**Exhibit10.12.1**

 

**ADDENDUM**

**TO**

**STRATEGICMARKETING ALLIANCE AGREEMENT**

 

THIS ADDENDUM TO STRATEGIC MARKETING ALLIANCEAGREEMENT (the “Addendum”) is entered into this 27th day ofDecember, 2004, by and among Roche Diagnostics Corporation, an Indianacorporation, whose primary place of business is located at 9115 Hague Road,Indianapolis, Indiana, 46250 (“RDC”), Bio-Reference Laboratories, Inc.,a New Jersey corporation, whose primary place of business is located at 481BEdward Ross Drive, Elmwood Park, New Jersey, 07407 (“BRLI”) andCareEvolve.com, Inc., a New Jersey corporation, whose primary place of businessis located at 481B Edward Ross Drive, Elmwood Park, New Jersey, 07407 (“CareEvolve”).  (RDC, BRLI and CareEvolve are sometimesreferred to herein collectively as the “Parties” and each individuallyas a “Party.”)

 

**PRELIMINARYSTATEMENTS**

 

A.            CareEvolve,RDC and BRLI entered into that certain Strategic Marketing Alliance Agreementdated as of December 31, 2001 (the “Original Agreement”), a copy ofwhich is attached hereto as Exhibit A and made a part hereof; and

 

B.            Pursuantto the Original Agreement, the Parties created and participated in a strategicmarketing alliance (the “Alliance”).

 

C.            TheParties now wish to modify the structure of the Alliance to, among otherthings, reallocate responsibility for the provision of management services toCareEvolve and alter the cost and expense structure between RDC and BRLI.

 

D.            Tothose ends, the Parties wish to affirm portions of the Original Agreement,amend other portions of the Original Agreement and supplement the OriginalAgreement through this Addendum.

 

**TERMS**

 

NOW, THEREFORE, in consideration of themutual covenants herein contained and other good and valuable consideration,the sufficiency of which is hereby acknowledged, the Parties, intending to belegally bound, hereby agree as follows:

 

1.             Integrationwith Original Agreement.  RDC andBRLI hereby ratify, affirm and approve all terms and conditions of the OriginalAgreement, unless the same are specifically amended, deleted, or supplementedby this Addendum.  In the event of anyconflict between the terms of the Original Agreement and the terms of thisAddendum, the terms of this Addendum shall take precedence over the OriginalAgreement, and this Addendum shall govern and control.  All references herein to the “Agreement”shall mean the Original Agreement and this Addendum together.  All capitalized terms not otherwise definedherein shall have the meanings assigned to them in the Original Agreement.

 

2.             Acknowledgementof Continued Operation.  The Partieshereby stipulate, acknowledge, understand and agree that CareEvolve hasoperated in accordance with the direction and approval of the SteeringCommittee and that the Alliance has developed into a business operation thatRDC and BRLI wish to continue developing and building as a joint effort.  The parties further agree that:

 

(a) Allobligations of RDC with respect to periods after August 31, 2003 imposedby Section 2 of the original Agreement are hereby cancelled as of August 31,2003.

 

(b) Allobligations of BRLI and CareEvolve with respect to periods after August 31,2003 imposed by Section 3 and 4 of the Original Agreement are herebycancelled as of August 31, 2003.

 

(c) Allobligations of RDC, BRLI and CareEvolve with respect to periods after August 31,2003 imposed by Section 5 of the Original Agreement are hereby cancelledas of August 31, 2003.

 

(d) All rightsof RDC to a return of its invested capital, to a “revenue stream” and to alicense as set forth in Section 8(b) of the Original Agreement are herebycancelled nunc pro tunc as of October 31, 2004.

 

(e) All rightsof RDC to purchase equity interests in BRLI or CareEvolve as set forth in Section 15(a)of the Original Agreement are hereby cancelled nunc pro tunc as of October 31,2004.

 

1

----

 

(f) Each partyhereto hereby releases each and every other party hereto from any and allliability for failure to perform any duty, effect any payment or fully meet anyobligation set forth in any of the above provisions of the Original Agreementdescribed in this Section 2 whether prior to or subsequent to August 31,2003. The parties hereto agree that for all periods subsequent to August 31,2003, the provisions of Section 5, 6, 7, 8 and 9 of this Addendum shall bebinding on each of them.

 

Representationsand Warranties of RDC. RDC hereby represents and warrants to BRLI as follows:

 

Authority;Binding Agreement; Non-contravention.  RDC has full power and authority to executeand deliver this Addendum and the other documents relating to the Alliance (the“Alliance Documents”) and to perform its obligations hereunder andthereunder.  This Addendum and the otherAlliance Documents, when executed, will constitute the valid and bindingobligation of RDC, enforceable in accordance with their respective terms.  Neither the execution and delivery of thisAddendum and the other Alliance Documents, nor the consummation of the actionsand transactions contemplated herein and therein will, with or without thepassage of time or the delivery of notice, (i) conflict with, result in abreach or constitute a default under any note, bond, mortgage, indenture,license, franchise, permit, agreement, lease or other instrument or obligationto which RDC is a party or bound, (ii) violate any statute, ordinance or law orany rule, regulation, order, writ, injunction or decree of any court,administrative agency, commission or other governmental entity orinstrumentality, or (iii) violate any provision of the Articles ofIncorporation, bylaws or other constituent documents of RDC.

 

Organization.  RDC is a corporation duly organized andvalidly existing under the laws of the State of Indiana.

 

Consents.  No notice to, filing with or authorization,consent or approval of any governmental entity or third party is necessary forthe consummation by RDC of the actions and transactions contemplated by thisAddendum and the other Alliance Documents.

 

Authorization.  All corporate action on the part of RDC andits directors and its shareholders necessary for the authorization, execution,delivery and performance by RDC of each Alliance Document and the consummationof the actions and transactions contemplated therein has been taken.

 

Litigation.  There is no action, suit, proceeding orinvestigation pending, or to RDC’s knowledge, currently threatened against RDCthat questions the validity of this Addendum or any other Alliance Document, orthe right of RDC to enter into such agreements, or to consummate the actionsand transactions contemplated hereby or thereby.

 

Representationsand Warranties of BRLI.  BRLI hereby represents and warrants to RDC asfollows:

 

Authority;Binding Agreement; Non-contravention.  BRLI has full power and authority to executeand deliver this Agreement and the other Alliance Documents and to perform itsobligations hereunder and thereunder. This agreement and the other Alliance Documents, when executed, willconstitute the valid and binding obligation of BRLI, enforceable in accordancewith their respective terms.  Neither theexecution and delivery of this Addendum and the other Alliance Documents, northe consummation of the actions and transactions contemplated herein andtherein will, with or without the passage of time or the delivery of notice,(i) conflict with, result in a breach or constitute a default under any note,bond, mortgage, indenture, license, franchise, permit, agreement, lease orother instrument or obligation to which BRLI is a party or bound, (ii) violateany statute, ordinance or law or any rule, regulation, order, writ, injunctionor decree of any court, administrative agency, commission or other governmentalentity or instrumentality, or (iii) violate any provision of the Articles ofIncorporation, bylaws or other constituent documents of BRLI.

 

Organization.  BRLI is a corporation duly organized, validlyexisting and in good standing under the laws of the State of New Jersey.

 

Consents.  No notice to, filing with or authorization,consent or approval of any governmental entity or third party is necessary forthe consummation by BRLI of the actions and transactions contemplated by thisAddendum and the other Alliance Documents.

 

Confirmationof CareEvolve Representations and Warranties.  All representations and warranties made byCareEvolve in this Addendum or any other Alliance Document are true, correctand complete, and no such

 

2

----

 

representation or warranty contains anyuntrue statement of a material fact, or omits a material fact necessary to makethe statements therein not misleading.

 

Authorization.  All corporate action on the part of BRLI andits directors and its shareholders necessary for the authorization, execution,delivery and performance by BRLI of each Alliance Document and the consummationof the actions and transactions contemplated therein has been taken.

 

Litigation.  There is no action, suit, proceeding orinvestigation pending, or to BRLI’s knowledge, currently threatened againstBRLI that questions the validity of this Addendum or any other AllianceDocument, or the right of BRLI to enter into such agreements, or to consummatethe actions and transactions contemplated hereby or thereby.

 

Representationsand Warranties of CareEvolve.  CareEvolve hereby represents and warrants toRDC as follows:

 

Authority;Binding Agreement; Non-contravention.  CareEvolve has full power and authority toexecute and deliver this Addendum and the other Alliance Documents and toperform its obligations hereunder and thereunder.  This Addendum and the other AllianceDocuments, when executed, will constitute the valid and binding obligation ofCareEvolve, enforceable in accordance with their respective terms.  Neither the execution and delivery of thisAddendum and the other Alliance Documents, nor the consummation of the actionsand transactions contemplated herein and therein will, with or without thepassage of time or the delivery of notice, (i) conflict with, result in abreach or constitute a default under any note, bond, mortgage, indenture,license, franchise, permit, agreement, lease or other instrument or obligationto which CareEvolve is a party or bound, (ii) violate any statute, ordinance orlaw or any rule, regulation, order, writ, injunction or decree of any court,administrative agency, commission or other governmental entity orinstrumentality, or (iii) violate any provision of the Articles ofIncorporation, bylaws or other constituent documents of CareEvolve.

 

Organization.  CareEvolve is a corporation duly organized,validly existing and in good standing under the laws of the State of NewJersey.

 

Consents.  No notice to, filing with or authorization,consent or approval of any governmental entity or third party is necessary forthe consummation by CareEvolve of the actions and transactions contemplated bythis Addendum and the other Alliance Documents.

 

Authorization.  All corporate action on the part ofCareEvolve and its directors and its shareholders necessary for theauthorization, execution, delivery and performance by CareEvolve of eachAlliance Document and the consummation of the actions and transactionscontemplated therein has been taken.

 

Ownership ofIntellectual Property. CareEvolve has a license with BRLI to re-license all inventions (whetherpatentable or unpatentable and whether or not reduced to practice),improvements, patents, trademarks (registered and unregistered), service marks,trade dress, trade names, mask works, domain names and URL’s, copyrights(registered and unregistered) and other intellectual property used or useful inconnection with the CareEvolve Service and the development, marketing and salethereof (collectively, the “CareEvolve IP”).  No person has challenged or, to CareEvolve’sknowledge, threatened to challenge the validity of or CareEvolve’s rights tothe CareEvolve IP.  No act or omission ofCareEvolve or BRLI, including, without limitation, the use, production,marketing, licensing or sale of the CareEvolve Service generally, or theCareEvolve IP specifically, violates, infringes or misappropriates, or hasviolated, infringed or misappropriated, any intellectual property rights of anyother person or entity.

 

Subsidiaries.  CareEvolve does not presently own or control,directly or indirectly, any interest in any other corporation, association orother business entity.  CareEvolve is nota participant in any joint venture, partnership or similar arrangement otherthan the Alliance.

 

Payment ofExpenses.

 

The Parties, and all of them, stipulate,understand and agree that all expenses and costs of operation of CareEvolvehave been fully funded through August 31, 2003 and that from and after September 1,2003, BRLI and CareEvolve shall be responsible for the payment of all expensesand costs of any kind whatsoever for the operation, administration, managementand maintenance of CareEvolve.  RDC haspreviously contributed sums in excess of the sums required to be paid under theterms of the Original Agreement.  Inconsideration for RDC waiving its right (if any) to reimbursement of

 

3

----

 

any previous contributions, BRLI andCareEvolve hereby agree that RDC shall have no further obligation to contributeto any of the ongoing costs and expenses of CareEvolve from and after September 1,2003.  Nothing in this section willprevent RDC from making contributions of either a financial or other kind tohelp out with the operations of CareEvolve, but such contributions will bestrictly voluntary in nature and of no material consequence to the furtherterms and conditions of this Agreement. This section represents a material change in the relationship ofthe parties.  BRLI shall be responsiblefor any deficit that shall occur in the financial operations of CareEvolve fromand after September 1, 2003.

 

SteeringCommittee Duties.

 

The parties agree that the Steering Committeeshall continue to exist for the purpose of providing joint planning, guidanceand support to CareEvolve.  However, theSteering Committee shall meet only at such times and such places as shall bemutually convenient to all parties rather than any formal schedule ofmeetings.

 

Right of FirstRefusal.

 

BRLI hereby grants RDC during the term ofthis Agreement a right of first refusal to purchase CareEvolve from BRLI at substantiallythe same price and upon substantially the same terms as any valid, reasonableoffer by a third party to purchase CareEvolve from BRLI which BRLI is willingto accept.  BRLI shall promptly provideto RDC written notice of any offer received from a third party to purchaseCareEvolve from BRLI that BRLI is willing to accept, which notice shall includea detailed, complete description of the terms of the offer provided by suchthird party.  RDC shall have thirty daysfrom the date of notice to exercise such right of first refusal by providingwritten notice to BRLI of RDC’s intent to exercise its right of first refusal.

 

ExclusiveArrangement with IVD Companies.

 

BRLI and CareEvolve agree that during theterm of this Agreement the CareEvolve IP will not be licensed to, co-marketedby, distributed by, or otherwise be subject to in any marketing or distributionagreement with any IVD (In Vitro Diagnostic) company other than RDC.  RDC shall have the right to unilaterallywaive this provision at its own discretion.

 

Term;Termination.

 

Term.  In accordance with Original Agreement Section 6,the Term of the Agreement commenced on the date of the Original Agreement andshall continue for a period of five years following the date of the OriginalAgreement, unless earlier terminated in accordance with Section 11(b).

 

Termination.  The Agreement (including the OriginalAgreement and this Addendum) may be terminated:

 

(1)           MutualAgreement.  Immediately, upon themutual written agreement of the Parties;

 

(2)           AnniversaryDates.  On the first or anysubsequent anniversary of the date of the Original Agreement, by any Party,upon written notice to the other Parties provided at least thirty, but no morethan sixty, days prior to the applicable anniversary date; provided, however,that any notice of termination provided by CareEvolve pursuant hereto must beapproved in advance by the Steering Committee;

 

(3)           MaterialBreach.  Immediately, by anon-breaching Party, upon written notice if a Party materially breaches the OriginalAgreement or this Addendum or any other Alliance Document, and such breach isnot curable, or if such breach is curable, within the thirty-day periodfollowing the provision of written notice of such breach to the breachingParty, if such breach is not cured within the thirty-day period;

 

(4)           Bankruptcy.  Immediately, by any Party upon writtennotice, if any other Party (i) becomes insolvent; (ii) makes an assignment forthe benefit of its creditors; (iii) seeks or obtains protection under the bankruptcylaws of the United States or any state, whether voluntarily or involuntarily;(iv) develops or has developed a plan of arrangement or compensation agreementas a result of a general meeting of its creditors; (v) has appointed areceiver, custodian, trustee or like officer to take possession of all or anysubstantial part of its assets; (vi) has all or any substantial part of itsassets attached, executed or seized; or (vii) admits in writing its inabilityto pay its debts as they mature;

 

(5)           Terminationof Reseller Agreement.  Immediately,by RDC, if the MedUnite Reseller

 

4

----

 

Agreement attached as Exhibit A to theOriginal Agreement expires or is terminated for any reason whatsoever, unlessthe MedUnite Reseller Agreement is terminated as a direct result of the acts,actions or failures to act on the part of RDC; and

 

(6)           SteeringCommittee Deadlock.  Immediately, byany Party, if the Steering Committee is unable to reach agreement on a materialbusiness issue relating to the conduct of the business, and after submission ofthe issue to management discussions in accordance with Original Agreement Section 15(c)the Parties are unable to resolve the deadlock.

 

IndemnificationProvisions for the Benefit of BRLI and CareEvolve.  RDC shall indemnify, defend and hold harmlessBRLI and CareEvolve and their agents, shareholders, officers, directors,affiliates, successors and assigns from and against any and all actions, suits,proceedings, claims, demands, orders, damages, dues, penalties, fines, costs,liabilities, obligations, losses, expenses and fees (including withoutlimitation attorneys’ fees and costs) (collectively, “Losses”) resultingfrom (a) RDC’s breach of any representation, warranty or covenant contained inthis Addendum or any other Alliance Document, or (b) RDC’s gross negligence orwillful misconduct in the course of its performance of this Agreement or anyother Alliance Document.

 

IndemnificationProvisions for the Benefit of RDC.

 

As to BRLI:  BRLI shall indemnify, defend and holdharmless RDC and its agents, shareholders, officers, directors, affiliates,successors and assigns from and against any and all Losses resulting from (a)BRLI’s or CareEvolve’s breach of any material representation, warranty orcovenant contained in this Addendum or any other Alliance Document, or (b) BRLI’sor CareEvolve’s gross negligence or willful misconduct in the course of itsperformance of this Addendum or any other Alliance Document.

 

As toCareEvolve: CareEvolve shall indemnify, defend and hold harmless RDC and its agents,shareholders, officers, directors, affiliates, successors and assigns from andagainst any all Losses resulting from (a) CareEvolve’s breach of any materialrepresentation, warranty or covenant contained in this Addendum or any otherAlliance Document, (b) CareEvolve’s gross negligence or willful misconduct inthe course of its performance of this Addendum or any other Alliance Document,(c) any injuries or death to persons, damage to property or other losses orliabilities whatsoever realized by a third party as a result of the marketing,sale, use, misuse, administration, transmission or other operation of theCareEvolve Service, and (d) any actual or alleged violation, infringement,breach or misappropriation by CareEvolve of any third party intellectualproperty rights caused or allegedly caused by CareEvolve’s marketing,ownership, use, misuse, licensing, sale, commercialization or any otherutilization of the CareEvolve Service and/or the CareEvolve IP.

 

Miscellaneous.

 

Notice.  All notices, requests, demands, approvals,consents and other communications under this Addendum shall be made inaccordance with Original Agreement Section 15(d).

 

Expenses.  Except as explicitly provided in Sections14, 15 and 16(d) with respect to indemnification claims, eachParty shall bear its own expenses in connection with the negotiation, executionand performance of this Addendum and the other Alliance Documents, includingwithout limitation legal fees and expenses.

 

Succession andAssignment. This Addendum shall be binding upon and inure to the benefit of theParties named herein and their respective successors and permittedassigns.  No Party may assign or delegatethis Addendum or any of its rights, interests or obligations hereunder withoutthe prior written approval of the other Parties.

 

Taxes, Dutiesand Other Charges. Unless the same are expressly made part of the RDC Expenses, BRLI andCareEvolve shall indemnify and hold harmless RDC from and against any sales,use, gross receipts, value-added, excise, property or other tax, tariff, dutyor assessment (excluding income taxes incurred by RDC) and related interest andpenalties collected, levied or imposed by national governments, state orprovincial governments, local governments or any subdivision of the foregoingand arising out of or related to the operations of CareEvolve.

 

Publicity.  No Party shall issue any press release normake any public announcement respecting the execution or the terms of thisAddendum or any other Alliance Document without the prior approval of the otherParties.

 

5

----

 

Headings.  The section headings contained in thisAddendum are inserted for convenience only and shall not affect in any way themeaning or interpretation of this Addendum.

 

Counterparts;Facsimile Signatures. This Addendum may be executed in counterparts, each of which shallconstitute an original, and all of which together shall constitute one and thesame instrument.  Delivery by a Party ofexecuted counterparts of this Addendum by facsimile shall constitute executionand delivery of such counterpart to the same extent as if such counterpart wereoriginally executed and delivered by such Party.

 

Severability. If any provision of this Addendum shallbe held invalid, illegal or unenforceable in any jurisdiction, such provisionshall be ineffective to the extent of such invalidity, illegality orunenforceability, the validity, legality or enforceability of the otherprovisions hereof shall not be affected thereby, and there shall be deemedsubstituted for the provision at issue a valid and enforceable provision assimilar as possible to the provision at issue, all without affecting thevalidity, legality or enforceability of such provision in any otherjurisdictions.

 

Amendment.  No provision of this Addendum may be changed,waived, discharged or terminated orally, by telephone or by any means except byan instrument in writing signed by the Party against whom enforcement of thechange, waiver, discharge or termination is sought and then the same shall beeffective only in the specific instance for which it is given.

 

Interpretation.  The Parties hereto acknowledge and agree thatthis Addendum represents the product of negotiations conducted in good faithand at arm’s-length and that this Addendum should not be interpreted in favorof or against any Party because of such Party’s ability or inability to controlthe drafting of this Addendum.

 

EntireAgreement.  ThisAddendum, along with the other Alliance Documents, contain the entire agreementof the Parties relating to the matters addressed herein or therein, supersedingany and all prior agreements, whether written or oral, except as otherwiseprovided in Section 1.

 

*{Remainderof Page Intentionally Left Blank}*

 

6

----

 

IN WITNESS WHEREOF, this Addendum is enteredinto as of the date first above written.

 

 
|   | ROCHE DIAGNOSTICS CORPORATION    |
|--------|----------------------------------|
|   |                             |
|   |                             |
|   | By:                              | /S/ Dick Alerman |   |
|   |                             |
|   | Printed:                         | Dick Alerman |   |
|   |                             |
|   | Its:                             | Senior Vice President and General Manager |   |
|   |                             |
|   |                             |
|   | BIO-REFERENCE LABORATORIES, INC. |
|   |                             |
|   |                             |
|   | By:                              | /S/ Richard L. Faherty |   |
|   |                             |
|   | Printed:                         | Richard L. Faherty |   |
|   |                             |
|   | Its:                             | Chief Information Officer |   |
|   |                             |
|   |                             |
|   | CAREEVOLVE.COM, INC.             |
|   |                             |
|   |                             |
|   | By:                              | /S/ Richard L. Faherty |   |
|   |                             |
|   | Printed:                         | Richard L. Faherty |   |
|   |                             |
|   | Its:                             | Chief Executive Officer |   |
|        |                                  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

7

----