AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT dated as of this 1st day of February, 2001 (the
"Amendment") to the ASSET PURCHASE AGREEMENT (the "Agreement") dated as of the
8th day of January, 2001 by and among CARD GUARD TECHNOLOGIES, INC., a Delaware
corporation ("Card Guard"), MATRIA HEALTHCARE, INC., a Delaware corporation
("Matria"), and QUALITY DIAGNOSTIC SERVICES, INC., a Delaware corporation ("QDS"
or the "Seller") is among LIFEWATCH HOLDING CORPORATION ("Purchaser"), Matria
and QDS.
BACKGROUND:
A. The original parties to the Agreement were Matria, QDS and Card Guard.
B. Card Guard assigned its rights and obligations under the Agreement to
Purchaser.
C. Purchaser, QDS and Matria wish to amend the Agreement as set forth
below.
D. All capitalized terms used and not defined herein shall have the meaning
ascribed to them in the Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. OPERATION OF BUSINESS
Notwithstanding anything to the contrary in the Agreement, Seller shall
retain all employees of Seller not hired by Purchaser other than those on
Schedule 5.3 (the "Not-Hired Employees") on and through the end of their shift
that begins on February 2, 2001. Seller and Matria shall allow Purchaser to
operate the Business in the premises in which they were operated by Seller prior
to the Closing through February 28, 2001 and Seller shall retain and compensate
and make available to Purchaser all Not-Hired Employees through the end of their
shift that begins on February 2, 2001. Seller shall receive no compensation from
Purchaser for allowing Purchaser to operate the Business with the Not-Hired
Employees.
2. NO SUBLEASE
Notwithstanding anything in the Agreement to the contrary, the parties
hereto shall not enter into the SubLease and SubLease (Warehouse Space) and all
references to such agreements in the Agreement shall be omitted. From the date
hereof and until February 28, 2001 Seller and Matria shall allow Purchaser, for
no consideration, access to and use of the premises to which the SubLease and
SubLease (Warehouse Space) apply, to the same extent that Seller used such
premises prior to the Closing.
3. CHANGES TO EXHIBITS AND SCHEDULES
The following Exhibits and Schedules to the Agreement shall be replaced
in their entirety by the Exhibits and Schedules with corresponding names
attached to this Amendment: Schedule 1.2(f) and Exhibit 1.2(f)(5) thereto,
Schedule 1.3A, and Exhibit C.
4. PURCHASE PRICE ADJUSTMENT
The Purchase Price shall be adjusted in the amount of the net book
value as of the Closing Date of Item #22 listed on Schedule 1.3A ($2,549).
5. CERTAIN EMPLOYEES
After the Closing, Purchaser shall make Gregg Raybuck and Anna McNamara
available to Seller and Matria, at hours and times to be coordinated with
Purchaser and in a manner that will not interfere with their obligations to
Purchaser, for the sole purpose of addressing issues concerning the outstanding
billing dispute between Matria and Seller and the MediCare authorities.
6. EXTINGUISHMENT OF INDEBTEDNESS
The indebtedness of Matria and Seller in respect of that certain
Invoice Number 000397 dated January 28, 2000 in the amount of $12,796.50 shall
be extinguished as of the Closing.
7. CERTAIN INTELECTUAL PROPERTY RIGHTS
At the Closing, Matria shall assign to Seller all right, title and
interest of Matria in and to the service marks "Cardiocentric" and "Matria
Cardiocentric" and the intent to use applications filed in respect thereof,
provided that Purchaser shall make no use of the name "Matria" as part of any
such mark or otherwise.
8. CLOSING DATE BALANCE SHEET
On or before February 28, 2001, Matria shall provide Purchaser with a
Closing Date balance sheet of the Business reflecting all assets purchased and
liabilities assumed, if any, by Purchaser at Closing
9. EFFECTIVE TIME OF CLOSING
The Closing shall be effective as of midnight on the Closing Date.
10. NO OTHER CHANGES
Except to the extent expressly provided herein, the Agreement and any
provisions therein shall remain in full force and effect and shall be binding
upon the parties hereto.
11. GENERAL PROVISIONS.
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The provisions of Section 8 of the Agreement are hereby incorporated
and made a part of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the date hereof, to
be effective as of the Closing Date.
MATRIA HEALTHCARE, INC.
By:
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Title:
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QUALITY DIAGNOSTIC SERVICES, INC.
By:
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Title:
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LIFEWATCH HOLDING CORPORATION
By:
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Title:
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