EXHIBIT 2.12
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
This Amendment No. 1 to Asset Purchase Agreement (this "AMENDMENT") is made
and entered into as of the 20th day of May, 2003, by and among TRESTLE
ACQUISITION CORP, a Delaware corporation ("PURCHASER"), MED DIVERSIFIED, INC., a
Nevada corporation ("MED"), and TRESTLE CORPORATION, a Delaware corporation and
wholly-owned subsidiary of Med ("TRESTLE" together with Med, the "SELLERS").
RECITALS
WHEREAS, the Purchaser and the Sellers are parties to that certain Asset
Purchase Agreement dated April 16, 2003 (the "ASSET PURCHASE AGREEMENT").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Asset Purchase Agreement;
WHEREAS, on March 12, 2003, the Bankruptcy Court for the Eastern District
of New York entered a sale order (the "SALE ORDER") approving and authorizing
the consummation of the transactions contemplated by the Asset Purchase
Agreement, subject to the amended terms identified in the Sale Order;
WHEREAS, pursuant to Section 12.14 of the Asset Purchase Agreement, the
Asset Purchase Agreement may be amended or modified only by written agreement
executed by all parties thereto; and
WHEREAS, the Purchaser and the Sellers desire to amend the Asset Purchase
Agreement in order to make the terms thereof consistent with the Sale Order.
NOW, THEREFORE, with reference to the foregoing facts, the Purchaser and
the Sellers agree as follows:
1. AMENDMENT TO SECTION 1.01(d). Section 1.01(d) of the Asset Purchase
Agreement is hereby amended and restated to read in its entirety as
follows:
"(d) cash and cash equivalents of the Sellers received from the
Business prior to, and existing on, the Closing Date in an amount
not less than $135,000;"
2. AMENDMENT TO SECTION 1.03. Section 1.03 of the Asset Purchase Agreement
is hereby amended and restated to read in its entirety as follows:
"Section 1.03 ASSUMED LIABILITIES. Subject to the terms and
conditions contained in this Agreement, at the Closing, the
Purchaser agrees to assume, pay and perform when due the following
(the "ASSUMED LIABILITIES"): (i) the accounts payable identified on
SCHEDULE 1.03 hereto, as more fully described therein, which
schedule shall be updated as of the Closing Date, provided, however,
the parties acknowledge and agree that the aggregate total of all
accounts payable included in Assumed Liabilities as of the Closing
Date shall not exceed $161,000; (ii) the other Assumed Liabilities
identified on SCHEDULE 1.03; (iii) the obligations of the Sellers
arising under the Assumed Contracts, in accordance with their terms,
after the Closing Date with respect to acts or services to be
performed by Purchaser under such Assumed Contracts after the
Closing Date, except for any obligation, (a) that relates to any
breach or default (or an event which might, with the passing of time
or the giving of notice, or both, constitute a default) under any
such Assumed Contract arising out of or relating to periods on or
prior to the Closing Date, which obligations shall be obligations of
the Sellers under Section 1.05 below, (b) for which the Business
owes any amounts to its Affiliates, other than for specific
services, materials or works in progress as set forth on SCHEDULE
1.03, or (c) that relates to any indemnity, defense or hold harmless
provision or agreement for occurrences prior to the Closing Date;
and (iii) all costs and expenses of maintaining or preserving the
Intellectual Property from and after the Closing Date."
3. AMENDMENT TO SECTION 1.04. Section 1.04 of the Asset Purchase Agreement
is hereby amended and restated to read in its entirety as follows:
"Section 1.04 EXCLUDED LIABILITIES. Purchaser shall not assume or be
obligated to pay, perform or otherwise discharge any liability or
obligation of Sellers or any of their Affiliates, direct or
indirect, known or unknown, absolute or contingent, that are not
expressly assumed by Purchaser pursuant to this Agreement and any
ancillary agreements entered into pursuant to the terms hereof (all
such liabilities and obligations not being assumed being herein
called the "EXCLUDED LIABILITIES")."
4. AMENDMENT TO SECTION 1.06(a). Section 1.06(a) of the Asset Purchase
Agreement is hereby amended and restated to read in its entirety as
follows:
"Section 1.06 PURCHASE PRICE.
(a) The purchase price for the Assets shall be an amount equal to
One Million Two Hundred Fifty Thousand Dollars ($1,250,000), as
reduced in accordance with SECTION 1.06(b) (the "PURCHASE PRICE")."
5. AMENDMENT TO SECTION 1.07. Section 1.07 of the Asset Purchase Agreement
is hereby amended and restated to read in its entirety as follows:
"Section 1.07 PAYMENT OF PURCHASE PRICE. Subject to the conditions,
representations and warranties and covenants hereof and at the
Closing, the Purchaser shall pay the Purchase Price as follows, each
by federal funds wire transfers of immediately available funds: (i)
on the date hereof, One Hundred Thousand Dollars ($100,000) (the
"ESCROW AMOUNT") to Xxxxx Xxxxxx LLP, as escrow agent, to be held in
an escrow account pursuant to the provisions of the Escrow Agreement
as described in Section 1.08 hereof; (ii) on the Closing Date, the
Escrow Amount to the Sellers pursuant to the provisions of the
Escrow Agreement; and (iii) on the Closing Date, One Million One
Hundred Fifty Thousand Dollars ($1,150,000) minus any adjustment
pursuant to Section 1.06(b), if any, to the Sellers."
6. AMENDMENT TO SECTION 2.01. Section 2.01 of the Asset Purchase Agreement
is hereby amended and restated to read in its entirety as follows:
"Section 2.01 CLOSING DATE. Unless this Agreement shall have been
terminated and the Transactions shall have been abandoned pursuant
to Article X, and subject to the satisfaction or waiver of the
conditions set forth in Articles VII and VIII, the closing of the
Transactions contemplated by this Agreement (the "CLOSING") shall
take place at the offices of Xxxxxx Xxxxxxxx & Markiles, LLP, 00000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 at 10:00
a.m., on Tuesday, May 20, 2003, or such other place, date and time
as the Sellers and Purchaser shall mutually agree in writing (such
date and time of the Closing is referred to herein as the "CLOSING
DATE")."
7. AMENDMENT TO SECTION 10.01(b). Section 10.01(b) of the Asset Purchase
Agreement is hereby amended and restated to read in its entirety as
follows:
"(b) Intentionally Omitted."
8. AMENDMENT TO SECTION 10.03(b)(ii). Section 10.03(b)(ii) of the Asset
Purchase Agreement is hereby amended and restated to read in its
entirety as follows:
"(ii) Intentionally Omitted."
9. Except as expressly amended or modified herein, all terms and conditions
of the Asset Purchase Agreement are hereby ratified, confirmed and
approved and shall remain in full force and effect.
In the event of any conflict or inconsistency between this Amendment and
the Asset Purchase Agreement, this Amendment shall govern.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
SELLERS:
MED DIVERSIFIED, INC.,
a Nevada corporation
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: VP & General Counsel
TRESTLE CORPORATION,
a Delaware corporation
By:
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Name:
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Title:
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PURCHASER:
TRESTLE ACQUISITION CORP.
a Delaware corporation
By:
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Name:
----------------------
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
SELLERS:
MED DIVERSIFIED, INC.,
a Nevada corporation
By:
------------------------
Name:
----------------------
Title:
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TRESTLE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: President
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PURCHASER:
TRESTLE ACQUISITION CORP.
a Delaware corporation
By:
------------------------
Name:
----------------------
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
SELLERS:
MED DIVERSIFIED, INC.,
a Nevada corporation
By:
------------------------
Name:
----------------------
Title:
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TRESTLE CORPORATION,
a Delaware corporation
By:
------------------------
Name:
----------------------
Title:
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PURCHASER:
TRESTLE ACQUISITION CORP.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Chairman
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