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EXHIBIT 1.2
AMENDMENT #1 TO
MERGER AGREEMENT
THIS AMENDMENT #1 TO MERGER AGREEMENT (the "Agreement") entered into as
of ____, 1997, by and among JUST LIKE HOME, INC., a Florida corporation ("JLH")
whose principal address is 0000 Xxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000-
3106, JLH ACQUISITION CORPORATION, a Florida corporation and a wholly-owned
Subsidiary of JLH (the "Acquisition Company") whose principal address is 0000
Xxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000-0000, and COMMUNITY ASSISTED LIVING
CENTERS, INC., a Florida corporation ("CALCI") whose principal address is 0000
Xxxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000. JLH, the Acquisition Company, and
CALCI are referred to collectively herein as the "Parties."
RECITALS:
A. On February 14, 1997 JLH, the Acquisition Company and CALCI
entered into a Merger Agreement (the "Merger Agreement") that contained certain
provisions regarding an Acquisition Audit.
B. JLH, the Acquisition Company and CALCI have determined that
there is a need to extend the Acquisition Audit period until March 31, 1997.
C. As a result of the extension of the Acquisition Audit, the
closing of the merger will also be extended to March 31, 1997.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. EXTENSION OF ACQUISITION AUDIT. JLH, the Acquisition Company
and CALCI hereby agree that the Acquisition Audit shall be extended until March
31, 1997.
2. EXTENSION OF CLOSING. JLH, the Acquisition Company and CALCI
hereby agree the closing of the merger shall and by this document, hereby is
extended to March 31, 1997.
3. REVISION OF TERMINATION PROVISION. JLH, the Acquisition
Company and CALCI hereby agree that any provisions regarding termination based
upon the closing not occurring within thirty days of the date of execution of
the Merger Agreement shall be extended to March 31, 1997.
4. CONTROLLING PROVISIONS. All the remaining provisions,
representations, warranties and covenants of the Merger Agreement shall remain
in full force and effect. Should there be any conflict with this Agreement and
the Merger Agreement then this Agreement shall control.
5. OPERATIONAL CONTROL. As of Monday, March 17, 1997, CALCI
agrees to take operational control of JLH. CALCI will use its best efforts
in operating the
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business and will make such changes as it deems necessary after consultation
and approval of JLH. In addition, CALCI will fund the operational needs of JLH
based upon CALCI's reasonable determination of the cash needs of the JLH
business between March 17, 1997 and the closing. JLH understands and agrees
that CALCI will not fund any capital expenditures nor real estate taxes that
may come due during that period.
6. INDEMNIFICATION BY JLH. JLH shall hold harmless, indemnify
and defend CALCI against and with respect to any and all damage, loss,
liability, deficiency, cost and expense, including without limitation
reasonable attorney's fees, resulting from CALCI's assumption of operational
control of JLH as described herein (except for intentional tortuous acts), as
well as any other claims, liability or cost of any nature whatsoever, known or
unknown, whether accrued, absolute, contingent or otherwise, presently existing
or arising in the future which such liability arose out of JLH's conduct prior
to the conclusion hereof.
7. MISCELLANEOUS.
(a) Survival. None of the representations, warranties, and
covenants of the Parties (other than the provisions in Section 2 of the Merger
Agreement concerning payment of the Merger Consideration and the provisions in
Section 5 of the Merger Agreement concerning insurance and indemnification)
will survive the Effective Time.
(b) Press Releases and Public Announcements. No Party shall issue
any press release or make any public announcement relating to the subject
matter of this Agreement without the prior written approval of the other
Parties; provided, however, that any Party may make any public disclosure which
is required by applicable law or any listing or trading agreement concerning
its publicly-traded securities (in which case the disclosing Party will use
its best efforts to advise the other Party in writing at least ten (10) days
prior to making the disclosure.
(c) No Third Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns; provided, however, that the
provisions in Section 2 above concerning payment of the Merger Consideration
are intended for the benefit of CALCI Stockholders.
(d) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of the other Parties.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
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If to CALCI: Community Assisted Living Centers, Inc.
ATTN: Xxxx X. Xxxxxxxx, President & CEO
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
tel.: (000) 000-0000
fax: (000) 000-0000
Copy to: Xxxxxxx Xxxxxx
Xxxxxxx & Xxxx
Xxxxx Xxxxxxx Xxxxxxxx, Xxxxx 000
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
tel: 000.000.0000
fax: 000.000.0000
If to JLH: Just Like Home, Inc.
ATTN: Xxxxxxx X. Xxxxxx, M.D., Chairman
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
tel.: 000.000.0000
fax: 000.000.0000
Copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Schifino & Xxxxxxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
tel.: 000.000.0000
fax: 000.000.0000
If to the Acquisition Company:
Just Like Home Acquisition Company
0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
tel.: 000.000.0000
fax: 000.000.0000
Copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Schifino & Xxxxxxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
tel.: 000.000.0000
fax: 000.000.0000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
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(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Florida without
giving effect to any choice or conflict of law provision or rule (whether of
the State of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Florida.
(i) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; provided, however,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Florida General Corporation Law. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the Parties. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. Each of the Parties will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of
any of the provisions of this Agreement. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
(m) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(n) Costs. Unless otherwise stated herein, the Parties will each
be solely responsible for and bear all of their own respective expenses,
including, without limitation, expenses of legal counsel, accountants, and
other advisors, incurred at any time in connection with pursuing or
consummating this Agreement, and the transactions
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contemplated thereby. In the event any party takes legal action to enforce any
of the terms of this Agreement, the prevailing party to such action shall not
be entitled to reimbursement for such party's expenses, including reasonable
attorney's fees, incurred in such action.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
JUST LIKE HOME, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Chairman
JLH ACQUISITION
CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
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Its: Chairwoman
COMMUNITY ASSISTED
LIVING CENTERS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, President & CEO
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