EXHIBIT 2.2
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT effective as of May 30, 1997,
among Innovasive Devices, Inc. (the "Buyer"), MedicineLodge Inc. ("Seller"),
certain securityholders of Seller's capital stock (the "Shareholders") and
Innovasive Acquisition Corp., a wholly-owned subsidiary of the Buyer (the
"Subsidiary").
The Buyer, Seller and certain of the Shareholders entered a certain Asset
Purchase Agreement dated as of February 4, 1997 (the "Purchase Agreement")
pursuant to which the Buyer agreed to purchase, and Seller agreed to sell,
substantially all of the operating assets and liabilities of Seller. The
Purchase Agreement allows the Buyer to assign its rights under the Purchase
Agreement to a subsidiary, which the Buyer now wishes to do. In addition, the
Purchase Agreement may be terminated by a party if the transactions contemplated
therein are not consummated by June 16, 1997. The parties wish to extend such
date as set forth herein.
NOW THEREFORE, the parties agree as follows:
1. Assignment to Subsidiary. Pursuant to its right set forth in the last
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paragraph of Article I of the Purchase Agreement, the Buyer hereby assigns its
rights under the Purchase Agreement to the Subsidiary, the Subsidiary hereby
accepts such assignment, and Seller and the Shareholders hereby consent to such
assignment.
2. Extension of Termination Date. Section 9.1(b) of the Purchase
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Agreement is hereby amended by replacing therein both instances of "June 16"
with "July 31", thereby extending the date after which the parties may
unilaterally terminate the Purchase Agreement to July 31, 1997; and Section 3.1
of the Purchase Agreement is hereby amended by replacing therein "June 16" with
"July 31".
3. Parties. Effective as of May 30, 1997, the following persons are
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hereby joined as parties to the Purchase Agreement as Shareholders with all the
benefits and obligations thereto: Tom Winters, Kenneth Jensen, Dan Perkins,
Daniel Justin and Jeff J. Robbins.
4. 1997 Interim Financial Statements.
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(a) Section 2.3(a)(i) of the Purchase Agreement is hereby amended by
inserting therein "and the 1997 Interim Financial Statements with the exception
of the Employee withholdings attributable to the disclosure in Schedule 4.11"
after the reference to "1996 Financial Statements; and
(b) Section 4.5(a) of the Purchase Agreement is hereby amended and
restated as follows:
"SECTION 4.5 Reports and Financial Statements.
(a) The Seller has delivered to Buyer a compiled balance sheet and
statement of operations for the fiscal year ended December 31, 1994, a reviewed
balance sheet and statement of operation for the fiscal year ended December 31,
1995 (the "Annual Financial Statements"), a balance sheet and income statement
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for the fiscal year ended December 31, 1996 (the "1996 Financial Statements")
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and a balance sheet and income statement for the interim period ending June 26,
1997 (the "1997 Interim Financial Statements") (the Annual Financial Statements,
the 1996 Financial Statements and the 1997 Interim Financial Statements are
collectively referred to as the "Seller Financial Statements"). The Annual
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Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis and fairly present the
financial condition of the Seller as of the dates thereof and the results of its
operations for the periods then ended. The 1996 Financial Statements and the
1997 Interim Financial Statements have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent with the
Annual Financial Statements. The 1996 Financial Statements fairly present the
financial condition of the Seller as of December 31, 1996 and for the twelve
month period then ended, subject to the absence of notes thereto and normal
year-end audit adjustments, none of which is expected to be material, and have
been certified by the President of the Seller."
5. Excluded Assets. Schedule 1.1 is hereby amended to delete the
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existing items 8 and 9 and to add as new item 8:
"8. Note Receivables - Shareholders $338,381.28
(withholdings due in compensatory options)"
6. Excluded Liabilities. Section 2.3(b) of the Purchase Agreement is
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hereby amended by (a) deleting the word "or" before (vii) and (b) inserting at
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the end of Section 2.3(b) "or (viii) employee withholdings in the amount of
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$338,381.28." The parties acknowledge that the Subsidiary will assume $21,075.80
of the Seller's F.I.C.A. liabilities relating to the exercise by employees of
certain stock options.
7. Effect of Amendment. For purposes of the Purchase Agreement, the
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changes contained herein will be deemed to have been made to the Purchase
Agreement as of the date hereof. Except to the extent specifically amended
hereby, all terms of the Purchase Agreement shall remain in full force and
effect.
8. Counterparts. This Amendment Agreement may be executed in any number
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of counterparts, all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INNOVASIVE DEVICES, INC.
By: /s/ Richard D. Randall
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Richard D. Randall
President
INNOVASIVE ACQUISITION CORP.
By: /s/ James V. Barrile
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James V. Barrile
President
MEDICINE LODGE, INC.
By: /s/ Alan Chervitz
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Alan Chervitz
President
SHAREHOLDERS:
/s/ Tom Winters /s/ E. Marlowe Goble
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Tom Winters E. Marlowe Goble, M.D.
/s/ Kenneth Jensen /s/ Alan Chervitz
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Kenneth Jensen Alan Chervitz
/s/ Dan Perkins /s/ T. Wade Fallin
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Dan Perkins T. Wade Fallin
/s/ Daniel Justin /s/ Richard B. Caspari
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Daniel Justin Richard B. Caspari, M.D.
/s/ Jeff J. Robbins /s/ Judith B. Caspari
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Jeff J. Robbins Judith B. Caspari
/s/ Stephen J. Snyder
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Stephen J. Snyder, M.D., individually
/s/ Stephen J. Snyder
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Stephen J. Snyder, as Trustee of the
Stephen J. Snyder and Lee Ann Snyder
Family Trust