EXHIBIT 10.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT, dated as of April 18,
2000, among XXXXXXXXX.XXX INC., a Delaware corporation with offices at 00000 X.
Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (the "Purchaser");
XXXXXXXXXXXXXX.XXX, INC., a Delaware corporation and a wholly-owned subsidiary
of the Purchaser with offices at 00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 ("HEcom"); and VHX COMPANY, a Nevada corporation with
offices at Xxxxx 000, 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the
"Seller").
INTRODUCTION
As of March 20, 2000, the parties hereto entered into the Asset
Purchase Agreement, dated as of March 20, 2000 (the "Asset Purchase Agreement"),
and desire to make certain amendments thereto. A capitalized terms used, but not
otherwise defined, herein shall have the respective definitions assigned thereto
in the Asset Purchase Agreement.
The parties hereto, intending to be legally bound, hereby agree as
follows:
Section 1. Section 4.06 of the Asset Purchase Agreement. Section 4.06
of the Asset Purchase Agreement is hereby amended to be and read in its entirety
as follows:
"Section 4.06 Adjustments to Consideration Delivered by Purchaser and
HEcom.
(a) Subject to paragraphs (b), (c), (d), and (e) of this Section
4.06 and without limiting such other rights as the Purchaser Indemnitees may
have, if, prior to the time all shares of Purchaser Common Stock delivered
pursuant to Section 4.01(a)(i), or all shares of Purchaser Preferred Stock
delivered pursuant to Section 4.01(a)(iv), are distributed by Seller pursuant to
Section 4.04 hereof, the Purchaser has learned of a breach of any
representation, warranty, covenant, or agreement of Seller contained in this
Agreement, the Purchaser in its discretion can by written notice to Seller
deduct from the number of shares of Purchaser Common Stock otherwise
deliverable by HEcom at such time a number of such shares the value of which
(equal to the product of the number of such shares of Purchaser Common Stock and
the Trailing Average Closing Price) is equal to the aggregate of (a) the amount
necessary to cure or make whole such breach and (b) the amount of losses,
liabilities, claims, damages, and expenses whatsoever (as defined in Section
4.05) incurred or demonstrably in prospect of being incurred by any Indemnitee
arising out of, based upon, or in connection with such breach. Shares of
Purchaser Common Stock shall be valued for purposes of this Section 4.06 at the
Trailing Average Closing Price.
(b) Notwithstanding Section 4.06(a), if, prior to the date 30
calendar days following the date of the Closing, the obligations of the Seller
or any Seller Subsidiary to Xxxx Deere Health, Inc. and its affiliates shall not
have been either paid in full by the Seller and the Seller Subsidiaries or
converted into, or exchanged for shares of Seller Common Stock or other equity
securities of Seller, (1) within ten days thereafter the Purchaser and HEcom
shall assume and satisfy such obligations and (2) the Purchaser and Seller shall
irrevocably instruct the Escrow Agent to release from the Escrow Account and
deliver to the Purchaser and HEcom with five days thereafter the number of
shares of Purchaser Common Stock equal to the quotient of (A) the product of (I)
the total amount paid by Purchaser and HEcom to satisfy such obligations to Xxxx
Deere Health, Inc. and its affiliates and (II) 2.3, and (B) the Trailing Average
Closing Price. Such shares of Purchaser Common Stock delivered to Purchaser and
HEcom shall be deemed to be excluded and deducted from the consideration paid to
Seller pursuant to this Agreement and shall become authorized, but unissued,
shares of Purchase Common Stock.
(c) Notwithstanding Sections 4.06(a) and 4.06(b), if, prior to the
date of the liquidation of the Seller pursuant to Section 4.04 hereof, the
obligations of the Seller or any Seller Subsidiary other than to Xxxx Deere
Health, Inc. and its affiliates shall not have been either paid in full by the
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Seller and the Seller Subsidiaries or converted into, or exchanged for shares of
Seller Common Stock or other equity securities of Seller, (1) within ten days
thereafter the Purchaser and HEcom shall assume and satisfy such obligations up
to a total of $700,000 and (2) the Purchaser and Seller shall irrevocably
instruct the Escrow Agent to release from the Escrow Account and deliver to the
Purchaser and HEcom with five days thereafter the number of shares of Purchaser
Common Stock equal to the quotient of (A) the product of (I) the total amount
paid by Purchaser and HEcom to satisfy such obligations and (II) 1.5, and (B)
the Trailing Average Closing Price. Such shares of Purchaser Common Stock
delivered to Purchaser and HEcom shall be deemed to be excluded and deducted
from the consideration paid to Seller pursuant to this Agreement and shall
become authorized, but unissued, shares of Purchase Common Stock.
(d) Notwithstanding Sections 4.06(a), 4.06(b), and 4.06(c), if,
prior to the date of the liquidation of the Seller pursuant to Section 4.04
hereof, the obligations of the Seller or any Seller Subsidiary other than to
Xxxx Deere Health, Inc. and its affiliates shall not have been either paid in
full by the Seller and the Seller Subsidiaries or converted into, or exchanged
for shares of Seller Common Stock or other equity securities of Seller, and the
Purchaser and Hecom shall have assumed and satisfied such obligations to the
total of $700,000 referenced in Section 4.06(c) hereof, (1) within ten days
thereafter the Purchaser and HEcom shall assume and satisfy additional
obligations up to a total of $300,000 and (2) the Purchaser and Seller shall
irrevocably instruct the Escrow Agent to release from the Escrow Account and
deliver to the Purchaser and HEcom with five days thereafter the number of
shares of Purchaser Common Stock equal to the quotient of (A) the product of (I)
the total amount paid by Purchaser and HEcom to satisfy such obligations and
(II) 2.3, and (B) the Trailing Average Closing Price. Such shares of Purchaser
Common Stock delivered to Purchaser and HEcom shall be deemed to be excluded and
deducted from the
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consideration paid to Seller pursuant to this Agreement and shall become
authorized, but unissued, shares of Purchase Common Stock.
(e) Notwithstanding Sections 4.06(a), 4.06(b), 4.06(c) and 4.06(d),
if, prior to the date of the liquidation of the Seller pursuant to Section 4.04
hereof, the obligations of the Seller or any Seller Subsidiary other than to
Xxxx Deere Health, Inc. and its affiliates shall not have been either paid in
full by the Seller and the Seller Subsidiaries or converted into, or exchanged
for shares of Seller Common Stock or other equity securities of Seller, and the
Purchaser and Hecom shall have assumed and satisfied such obligations to the
total of $700,000 referenced in Section 4.06(c) hereof, and to the total of an
additional $300,000 pursuant to Section 4.06(d) hereof, (1) within ten days
thereafter the Purchaser and HEcom shall assume and satisfy additional
obligations up to a total of $300,000 and (2) the Purchaser and Seller shall
irrevocably instruct the Escrow Agent to release from the Escrow Account and
deliver to the Purchaser and HEcom with five days thereafter the number of
shares of Purchaser Common Stock equal to the quotient of (A) the product of (I)
the total amount paid by Purchaser and HEcom to satisfy such obligations and
(II) 3.0, and (B) the Trailing Average Closing Price. Such shares of Purchaser
Common Stock delivered to Purchaser and HEcom shall be deemed to be excluded and
deducted from the consideration paid to Seller pursuant to this Agreement and
shall become authorized, but unissued, shares of Purchase Common Stock.
(f) Notwithstanding anything in this Section 4.06 to the contrary
the aggregate amount of liabilities assumed by the Purchaser and Hecom pursuant
to this Section 4.06 shall not exceed the product of (I) 1,200,000 and (II) the
Trailing Average Closing Price."
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Section 2. Miscellaneous.
(a) At any time and from time to time, each party agrees, at its or his
expense, to take such actions and to execute and deliver such documents as may
be reasonably necessary to effectuate the purposes of this Amendment.
(b) Since a breach of the provisions of this Amendment could not
adequately be compensated by money damages, any party shall be entitled, either
before or after the Closing, in addition to any other right or remedy available
to it, to an injunction restraining such breach or a threatened breach and to
specific performance of any such provision of this Amendment, and in either case
no bond or other security shall be required in connection therewith, and the
parties hereby consent to the issuance of such an injunction and to the ordering
of specific performance.
(c) The covenants, agreements, representations, and warranties
contained in or made pursuant to this Amendment shall survive the Closing and
any delivery of the consideration described in Section 4.01 of the Asset
Purchase Agreement by the Purchaser or Hecom, irrespective of any investigation
made by or on behalf of any party.
(d) This Amendment sets forth the entire understanding of the parties
with respect to the subject matter hereof (except as provided in Section 9.04 of
the Asset Purchase Agreement), supersede all existing agreements among them
concerning such subject matter, and may be modified only by a written instrument
duly executed by each party with the approval of the Board of Directors or by an
officer of each corporate party.
(e) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested (or by the most nearly comparable method if mailed from or to
a location outside of the United States) or by Federal Express, Express Mail, or
similar overnight delivery or courier service or delivered (in person or by
telecopy, telex, or similar telecommunications equipment) against receipt to the
party to whom it is
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to be given at the address of such party set forth in the preamble to this
Amendment (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this paragraph (e)) with a copy to each of
the other parties hereto. Any notice given to any corporate party shall be
addressed to the attention of the Corporate Secretary. Notice to the estate of
any party shall be sufficient if addressed to the party as provided in this
paragraph (e). Any notice or other communication given by certified mail (or by
such comparable method) shall be deemed given at the time of certification
thereof (or comparable act), except for a notice changing a party's address
which will be deemed given at the time of receipt thereof. Any notice given by
other means permitted by this paragraph (e) shall be deemed given at the time of
receipt thereof. A copy of any notice to Purchaser or HEcom shall simultaneously
be delivered in accordance with this paragraph to Xxxxx Xxxxxxxxxxx LLC, 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. A copy of any notice to
Seller shall simultaneously be delivered in accordance with this paragraph to
Winthrop & Weinstine, P.A., 3000 Xxxx Xxxxxxxx Plaza, 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
(f) Any waiver by any party of a breach of any term of this Amendment
shall not operate as or be construed to be a waiver of any other breach of that
term or of any breach of any other term of this Amendment. The failure of a
party to insist upon strict adherence to any term of this Amendment on one or
more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Amendment. Any waiver must be in writing and, in the case of a corporate
party, be authorized by a resolution of the Board of Directors or by an officer
of the waiving party.
(g) The provisions of this Amendment shall be binding upon and inure to
the benefit of Seller, the Purchaser, and HEcom and their respective successors
and shall inure to the benefit of
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each Purchaser Indemnitee and its successors and assigns (if not a natural
person) and his assigns, heirs, and personal representatives (if a natural
person).
(h) This Amendment does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Amendment
(except as provided in paragraph (h)).
(i) If any provision of this Amendment is invalid, illegal, or
unenforceable, the balance of this Amendment shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
(j) The headings in this Amendment are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Amendment.
(k) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in accordance
with the laws of New York, without giving effect to conflict of laws. Any
action, suit, or proceeding arising out of, based on, or in connection with this
Amendment or the transactions contemplated hereby may be brought in the United
States District Court for the Southern District of New York and each party
covenants and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such action, suit, or proceeding, any claim that it or he is
not subject personally to the jurisdiction of such court, that its or his
property is exempt or immune from attachment or execution, that the action,
suit, or proceeding is brought in an inconvenient forum, that the venue of the
action, suit, or proceeding is improper, or that this Amendment or the subject
matter hereof may not be enforced in or by such court.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the date first written above.
XXXXXXXXX.XXX, INC.
By: ___________________________
Name: Xx X. Xxxxx
Title: Chairman of the Board of
Directors, President and Chief
Executive Officer
XXXXXXXXXXXXXX.XXX,
INC.
By: ___________________________
Name: Xx X. Xxxxx
Title: Chairman of the Board of
Directors, President and Chief
Executive Officer
VHX COMPANY
By: ___________________________
Name:
Title:
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