1
AMENDMENT TO ASSET PURCHASE AGREEMENT [EXHIBIT 2(b)]
MADE this ______ day of ______________, 1996 by and between the Podiatry
Hospital of Pittsburgh, a not for profit hospital organized under the laws of
the Commonwealth of Pennsylvania (in Asset Purchase Agreement and herein
referred to as "Seller") and Consolidated Health Corporation of Mississippi,
Inc., a Mississippi Corporation (in Asset Purchase Agreement and herein
referred to as "Purchaser").
WHEREAS, Seller and Purchaser entered into an Asset Purchase Agreement
dated the 28th day of August, 1996 (hereinafter the "Agreement"); and
WHEREAS, Seller and Purchaser desire to make certain amendments and
corrections to said Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations and warranties in Agreement and hereinafter
contained, and for other good and valuable consider-action, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound
hereby, Seller and Purchaser to do hereby amend Agreement as follows:
A. Paragraph 2 Section 2.1(b) shall be amended to read as follows:
Supplies. At September 4, 1996 inventory costs, cost figured to be
provided.
B. Paragraph 2.1(c) of Agreement shall be amended to read as follows:
(c) LIABILITIES. Purchaser to assume accrued expenses in the
amount of One Hundred Seventy Five Thousand ($175,000.00) Dollars
and accrued payroll up to Two Hundred Thousand ($200,000.00)
Dollars, which liabilities of the Business are specifically set
forth on Schedule 2.1 of the Agreement (the "Assumed Liabilities").
2
C. Paragraph 2.2(a) of Agreement shall be amended to read as follows:
PAYMENT. (a) The Purchase Price shall be payable at the "Closing"
(as that term is defined in Section 5 of this Agreement) by (i)
wire transfer of immediately available funds in the amount of One
Million Four Thousand ($1,004,000.00) Dollars to the trust account
of Rothman Gordon and (ii) wire transfer of funds representing
inventory cost of supplies, and (iii) the assumption by Purchaser
of the Assumed Liabilities.
D. Paragraph 2.2(b) of Agreement shall be amended to read as follows:
INDEMNIFICATION ESCROW. Three Hundred Thousand ($300,000.00)
Dollars of the payment referred to in Section 2.2(a)(i) above (the
"Escrow") shall be held back and retained in escrow by Purchaser's
attorneys, Purcell & Scott, 6035 Memorial Drive, Dublin, Ohio
43017, pursuant to a separate escrow agreement, for the express
purpose of providing Purchaser with available funds to pay any
liabilities of Seller assessed against Purchaser after the Closing
Date, which assessments would entitle Purchaser to indemnification
pursuant to Section 10.1 below. The Escrow shall remain in effect
for a period of ninety (90) days.
E. Paragraph 5 of Agreement shall be amended to read as follows:
Closing. The closing of the transaction contemplated by this
Agreement (the "Closing") shall take place in the offices of
Seller's attorneys at 10:00 a.m. on December 6, 1996, or as soon
thereafter as may be permitted by Required Consents and as Seller
may specify by not less than five (5) days notice (the "Closing
Notice") to Purchaser. Seller shall give the Closing Notice as
soon as practicable following the fulfillment by Seller of the
conditions precedent to the Closing contained in Section 6.1
hereof, provided, however, that if the Closing does not occur on or
prior to December 30, 1996, notwithstanding the performance
by each of the parties hereto of their respective obligations
hereunder, then this Agreement shall, at Purchaser's option, be
null and void and of no further force or effect. The date on which
the Closing takes place is herein referred to as the "Closing
Date". The Closing shall be effective as of 12:01 a.m. on the
Closing Date.
2
3
F. Paragraph 7.13 of Agreement shall be amended to read as follows:
(a) SELLER LEGAL PROCEEDINGS. There are no:
(1) suits, actions or administrative, arbitration or other
similar proceedings (including, without limitation, proceedings
concerning labor disputes or grievances, civil rights
discrimination cases and affirmative action proceedings) pending
or, to the best of the knowledge of Seller, threatened, or, to the
best of the knowledge of Seller, investigations pending or
threatened, by or before, any federal, state, municipal or other
governmental department, commission, board, agency or
instrumentality to which Seller is a Party or by which Seller or
any part of the Business may be bound, including, without
limitation, the Internal Revenue Service, any state or local tax
authority, the U. S. Department of Health and Human Services or any
agency or subcontractor thereof, the Health Care Financing
Administration, the Pennsylvania Department of Health, or any other
agency that regulates the Business or judgments, orders,
injunctions, decrees or awards (whether rendered by a court,
administrative agency or by arbitration pursuant to a grievance or
other procedure) against Seller or any of the Property which is
unsatisfied or requires continuing compliance therewith (such
suits, actions, etc., and judgments, orders, etc., are hereinafter
referred to as "Legal Proceedings") except as set forth on Schedule
7.13; and
(b) persons holding powers of attorney from Seller.
G. Paragraph 7.19 of Agreement shall be amended at the first paragraph
thereof to read as follows:
Assets. All of the Assets owned by, or leased to Seller and
used or usable in connection with the Business and operations thereof,
including, without limitation, those listed on Schedule 1.2C, are in
working order, ordinary wear and tear excepted, have been maintained in
accordance with good industry practice, are suitable for the purposes
for which they are being used and are sufficient in the aggregate for
the operation and maintenance of the Business. Except as set forth on
Schedule 7.19 annexed hereto and made a part hereof, Seller has good
and marketable title to the Assets, free and clear of all liens, claims
and encumbrances and
3
4
taxes not due and payable, and will hold good and marketable title
to the Assets as of the Closing Date.
H. Paragraph 7.21 of Agreement shall be amended to read as follows:
Business Names. There are no other names, either real or
fictitious, under which the Business has been operated since July,
1976, except for the name: The Podiatry Hospital of Pittsburgh and
Tri-State Foot and Ankle.
I. The Agreement and this Amendment to Agreement contain the entire
Agreement between Seller and Purchaser with respect to the subject matter of
Agreement and hereof, supersedes all prior written agreements and negotiations
and oral understandings, if any, and may not be amended, supplemented or
discharged, except by performance or by an instrument in writing signed by all
of the parties hereto.
J. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their representatives thereunto duly authorized as of the day
and year first above written.
THE PODIATRY HOSPITAL OF PITTSBURGH
Attest:
/s/ Mark L. Unatin By: /s/ Donald C. Hutchinson
- ------------------------------ --------------------------------
Acting Chairperson Acting CEO
CONSOLIDATED HEALTH CORPORATION OF
MISSISSIPPI, INC.
Attest:
/s/ Joseph C. Wasch By: /s/ Randolph H. Speer
- ------------------------------ --------------------------------
Secretary Randolph H. Speer, President
4