Exhibit 2.1
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of March
18, 2002 (this "First Amendment"), among MedicaLogic/Medscape, Inc., an Oregon
corporation ("Parent"), MedicaLogic Enterprises, Inc., a Delaware corporation
("MedicaLogic Enterprises"), MSCP Holdings, Inc., a Delaware corporation ("MSCP
Holdings"), MedicaLogic of Texas, Inc., a Delaware corporation ("MedicaLogic
Texas"), and MedicaLogic Pennsylvania, LLC, a Delaware limited liability company
("MedicaLogic Pennsylvania" and, together with Parent, MedicaLogic Enterprises,
MSCP Holdings and MedicaLogic Texas, "Seller"), and GE Medical Systems
Information Technologies, Inc., a Wisconsin corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Buyer and Seller have entered into the Asset Purchase
Agreement, dated as of January 24, 2002 (the "Asset Purchase Agreement"),
providing for the sale of substantially all of the assets of the Business (as
defined in the Asset Purchase Agreement) upon the terms and subject to the
conditions contained therein;
WHEREAS, Buyer and Seller have entered into the Consent To
Exclude Certain Leases dated March 14, 2002; and
WHEREAS, Buyer and Seller desire to amend the Asset Purchase
Agreement in certain respects in accordance with Section 12.7 thereof.
NOW, THEREFORE, in consideration of the premises and of the
agreements herein contained, the parties hereto agree as follows:
1. Section 1.1 of the Asset Purchase Agreement is hereby amended to revise
the definition of "Transition Services Agreement" to add the following phrase to
the end of such definition:
"; provided that pursuant to such agreement Buyer shall provide Seller up
to 80 employee hours of services without charge (except for Buyer's reasonable
out-of-pocket expenses, which shall be reimbursed by Seller) and, thereafter,
Buyer shall charge Seller Buyer's hourly, fully loaded employee compensation
charge (plus reasonable out-of-pocket expenses) for such services."
2. Section 2.1 of the Asset Purchase Agreement is hereby amended to add the
following immediately after clause (o) thereof:
"(p) the Employee promissory notes in favor of Seller or any of its
Affiliates from any Employee set forth on Schedule 2.1(p)."
3. Section 2.2(g) is hereby amended to read as follows:
"any Employee promissory notes in favor of Seller or any of its Affiliates
from any Employee, other than such notes set forth on Schedule 2.1(p);"
4. Section 3.1(a) of the Asset Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
"The purchase price (the "Purchase Price") for the purchase, sale,
assignment and conveyance of Seller's right, title and interest in and to the
Purchased Assets and the assumption by Buyer of the Assumed Liabilities shall be
$35,250,000, and shall consist of: (i) the cash payment to Seller at Closing in
the amount of $33,250,000 (minus the increase in Trade Payables resulting solely
from any funds advanced by Buyer to pay cure amounts pursuant to the third
sentence of Section 2.5 (the "Preliminary Payment")), (ii) the deposit by Buyer
at Closing of $2,000,000 in cash (the "Escrow Fund") with the Escrow Agent to be
held and disbursed by the Escrow Agent in accordance with Sections 3.1(b) and
3.2 and the Escrow Agreement, and (iii) the assumption by Buyer of the Assumed
Liabilities; provided, however, that the Purchase Price shall be subject to
adjustment pursuant to Section 3.2."
5. Section 4.1 of the Asset Purchase Agreement shall be amended to read as
follows:
"The Closing shall be consummated at 10:00 A.M., local time, on March 25,
2002, or the soonest date thereafter that all the conditions set forth in
Article IX and Article X have been satisfied or are capable of being satisfied,
or such later date as may be agreed upon by Buyer and Seller. The Closing shall
be at the offices of Xxxxxx, Xxxx & Xxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, or at such other place or at such other time as shall be agreed upon by
Buyer and Seller. The time and date on which the Closing is actually held are
sometimes referred to herein as the "Closing Date."
6. The Asset Purchase Agreement shall be amended to add the following
Section 8.9:
"Section 8.9 Post-Closing Matters. After Closing, Seller shall use its
commercially reasonable efforts to (i) obtain all required consents, in form and
substance reasonably satisfactory to Buyer, to the transactions contemplated
hereby from the other parties to all Seller Agreements (and which consents are
specified as being required in Section 5.3 of the Disclosure Schedule) and to
the extent necessary to validly assign to Buyer the Governmental Permits,
Intellectual Property and Software set forth in Schedules 2.1(h), 2.1(i) and
2.1(k), respectively, that have not been obtained as contemplated by Section 9.6
on or prior to the Closing Date, (ii) assist Buyer in amending the contracts set
forth in Schedule 7.6 to the satisfaction of Buyer (other than the Contract with
Glaxo-Xxxxx-Xxxxx, which shall not be so amended) and (iii) enter into or assist
Buyer in entering into the Portal Agreement should Buyer deem it necessary."
7. The first and second sentences of Section 7.6 of the Asset Purchase
Agreement shall be deleted.
8. Section 9.6 of the Asset Purchase Agreement shall be amended to add the
following phrase to the end of such Section:
", except, in all cases, with respect to all those Contracts that in the
aggregate do not in Buyer's good faith judgment affect in any material respect
Buyer's conduct of the Business or the value of Buyer's investment in the
Business."
9. Section 9.8 of the Asset Purchase Agreement shall be amended to add the
following phrase to the end of such Section:
", other than the Portal Agreement."
10. Section 9.9 of the Asset Purchase Agreement shall be deleted in its
entirety.
11. Section 9.10 of the Asset Purchase Agreement shall be deleted in its
entirety.
12. The Disclosure Schedules to the Asset Purchase Agreement shall be
revised as follows:
a. Schedule 2.1(p) shall be added to the Disclosure Schedules and shall
list the following names: Xxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx
Xxxxxx, Xxxxxxxx Xxxxxxx, Rhetan Xxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxxxxx and
Xxxxxxx Xxxxxxx.
b. Schedule 2.1(e) is hereby amended to add as "Seller Agreements" the
Contracts listed on Annex A.
c. Schedule 2.1(k) is hereby amended to delete the Contract listed as Item
A.48.
d. Section 5.3(b)(i) of the Disclosure Schedule is hereby amended to delete
the Contract listed as Item 12.
e. Section 5.10 of the Disclosure Schedule is hereby deleted and replaced
by the revised Section 5.10 of the Disclosure Schedule attached hereto on Annex
B.
13. Capitalized terms not defined herein shall have the respective meanings
provided in the Asset Purchase Agreement. The Asset Purchase Agreement, as
amended by this First Amendment, shall remain in full force and effect in
accordance with its terms. This First Amendment may be executed in two or more
counterparts.
14. To the extent of any inconsistencies between this First Amendment and
the Asset Purchase Agreement, this First Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
Medicalogic/Medscape, Inc.
By _______________________________________
Name:
Title:
MedicaLogic Enterprises, Inc.
By _______________________________________
Name:
Title:
MSCP HOLDINGS, INC.
By _______________________________________
Name:
Title:
MedicaLogic OF TEXAS, INC.
By _______________________________________
Name:
Title:
MedicaLogic PENNSYLVANIA, LLC
By _______________________________________
Name:
Title:
GE MEDICAL SYSTEMS INFORMATION TECHNOLOGIES, INC.
By _______________________________________
Name:
Title:
