FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment") is
made as of December 31, 1996 by and between VISION HEALTH CARE, INC., a
Florida corporation whose address is 000 Xxxx Xxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 ("Buyer"), and VISION CARE, INC., a Florida not-for-profit
corporation whose address is 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxx, Xxxxxxx 00000 ("Seller").
Recitation of Facts
A. Buyer and Seller are parties to an Asset Purchase Agreement
dated as of March 21, 1996 (as amended or modified, the "Agreement").
B. Buyer and Seller have agreed on certain amendments to the
Agreement, including, without limitation, changing the effective date of
the Closing (as defined in the Agreement) and the date for adjusting the
Purchase Price (as defined in the Agreement).
Agreement
NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00) and other
good and valuable consideration, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct, and are
incorporated herein by this reference.
2. Definitions. The capitalized terms contained in this Amendment
shall have the same meaning as set forth in the Agreement.
3. Personal Property. Section 1.1.(b) of the Agreement is modified
to read in its entirety as follows:
1.1(b) Personal Property. All equipment, vehicles, supplies,
furniture and all other personal property (other than personal
property leased pursuant to personal Property Leases as defined in
Section 1.1.(c)) owned, utilized or held for use by Seller on the
Effective Date.
4. Recent Balance Sheet Liabilities. Section 2.1.(a) of the
Agreement is modified to read in its entirety as follows:
2.1.(a) Recent Balance Sheet Liabilities. The accounts
payable and accrued Liabilities reflected or reserved against on the
Recent Balance Sheet (as defined in Section 4.4), but only in the
amounts so reflected or reserved, as adjusted for obligations
incurred and payments made in the ordinary course of business between
the date of the Recent Balance Sheet and the Effective Date; any
excess thereof shall continue to be the Liability of Seller.
5. Excess Reserve Liabilities. Section 2.1.(c) of the Agreement is
modified to read in its entirety as follows:
2.1.(c) Excess Reserve Liabilities. Liabilities related to
the professional fees withheld from providers' claims payments which
were classified as part of the "surplus" in the financial statements
referred to in Section 4.4 hereof but have been declared as
liabilities prior to the Closing Date (the "Excess Reserve
Liabilities").
6. Annual Reports. Section 3.1 of the Agreement is hereby amended
to read in its entirety as follows:
3.1 Purchase Price. The Purchase Price (the "Purchase Price")
for the Purchased Assets shall be the appraised Fair Market Value (as
defined in that certain valuation report prepared by Sheldrick
XxXxxxx & Xxxxxx valuing Seller as of December 31, 1995) of the
Purchased Assets, as determined by Sheldrick XxXxxxx & Kohler, the
business valuation firm retained by Seller, and as adjusted to
reflect any increase or decrease in the net book value of Seller
between December 31, 1995 and December 31, 1996 (or such other date
as Buyer and Seller both agree to in writing). For purposes of this
Agreement "net book value" shall mean the difference between Seller's
Total Assets and Total Liabilities (i.e., Total Surplus).
7. Closing. The preamble of Article 14 of the Agreement is hereby
amended to read in its entirety as follows:
The closing of this transaction (the "Closing') shall take place
at the offices of Xxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, at 4:30 P.M. on December 30, 1996. Notwithstanding
the date of the Closing, Buyer shall not transfer the Purchase Price
to Seller, Seller shall not transfer the Purchased Assets to Buyer
and Buyer shall not assume the Assumed Liabilities until 12:01 A.M.
on January 1, 1997 (the "Closing Date") which shall be the effective
date and time of the transaction, or, to the extent necessary, as
soon as practicable thereafter.
8. Expenses. The preamble of Section 16.8.(a) of the Agreement is
hereby amended to read in its entirety as follows:
16.8.(a) Expenses to be Paid by Seller. Seller
acknowledges that it has agreed to reimburse Buyer up
to $300,000 to cover Buyer's actual and reasonable
expenses associated with the transactions provided for
in this Agreement. In addition, Seller shall pay, and
shall indemnify, defend and hold Buyer harmless from
and against, each of the following:
9. Full Force and Effect. The Agreement, as hereby modified, is
ratified and confirmed and all of its terms, covenants, conditions,
agreements and stipulations shall remain in full force and effect in
accordance with the provisions thereof on the date hereof, except as
modified herein.
10. Benefit. This Amendment shall be binding upon, inure to the
benefit of, and be enforceable by the respective successors and permitted
assigns of the parties hereto. Nothing contained herein shall be deemed
to confer upon any other person, any right or remedy under or by reason of
this Amendment.
11. Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws and judicial decisions of the State
of Florida, without regard to conflict of law principles thereunder.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
VISION HEALTH CARE, INC.
("Buyer")
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Liane, O.D., President
VISION CARE, INC.
("Seller")
By: /s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx, O.D.,
Chairman of the Board
