EXHIBIT 2.2
ADDENDUM A
----------
Addendum to Asset Purchase Agreement between Informedics, Inc. and Adaptive
Health Systems of Washington, Inc. dated September 30, 1996.
The following paragraphs have been redrafted and will be supersede the same
number paragraphs in the principle document.
1.5 License Agreements. All license and other agreements under which
customers have or claim rights to use the Software, the Documentation or any
other Intellectual Property Rights. Attached as Exhibit 1.5 are examples of
license contracts between Seller and its customers. Buyer acknowledges that
Seller has granted to Paragon Concepts, Inc. of Houston, Texas the non-exclusive
right to distribute the Software in the state of Texas. Exhibit 1.5a is a copy
of the agreement between Informedics, Inc. and Paragon Concepts, Inc.
3.2 Seller shall be responsible to pay each employee who becomes an
employee of Buyer pursuant to Section 3.1 for all accrued and unused paid time
off, including vacation, sick leave and personal leave ("Paid Time Off") as of
the Closing Date. From and after the Closing Date, in accordance with Buyer's
vacation, sick leave and personal leave benefits accrual policy in effect, from
time to time, each of Seller's employees who is hired by Buyer will accrue Paid
Time Off on the same accrual schedule as other similarly situated employees of
Buyer. Such employees will be given credit in determining their accrual rate for
the years of employment with Seller.
4.2 Adjustment to Purchase Price. The parties anticipate that the revenue
from ClinicManager Software Support Agreements, ClinicManager Timeshare Service
Agreements, and ClinicManager Hardware Maintenance Agreements as described in
Sections 1.6, 1.7 and 1.8 will be approximately $245,500 for the six month
period immediately following Closing Date. Buyer agrees to use its best efforts
to retain all such customers. If the actual revenue from such contracts does not
deviate by more than five percent from $245,500 (i.e., by more than $12,275),
the purchase price will not be adjusted. If the actual revenue from such
contracts deviates by more than five percent from $245,500 (i.e. $12,275), the
purchase price will be increased or decreased, dollar for dollar, in an amount
that is in excess of the five percent deviation. In the event that Buyer
converts Seller's customer to Buyer's products, the revenue lost shall be
continue to be counted as revenue for the purposes of this Section 4.2 (i.e. if
Seller's customer has a contract for support at $400 per month and is converted
to Buyer's product, that $400 will continue to be included in the calculation of
revenue for purposes of this Section 4.2). In the event that any of Seller's
customers listed on Exhibit 1.2 cancels their hardware or software support
agreement during the six-month period following Close, then all hourly support
xxxxxxxx by Buyer to said customers shall be counted as revenue for purposes of
this section 4.2. In the event of adjustment of the purchase price as provided
in this Section 4.2, the installment payments specified in Section 4.1(a) or
4.1(b), as applicable and subject to Section 4.2(c), will be adjusted to account
for the deviation. For example, if the actual revenue from the contracts is
$223,225 (i.e., a deviation of $22,275), the purchase price will be decreased
$10,000 ($22,275 minus $12,275), and each of the remaining installment payments
will be reduced to account for the $10,000 reduction. If for purposes of this
example, four installment payments were remaining, each payment would be reduced
by $2,500.
6. Collection of Accounts Receivable. Exhibit 6.1 sets forth certain
information about Seller's existing accounts receivable from sales or support
payments with respect to ClinicManager. Buyer agrees to use its best efforts to
collect Seller's accounts receivable existing at the Closing Date during the
120-day period following the Closing and to forward to Seller weekly all amounts
collected during such 120-day period. For contract (as outlined in Sections 1.6,
1.7 and 1.8) accounts receivable, if during the 120-day period Buyer makes a
collection from a customer listed on Exhibit 6.1 who also owes money to Buyer
pursuant to a new contract account receivable, Buyer shall first apply the
amount collected to payment of Seller's account receivable and thereafter apply
any remaining amount to the payment of Buyer's account receivable. For other
accounts receivable Buyer will collect and forward payments to Seller on an
invoice or "open item" basis. Following such 120-day period, Buyer shall have no
further obligation or authority to collect Seller's accounts receivable, and
Seller may initiate appropriate collection activity as it deems appropriate.
10. Buyer's Covenants. Seller agrees that, except as Seller may otherwise
consent in writing, during the period between the execution of this Agreement
and Closing, Buyer will make written employment offers to not less than ten of
Seller's employees for positions specified on Exhibit 3.1; the terms of such
written offers of employment shall be in compliance with the requirements of
Section 3.
18. Monthly Reports and audit Rights. Buyer shall keep accurate records of
all activity with respect to revenue from (a) contracts described in Sections
1.6, 1.7 and 1.8 (the "Revenue"), and (b) collection of Seller's accounts
receivable as provided in Section 6 ("Collections"). Buyer shall provide Seller
with monthly summaries of the Revenue and Collections, including customer names,
amounts of Revenues and Collections, and transaction dates. At any time during
the 18-month period following the Closing, Seller shall have the right to audit
the books and records of Buyer, not to exceed two such audits during said
18-month period, in order to verify that Buyer has performed its obligations in
accordance with Sections 4.2 and 6. If any audit reveals that Buyer has (a) not
accurately recorded the Revenue in an amount that would require an adjustment in
the purchase price in favor of Seller as provided in Section 4, or (b) underpaid
Seller with respect to Collections, Buyer shall pay Seller the underpayment
amount within three days of notification of such underpayment. If any audit
reveals that Buyer has underpaid Seller by an amount equal to or greater than
five percent of any amount owed with respect to the Revenue or Collections
during any one-month period, Buyer shall also reimburse Seller for the costs
associated with the audit.
Addition:
In Section 19.5 Notices. Under "If to Buyer", "With a copy to:"
XxXxxxxx Xxxxxx, X.X.
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxx
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement effective as of the date first written above.
"Seller" INFORMEDICS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
President and Chief Operating Officer
"Buyer" ADAPTIVE HEALTH SYSTEMS
OF WASHINGTON, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
President
