EXHIBIT 10.4
AMENDMENT NO. 3 TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT (the "Amendment") is entered into this 30th day of March,
1998 by and among Zenith Insurance Company, a California corporation (the
"Purchaser"), and RISCORP, Inc., a Florida corporation ("RISCORP"), RISCORP
Management Services, Inc., a Florida corporation ("RMS"), 1390 Main Street
Services, Inc., a Florida Corporation ("1390 Main Street"), RISCORP of
Illinois, Inc., an Illinois corporation ("RI"), Independent Association
Administrators Incorporated, an Alabama corporation ("IAA"), RISCORP
Insurance Services, Inc., a Florida corporation ("RIS"), RISCORP Managed Care
Services, Inc., a Florida corporation ("RMCS"), CompSource, Inc., a North
Carolina corporation ("CompSource"), RISCORP Real Estate Holdings, Inc., a
Florida corporation ("RRE"), RISCORP Acquisition, Inc., a Florida corporation
("RA"), RISCORP West, Inc., an Oklahoma corporation ("RW"), RISCORP of
Florida, Inc., a Florida corporation ("RF"), RISCORP Insurance Company, a
Florida corporation ("RIC"), RISCORP Property & Casualty Insurance Company, a
Florida corporation (RP&C"), RISCORP National Insurance Company, a Missouri
corporation ("RNIC"), RISCORP Services, Inc., a Florida corporation ("RS"),
RISCORP Staffing Solutions Holding Company, a Florida corporation ("RSS
Holding"), RISCORP Staffing Solutions, Inc. I, a Florida corporation ("RSSI")
and RISCORP Staffing Solutions, Inc. II, a Florida corporation ("RSSII").
RISCORP, RMS, 1390 Main Street, RI, IAA, RIS, RMCS, CompSource, RRE, RA, RW,
RF, RIC, RP&C, RNIC, RS, RSS Holding, RSSI and RSSII are referred to herein
collectively as the "Sellers."
WITNESSETH:
WHEREAS, the Purchaser and the Sellers, other than 1390 Main Street, are
parties to an Asset Purchase Agreement dated as of June 17, 1997, as amended
(the "Agreement"), which contemplates the acquisition of certain assets and
the assumption of certain liabilities of the Sellers by the Purchaser; and
WHEREAS, the Purchaser and Sellers desire to amend the Agreement as
hereinafter set forth, including without limitation, by the addition of 1390
Main Street as a party thereto and signatory thereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The preamble of the Agreement is amended by substituting the name
"RISCORP Staffing Solutions Holding Company" for the name "RISCORP
Staffing Solutions Holdings, Inc." in the nineteenth line thereof.
2. Section 1.01 of the Agreement is amended as follows:
(a) by substituting the term "Schedule 1.01(a)" for the term
"Schedule 1.10(a)" in the fourth line of the definition of
"ASSIGNED AND ASSUMED CONTRACTS";
(b) by substituting the term "Exhibit C" for the term "Exhibit D" in
the second line of the definition of "ASSUMPTION AGREEMENT";
(c) by substituting the term "Exhibit B" for the term "Exhibit C" in
the third line of the definition of the term "BILL OF SALE AND
GENERAL ASSIGNMENT";
(d) by amending subsection (d) of the definition of "OTHER ASSUMED
LIABILITIES" in its entirety to read as follows:
"(d) any contingent liability (other than Insurance
Liabilities)", whether known or unknown, on the date hereof and
any contingent liability (other than Insurance Liabilities),
whether known or unknown, to the extent such contingent
liabilities not accrued or reserved for on the Final Balance
Sheet";
(e) by amending the definition of "REINSURANCE AGREEMENT" by adding
the words "Assumption and Indemnity" after the word "the" in the
first line thereof;
3. Section 2.04(a) of the Agreement shall be amended by deleting the
words "(ii) the Insurance Administration Agreement" therefrom and renumbering
each item in Section 2.04(a) thereafter.
4. Section 2.04(b) of the Agreement is amended by (a) deleting the
apostrophe after the word "Sellers" in the second line thereof and (b) deleting
the words "(ii) the Insurance Administration Agreement" and renumbering each
item in Section 2.04(b) thereafter.
5. Section 2.05 of the Agreement is amended by deleting the comma and
adding the word "or" after the word "Contracts" in the twenty-first line
thereof.
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6. Section 3.08 of the Agreement is amended by deleting the word
"Assignable" in the third line thereof and the word "Owned" in the fourth line
thereof.
7. Section 3.09 of the Agreement is amended by substituting the term
"Schedule 3.09" for the term "Schedule 3.10" in the last line thereof.
8. Section 3.14 of the Agreement is amended in its entirety to read as
follows:
Section 3.14. DISPUTED CLAIMS. Schedule 3.14 sets forth a
complete and accurate list of all claims where payment is in
dispute pursuant to any Insurance Contract that were unpaid
as of June 16, 1997, where the aggregate amount of such
payment is not determinable and there is a specific reserve
established with respect to such claim which exceeds
$50,000.
9. Section 3.15(e) of the Agreement is amended by (a) adding the word
"license," after the word "to" in the fourth line thereof and (b) by
substituting the term "trade secret rights" for the term "trade secrets" in the
tenth line thereof.
10. Section 3.15A(e) of the Agreement is amended by substituting the term
"trade secret rights" for the term "trade secrets" in the tenth line thereof.
11. Section 3.17(a)(xvi) of the Agreement is amended by substituting the
term "Schedule 3.17" for the term "Schedule 3.1(h)."
12. Section 3.17(a)(xvii) of the Agreement is amended by substituting the
term "Schedule 3.17" for the term "Schedule 3.1(h)."
13. Section 3.17(a)(xviii) of the Agreement is amended by substituting the
term "Schedule 3.17" for the term "Schedule 3.1(h)."
14. Section 3.17(a)(xix) of the Agreement is amended by substituting the
term "Schedule 3.17" for the term "Schedule 3.1(h)."
15. Section 3.22(h) of the Agreement is amended by adding a letter "s" to
the word "Lease" in the second line thereof.
16. Section 5.01(xii) of the Agreement shall be amended by substituting
the word "compromise" for the word "comprise" in the second line thereof.
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17. Section 5.16 of the Agreement is amended by substituting the word
"Purchaser" for the word "Purchase" in the sixth line thereof.
18. Section 6.01(a) of the Agreement is amended in its entirety to read as
follows:
Section 6.01. REPRESENTATIONS AND COVENANTS. (a) The
representations and warranties of the Sellers contained in
Sections 3.01, 3.02, 3.03, 3.04, 3.08 and 3.21 of the
Agreement that are qualified as to materiality shall be true
and correct in all respects as of the date of this Agreement
and as of the Closing Date, except to the extent that any
such representation and warranty is made as of a particular
date, in which case such representation and warranty shall
have been true and correct in all respects as of such date.
The representations and warranties of the Sellers contained
in Sections 3.01, 3.02, 3.03, 3.04, 3.08 and 3.21 of the
Agreement that are not qualified as to materiality shall be
true and correct in all material respects as of the date of
this Agreement and as of the Closing Date, except to the
extent that any such representation and warranty is made as
of a particular date, in which case such representation and
warranty shall have been true and correct in all material
respects as of such date.
19. Section 9.01(a)(ii) of the Agreement is amended by changing the word
"or" to the word "of" after the word "breach" in the first line thereof.
20. Section 9.06 of the Agreement is amended by substituting the term
Section 9.01 for the term "Section 9.06" in the third line thereof.
21. Section 11.06 of the Agreement is amended by substituting the word
"Florida" for the word "New York" in the third line thereof.
22. The parties hereto acknowledge that, by executing this Amendment, 1390
Main Street (i) shall become a party to the Agreement as of the date hereof, and
(ii) shall be bound by all the terms of the Agreement as amended hereby. In
addition, 1390 Main Street shall be included in the definition of the term
"Sellers" as defined on the first page of the Agreement.
23. Exhibit A to the Agreement is to be deleted and replaced in its
entirety by the Form of Assumption and Indemnity Reinsurance Agreement attached
hereto as Exhibit A.
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24. Exhibit B to the Agreement is amended by substituting the word
"Florida" for the word "New York" in Section 7 thereof.
25. Exhibit C to the Agreement is amended by substituting the word
"Florida" for the word "New York" in Section 9 thereof.
26. Exhibit D to the Agreement is amended by substituting the word
"Florida" for the word "New York" in Section 8 thereof.
27. Exhibit E to the Agreement is amended by substituting the word
"Florida" for the word "New York" in Section 5(e) thereof.
28. Section 1.01(a) of the Disclosure Schedules to the Agreement is
amended in its entirety to read as set forth in Exhibit B attached hereto and
made a part hereof.
29. Section 1.01(c) of the Disclosure Schedule to the Agreement is amended
in its entirety to read as set forth in Exhibit C attached hereto and made a
part hereof.
30. All other terms and conditions of the Agreement are hereby ratified
and confirmed by the parties hereto and shall remain in full force and effect.
31. All capitalized terms uses herein and not otherwise defined herein
shall have the respective meanings provided such terms in the Agreement.
32. This Amendment shall be governed by and construed in accordance with
the laws of the State of Florida without regard to principles of conflicts of
laws.
33. This Amendment 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.
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IN WITNESS WHEREOF, the undersigned parties have executed this Amendment as
of the day and year set forth above.
ZENITH INSURANCE COMPANY
By: /s/ JOHN J. TICKNER
-------------------------
John J. Tickner
Senior Vice President
RISCORP, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP MANAGEMENT SERVICES, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
1390 MAIN STREET SERVICES, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP OF ILLINOIS, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
INDEPENDENT ASSOCIATION
ADMINISTRATORS INCORPORATED
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
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RISCORP INSURANCE SERVICES, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP MANAGED CARE SERVICES, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
COMPSOURCE, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP REAL ESTATE HOLDINGS, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP ACQUISITION, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP WEST, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
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RISCORP OF FLORIDA, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP INSURANCE COMPANY
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP PROPERTY & CASUALTY
INSURANCE COMPANY
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP NATIONAL INSURANCE COMPANY
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP SERVICES, INC.
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP STAFFING SOLUTIONS
HOLDING COMPANY
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
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RISCORP STAFFING SOLUTIONS, INC. I
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
RISCORP STAFFING SOLUTIONS, INC. II
By: /s/ FREDERICK M. DAWSON
-------------------------
Frederick M. Dawson
President
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Exhibits not included.