First Amendment to Share Purchase Agreement and
First Amendment to Acquisition Agreement
This First Amendment to Share Purchase Agreement and First
Amendment to Acquisition Agreement ("First Amendment") is entered
into to be effective as of the Closing Date (as defined in the
Acquisition Agreement) among the parties signatory hereto.
WHEREAS, the parties hereto have entered into a Share
Purchase Agreement and an Acquisition Agreement dated May 13,
1997 (the Share Purchase Agreement and Acquisition Agreement with
all of their schedules, exhibits and lists are herein
collectively referred to as the "Agreements"); and
WHEREAS, the parties hereto have agreed to amend the
Agreements as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the consideration recited in the
Agreements, and other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the
parties are to amend the Agreements as follows:
1. Notwithstanding anything in the Agreements to the
contrary, and, without limiting the foregoing, specifically in
substitution and replacement of subparagraph (d) of Paragraph 6.4
of the Acquisition Agreement, Xxxxxxx agrees that he shall not,
without the prior written consent of Parent, for his own account
or jointly or in combination with another, directly or
indirectly, for or on behalf of any Person, as principal, agent
or otherwise:
(i) for the period beginning May 13 1997 and ending at
5:00 p.m. EDT on May 13, 1999, solicit or attempt to solicit any
Person identified on Annex 1 attached hereto and incorporated
herein by reference, for the purpose of obtaining the patronage
of any such Person for the purchase of any products or services
included in the Restricted Business.
(ii) for the period beginning May 13, 1997 and ending at
5:00 p.m. EDT on May 13, 2001, solicit or attempt to solicit any
Person identified on Annex 1 attached hereto and incorporated
herein by reference, for the purpose of obtaining the patronage
of any such Person for the purchase of any products or services
included in the Restricted Business so long as there exists a
contractual relationship between a Member of the Group and such
Person which is like or comparable to the contractual
relationship existing as of May 13, 1997.
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(iii) for the period beginning May 13, 1997 and ending
at 5:00 p.m. EDT on May 13, 1998, solicit or attempt to solicit
Hospice Preferred Choice, Columbia/HCA Healthcare Corporation or
Option Care, Inc. (or any franchisee of Option Care, Inc.), or
any of their respective Affiliates for the purpose of obtaining
the patronage of any such Person for the purchase of any products
or services included in the Restricted Business;
(iv) for the period beginning May 13, 1997 and ending at
5:00 p.m. EDT on November 13, 1997, solicit or attempt to solicit
Health Management Associates, Deaconess Hospital, Community
Health Systems, Xxxxxxxxxx Healthcare Corporation, or any of
their respective Affiliates for the purpose of obtaining the
patronage of any such Person for the purchase of any products or
services included in the Restricted Business.
(v) for the period beginning May 13, 1997 and ending at
5:00 p.m. EDT on November 13, 2001, solicit or induce, any
individual who is employed by any Member of the Group to leave
such employment, whether or not such employment is pursuant to a
written contract with any Member of the Group.
2. Notwithstanding anything in the Share Purchase
Agreement and/or the Acquisition Agreement to the contrary, and
without limiting the foregoing specifically in reference to
subparagraph (e) of Paragraph 6.4 of the Acquisition Agreement,
the parties agree that subparagraph (e) of Paragraph 6.4 shall
not apply to Xxxxxxx.
3. (a) Acknowledgments. Xxxxxxx hereby covenants,
agrees and acknowledges as follows:
(i) Company and its Affiliates are engaged in the
business of providing home health care management, billing
and data processing, information systems, and consulting
services relating to the foregoing (collectively, the
"Business"). For purposes hereof, "home health care" means
home nursing and related services, hospice services,
infusion therapy services, respiratory therapy services, and
home medical equipment.
(ii) The Business of Company and its Affiliates
involves the development and use of confidential and
proprietary information that is not generally known and that
belongs to Company or its Affiliates or both, including,
without limitation, information pertaining to sales,
purchases, business plans, actual and prospective customers,
Xxxxxxx compensation programs, incentive plans, computer
programs, system documentation and related software
development, manuals, forms, formulas, processes, methods
and ideas, and all other confidential or proprietary
information which belongs to Company or its Affiliates or
both, or which relates to the affairs of Company or its
Affiliates or both (collectively hereinafter referred to as
"Proprietary Information"). The following information of
Company and its Affiliates shall not be considered
Proprietary Information for purposes of this Agreement: (A)
information which was generally known to and available for
use within the trade or by the public at the time of
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disclosure to Xxxxxxx; (B) information which becomes
generally known to and available for use within the trade or
by the public other than as a result of a breach of
Xxxxxxx'x duty of confidentiality hereunder; and (C)
information which was in the possession or knowledge of
Xxxxxxx (other than by virtue of his employment or ownership
relationship with a predecessor of Company) free of
confidentiality restrictions prior to the time of disclosure
of such information to Xxxxxxx by Company and its
Affiliates, or becomes available to Xxxxxxx from a third
party who or which is not bound by confidentiality
restrictions.
(iii) During his employment with Company, he has
had access to and has acquired the Proprietary Information
of Company and its Affiliates.
(iv) It is essential to the protection of the goodwill
of Company and its Affiliates and to the maintenance of the
competitive position of Company and its Affiliates that the
Proprietary Information be kept secret and Xxxxxxx not
disclose the Proprietary Information to others or use it for
Xxxxxxx'x own advantage or the advantage of others.
(b) Non-Disclosure of Proprietary Information.
Xxxxxxx agrees to hold and safeguard the Proprietary Information
in trust for Company and shall not at any time hereafter disclose
or make available to anyone for use outside of the organization
of Company and its Affiliates, or use for his own benefit or for
the benefit of anyone other than Company, any of the Proprietary
Information, except as required by law or court order, subject to
the Company's right to prevent or limit such disclosure within
the bounds of the law or court order. For Proprietary
Information that does not rise to the level of a trade secret,
these limitations will expire one year from the date of the end
of Xxxxxxx'x employment with Company for any reason.
(c) Return of Materials. Xxxxxxx acknowledges that he
has delivered to Company all originals and copies of documents or
other information relating or pertaining to the Business,
including all correspondence, drawings, blueprints, manuals,
forms, letters, notes, notebooks, reports, flowcharts, programs,
proposals and any documents pertaining to the actual or
prospective customers of the Company or its Affiliates, or
methods of conducting the Business and, without limiting the
foregoing, Xxxxxxx has delivered to Company any and all originals
and copies of all other documents or materials which contain or
constitute Proprietary Information.
4. Except as otherwise provided for in this paragraph, each of
the parties signatory to this First Amendment other than for
Xxxxxxx, on behalf of itself and its subsidiaries and affiliates,
and their respective shareholders, participants, officers,
directors, agents, employees and persons who directly or
indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with any corporate or
entity member thereof (collectively, the "Non-Xxxxxxx Parties")
hereby fully release, remise, acquit and forever discharge
Xxxxxxx, his successors, legal representatives, heirs, legatees
and personal representatives, on behalf of itself and its
subsidiaries and affiliates, and their respective officers,
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directors, agents from any and all: claims, demands, actions,
causes of action, damages, obligations, losses and expenses of
any kind or nature arising out of any acts, omissions,
transactions, transfers, happenings, violations, promises,
contracts, guaranties, agreements, facts or situations of any
kind or nature which occurred or existed at any time immediately
prior to consummation of the execution and delivery of the Share
Purchase Agreement, the Acquisition Agreement, and this
Amendment, whether or not now known or suspected or claimed,
whether the law, admiralty, arbitration, administrative, equity
or otherwise, and whether accrued or hereafter maturing
(collectively, the "Prior Events"). Xxxxxxx, on his own behalf
and on behalf of his successors, legal representatives, heirs,
legatees and personal representatives, does hereby fully release,
remise, acquit and forever discharge the Non-Xxxxxxx Parties from
any and all Prior Events. Notwithstanding anything in this
Amendment to the contrary, no party shall be released from any
liability that he or it may have resulting from or arising out of
the Share Purchase Agreement, the Acquisition Agreement, and the
Guaranty, of even date herewith, and this Amendment, executed and
delivered by Xxxxxxx and the other signatories thereto in favor
of Housecall Medical Resources, Inc. and HFI Acquisition Corp.,
or any liability he or it may have resulting from or arising out
of any other agreements executed by Xxxxxxx and any or all of the
Non-Xxxxxxx Parties in connection therewith.
5. Contemporaneously with the execution and delivery of
this Amendment, the Non-Xxxxxxx Parties have paid, and Xxxxxxx
acknowledges receipt of, severance pay equal to 90 days salary
(being $33,063).
6. Effective immediately, Xxxxxxx'x employment with HFI
Management, Inc. and its affiliates is terminated.
7. [INTENTIONALLY OMITTED]
8. Except as may be expressly provided for herein to the
contrary, the terms, conditions, covenants, agreements and
indemnities of the parties contained in the Share Purchase
Agreement, the Acquisition Agreement, the Guaranty, and all of
the other documents, agreements, and instruments executed and
delivered in connection therewith shall continue in full force
and effect in accordance with their terms.
9. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, and
all of which together shall be considered one and the same. This
Amendment shall be governed by the internal laws of the State of
Georgia.
10. Copies of all notices required under the Agreements
will be mailed to Xxxxxxx at X.X. Xxx 0000, XxXxxxxxxx, XX
00000.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment to Share Purchase Agreement and First Amendment to
Acquisition Agreement simultaneous with the execution and
delivery of the Amendments.
HFI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
HOUSECALL MEDICAL RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
HF HOLDINGS, INC.
By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
HTHF, INC.
By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
HOME TECHNOLOGY HEALTHCARE, INC.
By: /s/ [unreadable]
Name:________________________
Title:_______________________
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CONTINENTAL ILLINOIS VENTURE
CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxx
Print Name: Xxxxxxxxxxx
X. Xxxxx
Title: President
(CORPORATE SEAL)
/s/ Avy X. Xxxxx
AVY X. XXXXX
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxx
XXXXXX XXXXX
/s/ R. Xxxxxx Xxxxxxx
R. XXXXXX XXXXXXXX
/s/ Xxxxxx X. Xxxxxxx III
XXXXXX X. XXXXXXX III
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ANNEX 1
1. Client: Statesboro HMA d/b/a Xxxxxxx Memorial Hospital
Location: Abbeville, South Carolina
Date: 10/01/95
2. Client: Xxxxx-Med, Inc. d/b/a Clinch Valley Medical Center
Location: Richlands, Virginia
Date: 7/18/94, amended 6/1/95
3. Client: Xxxxxxxxxx Macon County Medical Center d/b/a Flint River
Community Hospital
Location: Montezuma, Georgia
Date: 8/1/96
4. Client: Greenview Hospital, Inc.
Location: Bowling Green, Kentucky
Date: 3/1/95, amended 3/2/95, 5/15/95
5. Client: Xxxxx-Med, Inc. d/b/a Lakeland Medical Center
Location: New Orleans, Louisiana
Date: 12/8/94
6. Client: Morristown-Xxxxxxx Hospital Association, Inc. d/b/a
Morristown-Xxxxxxx Hospital
Location: Morristown, Tennessee
Date: 12/28/94
7. Client: HCA-Raleigh Community Hospital
Location: Raleigh, North Carolina
Date: 8/14/95
8. Client: Riverview Regional Medical Center
Location: Gadsen, Alabama
Date: 6/1/95
9. Client: Hospital Corporation of Tennessee d/b/a Volunteer General
Hospital
Location: Martin, Tennessee
Date: 4/1/95, amended 2/10/97
10. Client: Abbeville County Memorial Hospital
Location: Abbeville, South Carolina
Date: 10/1/95
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11. Client: National Healthcare of Cleveland d/b/a Cleveland Community
Hospital
Location: Cleveland, Tennessee
Date: 6/21/96
12. Client: Xxxxx Community Hospital
Location: Statesville, North Carolina
Date: 11/1/95
13. Client: Presbyterian Orthopedic Hospital
Location: Charlotte, North Carolina
Date: 11/1/96
14. Client: Springhill Medical Center
Location: Springhill, Louisiana
Date: 8/15/95
15. Client: Xxxxxxxxx-Xxxxxx Memorial Hospital
Location: Fayetteville, North Carolina
Date: 11/1/96
Note:: Inactive. Hospital did not establish HHA.
16. Client: Home Care of Columbia, Inc. (Consulting and Computer
Services Agreement)
Date: 1/1/97
Services: Consulting and computer services.
17. Client: Columbia/HCA Healthcare Corporation, Kentucky Division
(Consulting Services
Agreement)
Date: 12/1/95
Services: CON consulting for Kentucky hospitals.
Note: Completed assigned duties. Inactive.
18. Client: Marathon HMA, Inc. d/b/a Fishermen's Hospital (Consulting
Services Agreement)
Date: 5/13/96
Services: Operational HHA consulting.
Note: Inactive. Completed assigned duties.
19. Client: Georgia Baptist Health Care System (Consulting Services
Agreement)
Date: 7/27/95
Services: Reimbursement Consulting.
Note: Inactive. Completed services.
20. Client: Xxxx Xxxxxxx Memorial Hospital (Transitional Consulting
Services Agreement)
Date: 2/26/96
Services: Transitional consulting.
Note: Inactive. Completed assigned duties.
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21. Client: Keystone Home Health Management, Inc. (Consulting Services
Agreement)
Date: 8/11/95
Services: Provide positioning services in North Texas market.
22. Client: Princeton Community Hospital (Consulting Services Agreement)
Date: 5/23/96
Services Operational and development consulting.
23. Client: Baptist Memorial Health Care System (Consulting Services
Agreement)
Date: 12/13/96
Services Start-up consulting.
24. Client: Xxxxxx Medical Equipment, Inc.
Date: 3/14/97
Services Agency assessment.
25. Client: Rockwall Drug, Inc.
Date: 4/7/97
Services Agency assessment.
26. Client: Keystone Home Health Management, Inc.
Date: 10/25/95
Services Consult and prepare strategic business plan New Orleans
market.
27. Client: Option Care Cincinnati
Date:
Services
28. Client: Option Care Miami
Date:
Services:
29. Client: Option Care Billingham
Date:
Services
30. Client: Hospice Preferred Choice San Xxxx
Date:
Services
31. Client: Hospice Preferred Choice Santa Xxxx
Date:
Services
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32. Client: Hospice Preferred Choice Merced
Date:
Services
33. Client: Hospice Preferred Choice Atlanta
Date:
Services
32. Client: Concerned Care, Inc. d/b/a Concerned Care Home Health
Location:
Date: 10/4/96
33. Client: Preferred Home Health Services, Inc.
Location:
Date: 2/6/97
34. Client: Sterling Home Health Care, Inc.
Location:
Date: 2/26/97
35. Client: Quality of Life Services, Inc.
Location:
Date:
36. Client: Staff Builders
Location: Gretna, Louisiana
Date:
37. Client: Central Florida Home Health Agency, Inc.
Location:
Date: 3/17/97
38. Client: Home Care Options Inc. (Owners executed Guaranty Agreement)
Location:
Date: 2/11/97, amended 2/27/97. Assigned to Option Care, Inc.
4/29/97
39. Client: Xxxxxxx Regional Medical Center
Service: HFI retained to locate potential HHA acquisition targets.
Date: 1/27/97
40. Client: Xxxxx of Kentucky, Inc. d/b/a Lake Cumberland Regional
Hospital
Location: Somerset, Kentucky
Date: 2/9/94, amended 1/1/95
41. Client: Xxxxx of Kentucky, Inc. d/b/a Lake Cumberland Regional
Hospital
Location: Somerset, Kentucky
Date: 2/9/94
42. Client: Clinch Valley Medical Center
Location: Richlands, Virginia
Date: 7/16/94 (Amended 1/1/95)
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43. Client: Xxxxx Hospital Illinois d/b/a Xxxxxxx Xxxxx Hospital and
Medical Center
Location: Chicago, Illinois
Date: 11/13/95, amended 7/31/96
44. Client: Chicago Grant Hospital, Inc. d/b/a Grant Hospital
Location: Chicago, Illinois
Date: 11/13/95, amended 7/31/96
45. Client: Columbia/HCA Development, Inc. d/b/a Columbia Chicago
Osteopathic Hospital and Medical Center
Location: Chicago, Illinois
Date: 11/13/95, amended 7/31/96
46. Client: Suburban Medical Center at Xxxxxxx Estates, Inc. d/b/a
Xxxxxxx Estates Medical Center
Location: Hoffman Estates, Illinois
Date: 10/1/94, amended 7/31/96
47. Client: Columbia LaGrange Hospital, Inc. d/b/a LaGrange Memorial
Hospital
Location: LaGrange, Illinois
Date: 10/1/95, amended 7/31/96
48. Client: Greenview Hospital
Location: Bowling Green, Kentucky
Date: 3/1/95, assigned and amended 3/2/95, 5/15/95
49. Client: Lakeland Medical Center
Location: New Orleans, Louisiana
Date: 12/8/94
50. Client: Morristown-Xxxxxxx Hospital Association d/b/a Morristown
Xxxxxxx Hospital
Location: Morristown, Tennessee
Date: 12/28/94
51. Client: Caring Health Professionals, Inc. d/b/a Rural Health Care
Services (Meadowview)
Location: Maysville, Kentucky
Date: 1/8/96
52. Client: Volunteer General Hospital
Location: Martin, Tennessee
Date: 4/1/95
53. Client: HCA Raleigh Community Hospital
Location: Raleigh, North Carolina
Date: 8/14/95
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54. Client: Dodge City Healthcare Group, L.P. (Consulting Services
Agreement)
Location: Dodge City, Kansas
Date: 12/7/96
55. Client: Caring Health Professionals, Inc. d/b/a Rural Health Care
Services (Meadowview)
Location: Maysville, Kentucky
Date: 4/14/93
56. Client: Homecare of East Tennessee
Location: Knoxville, Tennessee
Date: 6/25/92, amended 11/17/93, 3/10/94, 3/6/95
57. Client: Xxxxxxx Hospital
Xxxxxxx Hospital Home Health
Location: Alexander City, Alabama
58. Client: Atmore Community Hospital
Atmore Community Hospital Home Health
Location: Atmore, Alabama
59. Client: XX XxXxxxxx Memorial Hospital
XX XxXxxxxx Home Health
Location: Brewton, Alabama
60. Client: J. Xxxx Xxxxx Hospital
J. Xxxx Xxxxx Home Health
Location: Camden, Alabama
61. Client: Washington County Infirmary
Infirmary Home Health of Washington County
Location: Chatom, Alabama
62. Client: Xxxxx X. Xxxxxxxxx Memorial Hospital
Xxxxx X. Xxxxxxxxx Memorial Hospital Home Health
Location: Demopolis, Alabama
63. Client: Xxxxxx County Hospital
Xxxxxx County Hospital Home Health
Location: Eutaw, Alabama
64. Client: South Xxxxxxx Hospital
South Xxxxxxx Hospital Home Health
Location: Foley, Alabama
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65. Client: Georgiana Doctors Hospital
Reliable Home Health Services, Inc.
Location: Georgiana, Alabama
66. Client: Grove Hill Hospital
Infirmary Home Health of Xxxxxx County
Location: Grove Hill, Alabama
67. Client: Guntersville-Arab Medical Center
Medical Center Home Health
Location: Albertville, Alabama
68. Client: Xxxxxxxx Xxxxxxx West Memorial Hospital
Xxxxxxxx Xxxxxxx West Home Health
Location: Haleyville, Alabama
69. Client: Monroe County Hospital
Monroe County Hospital Progressive Home Care
Location: Monroeville, Alabama
70. Client: Xxxxxxxx County Hospital
Xxxxxxxx Baptist Medical Center Home Health
Location: Moulton, Alabama
71. Client: Xxxxxx Memorial Hospital
Xxxxxx Memorial Home Health Care
Location: Opp, Alabama
72. Client: Community Hospital
Community Home Care
Location: Tallassee, Alabama
73. Client: Xxxxxxx County Hospital
Associates Home Health Services
Location: Union Springs, Alabama
74. Client: Wedowee Hospital
Wedowee Hospital Home Health
Location: Wedowee, Alabama
75. Client: Xxxxxx Community Hospital
Xxxxxx Community Hospital Home Health
Location: Wecumpka, Alabama
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80. Client: Xxxxxxxx Northwest Medical Center
Xxxxxxxx Northwest Medical Center Home Health
Location: Winfield, Alabama
81. Client: Xxx Hospital
Community Home Health Care
Location: Xxx, Florida
82. Client: Madison County Memorial Hospital
Madison County Memorial Hospital Home Health
Location: Madison, Florida
83. Client: Union Hospital
TIP Home Health
Location: West Frankfort, Illinois
84. Client: Waterville Osteopathic Hospital
Inland Homecare
Location: Waterville, Maine
85. Client: Midlands Community Hospital
Midlands Home Health
Location: Papillion, Nebraska
86. Client: Boulder City Hospital
Boulder City Hospital Home Health Agency
Location: Boulder City, Nevada
87. Client: Barberton Citizens Hospital
Home Health Agency has not been named
Location: Barberton, Ohio
88. Client: Youngstown Osteopathic Hospital
RiverLake Home Health
Location: Youngstown, Ohio
89. Client: Metro Health Center
Home Health Agency has not been named
Location: Erie, Pennsylvania
90. Client: Memorial Hospital of Chattanooga
Memorial Hospital Home Health
Location: Chattanooga, Tennessee
91. Client: Tomball Regional Hospital
TRH Home Health
Location: Tomball, Texas
92. Client: Xxxxxxx County Memorial Hospital
Xxxxxxx County Memorial Hospital Home Health Agency
Location: Xxxxxxx Springs, West Virginia
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