sole discretion, to delay
or defer the process, or to sell less than all shares of Buyer Stock owned
by IHS, IHS may at any time after December 31, 1996 notify Buyer that it
desires that the registration process commence or recommence (as the case
may be) as to all or any of said shares, and thereupon Buyer shall commence
or recommence (as the case may be) such process promptly and shall file
within 60 days of the IHS notification (or prosecute the effectiveness of a
registration statement if one is on file for IHS) the registration
statement and use its best efforts to cause it to become effective as soon
as possible. IHS may require Buyer to, and Buyer shall, file up to a total
of two such underwritten registration statements during the two year period
following Closing under the Purchase Agreement.
3. Amendment to Section 2.5(b).
The parties hereby amend Section 2.5(b) of the Purchase Agreement by
deleting from the third line of such paragraph the words "on behalf of the Buyer
or otherwise" and inserting in its place the following:
"(i) on behalf of the holders of securities sold by Buyer in a private
placement in April 1996 (the "April Holders") pursuant to a demand
registration by such April Holders or (ii) any other filing"
and by further amending such section by inserting at the end of such paragraph
the following:
"(except as otherwise set forth in this section). Notwithstanding the
foregoing, in the case of a registration statement filed under item (ii),
to the extent any underwriter or underwriters for such registration
statement shall determine that inclusion of all of the securities proposed
to be sold would jeopardize the successful sale of such securities, the
shares of Buyer Stock shall be excluded from such registration statement
prior to the exclusion of the securities of the April Holders." Buyer
represents and warrants that there are no holders of shares of its common
stock with registration rights not previously included in a registration
statement, other than the April Holders and Counsel Corporation. Counsel
Corporation has agreed to not exercise its registration rights in a manner
which would adversely affect the registration rights of IHS.
4. Amendment to Section 2.7(a).
The parties hereby amend Section 2.7(a) of the Purchase Agreement to
reflect that if the registration is an underwritten offering, Buyer shall be
required to maintain the effectiveness of an underwritten registration statement
only for a reasonable period of time.
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5. Carve back agreement.
In the event that the shares of Buyer Stock that IHS proposes to register
in a registration under Section 2.5 is carved back or reduced by an underwriter
or by the Buyer, IHS shall be entitled to a shelf registration on Form S-3 in
accordance with Section 2.5 (as if not amended) covering the number of shares
that were subject to the carve back.
Intending to be legally bound, the parties have executed this amendment as
of the date first above written.
For IHS and the Sellers:
INTEGRATED HEALTH SERVICES, INC.
By:_____________________________
For the Buyers:
CAPSTONE PHARMACY SERVICES, INC.
By:_____________________________
