<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
X Quarterly Report pursuant to Section 13 or 15 (d) of the Securities
- ----- Exchange Act of 1934 for the quarterly period ended June 30, 1998.
-------------
Or
Transition Report pursuant to Section 13 or 15 (d) of the Securities
- ------ Exchange Act of 1934 for the transition period from ______ to ______.
Commission file number 0-20619
Matria Healthcare, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 58-2205984
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1850 Parkway Place, 12th Floor, Marietta, Georgia 30067
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(770) 767-4500
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
------ -------
The number of shares outstanding of the issuer's only class of Common Stock,
$.01 par value, as of July 31, 1998 was 36,548,989.
<PAGE> 2
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
MATRIA HEALTHCARE, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
ASSETS 1998 1997
- ------ -------- ------------
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 5,331 9,086
Short-term investments 5,779 11,856
Trade accounts receivable, less allowances of $22,255
and $22,651 at June 30, 1998 and December 31,
1997, respectively 41,471 39,601
Inventories 1,285 1,088
Prepaid expenses and other current assets 4,687 2,264
-------- -------
Total current assets 58,553 63,895
Property and equipment, less accumulated depreciation of
$25,709 and $23,328 at June 30, 1998 and
December 31, 1997, respectively 11,151 12,364
Excess of cost over net assets of businesses acquired, less
accumulated amortization of $80,702 and $63,741 at
June 30, 1998 and December 31, 1997, respectively 91,537 108,498
Intangible assets, less accumulated amortization of $6,222
and $4,889 at June 30, 1998 and December 31, 1997,
respectively 2,318 3,651
Other assets 5,307 2,724
-------- -------
$168,866 191,132
======== =======
</TABLE>
See accompanying notes to consolidated condensed financial statements.
2
<PAGE> 3
MATRIA HEALTHCARE, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(Amounts in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
June 30, December 31,
LIABILITIES AND SHAREHOLDERS' EQUITY 1998 1997
- ------------------------------------ ------- ---------
<S> <C> <C>
Current liabilities:
Current installments of long-term debt
and obligations under capital leases $ 1,103 884
Accounts payable, principally trade 3,791 5,712
Accrued liabilities 9,807 16,147
-------- -------
Total current liabilities 14,701 22,743
Long-term debt and obligations under capital leases,
excluding current installments 3,544 1,712
Accrued benefit cost 4,345 5,328
Other long-term liabilities 5,555 8,180
-------- -------
Total liabilities 28,145 37,963
Shareholders' equity:
Preferred stock, $.01 par value. Authorized 50,000 shares;
none issued at June 30, 1998 and December 31, 1997 -- --
Common stock, $.01 par value. Authorized 100,000 shares;
issued and outstanding 36,477 and 36,791 shares at
June 30, 1998 and December 31, 1997, respectively 365 368
Additional paid-in capital 280,825 282,327
Accumulated deficit (136,934) (125,991)
Notes receivable and accrued interest from shareholder (3,535) (3,535)
-------- -------
Total shareholders' equity 140,721 153,169
-------- -------
$168,866 191,132
======== =======
</TABLE>
See accompanying notes to consolidated condensed financial statements.
3
<PAGE> 4
MATRIA HEALTHCARE, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(Amounts in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
---------------------- ------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues $ 33,473 36,362 66,291 70,892
Cost of revenues 12,799 14,649 26,124 29,126
Selling and administrative expenses 15,112 16,520 29,820 32,200
Provision for doubtful accounts 1,714 1,667 3,204 3,167
Amortization of goodwill and other
intangibles 9,147 9,145 18,294 18,309
-------- ------- ------- -------
38,772 41,981 77,442 82,802
-------- ------- ------- -------
Operating loss (5,299) (5,619) (11,151) (11,910)
Interest income (expense), net (24) 144 (6) 258
Other income (expense), net 28 (41) 214 (212)
-------- ------- ------- -------
Net loss $ (5,295) (5,516) (10,943) (11,864)
======== ======= ======= =======
Basic and diluted net loss per common share $ (.14) (.15) (.30) (.33)
======== ======= ======= =======
Weighted average shares outstanding 36,652 36,500 36,739 36,436
======== ======= ======= =======
</TABLE>
See accompanying notes to consolidated condensed financial statements.
4
<PAGE> 5
MATRIA HEALTHCARE, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended June 30,
-------------------------
1998 1997
---------- ---------
<S> <C> <C>
Cash Flows from Operating Activities:
Net loss $(10,943) (11,864)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 20,675 21,077
Provision for doubtful accounts 3,204 3,167
Changes in assets and liabilities, net of effect
of acquisitions:
Accounts receivable (5,074) (7,537)
Inventories, prepaids and other current assets (2,620) (2,131)
Intangible and other noncurrent assets (529) (248)
Accounts payable and accrued liabilities (8,125) (7,404)
Accrued pension cost (3,037) 210
Other noncurrrent liabilities (2,551) (1,395)
-------- -------
Net cash used in operating activities (9,000) (6,125)
-------- -------
Cash Flows from Investing Activities:
Purchases of property and equipment (1,273) (921)
Sales of short-term investments 7,935 5,239
Purchases of short-term investments (1,858) (1,005)
Acquisition of businesses, net of cash acquired -- (249)
-------- -------
Net cash provided by investing activities 4,804 3,064
-------- -------
Cash Flows from Financing Activities:
Proceeds from issuance of short-term debt 781 1,067
Principal repayment of short-term debt (269) (444)
Borrowings under credit agreement 2,000 --
Principal repayments of long-term debt and capital lease obligations (494) (992)
Proceeds from issuance of common stock 349 1,032
Purchase of treasury stock (1,866) (880)
Distributions to minority interest in partnerships (60) (118)
-------- -------
Net cash provided by (used in) financing activities 441 (335)
-------- -------
Net decrease in cash and cash equivalents (3,755) (3,396)
Cash and cash equivalents at beginning of period 9,086 6,930
-------- -------
Cash and cash equivalents at end of period $ 5,331 3,534
======== =======
</TABLE>
See accompanying notes to consolidated condensed financial statements.
5
<PAGE> 6
MATRIA HEALTHCARE, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED
FINANCIAL STATEMENTS
(Unaudited)
1. General
The consolidated condensed financial statements as of June 30, 1998 and
December 31, 1997 and for the three and six months ended June 30, 1998
and June 30, 1997 are unaudited. The year-end condensed balance sheet
data was derived from audited financial statements, but does not
include all disclosures required by generally accepted accounting
principles.
In the opinion of management, all adjustments, consisting of normal
recurring accruals, necessary for fair presentation of the consolidated
financial position and results of operations for the periods presented
have been included. Certain reclassifications of prior period
information have been made to conform to the current year presentation.
The results for the three and six month periods ended June 30, 1998 are
not necessarily indicative of the results for the full year ending
December 31, 1998.
The consolidated condensed financial statements should be read in
conjunction with the consolidated financial statements and related
notes included in the Annual Report on Form 10-K of Matria Healthcare,
Inc. ("Matria" or the "Company") for the year ended December 31, 1997.
2. Net Loss Per Share of Common Stock
On December 31, 1997, the Company adopted Statement of Financial
Accounting Standards No. 128, "Earnings Per Share" ("SFAS 128"), which
prescribes the calculation methodology and financial reporting
requirements for basic and diluted earnings per share. Basic earnings
(loss) per common share available to common shareholders are based on
the weighted average number of common shares outstanding. Diluted
earnings (loss) per common share available to common shareholders are
based on the weighted average number of common shares outstanding and
dilutive potential common shares, such as dilutive stock options. The
computation of diluted net loss per share of common stock was
antidilutive in each of the periods presented; therefore, the amounts
reported for basic and diluted are the same.
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<PAGE> 7
3. Accounting Pronouncement
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 131 ("SFAS 131"), "Disclosures
About Segments of an Enterprise and Related Information." SFAS 131
established standards for reporting information about operating
segments in annual financial statements and in interim financial
reports to shareholders. The Company adopted SFAS 131 in the first
quarter of 1998; however, the provisions of this statement need not be
applied to interim periods in the initial year of application.
4. Subsequent Event
In July 1998, the Company purchased certain assets of Quality
Diagnostic Services, Inc. ("QDS"), a cardiac event monitoring company,
for $17.000 million in cash. The acquisition will be accounted for
under the purchase method and will result in excess of costs over net
assets acquired of approximately $12.000 million. The Asset Purchase
Agreement (the "Agreement") provides for additional cash payments
contingent upon future revenues of the Company's cardiac monitoring
business. Any additional payments made will be accounted for as
additional excess of costs over net assets acquired and amortized over
the remaining life of the assets. The Company assumes only specified
liabilities of QDS. Additionally, the Company agreed, subject to
certain conditions, to make a $2.000 million equity investment in
Endeavor.
QDS' revenues were $7.000 million in 1997 and $4.700 million in the
first half of 1998. Results of operations of this business will be
included in the Company's consolidated results effective July 1, 1998.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
GENERAL
The Company's present operations and future prospects may be influenced
by several factors, including developments in the healthcare industry,
third-party reimbursement policies and practices, and increasing regulatory
complexity and enforcement activity. As a result of the increasing cost of
healthcare in the United States and overall efforts to reduce or control
government and corporate spending, government and third-party payors are
becoming increasingly focused on promoting cost-effective healthcare services,
and payors, in particular, have become more involved in decisions regarding
diagnosis and treatment to ensure that care is delivered in a cost-effective
manner.
7
<PAGE> 8
A substantial portion of the Company's current revenues are derived
directly from third-party payors for services rendered to patients by the
Company. The financial performance of all healthcare companies, including the
Company, could be adversely affected by the financial condition of certain
governmental and private payors and by their continuing efforts to reduce
healthcare costs by lowering reimbursement rates, increasing medical reviews of
invoices for services and negotiating for reduced contract rates. The Company
has responded to these developments by attempting to emphasize cost-effective
therapies and procedures, pre-qualifying insurance coverage prior to the
delivery of services and educating third-party payors on the benefits of the
Company's home therapies. Although reduction in the reimbursement rates that the
Company receives for services rendered could have an adverse impact on
operations, the Company is hopeful that the overall cost-effective nature of
treatment in the home (as compared to hospitalization), coupled with the
potential benefits to be derived from prenatal care, will be recognized and
encouraged by any new healthcare initiatives.
The Company's revenues from its preterm labor management business tend
to be seasonal. Revenues typically begin to decline with the onset of the
holiday season, starting with Thanksgiving, causing the first quarter revenues
of each year to be less than those of the fourth quarter of the previous year.
Over the previous four-year period the decline in revenues from the fourth to
first quarters has averaged 7%; management believes this seasonality will
continue to impact comparability between quarters. In the first quarter of 1998,
revenues declined 13.0% from the fourth quarter of 1997. In the second quarter
of 1998, revenues from the preterm labor management business increased 2% over
the first quarter of 1998. In addition to seasonality, the decline in revenues
in the first quarter of 1998 was partially due to a decrease in physician
prescriptions for the Company's preterm labor management services, as discussed
below in the three and six month comparison.
The trend within the healthcare industry to deliver quality healthcare
services in a more cost-effective manner is expected to continue to have an
impact on the Company. Driven by employers and third-party payors, as well as by
legislation and regulation, prices for services provided to patients, in
general, are being reduced, cost-effective preventative health care is being
stressed and vertically integrated networks of care providers (some of whom are
accepting the insurance risk of providing care through capitation contracts with
third-party payors) are being established. The Company anticipates that this
trend will continue and is attempting to focus its efforts on services, some of
which are offered in conjunction with third-party payors, which it believes can
add value in this new environment. There can be no assurance, however, that
either additional changes or presently unforeseen consequences from this trend
may not develop.
8
<PAGE> 9
The following discussion of the results of operations and financial
condition of the Company should be read in conjunction with the consolidated
financial statements and related notes in the Company's Annual Report on Form
10-K for the year ended December 31, 1997 as filed with the Securities and
Exchange Commission. The historical results of operations are not necessarily
indicative of the results that will be achieved by the Company during future
periods.
RESULTS OF OPERATIONS
Revenues decreased $2.889 million or 7.9% and $4.601 million or 6.5% in
the three and six month periods ended June 30, 1998, respectively, as compared
to the same periods in 1997 primarily due to declines in the preterm labor
management business. The declines in the revenues were due in part to a decrease
in prescriptions for the Company's subcutaneous tocolytic therapy and from
greater than expected vacancies in sales positions during the first and second
quarters of 1998. The 2.0% increase in the preterm labor management business
revenues from the first to the second quarter of 1998 is primarily due to growth
in the Company's Diabetes in Pregnancy Program. This program, which was
initiated in the last half of 1997, has a current annualized run rate in excess
of $8.000 million.
Through a marketing agreement entered into by a predecessor company in
1991, the Company had exclusive rights to market the fetal fibronectin
immunoassay (fFN) test, an in vitro diagnostic test used as an aid in assessing
the risk of preterm delivery in women, in the United States, Canada and Puerto
Rico. In March 1998, the Company entered into a settlement agreement with the
manufacturer of the tests in the litigation over the exclusive rights to
distribute the test. Under the terms of the settlement, the Company has agreed
to relinquish its distribution rights and equity interest in the test
manufacturer in exchange for the opportunity to recoup its investment over time,
from payments based upon future sales of the product. As a result, following a
six month transition period, which ends August 31, 1998, revenues on sales of
fFN are expected to be substantially reduced. Revenues from the marketing of
these tests were $1.157 million and $2.280 million in the three and six month
periods ended June 30, 1998, respectively, and $765,000 and $1.496 million in
the same respective periods in 1997.
Cost of revenues as a percent of revenues declined to 38.2% for the
three month period ended June 30, 1998 from 40.3% in the same period in 1997 and
declined to 39.4% for the six month period ended June 30, 1998 from 41.1% in the
same period in 1997. Cost of revenues as a percentage of revenues of the preterm
labor management business declined from 36.7% in the second quarter of 1997 to
35.3% in the second quarter of 1998 and from 37.7% in the first six months of
1997 to 36.8% in the same period in 1998 primarily because of
9
<PAGE> 10
operating efficiencies related to the merger of the Company's predecessor
companies in 1996.
Selling and administrative expenses as a percentage of revenues
remained relatively constant at approximately 45.0% for the three and six month
periods ended June 30, 1998 and 1997.
Primarily as a result of the merger of the Company's predecessors in
1996, a large percentage of the assets reflected on the Company's balance sheet
are intangible assets or goodwill. At June 30, 1998, the Company's total assets
were $168.866 million, of which $93.855 million, or 55.6% of total assets, were
goodwill and intangibles.
The Company provides for estimated uncollectible accounts as revenues
are recognized. The provision for doubtful accounts as a percentage of revenues
for the preterm labor management business was approximately 5% for the three and
six month periods ended June 30, 1998 and 1997. The provision is adjusted
periodically based upon the Company's quarterly evaluation of historical
collection experience, recoveries of amounts previously provided, industry
reimbursement trends and other relevant factors. Therefore, the provision rate
could vary on a quarterly basis. The provision for doubtful accounts for the
infertility management business is not significant as substantially all charges
for patient services are collected at the time services are provided.
The Company did not record federal or state income tax benefits in 1998
or 1997. The tax net operating loss of approximately $87.000 million will be
available to offset future taxable income, if any.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1998 the Company had cash and short-term investments of
$11.110 million.
Net cash used in operating activities increased from $6.125 million
for the six month period ended June 30, 1997, to $9.000 million for the same
period in 1998. During 1998, cash flow from operating activities was reduced by
payments of $4.183 million relating to severance costs of terminated employees,
$2.587 million for performance incentives paid under the Company's management
incentive plan, $2.069 million for funding of a split dollar life insurance
arrangement for certain officers, and $1.328 million for lump-sum payouts
related to the termination of a nonqualified defined benefit pension plan. In
the first six months of 1997, cash flow from operating activities was reduced by
$6.896 million for merger related costs. The Company's accounts receivable days
sales outstanding were 112 days as of June 30, 1998 as compared to 96 days as of
December 31, 1997 and 114 days as of March 31, 1998. The increase since year
10
<PAGE> 11
end was primarily due to the consolidation of the accounts receivable/collection
process from two locations to one location and the conversion to a new
computerized billing system. The Company began reorganizing its reimbursement
and verification processes during the first quarter of 1998 and expects days
sales outstanding to decline by the end of 1998.
As of June 30, 1998, the remaining liability for estimated costs
related to the merger of the Company's predecessor companies was approximately
$750,000, of which approximately $150,000 will be paid in 1998 with the
remaining payments to be made in 1999. Additionally, the Company may be required
to make additional severance payments of approximately $2.549 million in
accordance with employment agreements with certain officers.
In 1997, the Company entered into a credit agreement with a leading
national banking organization for a $25.000 million secured line of credit ("the
Credit Agreement") that is available for general corporate purposes. As of June
30, 1998, there was $2.000 million outstanding under this agreement. The
acquisition of QDS in July 1998 was financed primarily under the Credit
Agreement and the balance outstanding as of July 31, 1998 was $16.600 million.
In connection with the acquisition of certain assets of QDS, the
Company agreed, subject to certain conditions, to make a $2.000 million equity
investment in Endeavor. This investment is expected to be made under certain
circumstances in August 1998.
In February 1998, the Board of Directors of the Company approved the
purchase of up to ten percent of the Company's outstanding common stock. In the
second quarter of 1998, 425,000 shares were purchased for $1.866 million and in
July 1998 an additional 48,000 shares were purchased for $166,000.
The Company believes that its current cash balances, expected cash
flows from operations and investing activities and amounts available under the
Credit Agreement will be sufficient to finance its current operations and the
$2.000 million investment in Endeavor. However, the Company is currently
negotiating with several banking organizations to increase its credit facilities
to fund future expansion of the business.
NEW ACCOUNTING STANDARD
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 131 ("SFAS 131"), "Disclosures About
Segments of an Enterprise and Related Information." SFAS 131 established
standards for reporting information about operating segments in annual financial
statements and in interim financial reports to shareholders. The Company adopted
SFAS 131 in the first quarter of 1998; however, the provisions of this statement
need not be applied to interim periods in the initial year of application.
11
<PAGE> 12
YEAR 2000 ISSUE
Many existing computer programs use only two digits to identify a year
in the date field. These programs were designed and developed without
considering the impact of the upcoming change in the century. If not corrected,
many computer applications could fail or create erroneous results by or at the
year 2000.
The Company is currently in the process of assessing its computer
software programs to determine their ability to function properly in the year
2000 and thereafter, and is in the process of modifying or replacing certain
time-sensitive software programs to avoid a potential temporary inability to
process transactions or engage in other normal business activities. The project
is estimated to be completed well in advance of December 31, 1999, which is
prior to any anticipated significant impact on the Company's operating systems
from the Year 2000 issues. The costs of the project to date and the estimated
costs to complete are not expected to be significant to the Company's
consolidated financial position or results of operations. The Company believes
that, upon completion of its ongoing project, the Year 2000 issues will not pose
significant operational problems for its computer systems.
FORWARD-LOOKING INFORMATION
This Management's Discussion and Analysis contains forward-looking
statements including statements concerning possible changes in the healthcare
industry, the effect of goodwill on the Company's results of operations and the
adequacy of the Company's sources of cash to finance its current and future
operations. These forward-looking statements involve a number of risks and
uncertainties. In addition to the factors discussed above, among other factors
that could cause actual results to differ materially are the following: business
conditions and growth in the home healthcare industry and the general economy;
competitive factors, such as the possible entry of large diversified healthcare
companies into the obstetrical or cardiac home healthcare business; new
technologies and pricing pressures; changes in third-party reimbursement
policies and practices and regulatory requirements applicable to the Company's
business; the continued availability for sale of existing products and services;
management decisions to pursue new product lines or lines of business which
involve additional costs, risks or capital expenditures; and the risk factors
listed from time to time in the Company's SEC reports, including but not limited
to, its Annual Report on Form 10-K for the year ended December 31, 1997.
12
<PAGE> 13
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The directors of the Company are divided into three classes. The class
comprised of Donald R. Millard and Carl E. Sanders will continue to serve until
the 1999 annual meeting of stockholders and until their successors are elected
and qualified. The class comprised of Jackie M. Ward and Frederick P. Zuspan,
M.D. will continue to serve until the 2000 annual meeting and until their
successors are elected and qualified.
At the annual meeting of stockholders of the Company held on May 18,
1998 (the "Meeting"), the following directors were elected, each of whom will
serve until the 2001 annual meeting of stockholders and until his successor is
elected and qualified:
<TABLE>
<CAPTION>
Nominee Affirmative Votes Withheld Votes
- ------- ----------------- --------------
<S> <C> <C>
Parker H. Petit 29,842,146 401,626
Frank D. Powers 29,841,763 402,009
Morris S. Weeden 29,815,143 428,629
</TABLE>
In addition, the following proposals were approved at the Meeting:
Approval to amend the Company's Bylaws to allow for a change in the
composition of the Board of Directors and the committees thereof:
<TABLE>
<CAPTION>
Affirmative Votes Negative Votes Abstentions
- ----------------- -------------- -----------
<S> <C> <C>
29,588,207 455,072 200,493
</TABLE>
Approval to amend the Company's 1996 Directors' Non-Qualified Stock
Option Plan to increase the automatic annual grant of options to non-employee
directors from 5,000 to 10,000 shares each:
<TABLE>
<CAPTION>
Affirmative Votes Negative Votes Abstentions
- ----------------- -------------- -----------
<S> <C> <C>
28,554,062 1,491,728 197,982
</TABLE>
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<PAGE> 14
ITEM 5. OTHER INFORMATION
On July 21, 1998, the Company purchased certain assets of a cardiac
event monitoring company, Quality Diagnostic Services, Inc. ("QDS"), a Georgia
corporation and wholly-owned subsidiary of Endeavor Technologies, Inc.
("Endeavor"), pursuant to the terms of an Asset Purchase Agreement. The assets
purchased include intellectual property, accounts receivable and contract rights
for the consideration of $17.000 million in cash with potential additional
payments if QDS' revenues reach certain levels in 1999. In connection with the
acquisition of the assets of QDS, the Company is required, under certain
circumstances, to invest $2.000 million in the stock of Endeavor. The investment
is expected to be made prior to August 31, 1998.
Contemporaneously with the purchase of QDS, the Company entered into a
strategic alliance with Endeavor, in which the Company will be licensed to
distribute Endeavor's Web-enabled platforms for the healthcare industry.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
(2) Asset Purchase Agreement - QDS
(27) Financial Data Schedule
(b) The Company has not filed any Reports on Form 8-K during the
quarter ended June 30, 1998.
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<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Matria Healthcare, Inc.
August 13, 1998 By: /s/ Donald R. Millard
------------------------------------
Donald R. Millard
Director, President, Chief Executive
Officer and Chief Financial Officer
(Principal Financial Officer)
By: /s/ Yvonne V. Scoggins
------------------------------------
Yvonne V. Scoggins
Vice President, Chief Accounting
Officer and Treasurer
15
<PAGE> 1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 21st day of July, 1998 (the "Execution Date"), to be effective as of
July 1, 1998 (the "Effective Date"), by and among MATRIA HEALTHCARE, INC., a
Delaware corporation (together with any of its designated wholly-owned
subsidiaries, "Purchaser"), ENDEAVOR TECHNOLOGIES, INC., a Georgia corporation
("Endeavor"), QUALITY DIAGNOSTIC SERVICES, INC., a Georgia corporation ("QDS")
and TELEMEDICS, INC., a Georgia corporation ("Telemedics"). QDS and Telemedics
are sometimes hereinafter referred to together as the "Sellers" and individually
as a "Seller."
BACKGROUND:
A. Endeavor owns all of the issued and outstanding shares of the
capital stock of QDS and of Telemedics.
B. The Sellers are engaged in the business of distributing heart
monitoring equipment and providing diagnostic telemedicine heart monitoring
services (the "Business").
C. Subject to the terms and conditions contained herein, as set forth
in this Agreement, the Sellers sell to Purchaser, and Purchaser purchases from
the Sellers, as of the Effective Date, substantially all of the Sellers' assets.
D. It is the intent of the parties that this Agreement reflect and
document the terms of the above transfer of the assets of the Business from
Endeavor and the Sellers to the Purchaser as of the Effective Date.
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. PURCHASE AND SALE OF ASSETS.
1.1 TRANSFER OF ASSETS. Upon the terms and subject to the conditions
contained herein, QDS and Telemedics hereby sell, convey and deliver to
Purchaser, and Purchaser hereby purchases from QDS and Telemedics, as of the
Effective Date, all the "QDS Assets" and "Telemedics Assets", respectively (as
each are defined in Section 1.2 hereof), free and clear of any and all liens,
charges, security interests, mortgages, claims and encumbrances of any kind
(each a "Security Interest"), other than the Security Interests listed on
Schedule 1.1 hereto (the "Permitted Liens").
1.2 ASSETS. For purposes of this Agreement, "Assets" means the "QDS
Assets" (as defined in Section 1.2.1 hereof) and the "Telemedics Assets" (as
defined in Section 1.2.2 hereof).
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1.2.1 THE QDS ASSETS. The QDS Assets means all assets,
properties and rights of QDS, other than the "QDS Excluded Assets" (as defined
in Section 1.3 hereof). Without limiting the generality of the foregoing, QDS
Assets includes the following assets of QDS, except to the extent that such
assets are QDS Excluded Assets:
(a) all machinery, equipment, supplies, inventories, office
equipment, furniture, vehicles and other personal property;
(b) all copyrightable works, copyrights, trademarks, service
marks, logos, trade dress, trade names, patents, patent applications, processes,
inventories, computer programs, trade secrets, confidential business
information, goodwill and other intellectual property owned or used by QDS and
all of QDS's rights in and to any QDS intellectual property licensed to QDS by
third parties, including, without limitation, the names "Quality Diagnostic
Services and "QDS" (collectively, "QDS Intellectual Property");
(c) all cash, cash equivalents, deposits or investments equal
to the aggregate amount of "Current Liabilities" as set forth on the "June 30,
1998 Balance Sheets," (as both are defined in Section 1.4(b) hereof);
(d) all accounts receivable, notes receivable and other
receivables and all documents, records and other agreements relating thereto;
(e) to the extent assignable, all licenses, franchises,
approvals, permits, registrations and other similar rights obtained from
governmental agencies or authorities (and all applications therefor);
(f) all of QDS's rights under all contracts, agreements,
covenants, options, leases, guaranties and other similar arrangements (whether
oral or written) listed on Schedule 1.2.1(f) hereof;
(g) all prepaid property and ad valorem taxes, interest and
other expenses;
(h) all telephone and facsimile numbers;
(i) all catalogs, brochures, customer lists, files, training
materials, marketing materials, and other books and records;
(j) all claims, refunds, causes of action, choses in action,
rights of recovery, rights of set off and rights of recoupment against any other
person or entity;
(k) all right, title and interest of QDS, if any, in and to
the software (the "Endeavor 2000 Software") to be developed pursuant to Exhibit
I of that certain Distribution Agreement by and between Card Guard Scientific
Survival Ltd. ("Card Guard") and QDS (the "Card Guard Agreement"), but only to
the extent that such right, title and interest is transferable, it being
understood and agreed that: (i) the Endeavor 2000 Software is taken by
Purchaser, if at all, as is, without any representation or warranty of any kind
whatsoever; and (ii) neither
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Endeavor nor the Sellers makes any representation or warranty as to whether any
right, title or interest, if any, in or to the Endeavor 2000 Software is
transferable; and
(l) all QDS Assets, purchased or received by QDS in the
ordinary course of the Business, during the period from the Effective Date
through the Execution Date (the "Interim Period").
1.2.2 THE TELEMEDICS ASSETS. The Telemedics Assets means all
assets, properties and rights of Telemedics, other than the "Telemedics Excluded
Assets" (as defined in Section 1.3 hereof). Without limiting the generality of
the foregoing, Telemedics Assets includes the following assets of Telemedics,
except to the extent such assets are Telemedics Excluded Assets:
(a) all machinery, equipment, supplies, inventories, office
equipment, furniture, vehicles and other personal property;
(b) all copyrightable works, copyrights, trademarks, service
marks, logos, trade dress, trade names, patents, patent applications, processes,
inventories, computer programs, trade secrets, confidential business
information, goodwill and other intellectual property owned or used by
Telemedics, and all of Telemedics' rights in and to any Telemedics intellectual
property licensed to Telemedics by third parties (collectively, "Telemedics
Intellectual Property"), but excluding the name "Telemedics,";
(c) all cash, cash equivalents, deposits or investments equal
to the aggregate amount of "Current Liabilities" as set forth on the "June 30,
1998 Balance Sheets;"
(d) all accounts receivable, notes receivable and other
receivables and all documents, records and other agreements relating thereto;
(e) to the extent assignable, all licenses, franchises,
approvals, permits, registrations and other similar rights obtained from
governmental agencies or authorities (and all applications therefor);
(f) all of Telemedics' rights under all contracts, agreements,
covenants, options, leases, guaranties and other similar arrangements (whether
oral or written) listed on Schedule 1.2.2(f) hereof;
(g) all prepaid property and ad valorem taxes, interest and
other expenses;
(h) all telephone and facsimile numbers;
(i) all catalogs, brochures, customer lists, files, training
materials, marketing materials, and other books and records;
(j) all claims, refunds, causes of action, choses in action,
rights of recovery, rights of set off and rights of recoupment against any other
person or entity; and
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(k) all Telemedics Assets, purchased or received by Telemedics, in
the ordinary course of the Business, during the Interim Period.
1.3 EXCLUDED ASSETS. Only the assets of QDS as set forth on Schedule
1.3A (the "QDS Excluded Assets") and only the assets of Telemedics as set forth
on Schedule 1.3B (the "Telemedics Excluded Assets") are retained by QDS and
Telemedics, respectively, and not sold to Purchaser pursuant to this Agreement.
The QDS Excluded Assets and the Telemedics Excluded Assets are referred to
collectively herein as the "Excluded Assets."
1.4 ASSUMED LIABILITIES. Upon the terms and subject to the conditions
contained herein, at the "Execution" (as defined in Section 2.1 hereof)
Purchaser shall execute and deliver to the Sellers the "Assumption Agreement"
(as defined in Section 2.3(b) hereof), pursuant to which Purchaser assumes and
agrees to perform and discharge the following debts, liabilities and obligations
of each Seller (collectively, the "Assumed Liabilities"), as of the Effective
Date:
(a) all debts, liabilities and obligations arising after the
Effective Date under the contracts assigned to Purchaser pursuant to Sections
1.2.1(f) and 1.2.2(f) and listed and described on Schedule 1.2.1(f) and Schedule
1.2.2(f) , respectively (but excluding any liabilities or obligations under such
contracts arising from any acts or omissions occurring prior to the Effective
Date), including, without limitation, the Sellers' obligations to provide heart
monitoring services thereunder;
(b) the liabilities and obligations reflected as current
liabilities on the (i) unaudited consolidated balance sheet of QDS dated as of
June 30, 1998, and (ii) unaudited consolidated balance sheet of Telemedics dated
as of June 30, 1998 (collectively, the "June 30, 1998 Balance Sheets"), such
June 30, 1998 Balance Sheets to be delivered to Purchaser at the Execution
pursuant to Section 2.2(h) hereof, including, without limitation, all amounts
reflected thereon for trade payables, accrued operating expenses, and accrued
wages, salaries and benefits (including vacation pay and sick leave) payable by
Endeavor or the Sellers to only the employees hired by Purchaser pursuant to
Section 5.2 hereof, but specifically excluding (i) payments or obligations
relating to severance pay or any other amounts due any such employees pursuant
to the terms of any employment agreement with Endeavor or either Seller,
including without limitation, severance payments and any other amounts due to
Anna McNamara and Alva Teets; (ii) payments or obligations relating to sick
leave for any employee in excess of payments due for 5 days of such sick leave
per employee; (iii) any liability or obligation payable to Endeavor or any other
affiliate of either Seller (including, without limitation, the amount of
$6,306,342.07 which is reflected as the "Due to Endeavor" line item on the June
30, 1998 Balance Sheet of QDS and the amounts of $160,189.70 and $135,589.07
which are reflected as the "Due to Endeavor" and the "Due to QDS" line items on
the June 30, 1998 Balance Sheet of Telemedics); (iv) the amount of $509,165.00
that is shown as "Deferred Revenue" on the June 30, 1998 Balance Sheet of QDS;
(v) the amount of $157,600.00 which represents sales and tax liability for past
purchases of cardiac monitors from Card Guard, and which is included in the
"Accounts Payable" line item on the June 30, 1998 Balance Sheet of QDS; (vi) the
amount of $36,007.29 that constitute Excluded Liabilities which are included in
the "Accounts Payable" line item on the June 30, 1998 Balance Sheet of QDS; and
(vii) any other liabilities listed as Excluded Liabilities in Sections 1.5(a)
through 1.5(p) hereof (the "Current Liabilities"); and
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(c) the liabilities and obligations of either Seller, other than
Excluded Liabilities in Sections 1.5(a) through 1.5(p), incurred in the ordinary
course of the Business, during the Interim Period.
1.5 EXCLUDED LIABILITIES. Notwithstanding anything else contained
herein to the contrary, all liabilities and obligations of Endeavor or the
Sellers (whether known or unknown, liquidated or unliquidated, contingent or
fixed) other than the Assumed Liabilities (collectively, the "Excluded
Liabilities") shall remain the liabilities and obligations of Endeavor and the
Sellers and are not assumed by Purchaser pursuant hereto (regardless of whether
any such liabilities or obligations are disclosed in this Agreement). Endeavor
and each Seller hereby agree that it shall fully and timely pay, perform and
discharge all of its Excluded Liabilities in accordance with their respective
terms. Without limiting the generality of the foregoing, Excluded Liabilities
include the following, whether or not reflected as Current Liabilities on the
June 30, 1998 Balance Sheets:
(a) any liability or obligation arising under any contract not
listed on Schedule 1.2.1(f) or Schedule 1.2.2(f) hereof;
(b) any liability or obligation related to the Excluded Assets;
(c) any liability or obligation to any employee of Endeavor or
either Seller, not hired by Purchaser pursuant to Section 5.2 hereof, and any
liability or obligation under any employee benefit plan maintained by Endeavor
or either Seller;
(d) any liability or obligation arising out of any termination by
Endeavor or either Seller of the employment of any employee as a result of this
transaction or otherwise and any liability or obligation related to any former
employee of Endeavor or either Seller who retired effective as of or prior to
the Execution Date;
(e) any liability or obligation under any litigation, arbitration,
investigation or other proceeding brought against either Seller with respect to
any matter occurring prior to the Execution Date (regardless of whether it is
pending as of or has been threatened or asserted prior to the Execution Date),
including, without limitation, the lawsuit entitled QDS v. Harry A. Kopelman,
MD, et al., file number E-61332 in the Superior Court of Fulton County, State of
Georgia;
(f) any liability or obligation for any income taxes owed by
Endeavor or either Seller and any liability or obligation for any sales, use or
other taxes arising in connection with the consummation of the transactions
contemplated by this Agreement. Purchaser hereby acknowledges and agrees that
income taxes on the revenue of the Business earned during the Interim Period
shall be the liability of Purchaser and any income taxes assessed against
Endeavor or Sellers with respect to the revenue of the Business earned during
the Interim Period will be paid by Purchaser;
(g) any tax liability that may be imposed, with respect to the
Assets, by any federal, state or local government on the ownership, sale,
operation or use of the Assets, relating to any period ending on or before the
Effective Date;
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(h) any liability or obligation of either Seller relating to any
breach of contract, breach of warranty, tort, infringement or violation of law;
(i) any liability or obligation payable to Endeavor or any other
affiliate of either Seller;
(j) any liability or obligation of Endeavor or either Seller to
indemnify any person by reason of the fact that such person was an employee,
officer, director or agent of Endeavor or such Seller (or such person was
serving as an employee, officer, director or agent of any other entity at the
request of Endeavor or such Seller) prior to the Execution Date;
(k) any liability or obligation of Endeavor or either Seller for
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby;
(l) any liability or obligation of QDS under or pursuant to the
Card Guard Agreement;
(m) any liability or obligation of Endeavor or either Seller
relating to the current portion of the long-term debt of Endeavor or the Sellers
or Endeavor's or the Sellers' indebtedness to Sirrom Capital Corporation and
Sirrom Investments, Inc. (the "Sirrom Indebtedness");
(n) any liability or obligation of Endeavor or either Seller
relating to that certain Lease by and between Pavilion Partners, L.P. and QDS,
dated September 16, 1996, for the premises of 1100 Lake Hearn Drive, Atlanta,
Georgia and that certain Lease dated April 1, 1996 between Siemens' Credit
Corporation and Atlanta Cardiology Group, P.C.;
(o) any liability or obligation of Endeavor or either Seller
relating to Current Liabilities in excess of cash, cash equivalents, deposits or
investments as set forth on the June 30, 1998 Balance Sheets;
(p) any liability covered by insurance maintained by Endeavor or
either Seller immediately prior to the Execution Date, to the extent of such
coverage; and
(q) any other liability or obligation of either Seller not
specifically set forth in Section 1.4 hereof.
1.6 PROCEDURES FOR ASSETS NOT TRANSFERABLE. If any of the contracts or
other property or rights included in the Assets are not assignable or
transferable either by virtue of the provisions thereof or under applicable law
without the consent of some other person or entity and such consents are not
obtained by Endeavor or the Sellers by the Execution Date, the appropriate
Seller shall notify Purchaser thereof at the Execution or by indicating such
fact on a Schedule to the Agreement. With respect to any such required consent
not obtained prior to the Execution, this Agreement and the related instruments
of transfer shall not constitute an assignment or transfer thereof, and
Purchaser shall not assume such Seller's obligations thereunder. Instead,
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such Seller shall use all reasonable efforts to obtain any such required
consents not previously obtained as soon as reasonably possible after the
Execution.
1.7 PURCHASE PRICE. Subject to the terms and conditions contained
herein, at the Execution Purchaser shall pay to QDS an aggregate purchase price
for the Assets in the amount of $17,000,000 (the "Purchase Price") in accordance
with Section 2.3(a) hereof.
1.8 ADDITIONAL PURCHASE PRICE PAYMENTS. Subject to the terms and
conditions set forth in this Section 1.8, Purchaser shall make additional
payments to QDS (or, if QDS no longer exists, to Endeavor) in consideration for
the Assets and in addition to the Purchase Price (each such additional payment
being an "Additional Purchase Price Payment"), as follows:
(a) If Revenues (as defined below) equal or exceed $16,000,000
during the calendar year 1999, Purchaser shall pay an Additional Purchase Price
Payment of $1,000,000;
(b) In addition to the Additional Purchase Price Payment set forth
in Section 1.8(a) above, if the Revenues equal or exceed $17,000,000 but are
less than or equal to $20,000,000, Purchaser shall pay an Additional Purchase
Price Payment equal to $1,000,000 multiplied by the number of $1,000,000
increments by which Revenues exceed $16,000,000, during calendar year 1999; and
(c) In addition to the Additional Purchase Price Payments set forth
in Sections 1.8(a) and (b) above, if Revenues equal or exceed $20,300,000 during
the calendar year 1999, Purchaser shall pay an Additional Purchase Price Payment
of $1,000,000.
As used in this Section 1.8, the term "Revenues" shall mean all
revenues of the Business (as it exists on the date hereof and net of any
subsequent acquisitions by Purchaser) recognized by the Purchaser in accordance
with generally accepted accounting principles ("GAAP").
No later than March 31, 2000, Purchaser shall cause to be prepared in
accordance with GAAP and delivered to Endeavor an income statement of the
Business for the year ended December 31, 1999. Payment of all Additional
Purchase Price Payments calculated by the Purchaser to be due shall be made by
wire transfer simultaneously with the delivery of such income statement. At
Purchaser's expense, prior to the date of delivery such income statement shall
be reviewed, and the achievement of the goals, or the failure to achieve the
goals, set forth in this Section 1.8 shall be verified by, KPMG Peat Marwick LLP
(or such other national accounting firm chosen by Purchaser). Endeavor and, on
Endeavor's behalf, Ernst & Young, LLP (or such other national accounting firm
chosen by Endeavor) shall have the right at reasonable times during normal
business hours at any time commencing on the date of receipt of the income
statement delivered pursuant to this Section 1.8 and ending 60 days thereafter
to inspect the books and records of Purchaser in order to confirm the
information set forth in such income statement. Any dispute arising concerning
such income statement shall be resolved in the same manner as disputes are
resolved pursuant to Section 1.9(c) below.
1.9 EXECUTION DATE ADJUSTMENTS.
(a) Within 10 days following the Execution Date, (i) Purchaser shall
inform Sellers in
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writing ("Purchaser's Adjustment Letter") of any amounts it believes represent
(x) any amount by which the cash, cash equivalents, deposits or investments of
Sellers as of June 30, 1998, plus any cash contributed to Sellers by Endeavor
during the Interim Period, was less than the Current Liabilities of Sellers on
June 30, 1998; (y) cash or other assets of the Business received by the Sellers
after the Effective Date which were not deposited in a bank account of Sellers
transferred to Purchaser on the Execution Date or otherwise retained in the
Business or used in the ordinary course of the Business; or (z) payments or
other disbursements made by Sellers, or assets transferred by Sellers, during
the Interim Period, otherwise than in the ordinary course of the Business, other
than non-cash accounting adjustments contemplated by Section 1.4(b)(iii), it
being understood and agreed that any payments of Current Liabilities are in the
ordinary course of the Business (collectively, "Purchaser's Adjustments"); and
(ii) Sellers shall inform Purchaser in writing ("Sellers' Adjustment Letter") of
any amounts it believes represent (A) cash deposited after the Effective Date in
bank accounts of Sellers transferred to Purchaser on the Execution Date or other
assets received by Sellers after the Effective Date which were not derived from
the Business and represent property of Endeavor; (B) unreimbursed payments or
other transfers of property made by Endeavor after the Effective Date in the
ordinary course of the Business, other than payments referred to in clause (C);
and (C) payments made by Endeavor to either Seller which increased the cash,
cash equivalents, deposits or investments of Sellers above the amount of Current
Liabilities as of June 30, 1998 (collectively, "Sellers' Adjustments").
Purchaser agrees to allow Endeavor reasonable access to the books of Purchaser
in order to analyze the Sellers' Adjustments, if any.
(b) Within 5 days following the receipt by Sellers of Purchaser's
Adjustment Letter, Sellers shall pay to Purchaser the amount of the Purchaser's
Adjustments, or shall object in writing as to any items thereon with which
Sellers disagree. Within 5 days following the receipt by Purchaser of Sellers'
Adjustment Letter, Purchaser shall pay to Sellers the amount of the Sellers'
Adjustments, or shall object in writing as to any items thereon with which
Purchaser disagrees.
(c) In the event of a dispute or disagreement between Purchaser and
Sellers as to any portion of the Purchaser's Adjustment or the Sellers'
Adjustment which Purchaser and Sellers are unable to resolve either Purchaser or
Endeavor may elect that the items remaining in dispute be submitted for
resolution to Arthur Andersen LLP, or such other national accounting firm
selected by mutual agreement of Purchaser and Endeavor (the member of which who
will be primarily responsible for resolving such dispute will have had
substantial audit experience and substantial experience in arbitration or other
dispute resolution proceedings concerning accounting issues) (the
"Accountants"). The Accountants will, within 30 days after submission,
determine, based solely on presentations by Purchaser and Endeavor and not by
independent review, and render a written report to the parties upon such
remaining disputed items and the resultant calculation of the Purchaser's
Adjustment and/or the Sellers' Adjustment in accordance with the provisions
hereof, and such determination will be final, binding and conclusive on the
parties hereto. In resolving any disputed item, the Accountants may not assign a
value to such item greater than the greatest value for such item claimed by
either party or less than the smallest value for such item claimed by either
party. The fees and disbursements of the Accountants will be paid equally by the
Purchaser and Endeavor. Purchaser and Endeavor hereby agree to cooperate and
work in good faith and as expeditiously as reasonably possible to resolve any
and all disputes and disagreements.
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(d) Upon resolution of any disagreements with respect to Purchaser's
Adjustment, Sellers shall pay to Purchaser the amount of Purchaser's Adjustment
determined to be correct pursuant to Section 1.9(c) above. Upon resolution of
any disagreements with respect to Sellers' Adjustment, Purchaser shall pay to
Sellers the amount of Sellers' Adjustment determined to be correct pursuant to
Section 1.9(c) above.
2. THE EXECUTION.
2.1 PLACE OF EXECUTION. Contemporaneously with the execution of this
Agreement, the closing of the transactions contemplated hereby (the "Execution")
shall occur at the offices of Troutman Sanders LLP, 600 Peachtree Street, N.E.,
Suite 5200, Atlanta, Georgia 30308.
2.2 DELIVERIES BY ENDEAVOR AND THE SELLERS. At the Execution, Endeavor
and the Sellers shall deliver to Purchaser the following:
(a) a Bill of Sale and Assignment (the "Bill of Sale"),
substantially in the form attached hereto as Exhibit A, and such other
assignments and other instruments of transfer and conveyance necessary or
appropriate to transfer and assign the Assets to Purchaser, either before or
after the Execution Date;
(b) an opinion of Nelson Mullins Riley & Scarborough, L.L.P.,
counsel to Endeavor and the Sellers, dated as of the Execution Date, addressed
to Purchaser, in form and substance reasonably satisfactory to Purchaser,
addressing such matters as the Purchaser may reasonably request;
(c) a Noncompetition Agreement (the "Endeavor Noncompetition
Agreement"), substantially in the form attached hereto as Exhibit B, executed by
each of Endeavor and the Sellers;
(d) a Management Services Agreement (the "Management Agreement"),
substantially in the form attached hereto as Exhibit C, executed by Endeavor;
(e) a License Agreement (the "Licensed Premises Agreement"),
substantially in the form attached hereto as Exhibit D, executed by Endeavor;
(f) [EXHIBIT E IS INTENTIONALLY OMITTED]
(g) a Strategic Alliance Agreement (the "Strategic Alliance
Agreement"), substantially in the form attached hereto as Exhibit F, executed by
Endeavor;
(h) the June 30, 1998 Balance Sheets;
(i) Noncompetition Agreements (the "Employee Noncompetition
Agreements"), substantially in the forms attached hereto as Exhibits G-1, G-2,
G-3, G-4, G-5 and G-6, one to be executed by each of Jeffrey T. Arnold, Rick
Anderson, Mark Bogart, Jeffrey M. Brown, Stuart Gurr and Blake Whitney,
respectively;
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(j) a copy of the audited, consolidated financial statements of
Endeavor and its subsidiaries for the three year period ended December 31, 1997;
(k) a Stock Purchase Warrant (the "Incentive Warrant")
substantially in the form attached hereto as Exhibit H, executed by Endeavor;
(l) the "Disclosure Letter" (as defined in Section 3 hereof);
(m) Hart-Scott-Rodino Representation Letter (the "Arnold Side
Letter"), dated as of the Execution Date, executed by Purchaser and Jeffrey T.
Arnold, in form and substance reasonably satisfactory to Purchaser; and
(n) evidence satisfactory to Purchaser that (i) the Sirrom
Indebtedness has been paid in full and (ii) that the holder of the Stock
Purchase Warrant issued by Endeavor to Sirrom Capital Corporation on August 29,
1997 has consented or agreed in writing to the issuance of the Incentive
Warrant.
(o) such other certificates or documents reasonably requested by
Purchaser.
2.3 DELIVERIES OF PURCHASER. At the Execution, Purchaser shall deliver
to Endeavor and the Sellers the following (each of which shall be in form and
substance reasonably satisfactory to Endeavor):
(a) the Purchase Price required pursuant to Section 1.7 hereof via
wire transfer of immediately available funds to such bank accounts as QDS has
instructed Purchaser in writing;
(b) an Assumption Agreement (the "Assumption Agreement"),
substantially in the form attached hereto as Exhibit I, executed by Purchaser;
(c) the Management Agreement executed by Purchaser;
(d) the Licensed Premises Agreement executed by Purchaser;
(e) the Strategic Alliance Agreement executed by the Purchaser;
(f) an opinion of Troutman Sanders LLP, counsel to Purchaser, dated
as of the Execution Date addressed to Seller, in form and substance reasonably
satisfactory to Seller, addressing such matters as the Seller may reasonably
request;
(g) the Incentive Warrant executed by Purchaser; and
(h) such other certificates or documents reasonably requested by
Endeavor and the Sellers.
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3. REPRESENTATIONS AND WARRANTIES OF ENDEAVOR, QDS AND TELEMEDICS.
Each of the following representations and warranties is qualified by the
disclosure letter, dated as of the Execution Date (the "Disclosure Letter"),
delivered to Purchaser by Endeavor at the Execution. Endeavor, QDS and
Telemedics hereby, jointly and severally, represent and warrant, as of the
Execution Date, to Purchaser as follows:
3.1 ORGANIZATION AND QUALIFICATION. Each of Endeavor and the Sellers is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia. Any Seller's failure to be duly qualified as a
foreign corporation to do business, and to be in good standing, in each
jurisdiction where the character of its properties owned or leased or the nature
of its activities makes such qualification necessary, will not have a "Material
Adverse Effect." As used in this Agreement, the term "Material Adverse Effect"
shall mean a material adverse effect on the Business, financial condition,
results of operations, properties, assets or liabilities of the Sellers taken as
a whole, or on the ability of the Sellers to enter into this Agreement and
perform their obligations hereunder.
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Endeavor and the
Sellers has the requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of each of
Endeavor and the Sellers, and no other corporate proceedings on the part of
Endeavor or either Seller are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of Endeavor and the Sellers and constitutes the legal, valid
and binding obligation of each of such entities, enforceable in accordance with
its terms. Except as set forth in the Disclosure Letter, or, solely with respect
to the Sirrom Indebtedness, as may have been waived, none of Endeavor or the
Sellers is subject to or obligated under any provision of (a) its respective
Articles of Incorporation or Bylaws, (b) any contract to which it is a party or
by which it is bound, (c) any license, franchise or permit, or (d) any law,
regulation, order, judgment or decree, which would be breached, violated or
defaulted (with or without due notice or lapse of time or both) or in respect of
which a right of termination or acceleration or a loss of a material benefit or
any encumbrance on any of its assets would be created or suffered by its
execution and performance of this Agreement, except (as to clauses (b), (c) or
(d) above) where such breach, violation, right of termination or acceleration,
or encumbrance, individually or in the aggregate, would not have a Material
Adverse Effect. Except as set forth in the Disclosure Letter, neither the
execution of this Agreement or the consummation of the transactions contemplated
hereby will require the consent or approval of or registration or filing with
any federal, state or local government or any court, administrative or
regulatory agency or commission or other governmental authority or agency,
domestic or foreign, other than where the failure to obtain such consents or
approvals or to make any such registration or filing would not have individually
or in the aggregate a Material Adverse Effect on or prevent or materially delay
Endeavor or either Seller from performing its obligations under this Agreement.
Schedule 3.2, attached hereto and made a part hereof, lists all of the
contracts, agreements, covenants, options, leases, guaranties and other similar
arrangements (whether oral or written) which require the consent of any party
thereto or any other third party, to assign such contracts to Purchaser pursuant
to the terms of this Agreement.
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3.3 FINANCIAL STATEMENTS. The (i) audited consolidated financial
statements of Endeavor for the period October 17, 1996 (inception) through
December 31, 1996; (ii) audited consolidated financial statements of QDS for the
years ended December 31, 1996 and 1995; (iii) audited consolidated financial
statements of Endeavor for the years ended December 31, 1995, 1996 and 1997,
which reflect QDS and Telemedics as discontinued operations; and (iv) the June
30, 1998 Balance Sheets (collectively, the "Financial Statements") (a) were or
will be prepared in accordance with GAAP applied on a consistent basis (except
as noted therein and except that the unaudited financials will not contain any
notes, as is required by GAAP), including all accrued vacation and sick leave
for employees, and (b) fairly present or will present the assets, liabilities
and financial position of the Sellers as of their respective dates, and the
results of the Sellers' operations and the sources and uses of funds for the
periods then ended, except as shown in the Disclosure Letter with regard to
subsequently discovered liabilities and with respect to the Financial Statements
referred to in clauses (i) and (ii) above, except as restated as set forth in
the Ernst & Young list of audit adjustments attached to the Disclosure Letter.
The Disclosure Letter contains a complete and correct copy of the Financial
Statements. During the Interim Period, each of Endeavor and the Sellers have
maintained its books and records related to the Business in the usual, regular
and ordinary course of the Business on a basis consistent with past practices.
3.4 ABSENCE OF CERTAIN EVENTS. Except as set forth in the Disclosure
Letter, there has not been since December 31, 1997:
(a) any adverse change in the Business or in the financial
condition, assets, liabilities, earnings or results of operations of the
Business of the Sellers that constitutes a Material Adverse Effect;
(b) any damage, destruction or casualty loss (whether or not
covered by insurance) that constitutes a Material Adverse Effect;
(c) any material change in the accounting methods or business
practices followed by the Sellers;
(d) any direct or indirect redemption or purchase or other
acquisition by the either Seller of any shares of its capital stock or any
acquisition or proposed acquisition of real property by such Seller;
(e) any declaration, setting aside or payment of any dividend or
distribution (whether in cash, capital stock or property) by either Seller with
respect to its capital stock which would leave either Seller with current
liabilities, as set forth, or as required to be set forth, on the June 30, 1998
Balance Sheets, in excess of such Seller's cash and cash equivalents, as set
forth on the June 30, 1998 Balance Sheets;
(f) any increase in any manner of the benefits or other
compensation of any of either Seller's employees except normal increases in
accordance with established prior practice; any payment or agreement to pay any
pension, retirement or severance allowance not required by any existing plan or
agreement to any current or former officer or employee of either Seller; or any
amendment to any employment agreement or any incentive compensation, profit
sharing, stock purchase, stock option, stock appreciation rights, savings,
consulting, deferred
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compensation, retirement, pension or other "fringe benefit" plan or arrangement
with or for the benefit of any current or former officer or employee of either
Seller;
(g) any sale, transfer, lease, assignment or other disposition by
either Seller of any of its property, or any tangible or intangible asset used
in the operation of the Business, to any other person or entity, except in the
ordinary course of the Business;
(h) any amendment or termination of any material oral or written
contract, agreement or license to which either Seller is a party or by which it
is bound;
(i) any revaluation by either Seller of any of its Assets;
(j) any mortgage, pledge, or other encumbrance of any of the Assets
of either Seller; or
(k) any agreement (oral or written) by either Seller to do any of
the things described in this Section 3.4.
3.5 ACCOUNTS RECEIVABLE; ACCOUNTS PAYABLE. The accounts receivable and
accounts payable shown on the June 30, 1998 Balance Sheets (as the same have
changed since the date thereof) represent sales made or services provided and
expenses incurred in the ordinary course the Business consistent with past
practices. Except as set forth in the Disclosure Letter, the accounts receivable
reflected on the June 30, 1998 Balance Sheets shall be collected in the ordinary
course of the Business in amounts not less than the aggregate amount thereof
carried on the books of the Sellers (net of allowances and reserves shown on the
June 30, 1998 Balance Sheets), provided, however, that the representation and
warranty contained in this sentence shall not apply to the accounts receivable
being sold to Purchaser by Telemedics. Except as set forth in the Disclosure
Letter, none of such accounts receivable is the subject of a pledge or
assignment to secure debt, is subject to any Security Interest, or has been
placed for collection with any attorney or collection agency or similar
individual or firm. Except as set forth in the Disclosure Letter, to the
"Knowledge" (as defined in Section 8.13 hereof) of Endeavor or the Sellers, no
referral source or payor accounting for more than 2.5% of the Sellers' total
revenues during 1997 (a) has expressed dissatisfaction with the services of the
Sellers, other than those types and immaterial amounts of complaints incurred in
the ordinary course of the Business or (b) has expressed an intent to reduce
materially its business with the Sellers or that any such referral source or
payor will be unable to pay for its purchases.
3.6 NO UNDISCLOSED LIABILITIES. Except as set forth in the Disclosure
Letter, or as reflected in or provided for in the Financial Statements, the
Sellers have no debts, liabilities or obligations, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, which individually or
in the aggregate are material to the financial condition, assets, liabilities,
earnings, or results of operations of the Business.
3.7 LITIGATION. Except as set forth in the Disclosure Letter, there are
no actions, suits, claims, investigations or proceedings (legal, administrative
or arbitrative) pending or, to the Knowledge of Endeavor or either Seller,
threatened by or against either Seller relating to the Business or the
transactions contemplated hereby, whether at law or in equity and whether civil
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or criminal in nature, before or by any federal, state, municipal or other
court, arbitrator, governmental department, commission, agency or
instrumentality, domestic or foreign, nor are there any judgments, decrees or
orders of any such court, arbitrator, governmental department, commission,
agency or instrumentality outstanding against either Seller.
3.8 TITLE TO PROPERTIES AND SUFFICIENCY OF ASSETS. Except as set forth
in the Disclosure Letter, each Seller has good and marketable title to all of
its Assets, free and clear of all Security Interests other than Permitted Liens,
except that neither Endeavor nor Sellers make any representation or warranty as
to the Endeavor 2000 Software. The Assets, together with the Excluded Assets,
constitute all of the assets necessary to conduct the Business as such Business
was conducted prior to and is conducted as of the date hereof, and only the
Assets and Excluded Assets are reflected on the June 30, 1998 Balance Sheets.
3.9 CONDITION OF TANGIBLE PROPERTY. Except as set forth in the
Disclosure Letter, all real and personal property, equipment and other tangible
property included in the Assets is in good repair and operating condition
(normal wear and tear excepted).
3.10 LEASE OF REAL AND PERSONAL PROPERTY. The Disclosure Letter sets
forth a list of (a) all leases pursuant to which either Seller leases, as
lessee, real property, (b) all leases pursuant to which either Seller leases, as
lessor, real property and (c) all leases pursuant to which either Seller leases,
as lessee, personal property for use in its Business and which either (i) are or
should have been reflected as liabilities on the June 30, 1998 Balance Sheets or
(ii) provide for annual rental payments in excess of $1,000 per annum. Except as
set forth in the Disclosure Letter, as to all leases listed in the Disclosure
Letter, the appropriate Seller (A) has performed all material obligations
required to be performed by it prior to the date hereof and (B) is not in
default or, to its Knowledge, alleged to be in default. To the Knowledge of
Endeavor and the Sellers, there exists no material default, or any event which
upon the giving of notice or passage of time would give rise to any material
default, in the performance of any obligation to be performed by any other party
to any of such leases.
3.11 INTELLECTUAL PROPERTY All trademarks, service marks or trade names
owned or used by QDS or Telemedics are listed in the Disclosure Letter. Except
as set forth in the Disclosure Letter, each Seller owns or has the right to use
the QDS Intellectual Property and Telemedics Intellectual Property,
respectively, in the manner used by it in the Business, there are no pending or,
to such Seller's Knowledge, threatened claims or proceedings against such Seller
asserting that its use of any QDS Intellectual Property and Telemedics
Intellectual Property, respectively, infringes the rights of any other person or
entity and neither Seller has any Knowledge of any use by it that may, with
notice or passage of time, give rise to such a claim, and neither Seller has
licensed or otherwise assigned any QDS Intellectual Property and Telemedics
Intellectual Property, respectively, used in the Business to any other person or
entity. The Sellers have, with the QDS Intellectual Property and Telemedics
Intellectual Property, respectively, all intellectual property rights needed to
operate the Business as such Business is conducted as of the date hereof. Each
of Endeavor and the Sellers has taken all reasonable precautions to protect all
confidential information and trade secrets of the Business. Notwithstanding
anything to the contrary in this Agreement, none of Endeavor, QDS or Telemedics
makes any representation or warranty with respect to the Endeavor 2000 Software.
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3.12 GOVERNMENTAL AUTHORIZATION AND COMPLIANCE WITH LAWS. The
Sellers have complied in a timely manner with all laws and governmental
regulations and orders relating to any of the Assets, or applicable to the
Business, including, but not limited to, the labor, equal employment
opportunity, occupational safety and health, environmental, hazardous or medical
waste disposal and antitrust laws, except where the failure to so comply would
not, individually or in the aggregate, have a Material Adverse Effect. Neither
Seller has been charged or received any inquiries, except as set forth in the
Disclosure Letter, in or relating to any violations of any state or federal
statute or regulation involving fraudulent or abusive practices relating to its
reimbursement from third party payors or its participation in state or federally
sponsored reimbursement programs, including but not limited to fraudulent
billing practices, nor, to the Knowledge of Endeavor or either Seller, has
either Seller been investigated for such violations. No significant amount of
funds are now or are expected by Endeavor or the Sellers to be withheld by any
Medicare carrier, state agency or third party payor, other than pursuant to
practices or policies of applicability to multiple parties within the industry.
3.13 LICENSES AND PERMITS.
(a) QDS has obtained all licenses and permits necessary to
conduct the Business and to own and operate its assets and such licenses and
permits are valid and in full force and effect except where the failure to
obtain such licenses and permits would not individually or in the aggregate have
a Material Adverse Effect. QDS has all supplier numbers and authorizations
necessary to receive payment for its services from and covered by Part B of the
Medicare Program ("Medicare Authorizations"). No defaults or violations exist or
have been recorded in respect of any license or permit of QDS other than
defaults or violations which would not reasonably be expected individually or in
the aggregate to have a Material Adverse Effect. No proceeding is pending or, to
the best Knowledge of Endeavor and the Sellers, threatened looking toward the
revocation, limitation or non-renewal of any such license, permit or Medicare
Authorizations, except for pending or threatened proceedings that would not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The Sellers have delivered or made available for
inspection to Purchaser a true and complete list of each such license and
permit, and each pending application for any license or permit, relating to the
Business. All of such pending applications are in good standing and, to the
Knowledge of the Sellers, without challenge of any kind, and each statement,
application and other document submitted or filed by Endeavor, on behalf of
either Seller, or either Seller to or with any federal, state or other
governmental agency or authority, or to or with any other person or entity, for
purposes of obtaining a new or renewed license, permit or Medicare Authorization
of any type described in this Section 3.13 in connection with the transactions
contemplated hereby is true and complete, and except as set forth in the
Disclosure Letter, none of the rights of either Seller under any license, permit
or Medicare Authorization will be impaired by the consummation of the
transactions contemplated hereby, except, as to the foregoing matters, for such
challenges, incompletenesses or inaccuracies, nondisclosures or impairments
which do not relate to the Business or which would not, individually or in the
aggregate, have a Material Adverse Effect.
(c) Neither of the Sellers nor Endeavor, as with respect to
the Business, has received any written notice from and has not been made a party
to any proceeding brought by
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any governmental authority alleging that (i) it is, or may be in violation of,
any such law, governmental regulation or order, (ii) it must change any of its
business practices to remain in compliance with such law, governmental
regulation or order, (iii) it has failed to obtain any license, permit or
Medicare Authorization required for the conduct of its business, or (iv) it is
in default under or violation of any license, permit or Medicare Authorization.
3.14 BENEFIT PLANS. The Disclosure Letter contains a true and complete
list of each pension, retirement, savings, profit sharing, deferred
compensation, incentive compensation, bonus, stock option, severance or
termination pay, medical, dental, life or other insurance, disability plan or
other employee benefit plan or program, agreement or arrangement maintained,
sponsored or contributed to by either Seller, whether covering employees of such
Seller, former employees of such Seller, or directors or former directors of
such Seller (including, but not limited to, any "employee benefit plan", as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")), all of the foregoing being herein called "Benefit Plans."
With respect to the Benefit Plans, individually and in the aggregate, each
Seller has made available to Purchaser a true and correct copy or description
of: (a) the most recent annual report (Form 5500) filed with the IRS, if any,
(b) such Benefit Plan, (c) any summary plan description relating to such Benefit
Plan, (d) each trust agreement and group annuity contract, if any, relating to
such Benefit Plan, and (e) the most recent actuarial report or valuation
relating to each Benefit Plan subject to Title IV of ERISA (if any).
With respect to the Benefit Plans, individually and in the aggregate,
no event has occurred and, to the Knowledge of Endeavor or the Seller, there
currently exists no condition or set of circumstances in connection with which
either Seller could be subject to any liability under ERISA, the Code, or any
other applicable statute, order or governmental rule or regulation.
(a) Except as noted in the Disclosure Letter, neither Seller
sponsors or maintains any Benefit Plan or related trust that is intended to be
qualified, respectively, under Section 401(a) and Section 501(a) of the Code.
(b) With respect to the Benefit Plans, individually and in the
aggregate, all required reports and descriptions have been appropriately filed
and distributed.
(c) With respect to the Benefit Plans, individually and in the
aggregate, there has been no prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code and there has been no action,
suit, grievance, arbitration or other claim with respect to the administration
or investment of assets of the Benefit Plans (other than routine claims for
benefits made in the ordinary course of plan administration pending or, to the
Knowledge of Endeavor and the Seller, threatened, and none of Endeavor or the
Sellers has any Knowledge of any facts which are reasonably likely to give rise
to any such action, suit grievance, arbitration or other claim), except in any
case for those which would not have a Material Adverse Effect.
(d) Neither Seller has ever sponsored or maintained any Benefit
Plan subject to the provisions of Title IV of ERISA or been subject to any
potential liability under such Title as a result of the sponsorship of any such
plan by an "affiliate" as defined in Section 407(d)(7) of ERISA, and neither
Seller has ever been obligated to make any contributions to any "multiemployer
plan" as defined in Section 3(37) of ERISA.
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3.15 TAXES.
(a) Except as set forth in the Disclosure Letter, with respect
to the Assets, each of the Sellers has duly and timely filed all tax returns
required to be filed by it, and all taxes shown to be due on such tax returns
have been paid in full by it. There are no liens for taxes (other than for taxes
not yet assessed or due and payable) on any of the Assets and there are no
rulings or other agreements executed with any tax authority relating to the
Assets that will be binding upon the Purchaser after the Execution. The Sellers
have previously delivered or made available to Purchaser complete and correct
copies of their federal income tax returns for each of the years 1995, 1996 and
1997. For the purpose of this Agreement, the term "tax" (including, with
correlative meaning, the terms "taxes" and "taxable") shall include all federal,
state, local and foreign income, profits, franchise, gross receipts, payroll,
sales, employment, use, property, withholding, excise and other taxes, duties or
assessments of any nature whatsoever, together with all interest, penalties and
additions imposed with respect to such amounts.
(b) All tax returns filed by the Sellers are complete and
accurate in all material respects. Except as set forth in the Disclosure Letter,
none of the Sellers currently is the beneficiary of any extension of time with
which to file any tax return.
(c) To the Knowledge of Endeavor and the Sellers, no claim has
ever been made by an authority in a jurisdiction where either of the Sellers
does not file tax returns that either of the Sellers is or may be subject to
taxation by that jurisdiction.
(d) Each of the Sellers has withheld and paid all taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor, creditor, shareholder or other third
party who has performed services in connection with the Business.
(e) Neither of the Sellers has waived any statute of
limitations in respect of taxes or agreed to any extension of time with respect
to a tax assessment or deficiency.
(f) Except as set forth in the Disclosure Letter, there is no
notice of deficiency, assessment, audit, examination, claim or other dispute
concerning any tax liability of the Sellers either (i) raised by any
governmental entity in writing or (ii) as to which Endeavor or any Seller has
any Knowledge based upon any contact with any agent of any governmental entity.
3.16 LABOR RELATIONS. Except as set forth in the Disclosure Letter:
(a) Each Seller has paid or made provision for payment of all
salaries, wages, and vacation pay accrued through the date of this Agreement, is
in compliance in all material respects with all federal and state laws
respecting employment and employment practices, terms and conditions of
employment, wages and hours and non-discrimination in employment, and is not
engaged in any unfair employment practice;
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(b) There is no charge pending or, to the Knowledge of the
Sellers, threatened before any court or agency alleging unlawful discrimination
in employment practices or any unfair labor practice by either Seller nor, to
the Knowledge of the Sellers, is there a basis for any such claim;
(c) There is no labor strike, dispute, slowdown or stoppage
actually pending or, to the Knowledge of Endeavor or the Sellers, threatened
against or involving either Seller;
(d) There are no collective bargaining agreements binding on
either Seller;
(e) No collective bargaining agreement has been requested by
any employee representative or labor organization or is currently being
negotiated by either Seller; and
(f) Neither Seller has experienced work stoppage or any other
material labor difficulty during the three years immediately preceding the date
of this Agreement.
3.17 INSURANCE. The Disclosure Letter sets forth a true and
complete list, showing company, type and amount of coverage, of all insurance
policies for the benefit of the Sellers, their employees or third parties which
are carried by or cover the Sellers. Each such policy is in full force and
effect and shall continue to provide coverage to the Business and the Assets
through the Execution Date. Neither Seller is in material default with respect
to any provision of any of its insurance policies or has failed to give any
notice or present any claim thereunder in due or timely fashion or as required
by any of such insurance policies which would result in failure to recover under
such policies. Each Seller has materially complied with the insurance
requirements of all leases to which it is a party. None of Endeavor or the
Sellers has received any actual notice of cancellation or indication of
intention not to renew any insurance policy.
3.18 CERTAIN CONTRACTS. Except as listed in the Disclosure Letter,
(a) Neither Seller has any employment agreement or any
incentive compensation, profit sharing, stock option, stock appreciation rights,
stock purchase, savings, consultant, deferred compensation, retirement, pension
or other plans or other benefit arrangements or practices with or for the
benefit of any officer, employee or any other person who performs services in
connection with the Business, or any consulting agreement or arrangement with
any officer, employee, former officer or former employee who performs services
in connection with the Business;
(b) No officer or director of either Seller has any agreement
(oral or written), other than any agreement with such officer or director
described in Section 3.18(a) above, or listed on Schedule 3.2, with either
Seller or any interest in any of the real, personal or QDS Intellectual Property
or Telemedics Intellectual Property used in or pertaining to the Business, other
than the normal interest of a shareholder; and
(c) All contracts of the Sellers are listed or described in
Schedule 1.2.1(f) and Schedule 1.2.2(f) hereof, and neither of the Sellers is a
party to or bound by any other contract, purchase order or sales order pursuant
to which any party thereto is obligated to make payments (not yet made)
aggregating more than $10,000 in any 12 month period.
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(d) All mortgages and liens and all material leases,
agreements, licenses or instruments, to which either Seller is a party, or by
which any of its assets or properties are bound or affected, are in full force
and effect and binding obligations of the parties thereto, and no event or
condition has occurred or exists, or to the Knowledge of Endeavor and the
Sellers, is alleged by any of the other parties thereto to have occurred or
existed, which constitutes, or with the lapse of time or giving of notice or
both might constitute, a material default or a basis for acceleration of any
obligation, or other claim of non-performance thereunder or in respect thereof
on the part of either Seller.
(e) Neither Seller is a party to any agreement and has a
policy, program or arrangement (whether or not in writing), providing for
severance or termination payments, or payments by such Seller in connection with
any change in control of such Seller.
3.19 NAMES AND ADDRESSES; COMPENSATION. Set forth in the Disclosure
Letter is a complete and accurate list of the names and annual compensation of
all employees of either Seller, which are not excluded pursuant to Section 5.2
hereof and who are paid $30,000 or more in base salary per annum and other cash
compensation (the "Key Employees"). Also set forth in the Disclosure Letter is a
list of names of employees of QDS (other than employees set forth on Schedule
5.2) and all QDS independent contractor sales representatives. The location of
employment records, if any, pertaining to the Key Employees is set forth in the
Disclosure Letter. The Disclosure Letter also contains a list of all written
agreements and summaries of all existing oral agreements with any consultants
and agents of the Seller.
3.20 POWERS OF ATTORNEY; BANK ACCOUNTS. The Disclosure Letter
contains or will contain a complete and accurate list setting forth for the
Sellers (a) the names and addresses of all persons holding a power of attorney
on behalf of either Seller; and (b) the names and addresses of all banks or
other financial institutions in which either Seller has an account, deposit, or
safe deposit box, with pertinent identification numbers therefor and the names
of all persons authorized to draw on these accounts or deposits or to have
access to these boxes.
3.21 CASH EQUAL TO CURRENT LIABILITIES. Sellers' cash, cash
equivalents, deposits and investments on June 30, 1998, plus any cash
contributed by Endeavor to Sellers during the Interim Period, in the aggregate,
is not less than the aggregate amount of Current Liabilities as set forth on the
June 30, 1998 Balance Sheets.
3.22 OPERATION OF THE BUSINESS. During the Interim Period,
Endeavor, as with respect to only the Business, and the Sellers have operated
the Business in the usual, regular and ordinary course in accordance with past
practices and operations, have preserved intact the present organization of the
Business, and have used all commercially reasonable efforts to keep available
the services of the present officers and employees of the Business and to
preserve the Business' goodwill and the Business' relationships with its,
customers, suppliers and others having business dealings with it.
3.23 FULL DISCLOSURE. No statement contained in (a) this Agreement,
(b) the Disclosure Letter, (c) any agreement to be delivered to Purchaser
pursuant to Article 2 hereof, or (d) any document, certificate or other writing
delivered to Purchaser pursuant to the provisions of
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this Agreement, taken as a whole, upon execution contains or will contain any
untrue statement of a material fact or omits to state any material fact
necessary, in the light of the circumstances under which it was made, to make
the statements therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants, as of the Execution Date, to Endeavor, QDS and
Telemedics as follows:
4.1 ORGANIZATION AND QUALIFICATION. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
4.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Purchaser has the requisite
corporate power and authority to enter into this Agreement and to carry out its
respective obligations hereunder. The execution and delivery of this Agreement
by Purchaser and the consummation by Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of
Purchaser, and no other corporate proceedings on the part of Purchaser are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Purchaser and constitutes
the legal, valid and binding obligation of Purchaser enforceable in accordance
with its terms. Subject to the approval of Bank of America, as further described
in Section 7.10 hereof, and which approval shall be obtained by Purchaser by the
Execution, Purchaser is not subject to or obligated under any provision of (a)
its Certificate of Incorporation or Bylaws, (b) any contract to which it is a
party or by which it is bound, (c) any license, franchise or permit, or (d) any
law, regulation, order, judgment or decree, which would be breached, violated or
defaulted (with or without due notice or lapse of time or both) or in respect of
which a right of termination or acceleration or any encumbrance on any of its
assets would be created by its execution and performance of this Agreement,
except (as to (b), (c) or (d) above) where such breach, violation or right which
would not individually, or in the aggregate, prevent or materially delay
Purchaser from performing its obligations under this Agreement.
4.3 QDS ACCOUNTS RECEIVABLE. Purchaser hereby represents and warrants
that it will collect the accounts receivable of QDS being sold to Purchaser by
QDS pursuant to the terms of this Agreement in accordance with the Purchaser's
existing business practices relating to the collection of accounts receivables.
5. ADDITIONAL AGREEMENTS.
5.1 EXPENSES. All fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees or expenses; provided, however, Endeavor shall be solely
responsible for and shall pay all fees incurred by the Sellers prior to and on
the Execution Date.
5.2 EMPLOYEES AND EMPLOYEE BENEFITS. Prior to or at the Execution,
Purchaser may offer employment to some or all employees of the Sellers, in the
Purchaser's sole discretion (other than the employees listed on Schedule 5.2
attached hereto which contains a list of all employees of the Sellers whom
Endeavor shall not be precluded from employing) upon such terms and conditions
as shall be determined by Purchaser in its sole discretion. The Sellers will
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retain all of the employee benefit plans and pension plans currently maintained
by such Sellers as of the date of this Agreement, and Purchaser will not assume
any obligations under any such plans. The Sellers will indemnify , defend and
hold harmless Purchaser (and its directors, officers, employees and affiliates)
with respect to such employee benefit plans and pension plans for and against
any and all claims, actions, judgments or causes of action based upon or arising
out of or otherwise in respect of any such plan. All employees of the Sellers
hired by Purchaser shall be given full credit for all time worked for the
Sellers for purposes of determining their participation and vesting under the
employee benefit plans and programs of Purchaser applicable to such employees.
Unless prohibited by law, the Sellers shall provide to Purchaser all personnel
records for the employees of the Sellers hired by Purchaser, including, without
limitation, names, social security numbers, dates of hire, dates of birth,
number of hours worked each year, and salary history. Endeavor hereby agrees not
to employ, directly or indirectly, for a period of 12 months after the Execution
Date, any Key Employee to whom Purchaser has offered employment prior to or on
the Execution Date and who decides not to accept employment with Purchaser;
provided, however that Purchaser and Endeavor hereby agree that Alva Teets may
be employed by Endeavor, Purchaser or any third party after a period of six
months from the Execution Date.
5.3 FURTHER ASSURANCES. Upon the reasonable request of any party to
this Agreement, each party agrees to take any and all actions, including,
without limitation, the execution of certificates, documents, or instruments
necessary or appropriate to give effect to the terms and conditions set forth in
this Agreement.
5.4 BULK SALES LAW. As an inducement to Purchaser to waive compliance
with the provisions of any applicable bulk sales or transfer laws, each Seller
hereby agrees that all of its debts, obligations and liabilities which are not
expressly assumed by Purchaser under this Agreement will be paid and discharged
by such Seller as and when they become due and payable in the ordinary course of
the Business. Endeavor and the Sellers, jointly and severally, further agree to
indemnify and hold Purchaser harmless from any and all liabilities incurred by
Purchaser by reason of or arising out of claims made by creditors with respect
to any non-compliance with any applicable bulk sales or transfer laws (except to
the extent such claims constitute Assumed Liabilities).
5.5 CORPORATE NAME CHANGES. On the Execution Date, immediately after
the Execution hereof, QDS shall change its corporate name, at Endeavor's
expense, to another name which is not confusingly similar to "Quality Diagnostic
Services, Inc.," "QDS" or any similar name; provided, however, that Purchaser
agrees that QDS may operate under the trade names "Quality Diagnostic Services,
Inc." and "QDS" from the date of such name change through and until the
Execution Date. Endeavor and each Seller further agrees that after the Execution
Date it shall no longer use any of such names without the prior written consent
of Purchaser in each instance.
5.6 BONUS PLAN FOR FORMER ENDEAVOR AND/OR QDS EMPLOYEES. Purchaser
shall establish a phantom stock or incentive bonus plan (the "Bonus Plan") for
its employees and representatives after the Execution, based, in whole or in
part, on any increases in the value of the Endeavor common stock underlying the
Incentive Warrant and the terms and provisions of the Bonus Plan shall be
determined by the Purchaser, in its sole discretion; provided, however, that
Purchaser shall comply with the terms of the Incentive Warrant and all
applicable securities
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<PAGE> 22
laws with respect to any restriction on the transfer of the Incentive Warrant,
shares of Endeavor common stock underlying the Incentive Warrant or any interest
therein.
5.7 OPERATIONS OF QDS AND TELEMEDICS. After the Execution, QDS and
Telemedics agree to discontinue any or all businesses or operations, except for
the performance of any obligations QDS and/or Telemedics may have to Purchaser
pursuant to and in accordance with the terms of this Agreement or the Management
Agreement, including obligations with respect to Excluded Liabilities.
5.8 HART-SCOTT-RODINO. For purposes of determining whether the
transactions contemplated by this Agreement are subject to the reporting and
waiting period requirements under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the "HSR Act"), Endeavor and each Seller, jointly and severally,
represent and warrant that, as calculated in accordance with Rule ss. 801.11
under the HSR Act, 16 C.F.R. ss. 801.11, the total assets of the "ultimate
parent entity" of Endeavor and each Seller (as such term is defined in the HSR
Act) are less than $10,000,000.
5.9 STOCK PURCHASE AGREEMENT. Endeavor and Purchaser hereby agree that
Purchaser shall invest in Endeavor, on the same financial terms as any
investment in Endeavor by HBO & Company ("HBOC"), $2,000,000, provided, however,
that if HBOC invests less than $10,000,000, Purchaser may elect to reduce its
investment to 20% of the amount actually invested by HBOC, and further provided
that Purchaser shall not be obligated to make such investment if the per share
price at which HBOC invests, multiplied by the number of outstanding shares of
Endeavor common stock, on a fully-diluted basis, immediately prior to such
investment is more than $250,000,000. Endeavor shall promptly notify Purchaser
of any such investment by HBOC, and the terms thereof, and the closing of
Purchaser's investment shall occur within 5 business days of such notice from
Endeavor to Purchaser. Endeavor shall use commercially reasonable efforts to
obtain the consent of Sirrom Capital Corporation and any other consents required
for such investment by Purchaser.
5.10 NOTICE OF EMPLOYEE'S TERMINATION. After the transition of the
payroll from Endeavor and Sellers to Purchaser, if Endeavor so requests in
writing and identifies therein the employees of the Sellers hired by Purchaser
pursuant to this Agreement which have balances in their 401(k) accounts
maintained by Sellers or Endeavor as of the Execution Date, Purchaser shall
inform Endeavor of any termination of any such employee's employment with
Purchaser within a reasonable period of time after such termination.
5.11 CARD GUARD AGREEMENT. Endeavor, QDS and Telemedics hereby agree
not to terminate, cancel, modify, alter or revise the Card Guard Agreement for a
period of 30 days following the Execution Date. The parties hereby acknowledge
that Purchaser shall be entering into separate negotiations with Card Guard with
respect to the Endeavor 2000 Software and cardiac event monitors and Endeavor,
QDS and Telemedics agree that they shall not directly or indirectly take any
action which would interfere with the course of such negotiations for such 30
day period.
5.12 FURTHER ACTION. Upon the terms and subject to the conditions of
this Agreement, each of Endeavor and the Sellers shall use all commercially
reasonable efforts to take or cause to
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<PAGE> 23
be taken all actions and to do or cause to be done all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement.
6. INDEMNIFICATION.
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Articles 3 and 4 of this Agreement shall survive the
Execution for a period of 18 months; provided, however, that the representations
and warranties contained in Sections 3.2, 3.12, 3.15 and 5.8 hereto shall
survive the Execution until the expiration of the applicable statute of
limitations therefor.
6.2 INDEMNIFICATION BY ENDEAVOR AND THE SELLERS. Subject to the
provisions of this Article 6, Endeavor and the Sellers, jointly and severally,
agree to indemnify and hold harmless Purchaser and its shareholders, officers,
directors, affiliates, agents and employees from and against any and all
damages, losses and expenses sustained or incurred by any such party (whether as
a result of third party claims, demands, suits, causes of action, proceedings,
investigations, judgments, liabilities, or other otherwise) including, without
limitation, costs of investigation and defense, court costs and reasonable
attorneys fees (all of the foregoing being hereinafter referred to collectively
as "Losses"), with respect to or arising out of (a) any breach of any
representation or warranty of Endeavor or either Seller contained herein or in
any other agreement or instrument executed by Endeavor or either Seller in
connection herewith; (b) any breach of any covenant or agreement of Endeavor or
either Seller contained herein or in any other agreement or instrument executed
by Endeavor or either Seller in connection herewith; or (c) any Excluded
Liabilities (including, without limitation, any liabilities that becomes a
liability of Purchaser under any applicable bulk sales or transfer law, any
doctrine of de facto merger or successor liability, or otherwise by operation of
law).
6.3 INDEMNIFICATION BY PURCHASER. Purchaser hereby agrees to indemnify,
defend and hold harmless each of Endeavor, QDS and Telemedics and their
respective shareholders, officers, directors, affiliates, agents and employees
from and against any and all Losses incurred or sustained by any of them with
respect to or arising out of (a) any breach of any representation, warranty,
covenant or agreement of Purchaser contained herein or in any other agreement or
instrument executed by Purchaser in connection herewith and (b) any Assumed
Liability. Notwithstanding anything in this Article 6 to the contrary, Purchaser
shall pay 50% of any severance pay or similar obligations set forth in ss. 6(a)
of the Sales Representative - Principal Agreement, incurred with respect to the
termination of any QDS independent sales representative, hired by Purchaser, in
connection with the transactions contemplated by this Agreement, provided,
however, that Purchaser's aggregate liability pursuant to this last sentence of
Section 6.3 shall in no event exceed $75,000.00.
6.4 LIMITATION ON LIABILITY.
(a) Notwithstanding anything else contained herein to the contrary,
but subject to Section 6.4(c) hereof, no party hereto shall be entitled to
indemnification under the provisions of this Section 6:
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<PAGE> 24
(i) unless such party shall have given written notice
to the appropriate indemnifying party setting forth its claim for
indemnification in reasonable detail within the time limit therefor set
forth in Section 6.1 hereof; and
(ii) unless and until the aggregate amount of all
Losses for which such party is entitled to indemnification under this
Article 6 exceeds $100,000, in which event only the Losses in excess of
such amount shall be recoverable (the "Indemnity Threshold"), provided,
however, that Purchaser's aggregate liability pursuant to the last
sentence of Section 6.3 above shall not be subject to the Indemnity
Threshold and shall not be deemed to be a Loss for the purposes of
calculating the Indemnity Threshold.
(b) Notwithstanding anything contained herein to the
contrary, the maximum aggregate liability of the Sellers and Endeavor pursuant
to this Article 6 shall be an amount equal to $1,500,000, plus the first
$1,500,000 of any Additional Purchase Price Payment required to be paid by
Purchaser pursuant to Section 1.8 hereof (the "Indemnity Cap"), and Purchaser
shall have the right, as its sole and exclusive remedy, to set-off against the
first $1,500,000 of any Additional Purchase Price Payment the amount of any
Losses for which it is entitled to indemnification pursuant to this Article 6.
(c) Notwithstanding anything contained herein to the
contrary, the following items shall not be subject to the Indemnity Threshold or
the Indemnity Cap, and Endeavor and the Sellers, jointly and severally, agree to
indemnify and hold harmless Purchaser and its shareholders, officers, directors,
affiliates, agents and employees from and against any and all damages, losses
and expenses sustained or incurred by any such party (whether as a result of
third party claims, demands, suits, causes of action, proceedings,
investigations, judgments, liabilities, or other otherwise) including, without
limitation, costs of investigation and defense, court costs and reasonable
attorneys fees, with respect to or arising out of (i) the lawsuit entitled QDS
v. Harry A. Kopelman, MD, et al., file number E-61332 in the Superior Court of
Fulton County, State of Georgia; (ii) any breach of the representation and
warranty of Endeavor or the Sellers set forth in Sections 3.21 and 5.8 hereof;
(iii) any breach of the representation and warranty of Jeffrey T. Arnold in the
Arnold Side Letter, and (iv) any Purchaser's Adjustments, as provided for in
Section 1.9 hereof (the foregoing being hereinafter referred to collectively as
the "Fully Indemnified Losses").
6.5 ADMINISTRATION OF THIRD PARTY CLAIMS.
(a) Whenever any claim shall arise for indemnification under
this Article 6, the party entitled to indemnification (the "Indemnified Party")
shall promptly notify the other party or parties obligated to provide
indemnification under this Agreement (each an "Indemnifying Party") of the claim
and, when known, the facts constituting the basis for such claim. In the event
of any claim for indemnification hereunder resulting from or in connection with
any claim or legal proceeding by a person who is not a party to this Agreement
(a "Third Party Claim"), such notice shall also specify, if known, the amount or
a good faith estimate of the amount of the Losses arising therefrom.
(b) The Indemnified Party shall not settle or compromise or
voluntarily enter into any binding agreement to settle or compromise, or consent
to entry of any judgment arising
-24-
<PAGE> 25
from, any such claim or proceeding except in accordance with this Section 6.5.
With respect to any Third Party Claim, the Indemnifying Party shall undertake
the defense thereof by representatives of its own choosing reasonably
satisfactory to the Indemnified Party. The Indemnified Party or any other Party
shall have the right to participate in any such defense of a Third Party Claim
with advisory counsel of its own choosing at its own expense. Assuming they have
received reasonably adequate advance notice of a covered claim, in the event the
Indemnifying Party, after two-thirds of the period for the presentation of a
defense against any such Third Party Claim, fails to begin to diligently defend
it (or at any time thereafter ceases to diligently defend it), the Indemnified
Party will have the right to undertake the defense, compromise or settlement of
such Third Party Claim on behalf of, and for the account of, the Indemnifying
Party, at the expense and risk of the Indemnifying Party.
7. GENERAL PROVISIONS.
7.1 BROKERS. Each of Endeavor and the Sellers represents and warrants
to Purchaser, and Purchaser represents and warrants to Endeavor and the Sellers
that no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement.
7.2 NOTICES.
(a) All notices, consents, requests and other communications
hereunder shall be in writing and shall be sent by hand delivery, by certified
or registered mail (return-receipt requested), or by a recognized national
overnight courier service as set forth below:
If to Purchaser: Matria Healthcare, Inc.
1850 Parkway Place
12th Floor
Marietta, Georgia 30067
Attention: General Counsel
with a copy to: James L. Smith, III, Esq.
(which shall not Troutman Sanders LLP
constitute notice) 600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308-2216
If to Endeavor Endeavor Technologies, Inc.
or either Seller: 400 The Lenox Building
3399 Peachtree Road, N.E.
Atlanta, Georgia 30326
Attention: Chief Executive Officer
with a copy to: Attention: Glenn W. Sturm, Esq.
(which shall not Nelson Mullins Riley & Scarborough, LLP
constitute notice) First Union Plaza
Suite 1400
-25-
<PAGE> 26
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
(b) Notices delivered pursuant to Section 7.2(a) shall be
deemed given: (i) at the time delivered, if personally delivered; (ii) at the
time received, if mailed; and (iii) two business day after timely delivery to
the courier, if by overnight courier service.
(c) Any party hereto may change the address to which notice is
to be sent by written notice to the other party in accordance with this Section
7.2.
7.3 ENTIRE AGREEMENT. This Agreement, including all Exhibits and
Schedules hereto, the Disclosure Letter (all of which are incorporated herein by
this reference), and the Arnold Side Letter, contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto.
7.4 WAIVER; AMENDMENT. No waiver, termination or discharge of this
Agreement, or any of the terms or provisions hereof, shall be binding upon any
party hereto unless confirmed in writing. No waiver by any party hereto of any
term or provision of this Agreement or of any default hereunder shall affect
such party's rights thereafter to enforce such term or provision or to exercise
any right or remedy in the event of any other default, whether or not similar.
This Agreement may not be modified or amended except by a writing executed by
all parties hereto.
7.5 SEVERABILITY. If any provision of this Agreement shall be held
void, voidable, invalid or inoperative, no other provision of this Agreement
shall be affected as a result thereof, and, accordingly, the remaining
provisions of this Agreement shall remain in full force and effect as though
such void, voidable, invalid or inoperative provision had not been contained
herein.
7.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, without regard to
the principles of conflicts of law.
7.7 ASSIGNMENT. No party hereto may assign this Agreement, in
whole or in part, without the prior written consent of the other parties hereto,
and any attempted assignment not in accordance herewith shall be null and void
and of no force or effect. Provided, however, that Purchaser may assign this
Agreement, in whole or in part, to a subsidiary of Purchaser, without the
consent of the other parties hereto, in which case Purchaser shall nonetheless
remain liable for the performance of all of its obligations hereunder.
7.8 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
7.9 CUMULATIVE REMEDIES. All rights and remedies of each party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
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<PAGE> 27
7.10 HEADINGS. The titles, captions and headings contained in this
Agreement are inserted for convenience of reference only and are not intended to
be a part of or to affect in any way the meaning or interpretation of this
Agreement.
7.11 REFERENCE WITH AGREEMENT. Numbered or lettered articles, sections,
paragraphs, subsections, Schedules and Exhibits herein contained refer to
articles, sections, paragraphs, subsections, Schedules and Exhibits of this
Agreement unless otherwise expressly stated. The words "herein," "hereof,"
"hereunder," "hereby," "this Agreement" and other similar references shall be
construed to mean and include this Agreement and all Exhibits and Schedules and
all amendments to any of them unless the context shall clearly indicate or
require otherwise.
7.12 INTERPRETATION. This Agreement shall not be construed more
strictly against any party hereto regardless of which party is responsible for
its preparation, it being agreed that this Agreement was fully negotiated by all
parties hereto.
7.13 DEFINITION OF KNOWLEDGE. Any reference in this Agreement or in any
certificate delivered pursuant hereto to a party's "Knowledge" (whether to "the
best of" such party's knowledge or other similar expressions relating to the
knowledge or awareness of any party) shall include all matters which any of such
party's officers or directors actually knew or should have known acting in their
capacity as an officer or director of such party.
7.14 NO THIRD PARTY BENEFICIARIES. There are no third party
beneficiaries of this Agreement and nothing else in this Agreement, express or
implied, is intended to or shall confer upon any person other than the parties
hereto and their respective successors and permitted assigns, any rights,
remedies, obligations or liabilities.
7.15 COUNTERPARTS; FAX SIGNATURES. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute the same Agreement. Any signature page of
any such counterpart, or any electronic facsimile thereof, may be attached or
appended to any other counterpart to complete a fully executed counterpart of
this Agreement, and any telecopy or other facsimile transmission of any
signature shall be deemed an original and shall bind such party.
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<PAGE> 28
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement under seal as of the
Execution Date, to be effective as of the Effective Date.
MATRIA HEALTHCARE, INC.
By: /s/ Frank D. Powers
----------------------------------------
Title: Executive Vice President & COO
-------------------------------------
[CORPORATE SEAL]
ENDEAVOR TECHNOLOGIES, INC.
By: /s/ W. Michael Harkin
----------------------------------------
Title: COO
-------------------------------------
[CORPORATE SEAL]
QUALITY DIAGNOSTIC SERVICES, INC.
By: /s/ Blake Whitney
----------------------------------------
Title: President
-------------------------------------
[CORPORATE SEAL]
TELEMEDICS, INC.
By: Jeffrey T. Arnold
----------------------------------------
Title: CEO
-------------------------------------
[CORPORATE SEAL]
-28-
<PAGE> 29
MATRIA HEALTHCARE, INC.
ACQUISITION OF ENDEAVOR TECHNOLOGIES, INC.
Asset Purchase Agreement.
Schedule 1.1 Permitted Liens
Schedule 1.2.a(f) QDS Contracts
Schedule 1.2.2(f) Telemedics Contracts
Schedule 1.3A QDS Excluded Assets
Schedule 1.3B Telemedics Excluded Assets
Schedule 3.2 Consents
Schedule 5.2 Employees to Stay at Endeavor
Exhibit A Bill of Sale and Assignment
Exhibit B Noncompetition Agreement (with Endeavor)
Exhibit C Management Services Agreement
Exhibit A - Management Responsibilities
Exhibit B - Transition Employees
Exhibit C - Consulting Employees
Exhibit D Licensed Premises Agreement
Exhibit E (Intentionally Omitted)
Exhibit F Strategic Alliance Agreement
Exhibit G-1 Noncompetition Agreement with Jeffrey T. Arnold
Exhibit G-2 Noncompetition Agreement with Rick Anderson
Exhibit G-3 Noncompetition Agreement with Mark Bogart
Exhibit G-4 Noncompetition Agreement with Jeff M. Brown
EXHIBIT G-5 Noncompetition Agreement with Stuart Gurr
Exhibit G-6 Noncompetition Agreement with Blake Whitney
Exhibit H Stock Purchase Warrant
Exhibit I Assumption Agreement
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
6 MONTH REPORT ON FORM 10-Q FOR THE SIX MONTH PERIOD ENDED JUNE 30, 1998
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<EXCHANGE-RATE> 1
<CASH> 11,110
<SECURITIES> 0
<RECEIVABLES> 57,919
<ALLOWANCES> (22,255)
<INVENTORY> 1,285
<CURRENT-ASSETS> 58,553
<PP&E> 36,860
<DEPRECIATION> (25,709)
<TOTAL-ASSETS> 168,866
<CURRENT-LIABILITIES> 14,701
<BONDS> 0
0
0
<COMMON> 365
<OTHER-SE> 140,356
<TOTAL-LIABILITY-AND-EQUITY> 168,866
<SALES> 0
<TOTAL-REVENUES> 66,291
<CGS> 0
<TOTAL-COSTS> 26,124
<OTHER-EXPENSES> 48,114
<LOSS-PROVISION> 3,204
<INTEREST-EXPENSE> 6
<INCOME-PRETAX> (10,943)
<INCOME-TAX> 0
<INCOME-CONTINUING> (10,943)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (10,943)
<EPS-PRIMARY> (.30)
<EPS-DILUTED> (.30)
</TABLE>
