EXHIBIT 2.2
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 Agreement as
of the date set forth above.
SELLERS:
MED DIVERSIFIED, INC.,
a Nevada corporation
By: /S/ XXXX XXXXXXX
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Name: XXXX XXXXXXX
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Title: VICE-PRESIDENT AND GENERAL COUNSEL
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TRESTLE CORPORATION,
a Delaware corporation
By: /S/ XXXXXX XXXXXXXX
--------------------------------
Name: XXXXXX XXXXXXXX
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Title: CHIEF EXECUTIVE OFFICER AND PRESIDENT
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PURCHASER:
TRESTLE ACQUISITION CORP.
a Delaware corporation
By: /S/ XXXXXXX XXXXXXX
--------------------------------
Name: XXXXXXX XXXXXXX
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Title: CHAIRMAN
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