Exhibit 10.70
AMENDMENT NO. 2 TO AMENDED AND RESTATED AGREEMENT
FOR PURCHASE AND SALE OF ASSETS
This is an amendment (this "Amendment") dated October 8, 2003 to the
Amended and Restated Agreement for Purchase and Sale of Assets dated as of April
10, 2003 and Amended July 30, 2003 (the "Purchase Agreement") by and among
American CareSource Corporation, an Indiana corporation ("ACS"), Patient
Infosystems, Inc., a Delaware corporation ("PATI") and the stockholders
signatory thereto.
RECITALS
A. ACS, PATI and others are parties to the Purchase Agreement.
B. The parties wish to amend the Purchase Agreement on the terms and conditions
set forth herein to reflect changes in the terms of the transaction resulting
from the additional loans by PATI to ACS made in accordance with the Credit
Agreement, as amended.
NOW, THEREFORE, in consideration of the agreement of the parties
contained herein, and intending to be legally bound, the parties hereto agree as
follows:
1. Recitals and Definitions.
ACS and PATI acknowledge and agree that the foregoing recitals are true
and correct as of the date of this Amendment. Capitalized terms used herein and
not defined shall have the meanings assigned to them in the Purchase Agreement
as amended by any prior amendments.
2. Total Consideration to be Issued to ACS.
The following sections of the Purchase Agreement hereby are amended to
reflect a reduction in the number of shares of Common Stock of PATI to be issued
to ACS, referred to in the Purchase Agreement as the Initial Consideration from
2,091,366 to 1,500,000.
a. Recitals "C."
b. Section 1.1.
c. Section 2.1.
3. Assumed Liabilities.
The following sections of the Purchase Agreement hereby are amended to
reflect the forgiveness of the Subordinated Note of $2,339,065.21 in principal
plus all accrued interest and related expenses payable by ACS to Today Financial
Corporation (Subordinated Note attached hereto as Exhibit A). This Subordinated
Note will be forgiven by Today Financial Corporation prior to closing and will
not be assumed by PATI.
a. Recitals "B" and "C"
b. Section 2.1
c. Section 2.3
d. Section 3.2.3.12
4. Transferability of PATI Common Stock
Section 5.9 of the Purchase Agreement is hereby replaced in its entirety and
amended to read as follows:
"5.9Transferability of PATI Common Stock.
ACS hereby agrees that, after the Closing as contemplated herein, ACS
may distribute shares of PATI common stock only to the ACS Stockholders that are
signatories to this Agreement and to any new shareholders of ACS who become
record and beneficial owners of common stock of ACS prior to the Closing. The
ACS Stockholders hereby agree that they, and any new shareholders of ACS who
become record and beneficial owners of common stock of ACS prior to the Closing,
may not distribute any shares of PATI common stock for a period of twelve (12)
months from the Closing Date. Notwithstanding anything contained to the contrary
herein, PATI and ACS agree that, in the event that any ACS Stockholder that is a
signatory to this Agreement elects to dissolve or liquidate itself as a
corporation after the Closing, or to make a distribution of the PATI shares to
its stockholders (and if applicable, any corporate or company stockholder
thereof, to its stockholders or any partnership, to its partners), then the
respective shareholders of such corporation shall be entitled to receive their
respective and proper shares of PATI represented by new stock certificates in
their respective names with the understanding that such shares and certificates
will be subject to the same restrictions as are set forth above which are the
same as are the other previously mentioned ACS Stockholders and that all of such
shares will be subject to the Indemnification obligations of the ACS
Stockholders that are signatories hereto as are set forth herein. As a condition
to the transfer of the shares as set forth above, each ACS Stockholder agrees
that it will obtain the written acceptance of each and every distributee, in a
form reasonably satisfactory to PATI, to be bound by and subject to each of the
terms of this Agreement (including with regard to restrictions on transfer and
Indemnification) as if they were an ACS Stockholder hereunder."
5. Raising of Additional Funds.
Section 5.10 of the Purchase Agreement is hereby replaced in its
entirety and amended to read as follows:
"5.10 Raising of Additional Funds
PATI may, to the extent it deems it to be feasible and advantageous,
raise additional new capital of an aggregate of up to $2,500,000 (in addition to
the amounts set forth herein) for investment in Series D Preferred Stock in
accordance with Section 7.10 hereof."
6. Private Placement.
(a) Section 7.10 of the Purchase Agreement is hereby replaced in
its entirety and amended to read as follows:
"7.10 Private Placement.
PATI may, to the extent it deems it to be feasible and
advantageous, raise additional new capital of an aggregate of up to $2,500,000
(in addition to the amounts set forth herein) for investment in Series D
Preferred Stock in accordance hereof. The issuance of the Series D Preferred
Stock in the private placement will occur following the Closing and the
ownership percentages of each of the PATI Stockholders and ACS Stockholders will
be reduced accordingly (inclusive of any anti-dilution adjustments). The
proposed form of Certificate of Designation for the Series D Preferred Stock
shall be in the form attached hereto as Exhibit 7.10. The form of Certificate of
Designation may be subject to revision at the discretion of PATI."
(b) Section 3.2.8 of the Purchase Agreement is hereby deleted in its
entirety.
7. Shareholders Agreement.
The Shareholders Agreement referred to in Section
3.2.3.10 and Section 3.3.3.7 and
attached to the Purchase Agreement as Exhibit I is replaced in its entirety by
Exhibit I attached to this Amendment.
8. General.
The parties hereto acknowledge that all provisions of the Purchase
Agreement, except as amended hereby, shall remain in full force and effect.
9. Definitions.
Whenever appearing in the Purchase Agreement or any other agreement,
the term "Purchase Agreement" shall be deemed to mean the Purchase Agreement as
amended.
10. Representations and Warranties.
ACS represents and warrants to PATI that: (i) it has the power, and has
taken all necessary action to authorize, execute and deliver this Amendment and
perform its obligations in accordance with the terms hereunder, (ii) this
Amendment and the Purchase Agreement as amended by the Amendment is the legal,
valid and binding obligation of ACS enforceable against ACS, (iii) the
execution, delivery and performance of this Amendment by ACS will not (a)
require any governmental approval or any other consent or approval; or (b)
violate or conflict with any agreement to which it is a party, or result in or
require the creation of any lien upon any of the assets of ACS, and (iv) the
financial information provided by ACS to PATI in connection with the request of
ACS that PATI enter into this Amendment is true and correct in all material
respects.
11. Fees of PATI's Counsel.
ACS shall pay the fees and expenses of XxXxxxxx & English in connection
with the preparation and negotiation of this Amendment and all related
documents.
12. Integration.
This Amendment together with the Purchase Agreement constitute the
entire agreement and understanding among the parties relating to the subject
matter hereof and thereof and supersedes all prior proposals, negotiations,
agreements and understandings relating to such subject matter.
13. Severability.
If any provision of this Amendment shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
enforceability without in any manner affecting the validity or enforceability of
such provision in any other jurisdiction or the remaining provisions of this
Amendment in any other jurisdiction.
14. No Forfeiture of Rights.
The parties hereto acknowledge that by agreeing to this Amendment, they
are not waiving any rights or remedies they may have under this agreement or any
prior agreement by or among the parties.
15. Incorporation by Reference.
This Amendment is incorporated by reference into the Purchase
Agreement. Except as otherwise provided herein, all of the other provisions of
the Purchase Agreement including all amendments thereto shall remain in full
force and effect as of the date of this Amendment.
16. Governing Law; Successors and Assigns.
This Amendment is governed by the laws of the State of Texas and is
binding upon ACS, PATI and the signatories to the Purchase Agreement and this
Agreement.
17. Counterparts.
This Amendment may be executed by one or more of the parties on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, on the date first above
written.
PATI
By: /s/Xxxxx X. Xxxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxxx
Title: President
ACS
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Chairman of the Board
ACS STOCKHOLDERS
ACSC, Inc.
By: /s/Xxx Xxxxxxx
Xxx Xxxxxxx, President
/s/Xxxx Xxxxxx
Xxxx Xxxxxx, individually
/s/Xxxx Xxxxxx
Xxxx Xxxxxx, individually and as the ultimate beneficial and
majority owner and affiliate of ACSC, Inc.
PATI STOCKHOLDERS
/s/Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, individually
/s/Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, individually
NWK3: 773212.02
