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Exhibit 10.49
AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (this
"Amendment") is made as of July 31, 1997, by and among KusKat Investments,
L.L.C., an Arizona limited liability company ("KusKat"), OcuSite-ASC, Inc., an
Arizona corporation ("OcuSite"), Xxxxxxx X. Xxxx, M.D. and Xxxxx Xxxxxx, M.D.
(such individuals are hereinafter together referred to as the "Physicians";
Kuskat, OcuSite and the Physicians are hereinafter collectively referred to as
the "Sellers"), Vital Sight, P.C., an Arizona professional corporation ("Vital
Sight"), Vision Twenty-One, Inc., a Florida corporation (hereinafter referred
to as "Vision 21"), Vision 21 of Southern Arizona, Inc., a Florida corporation
(the "Subsidiary"), and Xxxxxxx X. Xxxxx, Esquire, as escrow agent (the "Escrow
Agent").
RECITALS
A. KusKat owns and leases from third parties certain equipment and
owns real estate located at 0000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxx, 00000 (the
"Center") which is currently used by Medivision, Inc. ("Medivision") in the
operation of Medivision's ambulatory surgical center business.
B. OcuSite is a party to certain contracts relating to the ambulatory
surgical center business currently conducted by Medivision at the Center.
C. The Physicians are licensed to practice medicine in the State of
Arizona and currently conduct an ophthalmology practice through Vital Sight.
D. The Physicians own a majority of the equity interests of Kuskat
and all of the shares of common stock of OcuSite and Vital Sight.
E. Vision 21 provides management services to medical and optometric
practices, ambulatory surgical centers and retail optical centers throughout
the United States, and through its wholly-owned subsidiary corporation, the
Subsidiary, provides management services to Vital Sight.
F. The Physicians, Vision 21 and the Subsidiary entered into that
certain Agreement and Plan of Reorganization dated December 1, 1996 (the
"Merger Agreement"), wherein it was contemplated that the Physicians would
cause Medivision to terminate its ambulatory surgical center business at the
Center and the Physicians would begin an ambulatory surgical center business at
the Center (the "ASC Business") which would be managed by the Subsidiary.
G. The parties hereto desire to amend the Merger Agreement in order
to commit to the formation of the ASC Business to be operated by Vital Sight at
the Center, to set forth the specific terms concerning such formation, and to
provide for the transfer of certain of the assets to be utilized by such ASC
Business, all as more fully set forth below.
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H. The parties hereto desire that the formation of the ASC
Business and the transfer of the assets to be utilized by such ASC Business
shall be effective upon the satisfaction of the terms and conditions set forth
in this Amendment and the release of all documents, instruments, consideration
and agreements from the escrow arrangement created pursuant to this Amendment.
NOW, THEREFORE, for and in consideration of ten dollars ($10.00) paid
by Vision 21 to each of the Sellers, the mutual promises contained herein and
for other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale of Equipment. At the Closing (as defined in Section 7.1
hereof) and effective as of the Effective Date (as defined in Section 7.2
hereof), KusKat shall grant, sell, convey, assign, transfer and deliver to the
Subsidiary, upon and subject to the terms and conditions of this Amendment, all
right, title and interest of KusKat in and to all of the equipment (the
"Equipment") to be utilized by the ASC Business, as such equipment is more
specifically identified on Schedule 1 attached hereto and made a part hereof.
2. Acquisition of Inventory and Supplies. At or before the
Effective Date, Vital Sight shall have acquired from Medivision all of the
inventory and supplies necessary for the conduct of the ASC Business, and shall
(effective as of the Effective Date) grant, sell, convey, assign, transfer and
deliver all of Vital Sight's right, title and interest in and to such inventory
and supplies to the Subsidiary; provided, however, that Vital Sight shall
retain ownership of and shall not transfer to the Subsidiary any of the
inventory or supplies described on Schedule 2 attached hereto and made a part
hereof (the inventory to be transferred to the Subsidiary pursuant to this
Amendment is hereinafter referred to as the "Inventory," and the supplies to be
transferred to the Subsidiary pursuant to this Amendment are hereinafter
referred to as the "Supplies").
3. Lease of Center. At the Closing, KusKat and the Subsidiary
shall enter into a lease of the Center effective as of the Effective Date (the
"Lease") in a form agreed to by the parties hereto.
4. Termination of Arrangements with Medivision. At or before the
Effective Date, KusKat and OcuSite shall have terminated all executory
contractual arrangements with Medivision.
5. Ambulatory Surgical Center License. At or before the
Effective Date, Vital Sight shall have obtained (i) a license to operate an
ambulatory surgical center at the Center from the State of Arizona (the
"License"), and (ii) medicare certification for the ASC Business at the Center
(the "Medicare Certification"). The Physicians shall use their best efforts to
obtain such License and Medicare Certification as promptly as possible.
6. Assumption of Certain Liabilities and Contracts. Except for
any liabilities accruing after the Effective Date under the contracts,
agreements and leases listed on Schedule 6 attached hereto and made a part
hereof which the Subsidiary agrees to assume, neither the Subsidiary nor
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Vision 21 shall assume any responsibility or liability of any kind for any of
the debts, obligations, liabilities, expenses, taxes, contracts or commitments
of Sellers, whether accrued or unaccrued, absolute or contingent, mature or
unmature or otherwise. From and after the Effective Date, the Subsidiary
agrees to assume responsibility for the performance of the leases and other
contracts and agreements which are listed in Schedule 6 required to be
performed after the Effective Date; provided, however, that neither Vision 21
nor the Subsidiary shall have responsibility to perform any such activities to
the extent not disclosed in Schedule 6.
7. Closing; Effective Date; Deliveries; Escrow.
7.1. Closing. The closing of the transactions
contemplated in this Amendment (the "Closing") shall be July 31, 1997, at the
offices of Vision 21's counsel, Xxxxxxxx, Xxxx & Xxxxxxxx, XXX, Xxxxx 0000,
Xxxxxxx Plaza, 000 X. Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, or at such other
time and place as mutually agreed to by the parties. Unless otherwise agreed
to by all of the parties hereto in writing executed after the date first above
written, all obligations on the part of Vision 21 and the Subsidiary to
consummate the transactions contemplated in this Amendment will terminate, and
Vision 21 and the Subsidiary shall have no further obligations under this
Amendment or the Merger Agreement to consummate the transactions relating to
the formation of the ASC Business if the Effective Date does not occur on or
before June 31, 1998. Notwithstanding the foregoing, the parties hereto
anticipate that the Effective Date will occur on or before September 30, 1997,
and shall use their best efforts to satisfy all conditions to be met by them
for release of materials from escrow as promptly as practicable.
7.2. Effective Date. The effective date (the "Effective
Date") of the consummation of the transactions contemplated in this Amendment
shall be the date of the release of all documents, instruments, consideration
and agreements from escrow pursuant to Section 7.5 of this Amendment.
7.3. Closing Deliveries. At the Closing and subject to
the terms and conditions herein contained:
a. KusKat shall deliver to the Escrow Agent the
following:
(i) Such bills of sale with warranties
as to title, assignments, endorsements and other good
and sufficient instruments and documents of
conveyance and transfer, in form reasonably
satisfactory to Vision 21 and its counsel, as shall
be necessary and effective to transfer and assign to
and vest in the Subsidiary all of KusKat's right,
title and interest in and to the Equipment, including
without limitation, (A) good and valid title in and
to all of the Equipment owned by KusKat, (B) good and
valid leasehold interests in and to all of the
Equipment leased by KusKat as lessee, and (C) all of
KusKat's rights under all service agreements,
contracts, warranties, commitments, instruments and
other documents directly relating
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to the Equipment to which Kuskat is a party or by
which it has rights on the Effective Date;
(ii) A duly executed Lease of the Center
between KusKat and the Subsidiary; and
(iii) Such other certificates and
documents as Vision 21 or its counsel may reasonably
request.
b. Vital Sight shall deliver to the Escrow Agent
the following:
(i) A copy of resolutions of the Board
of Directors of Vital Sight authorizing the
execution, delivery and performance of this
Amendment, all related documents and agreements and
the consummation of the transactions contemplated in
this Amendment, certified by the Secretary of Vital
Sight as being true and correct copies of the
originals thereof subject to no modifications or
amendments; and
(ii) Such other certificates and
documents as Vision 21 or its counsel may reasonably
request.
c. OcuSite shall deliver to the Escrow Agent the
following:
(i) A copy of resolutions of the Board
of Directors of OcuSite authorizing the execution,
delivery and performance of this Amendment, all
related documents and agreements and the consummation
of the transactions contemplated in this Amendment,
certified by the Secretary of OcuSite as being true
and correct copies of the originals thereof subject
to no modifications or amendments; and
(ii) Such other certificates and
documents as Vision 21 or its counsel may reasonably
request.
d. The Physicians shall deliver to the Escrow
Agent the following:
(i) Such certificates and documents as
Vision 21 or its counsel may reasonably request.
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e. Vision 21 and the Subsidiary shall deliver
to the Escrow Agent the following:
(i) The executed Lease of the Center
between KusKat and the Subsidiary;
(ii) A copy of resolutions of the Boards
of Directors of Vision 21 and the Subsidiary
authorizing the execution, delivery and performance
of this Amendment, all related documents and
agreements and the consummation of the transactions
contemplated in this Amendment, certified by the
Secretaries of Vision 21 and the Subsidiary as being
true and correct copies of the originals thereof
subject to no modifications or amendments; and
(iii) Such other certificates and
documents as the Sellers or their counsel may
reasonably request.
7.4. Escrow of Closing Materials. All documents,
instruments and consideration (the "Escrowed Materials") delivered by the
Sellers, Vital Sight, Vision 21 and the Subsidiary to the Escrow Agent pursuant
to this Amendment at the Closing and up to the Effective Date shall be held in
escrow by the Escrow Agent, counsel for Vision 21 and the Subsidiary, until the
following documents, instruments and consideration have been delivered:
a. KusKat shall provide to the Escrow Agent (i) original
instruments of consent or waiver duly executed by third parties with
respect to any Equipment leases and related contracts, agreements or
other rights or obligations being transferred to the Subsidiary
hereunder and requiring a consent or waiver therefore; and (ii) duly
executed UCC-3 termination statements evidencing the release of any
and all liens upon any of the Equipment held by any person or entity;
b. Vital Sight shall provide to the Escrow Agent (i) a
copy of the License; (ii) evidence of its receipt of Medicare
Certification in a form satisfactory to Vision 21 and its counsel;
(iii) copies of executed transaction documents containing terms
satisfactory to Vision 21 and its counsel relating to Vital Sight's
acquisition of ambulatory surgical center inventory and supplies from
Medivision; and (iv) such bills of sale with warranties as to title,
assignments, endorsements and other good and sufficient instruments
and documents of conveyance and transfer, in form reasonably
satisfactory to Vision 21 and its counsel, as shall be necessary and
effective to transfer and assign to and vest in the Subsidiary all of
Vital Sight's right, title and interest in and to the Inventory and
the Supplies, including without limitation, (A) good and valid title
in and to all of the Inventory and Supplies acquired from Medivision,
and (B) all of Vital Sight's rights under all service agreements,
contracts, warranties, commitments, instruments and other documents
directly relating to the Inventory or Supplies to which Vital Sight is
a party or by which it has rights on the Effective Date;
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c. OcuSite shall provide to the Escrow Agent copies of
executed agreements terminating all executory contractual
relationships between Medivision and any of OcuSite, Vital Sight,
KusKat and Eye Institute of Southern Arizona, P.C., which agreements
are to contain terms satisfactory to Vision 21 and its counsel;
d. The Physicians shall provide to the Escrow Agent a
certificate dated the Effective Date: (i) as to the truth and
correctness of the representations and warranties of KusKat, OcuSite,
Vital Sight and the Physicians contained in this Amendment; (ii) as to
the performance of and compliance in all material respects by KusKat,
OcuSite, Vital Sight and the Physicians with all covenants contained
herein on and as of the Effective Date; and (iii) certifying that all
conditions precedent of KusKat, OcuSite, Vital Sight and the
Physicians to the release of documents from escrow have been
satisfied; and
e. Vision 21 and the Subsidiary shall provide to the
Escrow Agent (i) an assumption of leases by the Subsidiary with
respect to any of the Equipment leased from third parties; and (ii)
the shares of Vision 21 common stock to be delivered pursuant to
Section 8 of this Amendment.
7.5 Release of Documents from Escrow. Upon satisfaction
of the conditions set forth above in Section 7.4 of this Amendment, each of the
parties shall notify the Escrow Agent in writing and, upon receipt of all such
notices, the Escrow Agent shall immediately release the Escrowed Materials to
the appropriate parties. If any of the conditions in Section 7.4 hereof are
not satisfied or waived by the parties, and each of Vision 21 and Vital Sight
informs Escrow Agent in writing that such conditions have not been satisfied,
such parties may together direct the Escrow Agent in writing to immediately
return any consideration by Vision 21 held by it to Vision 21 and destroy all
of the other Escrowed Materials held by it, and the Escrow Agent shall take
such action.
8. Purchase Price. Vision 21 shall pay to Sellers for the
satisfaction of the conditions and consummation of the transactions described
in this Amendment the number of shares of Vision 21 common stock set forth on
Schedule 8 attached hereto and made a part hereof based upon the month in which
the Effective Date occurs.
9. Allocation of Purchase Price. The Purchase Price shall be
allocated among the assets transferred to the Subsidiary as set forth on
Schedule 9 attached hereto and made a part hereof. Each of Sellers, Vital
Sight, Vision 21 and the Subsidiary hereby covenants and agrees that he or it
will not take a position that is in any way inconsistent with the terms of this
Section 9 on any income tax return, before any governmental agency charged with
the collection of any income tax or in any judicial proceeding.
10. Warranties and Representations of Sellers and Vital Sight.
Sellers and Vital Sight jointly and severally hereby warrant, represent, and
agree to and with Vision 21 and the Subsidiary as follows:
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a. Legal Power and Enforceable Obligations. KusKat is a
limited liability company duly organized, validly existing and in good
standing under the laws of the State of Arizona. Each of OcuSite and
Vital Sight is a corporation duly organized, validly existing and in
good standing under the laws of the State of Arizona. KusKat has the
power, authority and legal right to own, lease and operate the
Equipment and the Center and the power, authority and legal right to
execute, deliver and perform this Amendment. Each of the Sellers and
Vital Sight has the power, authority and legal right to execute,
deliver and perform this Amendment. This Amendment and all the other
documents and instruments required to be delivered by each of the
Sellers and Vital Sight in accordance with the provisions hereof have
been, or upon their execution and delivery will have been, duly
executed and delivered on behalf of the Sellers and Vital Sight and
constitute, or will constitute, legal, valid and binding obligations
of the Sellers and Vital Sight, enforceable against the Sellers and
Vital Sight in accordance with their respective terms.
b. Validity of Contemplated Transactions. The
execution, delivery and performance of this Amendment by Sellers and
Vital Sight do not and will not violate, conflict with or result in
the breach of any term, condition or provision of, or require the
consent of any other person under (i) any existing law, ordinance, or
governmental rule or regulation to which any of the Sellers or Vital
Sight are subject, (ii) any judgment, order, writ, injunction, decree
or award of any court, arbitrator or governmental or regulatory
official, body or authority which is applicable to any of the Sellers
or Vital Sight, (iii) the Articles of Incorporation or By-Laws of
OcuSite or Vital Sight, (iv) the Articles of Organization or Operating
Agreement of KusKat, or (v) any mortgage, indenture, agreement,
contract, commitment, lease, plan or other instrument, document or
understanding, oral or written, to which any of the Sellers or Vital
Sight are parties, by which any of the Sellers or Vital Sight may have
rights or by which any of the Equipment may be bound or affected, or
give any party with rights thereunder the right to terminate, modify,
accelerate or otherwise change the existing rights or obligations of
any of the Sellers or Vital Sight thereunder. No authorization,
approval or consent of, and no filing with, any governmental or
regulatory official, body or authority is required in connection with
the execution, delivery or performance of this Amendment by any of the
Sellers or Vital Sight or the sale to the Subsidiary of the Equipment,
the Inventory or the Supplies.
c. No Third Party Options. There are no existing
agreements with, options or commitments to or rights of any person to,
acquire any of the Equipment, Inventory or Supplies or any interest
therein.
d. Condition of Equipment, Inventory and Supplies. All
of the Equipment is in good operating condition and repair, subject to
normal wear and maintenance, is usable in the regular and ordinary
course of business and conforms to all applicable laws, ordinances,
codes, rules and regulations relating to such Equipment's
construction, use and operation. All items of Inventory are
merchantable and are appropriate to be held for sale in the ordinary
course of an ambulatory surgical center line of business as first
quality goods and none of such items is obsolete or below standard
quality. All items of Supplies
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are appropriate to be utilized in the ordinary course of an ambulatory
surgical center line of business as first quality supplies and none of
such items are obsolete or below standard quality.
e. Title to Equipment, Inventory and Supplies; Required
Approvals. KusKat has and shall transfer to the Subsidiary at the
Closing effective as of the Effective Date good, valid and marketable
title to all of the Equipment being sold and transferred hereunder,
free and clear of all liens, pledges, security interests, charges,
claims, restrictions and other encumbrances and defects of title of
any nature whatsoever. Vital Sight shall have and shall transfer to
the Subsidiary as of the Effective Date good, valid and marketable
title to all of the Inventory and Supplies being sold and transferred
hereunder, free and clear of all liens, pledges, security interests,
charges, claims, restrictions and other encumbrances and defects of
any nature whatsoever. No consent, approval, waiver or authorization
is required to be obtained by any of the Sellers from any third party
with respect to any contract, agreements, leases or other rights or
obligations of Sellers other than the leases of Equipment and those
the failure of which to obtain would not, individually or in the
aggregate, have a material adverse effect upon the conduct of the ASC
Business. The Sellers shall use their best efforts to obtain all such
consents, approvals, waivers and authorizations.
f. No Adverse Changes. Between December 1, 1996 and the
Effective Date, the Sellers have not and will not (i) transfer, sell,
or otherwise dispose of any of the Equipment material to the operation
of the ASC Business, save and except such items as shall have become
no longer useful, obsolete, or worn out, or rendered of no further use
and, if theretofore useful in the conduct of Medivision's ambulatory
surgical center business and operations at the Center, as may have
been replaced with other items of substantially the same value and
utility as the items transferred, sold, exchanged, or otherwise
disposed of; (ii) create, participate in, or agree to the creation of,
any liens or encumbrances on such Equipment; or (iii) create,
participate in or agree to the creation of, any lien or encumbrances
on any of the Inventory or Supplies.
g. Litigation. There is no litigation pending against
any of the Sellers or Vital Sight with respect to this Amendment or
any of the transactions contemplated in this Amendment, and none of
the Sellers or Vital Sight are aware of any threatened litigation.
11. Continuing Warranties. The warranties, representations, and
agreements set forth herein shall be continuous and shall survive the Closing,
the Effective Date and the consummation of the transactions contemplated in
this Amendment.
12. Indemnity. Without in any way limiting or diminishing the
warranties, representations, or agreements herein contained or the rights or
remedies available to Vision 21 and the Subsidiary for the breach thereof,
Sellers hereby jointly and severally agree to indemnify, defend and hold Vision
21 and the Subsidiary harmless from and against all loss, liability, damage, or
expense arising out of any claims, demands, costs, assessments, penalties,
fines, taxes,
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or other loss resulting directly or indirectly from the assertion against
Vision 21 or the Subsidiary of claims by any governmental entity, any
corporation, partnership, or any person or persons arising before the Effective
Date and not fully disclosed herein or not expressly excepted by the provisions
hereof.
13. Business Management Agreement. On and after the Effective
Date, all revenues and expenses of the ASC Business conducted at the Center
shall be subject to the terms and conditions of that certain Business
Management Agreement dated December 1, 1996, between Vital Sight and the
Subsidiary (the "Business Management Agreement"), all decision-making
concerning the ASC Business at the Center shall be conducted in accordance with
the Business Management Agreement, and upon termination of the Business
Management Agreement, the ASC Business shall be subject to the buy-back terms
set forth in the Business Management Agreement.
14. Binding Agreement. The provisions of this amendment shall
inure to the benefit of and bind the successors and assigns of Vision 21, the
Subsidiary, Vital Sight, OcuSite and KusKat, and the executors, administrators,
heirs, successors and assigns of the Physicians.
15. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be sent by first-class mail postage
prepaid, deposited in the United States mail, and if intended for Vital Sight
or any of the Sellers shall be addressed to Vital Sight, P.C., 0000 Xxxx 0xx
Xxxxxx, Xxxxxx, Xxxxxxx 00000; if intended for Vision 21 or the Subsidiary
shall be addressed to Vision Twenty-One, Inc., 0000 Xxxxx Xxxxx Xxxx, Xxxxx,
Xxxxxxx 00000; and if intended for the Escrow Agent shall be addressed to
Xxxxxxx X. Xxxxx, Esquire, Xxxxxxxx, Loop & Xxxxxxxx, LLP, 000 X. Xxxxxxx
Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000. Any party may by written notice to
the other parties change the address for notices to be sent to it.
16. Escrow Agent. The following provisions shall govern the
duties and responsibilities and define the liabilities of the Escrow Agent
hereunder:
a. Duties. It is agreed that the duties of the Escrow
Agent are only such as herein specifically provided, being purely ministerial
in nature, and that the Escrow Agent shall incur no liability whatsoever except
for willful misconduct. The Sellers, Vital Sight, Vision 21 and the Subsidiary
release Escrow Agent from any act done or omitted to be done by the Escrow
Agent in good faith in the performance of the Escrow Agent's duties hereunder.
b. Responsibilities. Escrow Agent shall be under no
responsibility with respect to the Escrowed Materials to be held by him
pursuant to this Amendment other than to faithfully follow the instructions
herein contained. Escrow Agent may consult with counsel and shall be fully
protected in any actions taken in good faith, in accordance with such advice.
Escrow Agent shall not be required to defend any legal proceedings which may be
instituted against the Escrow Agent in respect to the subject matter of these
instructions unless requested to do so by the Sellers, Vital Sight, Vision 21
and the Subsidiary and indemnified to the satisfaction of the Escrow Agent
against the cost and expense of such defense. Escrow Agent shall not be
required to institute legal proceedings of any kind. Escrow Agent shall have
no
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responsibility for the genuineness or validity of any documents or other items
deposited with the Escrow Agent, and shall be fully protected in acting in
accordance with any written instructions given to the Escrow Agent hereunder
and believed by the Escrow Agent to have been signed by the proper parties.
c. Sole Liability. Escrow Agent assumes no liability
under this Amendment except that of a stakeholder. If there is any dispute as
to whether the Escrow Agent is obligated to disburse the Escrowed Materials, or
as to whom the Escrowed Materials are to be delivered, the Escrow Agent will
not be obligated to make any delivery of said Escrowed Materials, but in such
event may hold said Escrowed Materials, until receipt by the Escrow Agent of
any authorization in writing signed by all of the persons having an interest in
such dispute, directing the disposition of the Escrowed Materials, or in the
absence of such authorization, the Escrow Agent may hold the Escrowed Materials
until the final determination of the rights of the parties in an appropriate
proceeding. If such written authorization is not given, or proceedings for
such determination are not begun and diligently continued, the Escrow Agent
may, but is not required to, bring an appropriate action or proceeding for
leave to deposit the Escrowed Materials in any Circuit Court in the State of
Florida. In making delivery of the Escrowed Materials in the manner provided
for in this Amendment, the Escrow Agent shall have no further liability in the
matter, and the Sellers, Vital Sight, Vision 21 and the Subsidiary shall be
jointly and severally liable for all of the Escrow Agent's costs and fees, to
include, without limitation, attorney's fees related to the performance of the
Escrow Agent's duties hereunder.
d. No Conflict. The Sellers and Vital Sight acknowledge
that the Escrow Agent is a member of the law firm of Xxxxxxxx, Loop & Xxxxxxxx,
LLP ("SLK"), which acts as Vision 21's and the Subsidiary's legal counsel. The
Sellers, Vital Sight, Vision 21 and the Subsidiary stipulate and agree that, in
the event a dispute arises between the parties concerning this Amendment, SLK
may continue to represent Vision 21 and the Subsidiary and the Sellers, Vital
Sight shall not request the disqualification of SLK as counsel for Vision 21
and the Subsidiary, because Escrow Agent is also acting as the Escrow Agent
hereunder.
17. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF FLORIDA WITHOUT REGARD TO SUCH STATE'S RULES CONCERNING
CONFLICTS OF LAWS. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR
PROCEEDING RELATED TO OR ARISING OUT OF THIS AMENDMENT IS WAIVED.
18. Arbitration. Any dispute or disagreement arising between the
parties hereto in connection with this Amendment, which is not settled to the
mutual satisfaction of the parties within thirty (30) days (or such longer
period as may be mutually agreed upon) from the date that either party informs
the other in writing that such dispute or disagreement exists, shall be
submitted to arbitration in Tampa, Florida to a member of the American
Arbitration Association ("AAA") to be mutually appointed by the parties (or, in
the event the parties cannot agree on a single such member, to a panel of three
(3) members selected in accordance with the rules of the AAA). The dispute or
disagreement shall be settled in accordance with the Commercial
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Arbitration Rules of the AAA and the decision of the arbitrator(s) shall be
final and binding upon the parties and judgment may be obtained thereon in a
court of competent jurisdiction. The prevailing party shall be entitled to
recover from the other party the fees and expenses of the arbitrator(s) as well
as reasonable attorneys' fees, costs and expenses incurred by the prevailing
party.
19. Merger Agreement Unmodified. Except as expressly set forth in
this Amendment to the contrary, all of the terms and conditions set forth in
the Merger Agreement shall remain in full force and effect.
20. Counterparts, Facsimile Signatures. This Amendment may be
executed in one or more counterparts each of which shall be deemed to be an
original, but all of which shall constitute one and the same instrument.
Transmission by facsimile of an executed counterpart signature page hereof by a
party hereto shall constitute due execution and delivery of this Amendment by
such party.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
the day and year first above written.
"KUSKAT"
KUSKAT INVESTMENTS, L.L.C.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, M.D., Manager
"OCUSITE"
OCUSITE-ASC, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Xxxxxxx X. Xxxx, M.D., President
"PHYSICIANS"
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, M.D.
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/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, M.D.
"VITAL SIGHT"
VITAL SIGHT, P.C.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, M.D., President
"VISION 21"
VISION TWENTY-ONE, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx, President
"SUBSIDIARY"
VISION 21 OF SOUTHERN ARIZONA, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx, President
"ESCROW AGENT"
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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SCHEDULE 1
to Amendment to Agreement and Plan of Reorganization among
KusKat Investments, L.L.C., OcuSite-ASC, Inc., Xxxxxxx X.
Xxxx, M.D., Xxxxx Xxxxxx, M.D., Vital Sight, P.C., Vision
Twenty-One, Inc., and Vision 21 of Southern Arizona, Inc.
Equipment Quantity
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Piping and installation
Outlets, oxygen/nitrous oxide 2
Outlets, vacuum/vacuum 2
Outlets, vacuum/oxygen 4
Guardian monitor 1
Guardian monitor 2
Surgical vacuum wall station 6
Oxygen regulator 3
Nitrous oxide regulator 2
Storage room hose-oxygen 3
Storage room hose-nitrous oxide 2
Cylinder restraints 3
Manifold 2 x 4 1
Vacuum pump 2
Scavanger 3011-H 2
IBM Correcting Selectric III - in Operating Room 1
Oblong tray 6
Castroviego Forceps 0.12 mm 1
Xxxxxx Xxxxx Handle 2
Xxxxx-Xxxxxxx Rotator 1
Xxxxx-Xxxxxxx Rotator 1
Xxxxxxx Mosquito Forcep 3
Black Instrument Case 2
Barraguer Wire Speculum 5
Castroviejo Blade Breaker 5
Xxxxxxx-Xxxxx Lens Hook, Ang 1
Xxxxxxxxx Xxxx Hook 1
Kuglen Lens Manip. Str. Round 1
Xxxxxxx Lens Holding Forceps 1
Healon Aspiration Can 22 GA 2
Xxxxxx Cystotome 22 GA Blunt 2
Xxxxxx-Xxxxxx IRR Cannula 2
Sheets Irrigating Vectis 1
14
Tip Guards Assortment Pk 100 1
Barranquer Wire Speculum LG 1
Xxxxxx-Xxxxxx Irr Vectis 1
Wetfield Coagulator 2
Beam Splitter 1
Stereo Observation Tube 1
Foot Panel Hanger 1
S-UV-430 Filter 1
Sterilizable Sleeves 8
Sterilizable Caps 6
Caps for Knobs 12
Caps for Knobs 4
60-F/C 1
72" F/O Bundle 1
Objective 1
Eyepiece 2
Dual III Carrier 1
Ret. Rings 1
Ext. III 1
Bulbs 2
Objective 1
X-Y Coupling 1
Stereo Ob. Tube 1
Inc. Bin. Tube 2
Eyepiece 2
Rubber Caps 6
Mercury Reducer 1
Panasonic Radio 1
Tape, Sony 2
Electric Dryer 1
Pigtail 1
Vent Hose 1
Automatic Washer 1
Tool Box 1
Tool Cabinet 4
Head & Neck Assembly for TE-410-Z fill light 1
Ultrasonic Cleaning Tank with Generator Model 1
Footrest 2
Surg Chair-Round 2
Can Zonule Irrigation Xxxxxxxx 1
15
SCS Stitch Xxxxxxxx Wide Hol 2
NH Castroviejo curved w/ lock 1
Spoon Lens Xxxxx 1
Quiet lockers, double tier 4
Design lockers, single tier 8
980 Chair 1
7780 IC Stand 1
Zeiss slit lamp unit model 1
Unit tray and pin 1
DaLaur Xxxxxxxx 1
Stretcher-Full Taper 4
Stools O.R. 2
Ophthalmic CryoMachine 1
Systems Industries 1
Small Refrigerator 2
Site Xxxx 0
Xxxxx 0000 XXX Xxxx with accessory 2
Site Vitrectomy I&A Phacoemulsification Unit 1
Linear Control Suction Footswitch 1
Sterilization Tray 1
Amsco Extension Bank. DS00-1000 1
Zeiss 12-Function Footswitch DR00-000-023 1
Zeiss 12-Function Hand Control 1
Amscope I Microscope Support Column 1
Amsco 16x16x26 Vacamatic Steam Sterilizer 1
Rack & Two Shelves for Sterilizer 1
Amsco Single Station Fexmatic Scrub Sink 1
LB40 Steam Generator for Sterilizer 1
Amsco Centra Mounted Polaris Surgical Light 2
Polaris Variable Intensity Control 2
Amsco 8816A Steam Sterilizer BD42-221 1
Amsco Blanket Support Shelf DJ00-000-000-1000 1
Unicell Assembly 422 No. 422-040 4
Caster Sets, 2 Swivel and 2 Swivel w/ Lock 4
Wheelchair 1
Drapery - Recovery Room 8
Air Cleaning System 1
Ladder in O.R. Storage 1
La-Z-Boy Chairs 2
Electric Brass Plates
16
Wetfield Coagulator 1
Coaptation Forceps 2
Tenzel Forceps 2
Footrest 2
Surgical Chairs - Round 2
Operating Shelves 2
Ladder 1
Stretchers 6
Disc Packs 27
Sink in O.R. 1
Floor Cleaner 1
Lockers 12
YAG Laser 1
17
SCHEDULE 2
to Amendment to Agreement and Plan of Reorganization among
KusKat Investments, L.L.C., OcuSite-ASC, Inc., Xxxxxxx X.
Xxxx, M.D., Xxxxx Xxxxxx, M.D., Vital Sight, P.C., Vision
Twenty-One, Inc., and Vision 21 of Southern Arizona, Inc.
Inventory and Supplies Excluded From Transfer
Eyeglasses, lenses and other eyewear; and
Pharmaceutical inventory and supplies which legally cannot be
owned by a party that is not physician-owned.
18
SCHEDULE 6
to Amendment to Agreement and Plan of Reorganization among
KusKat Investments, L.L.C., OcuSite-ASC, Inc., Xxxxxxx X.
Xxxx, M.D., Xxxxx Xxxxxx, M.D., Vital Sight, P.C., Vision
Twenty-One, Inc., and Vision 21 of Southern Arizona, Inc.
Assumed Liabilities
1. Lease of ambulatory surgical premises located at 0000 Xxxx 0xx Xxxxxx,
Xxxxxx, Xxxxxxx, 00000.
2. Leases of any equipment identified on Schedule 1 which are subject to
lease agreements in effect on the date of Closing.
19
SCHEDULE 8
to Amendment to Agreement and Plan of Reorganization among
KusKat Investments, L.L.C., OcuSite-ASC, Inc., Xxxxxxx X.
Xxxx, M.D., Xxxxx Xxxxxx, M.D., Vital Sight, P.C., Vision
Twenty-One, Inc., and Vision 21 of Southern Arizona, Inc.
Consideration
EFFECTIVE DATE ASC SHARES*
-------------- -----------
August 1997 131,050
September 1997 129,957
October 1997 128,875
November 1997 127,803
December 1997 126,741
January 1998 125,638
February 1998 124,546
March 1998 123,464
April 1998 122,393
May 1998 121,333
June 1998 120,283
July 1998 and thereafter 0
* Reflects reverse stock split of one (1) share for each one and one-half (1.5)
shares, effective June 4, 1997.
20
SCHEDULE 9
to Amendment to Agreement and Plan of Reorganization among
KusKat Investments, L.L.C., OcuSite-ASC, Inc., Xxxxxxx X.
Xxxx, M.D., Xxxxx Xxxxxx, M.D., Vital Sight, P.C., Vision
Twenty-One, Inc., and Vision 21 of Southern Arizona, Inc.
Allocation of Purchase Price
[TO BE SUBMITTED BY PARTIES AFTER DETERMINATION OF EFFECTIVE DATE]
