EXHIBIT 10.2
E XECUTION C OPY
AMENDMENT TO
MEMBERSHIP INTEREST PURCHASE
AGREEMENT
THIS AMENDMENT TO MEMBERSHIP
INTEREST PURCHASE AGREEMENT (this “Amendment”) is made as of
May 16, 2008, by and among HEALTHEXTRAS, INC. , a
Delaware corporation (the “Buyer”); HOSPISCRIPT
SERVICES, LLC , a Delaware limited liability company
(“HospiScript”), CONCEPT PHARMACEUTICALS, LLC ,
an Alabama limited liability company (“Concept” and,
together with HospiScript and each Subsidiary of HospiScript or
Concept, collectively, the “Company”); and JAMES B.
LITTLE, III , in his capacity as Selling Parties’
Representative for each of the Sellers.
RECITALS:
WHEREAS , the parties to this Amendment are parties to
the Membership Interest Purchase Agreement, dated as of
April 7, 2008 (the “Agreement”);
WHEREAS , the parties to this Amendment desire to make
certain modifications to the Agreement as set forth
herein;
NOW, THEREFORE
, in consideration of the premises,
covenants and representations set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree to amend the
Agreement as set forth below:
1. Unless otherwise specified,
capitalized terms used and not otherwise defined in this Amendment
shall have the same meanings as set forth in the
Agreement.
2. The Purchase Agreement shall
hereby be amended to include the following new
definitions:
“‘Revenue Earnout Escrow
Release’ means any release of funds by the Escrow Agent
pursuant to Sections 2.11(a) or (b).”
“‘Revenue Earnout
Operating Income’ is defined in
Section 2.11(d).”
“‘Revenue Earnout
Payment’ is defined in
Section 2.11(c).”
3. A new Section 2.11 shall
hereby be added to the Purchase Agreement as follows:
“ Section 2.11. Revenue
Earnout Escrow Release .
(a) If an amount equal to two
(2) times the Company’s Operating Income for Year 1 is
less than $9,600,000, then the Buyer and the Selling Parties’
Representative shall execute and deliver a joint written
instruction to the Escrow Agent directing the Escrow Agent to
release an amount equal to $1,000,000 from the Escrow Account to
the Buyer. Such joint written instruction shall be executed and
delivered within 30 days following the Buyer’s and the
Selling Parties’ Representative’s receipt of internal
financial statements for the Company, but in no event later than
December 31, 2008.
(b) Except as provided in
Section 2.11(d), if the Company’s Operating Income for
Year 2 is less than $14,000,000, then the Buyer and the Selling
Parties’ Representative shall execute and deliver a joint
written instruction to the Escrow Agent directing the Escrow Agent
to release an amount equal to $1,000,000 from the Escrow Account to
the Buyer. Such joint written instruction shall be executed and
delivered within 30 days following the completion of the audited
financial statements of the Buyer for Year 2.
(c) In addition to receipt of the
proceeds set forth in Section 2.5, the Sellers shall be
entitled to receive from the Company or the Buyer their Allocable
Portion of an amount (such amount, the “Revenue Earnout
Payment”) determined in accordance with the criteria set
forth in Section 2.11(d).
(d) If (i) the sum of
(A) the Company’s Operating Income for Year 1
plus (B) the Company’s Operating Income for Year
2 (such sum, the “Revenue Earnout Operating Income”) is
equal to or greater than $18,800,000, and
(ii) the
