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AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT ("Agreement") is
entered into on March 12, 1998 by and among EVOCARE, INC., a Delaware
corporation ("Evocare"), EVOCARE HOME HEALTH SERVICES, INC., a Rhode Island
corporation ("Home Health" and, together with Evocare, collectively the
"Sellers"), XXXXXXX XXXXX, a resident of Massachusetts, and XXXXXXX X. XXXXXXXX,
and XXXXX XXXXXXXX, residents of the State of Rhode Island (collectively,
"Shareholders"), and AMERICAN HOMEPATIENT, INC., a Delaware corporation
("Buyer").
R E C I T A L S:
WHEREAS, the parties hereto are party to an Asset Purchase Agreement
dated February 27, 1998 ("Purchase Agreement") and desire to amend the Purchase
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound hereby, agree as follows:
1. Amendments. The Purchase Agreement is hereby amended as follows:
a. Paragraph 3.3(1) is deleted in its entirety and replaced
with the following:
"(1) Attached hereto as Exhibit 3.3 are true and correct
copies of Sellers' combined interim, unaudited balance sheets and
income statements of Sellers for the one (1) month period ended January
31, 1998 (the "Interim Financial Statements"). Promptly following
Closing Sellers shall deliver to Buyer copies of their combined,
reviewed balance sheets as of December 31, 1997, and their combined,
reviewed income statements for the year then ending (the "Fiscal Year
Financial Statements", which, with the Interim Financial Statements,
will be referred to as the "Financial Statements"). Upon delivery to
Buyer, the Fiscal Year Financial Statements shall be attached to
Exhibit 3.3 as though delivered and attached thereto at Closing. The
Financial Statements are based on the books and records of Sellers and
present fairly, in compliance with generally accepted accounting
principles, the financial position of Sellers as of, and the results of
its operations for, the periods specified, except for the absence of
footnotes otherwise required under generally accepted accounting
principles ("GAAP") and, in the case of the Interim Financial
Statements, normal year-end adjustments. Except as set forth in the
Interim Financial Statements, Sellers have, and as of Closing will
have, no contingent liabilities or obligations which are required to be
disclosed therein in accordance with GAAP."
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b. The last grammatical paragraph of paragraph 3.4 is hereby
deleted in its entirety and replaced with the following:
"Further since the Effective Date, neither Shareholders nor
any of their family members or affiliates have received any
compensation, benefits or distributions from Sellers, whether as
salary, bonus, fees, dividends or any other form of compensation,
except such amounts as have been repaid and adjusted for at Closing,
and except for distributions to fund tax obligations as Shareholders of
S corporations shown on Exhibit 3.4 that will be repaid and adjusted
for at Closing, and except for salary payments made to Xxxxxxx and
Xxxxx Xxxxxxxx in the ordinary course of Sellers' business consistent
with past practice."
c. Paragraph 5.7 is hereby amended by striking the word
"through" where first used in that paragraph and replacing it with "and
following".
d. Paragraphs 5.12 and 5.13 are hereby deleted in their
entirety and replaced with the following:
"Buyer acknowledges that the only third party consent or
waiver being obtained prior to Closing is the consent of Xx. Xxxxx
which has been previously provided to Buyer. Sellers and Shareholders
shall assist Buyer in obtaining all consents, licenses, permits,
approvals, provider contracts, determinations or certificates of need
necessary or reasonably advisable in the judgment of Buyer to acquire
and operate the Assets and Business as contemplated hereunder. Sellers
shall, promptly following Closing, deliver to Buyer, at Sellers'
expense, all U.C.C. financing statement searches, local and central,
and federal and state pending litigation, tax lien and judgment
searches, with respect to Sellers, the Assets and the Business
including all "DBAs," trade names and fictitious names of Sellers.
Following Closing Sellers shall promptly deliver to Buyer evidence of
the "tail" insurance coverage required by paragraph 5.8. Promptly
following Closing, Sellers will use their best efforts to deliver to
Buyer all consents, estoppels, approvals, releases, pay-off letters,
filings and authorizations of third parties that Buyer believes are
necessary or advisable for the legal and proper execution, delivery and
consummation of this Agreement, and the transactions contemplated
hereunder, including but not limited to, those consents necessary for
the assignment of Contracts pursuant to paragraph 8.1(4), for release
of any and all mortgages, security interests, liens, pledges,
restrictions or other encumbrances on or applicable to the Assets, and
any U.C.C. termination statements regarding the Assets not specifically
related to Contracts assumed by Buyer."
e. Clause (d) of paragraph 7.2 is hereby deleted in its
entirety.
f. Paragraph 7.4 is hereby deleted in its entirety.
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g. Paragraph 7.6 is hereby deleted in its entirety and
replaced with the following:
"7.6 Confidentiality and Noncompete Agreement. Xxxxxxx Xxxxx
shall execute and deliver to Buyer a Confidentiality and Noncompete
Agreement in the form attached hereto as Exhibit 7.6."
h. Paragraph 8.6 is hereby deleted in its entirety.
i. The heading of paragraph 8.9 is hereby amended to read
"Confidentiality and Employment Agreements".
2. No Other Amendment. Except as amended hereby, the Purchase Agreement
shall remain in full force and effect and unamended.
3. Assignment. Following Closing, Buyer may freely assign any or all of
its rights or delegate any or all of its obligations under this Agreement
without the express written consent of Sellers or Shareholders. Neither Sellers
nor Shareholders may assign any rights or delegate any obligations under this
Agreement without the prior written consent of Buyer, and any prohibited
assignment or delegation will be null and void. Subject to the foregoing, this
Agreement will be binding upon and will inure to the exclusive benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns. This Agreement is not intended to, nor will it, create any rights in
any other party.
4. Partial Invalidity; Waiver. The invalidity or unenforceability of
any particular provision of this Agreement will not affect the other provisions
hereof, and this Agreement will be construed in all respects as if such invalid
or unenforceable provisions were omitted. Further, there will be automatically
substituted for such invalid or unenforceable provision a provision as similar
as possible which is valid and enforceable. Neither the failure nor any delay on
the part of any party hereto in exercising any rights, power or remedy hereunder
will operate as a waiver thereof, or of any other right, power or remedy; nor
will any single or partial exercise of any right, power or remedy preclude any
further or other exercise thereof, or the exercise of any other right, power or
remedy. No waiver of any of the provisions of this Agreement will be valid
unless it is in writing and signed by the party against which it is sought to be
enforced.
5. Interpretation; Knowledge. All pronouns and any variation thereof
will be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the person or entity, or the context, may require. Further,
it is acknowledged by the parties that this Agreement has undergone several
drafts with the negotiated suggestions of both; and, therefore, no presumptions
will arise favoring either party by virtue of the authorship of any of its
provisions or the changes made through revisions. Any paragraph headings in this
Agreement are for convenience of reference only and will not be considered or
referred to in resolving questions of interpretation.
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6. Entire Agreement; Counterparts. This Agreement constitutes the
entire agreement between the parties hereto with regard to the matters contained
herein and it is understood and agreed that all previous undertakings,
negotiations and agreements between the parties are merged herein. This
Agreement may not be modified orally, but only by an agreement in writing signed
by Buyer, Sellers and Shareholders. This Agreement may be executed
simultaneously in two or more counterparts each of which will be deemed an
original and all of which together will constitute but one and the same
instrument.
7. Controlling Law. This Agreement will be construed, interpreted and
enforced in accordance with the substantive laws of the State of Tennessee,
without giving effect to its conflict of laws provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Purchase Agreement as of the date first above written.
"SELLERS":
EVOCARE, INC.
By:
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Title:
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EVOCARE HOME HEALTH CARE
SERVICES, INC.
By:
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Title:
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"SHAREHOLDERS":
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XXXXXXX XXXXX
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XXXXXXX X. XXXXXXXX
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XXXXX XXXXXXXX
"BUYER":
AMERICAN HOMEPATIENT, INC.
By:
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Title:
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