FIRST AMENDMENT TO LLC MEMBERSHIP INTEREST PURCHASE AGREEMENT
FIRST
AMENDMENT
This
FIRST AMENDMENT TO LLC MEMBERSHIP INTEREST PURCHASE AGREEMENT (this
“Amendment”) is made and entered into as of the 11 day of January, 2008, by and
among MEDICAL RESOURCES, LLC, a Florida limited liability
company (the “Company”), XXXXXX
XXXXX and
XXXXXX XXXXX, Florida residents (together, the “Sellers”),
and PRIMACARE
CORPORATION, a Florida corporation (the “Buyer”).
RECITALS:
A. Pursuant
to that certain LLC Membership Interest Purchase Agreement, dated September
6,
2007, among the Company, the Sellers and the Buyer (the “Purchase Agreement”),
the Sellers agreed to sell to the Buyer, and the Buyer agreed to purchase from
the Sellers, all of the issued and outstanding membership interests in the
Company.
B. Pursuant
to Section 12(e) of the Purchase Agreement, the parties may amend the Purchase
Agreement by a written instrument signed by the parties.
C. The
Company, the Sellers and the Buyer desire hereby to amend the Purchase Agreement
as hereinafter set forth.
NOW,
THEREFORE, in consideration of the premises and covenants contained in
this Agreement, the parties hereto, intending to be legally bound, agree as
follows:
1. Recitals. The
foregoing recitals are true and correct and are incorporated herein by
reference.
2. Defined
Terms. All capitalized terms used herein and not
expressly defined shall have the meanings given to them in the Purchase
Agreement.
3. Escrow
Agreement.
(a) The
Parties hereby agree that Section 2(b)(i) is hereby amended and restated as
follows:
“(i) At
the Closing, Buyer shall deliver 28 million IWWI shares (as defined below)
as an
estimate of the Purchase Price to Escrow Agent pursuant to an Escrow Agreement
by and among the Jankes, Buyer, MR, and Escrow Agent (the “Escrow Agreement”),
in the form attached as Exhibit A to the First Amendment to this
Agreement among the Parties, dated January 11, 2008.”
(b) The
Parties hereby agree that Section 2(c) is hereby amended and restated as
follows:
“(c) Determination
of Purchase Price. Within thirty (30) calendar days after the
completion of the audited review of MR’s financial statements for the 24-month
period from January 1, 2008 through December 31, 2009, Buyer and MR shall
prepare, or cause to be prepared, and deliver to the Jankes a preliminary
determination of the Purchase Price (the “Preliminary
Determination”). The Preliminary Determination shall set forth (A)
the amount of the Purchase Price, (B) the amount of the Weighted Average Price
and the amount of IWWI Shares corresponding to the Purchase Price, (C) the
amount of any adjustment to the Purchase Price in accordance with Sections
5(f)
and 9(f) hereof, and (D) the amount of IWWI Shares corresponding to the Purchase
Price less such adjustments. After the Preliminary Determination is
delivered to the Jankes, if the Jankes determine that the Preliminary
Determination has been prepared in accordance with Section 2(a) or (b), then
the
Jankes shall inform Buyer by delivering written notice to Buyer, and Buyer
and
the Jankes shall cooperate in executing joint written instructions (the “Joint
Instructions”) to the Escrow Agent directing the Escrow Agent to release the
IWWI Shares in accordance with the Preliminary
Determination. Notwithstanding anything set forth herein or in the
Escrow Agreement to the contrary, such Joint Instructions shall not instruct
any
release of IWWI Shares to the Jankes until after March 31, 2012 (the “Escrow
Termination Date”); provided, that such Joint Instruction may instruct
release of IWWI Shares to Buyer prior to the Escrow Termination
Date. In addition, if the Escrow Agent shall not have received Joint
Instructions by the Escrow Termination Date, the Escrow Agent shall file an
action of interpleader in the appropriate court of competent jurisdiction and
deposit the IWWI Shares with such court for determination or
disposition.”
4. Transfer
of Liabilities. The Parties hereby agree that a new
Section 5(f) is hereby amended to the Purchase Agreement, as
follows:
“(f) Payment
of Liabilities Incurred Prior to August 1, 2007. Should MR make
payment on any liabilities incurred prior to August 1, 2007 (“Prior Liability”),
and such Prior Liability was not satisfied prior to Closing, then Buyer can
reduce the Purchase Price by the amount of payment made by MR toward the Prior
Liability and Buyer, upon delivery of Joint Instructions to the Escrow Agent
directing the Escrow Agent to release the IWWI Shares to Buyer, may remove
IWWI
Shares held in Escrow and equal to the amount of payment made on such Prior
Liability . Seller acknowledges that payment by MR for any Prior
Liability gives Buyer, in its sole discretion, the right to remove IWWI Shares
equal to such payment, and Seller shall not unreasonably withhold execution
and
delivery of Joint Instructions to Escrow Agent regarding release of IWWI shares
to Buyer.”
5. Indemnification
Cap. The Parties hereby agree that Section 9(f) of the
Purchase Agreement is hereby amended to add:
“Notwithstanding
anything to the contrary in this Agreement, except for claims or actions based
on fraud of the Jankes to the Buyer, the total aggregate liability of the Jankes
under this Article 9 shall not exceed the Purchase Price paid and held
under the Escrow Agreement.”
6. Schedules. For
all provisions herein and in the Purchase Agreement that reference any
Schedules, such Schedules shall be those attached to this Amendment hereof
and
identified as Schedule Attachment .
7. Miscellaneous.
a. In
the
event any provision of this Amendment is found to be unenforceable, void,
invalid or unreasonable in scope, such provision shall be modified to the extent
necessary to make it enforceable, and as so modified, this Amendment shall
remain in full force and effect.
b. This
Amendment may be executed in counterparts, each of which shall be deemed an
original of this Amendment and all of which, when taken together, shall be
deemed to constitute one and the same Amendment.
c. The
rights and obligations of the parties under this Amendment shall inure to the
benefit of, and shall be binding upon, their respective heirs, executors,
administrators, successors, assigns, subsidiaries, affiliates, directors,
officers, employees, representatives and agents, as applicable.
d. To
the
extent any provisions contained herein conflict with the Purchase Agreement
or
any other agreements between the Parties, oral or otherwise, the provisions
contained herein shall supersede such conflicting provisions contained in the
Purchase Agreement or other agreements. Except as modified herein,
the Parties hereby represent and warrant that the Purchase Agreement remains
in
full force and effect and is hereby reaffirmed and ratified by each
Party.
e. This
Amendment shall be construed under, and governed by, the internal laws of the
State of Florida.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
COMPANY:
MEDICAL
RESOURCES, LLC
By: /s/
Xxxxxx Xxxxx
Name: Xxxxxx
Xxxxx
Title: Chief
Executive Officer
SELLERS:
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
BUYER:
PRIMACARE
CORPORATION
By: /s/
Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxxx
Title: Chief
Executive Officer
