Exhibit 10.3
Asset Purchase Agreement dated January 22, 1996 between Life Critical Care and
Blue Water Medical Supply, Inc. and Blue Water Industrial Products, Inc., as
amended
SIXTH AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS SIXTH AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is
executed this ___ day of January, 1997 to be made effective as of the 24th day
of January, 1997, by and among Blue Water Medical Supply, Inc., Blue Water
Industrial Products, Inc. and Life Critical Care Corporation.
RECITALS
The parties are parties to an Asset Purchase Agreement among them dated
January 22, 1996, as previously amended by a First Amendment to Asset Purchase
Agreement dated April 24, 1996, as further amended by a Second Amendment to
Asset Purchase Agreement dated July 2, 1996, as further amended by a Third
Amendment to Asset Purchase Agreement dated September 9, 1996, as further
amended by a Fourth Amendment to Asset Purchase Agreement dated November 8,
1996, and as further amended by a Fifth Amendment to Asset Purchase Agreement
dated as of December 18, 1996 (collectively, the "Agreement") and desire to
amend the Agreement as set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF the mutual entry into this
Amendment by the parties hereto, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by each party hereto,
the parties hereto hereby agree as follows:
Section 1. Amendment of Agreement. The provisions of the Agreement are
hereby amended as follows:
(a) Section 1.1 of the Agreement is hereby amended by deleting
the date "January 31, 1997" as it appears in the fourth line thereof
and by inserting in lieu thereof the date "February 28, 1997".
(b) Section 1.4 is hereby amended by deleting existing
Section 1.4 and by inserting the following in lieu thereof:
"SECTION 1.4. Purchase Price. Subject to the
provisions and adjustments set forth in Section 1.5 hereof, the
purchase price (the 'Purchase Price') for the Purchased Assets, and for
the benefits and rights conferred upon Purchaser hereunder, shall be:
(i) for the Purchased Assets of Medical Supply, an amount equal to Five
Million Five Hundred Thousand Dollars ($5,500,000) (the 'Medical Supply
Purchase Price'); and (ii) for the Purchased
Assets of Industrial Products, an amount equal to Six Hundred
Five Thousand Dollars ($605,000) (the 'Industrial Products Purchase
Price'). "
(c) Section 1.5(ii)(a) of the Agreement is hereby amended by
deleting the existing Section 1.5(ii)(a) and by inserting the following
in lieu thereof:
"(a) Subject to the provisions of Section 1.5(ii)(b)
hereof, a portion of the Purchase Price shall be paid by the issuance
by Purchaser to Seller of 122,100 shares of the Common Stock of
Purchaser (the 'Common Stock') which shall be valued at 90.91% of the
offering price per share in Purchaser's IPO (as defined in Section
4.1.0.1 hereof) (e.g., if the offering price per share in the IPO is
$5.50, then the amount applied against the Purchase Price shall be
$610,500), which shall be allocated first to the Industrial Products
Purchase Price, such that the Industrial Products Purchase Price shall
be paid entirely in Common Stock, and any balance shall be allocated to
the Medical Supply Purchase Price; and".
(d) Section 1.5(iv) of the Agreement is hereby deleted.
(e) Section 1.5(v) of the Agreement is hereby amended by
deleting the existing Section 1.5(v) and by inserting the following in
lieu thereof:
"v) The Purchase Price shall be decreased by the
amount, if any, of any liabilities of the Seller in excess of $265,000
assumed by Purchaser at Closing and set forth in Schedule 1.6 of this
Agreement, it being the agreement of the parities that Purchaser shall
assume, at Closing, the first $265,000 of liabilities of Seller as set
forth in Schedule 1.6 to be provided by Seller at Closing."
(f) Section 1.5(vi) of the Agreement is hereby amended by
deleting the existing Section 1.5(vi) and by inserting the following in
lieu thereof:
"vi) Seller's Estimate of Purchase Price and
Prorations. No later than five (5) days prior to the Closing Date,
Seller shall provide Purchaser with an estimate (as of the Closing
Date) of the Purchase Price, as adjusted pursuant to Sections 1.5(iii)
and 1.5(v) hereof, if applicable ('Seller's Estimate') and of the
Prorations (as such term is defined in Section 1.5(viii) hereof).
Seller's Estimate and the Prorations shall be accompanied by the
certificate of Seller's chief financial officer stating that Seller's
Estimate and the Prorations have been prepared in good faith in
accordance with the
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terms of this Agreement, and by such accounting records,
workpapers, and other back-up material as shall be sufficient to enable
Purchaser to review and verify the computation of Seller's Estimate
and the Prorations."
(g) Section 1.5(viii) of the Agreement is hereby amended by
deleting the existing Section 1.5(viii) and by inserting the following
in lieu thereof:
"viii) Prorations. Within sixty (60) days following
the Closing Date, Purchaser shall pay to Seller, or Seller shall pay to
Purchaser, as applicable, an amount equal to all items normally
prorated in the sale of assets of a business including prepaid
expenses, rent, taxes and utility charges (the 'Prorations');".
(h) Section 1.5(ix) of the Agreement is hereby amended by
deleting the existing Section 1.5(ix) and by inserting the following in
lieu thereof:
"ix) General Determination and Payment. Prorations
shall be made within thirty (30) days following Closing and shall be
paid within sixty (60) days following Closing. Purchaser shall, within
thirty (30) days after the Closing Date, determine all such Prorations
and deliver a statement of its determinations to Seller, which
statement shall set forth in reasonable detail the basis for such
determinations. If Seller does not concur with Purchaser's
determinations, the provisions of Section 1.5(vii) hereof shall apply
with 'Prorations' to be used in place of 'Seller's Estimate' as to the
interpretation and application of such Section 1.5(vii) hereof; and".
(i) Section 1.5(xii) is hereby amended by deleting existing
Section 1.5(xii) and by inserting the following in lieu thereof:
"(xii) The Closing shall have been completed on or
before February 28, 1997. Conforming changes are hereby made to any
other affected Section of this Agreement, including without limitation
Section 7.2.5 (by extending the date in the last line thereof to
February 28, 1997)."
Section 2. In consideration of Seller entering into this Amendment and
the other benefits to Purchaser as a result of Seller entering into this
Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, upon the termination of the
Agreement for the Purchaser's failure to close thereunder on or before February
28, 1997 other than as a result of Seller's fraud, Purchaser, for itself and
each of its successors and assigns (collectively, the "Releasers") hereby
remise, release and forever discharge Seller
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and its officers, directors, stockholders and agents (collectively, the
"General Released Parties") from any and all claims, demands and causes of
action of every kind and nature (including without limitation claims for
damages, costs, expenses, attorneys', brokers' and accountants' fees and
expenses), whether known or unknown, suspected or unsuspected, that the
Releasers now have or at any time prior to February 28, 1997 may have or could
have asserted against any of the General Released Parties (collectively, the
"General Released Claims"). The Releaser hereby irrevocably agrees to refrain
from directly or indirectly asserting any claim or demand or commencing (or
causing to be commenced) any suit, action or proceeding of any kind, in court
or before any tribunal, against any General Released Party based upon any
General Released Claim.
Section 3. Effect of this Amendment. Except as is hereinabove set
forth, the provisions of the Agreement shall hereafter remain in full force and
effect.
Section 4. Counterparts. This Amendment may be executed in two or more
counterparts, all of which when taken together shall constitute one and the same
original.
[TEXT CONTINUED ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Amendment the day
and year first above written.
BLUE WATER MEDICAL SUPPLY, INC.
By: __________________________
Xxxxx Xxxxxxxx, President
BLUE WATER INDUSTRIAL PRODUCTS, INC.
By: ___________________________
Xxxxx Xxxxxxxx, President
LIFE CRITICAL CARE CORPORATION
By: __________________________
Xxxxxx X. Xxxxx, President
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