EXHIBIT 2.2
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO PURCHASE AGREEMENT (the "Amendment"), dated as
of March 5, 2003 amends that certain Purchase Agreement (the "Purchase
Agreement"), dated as of February 12, 2003, by and among Indus International,
Inc., a Delaware corporation; SCT Utility Systems, Inc., a Delaware corporation
(the "Company"), Systems & Computer Technology Corporation, a Delaware
corporation and the indirect parent of the Company, SCT Financial Corporation, a
Delaware corporation and the direct parent of the Company, SCT Property, Inc., a
Delaware corporation; SCT International Limited, a limited liability corporation
organized under the laws of England and Wales; SCT Technologies (Canada) Inc., a
company organized and existing under the laws of the Province of Ontario,
Canada; SCT Software & Resource Management Corporation, a Delaware corporation;
and Systems & Computer Technology International B.V., a corporation organized
under the laws of the Netherlands.
Preamble
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Each of the Parties has entered into the Purchase Agreement, and each
of the Parties desires to amend the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the above and the agreements set
forth herein, the Parties agree as follows:
1. The text of Section 2.3(a) of the Purchase Agreement is hereby
deleted and replaced in its entirety with the following:
"(a) Purchase Price. Subject to the adjustments set forth in
this Section 2.3, the consideration to be paid by Purchaser to
the Sellers for the Shares and the Purchased Assets is Thirty
Nine Million Thirty Five Thousand Dollars ($39,035,000)
($29,035,000 of which is payable in cash by wire transfer of
immediately available funds and $10,000,000 of which is
payable pursuant to the SCT Note) (collectively, the "Purchase
Price")."
2. Schedule 2.1(b)(i) hereto is hereby amended to include the SCT
Utilities Sales Booth in addition to those items of Purchased
Personal Property listed on such Schedule on the date of the
Purchase Agreement.
3. Schedule 2.1(b)(iv) hereto is hereby amended to include those
Contracts listed on Schedule A hereto in addition to those
Contracts listed on such Schedule on the date of the Agreement.
4. The following is hereby inserted into the Purchase Agreement as
Section 3.14(g):
"(g) The Banner General computer software program that is used
in the operation of the Business and imbedded in the Company's
software licensed to its customers (the "Banner General
Software") has not violated or infringed, and is not violating
or infringing upon, any Intellectual Property of a Third
Party. No Person has asserted to the Company or any Seller, in
writing, a claim of such infringement, violation or unlawful
or wrongful use. The Company and each Seller, as applicable,
has taken commercially reasonable measures to enforce,
maintain and protect the interests and rights to the Banner
General Software. Neither the Company nor any Seller is
obligated to make or has incurred any Liabilities to make, any
payments for royalties, fees or otherwise to any Person for
the acquisition or license of any of the Banner General
Software from such Person. All trademarks, trade names,
service marks, assumed names and copyrights and all
registrations thereof included in or related to the Banner
General Software are valid and subsisting. Neither the Company
nor any of the Sellers has any Knowledge of any infringement
or misappropriation of the Banner General Software."
5. The text of Section 6.17 of the Purchase Agreement is hereby
deleted and replaced in its entirety with the following:
"6.17 License. The Sellers shall have entered into one or more
license agreements pursuant to which the Sellers will license
certain rights to the Company, including those rights set
forth on Schedules 5.17(b.1) and 5.17(b.2), on the terms set
forth in Section 5.17(b) and other terms mutually acceptable
to the Parties (collectively, the "License Agreement").
6. The text of Section 10.1(a)(iii) of the Purchase Agreement is
hereby deleted and replaced in its entirety with the following:
"(iii) any matter relating to the claim brought by KPMG
Consulting, Inc. against the Company in the circuit court of
the eleventh judicial circuit, case number 02-14170 CA10, or
the Contract underlying such claim as it relates to Miami-Dade
County; and any matter relating to the claim brought by
Allegheny County Sanitary Authority against Deloitte & Touche
LLP and Deloitte Consulting LLC in the court of common pleas
of Allegheny county, Pennsylvania, case number 00-8729 (the
"ALCOSAN Complaint") or any claim against the Company arising
from the facts and circumstances asserted in the ALCOSAN
Complaint; and any matter relating to the claim brought by
Integral Energy Australia against the Company in the Supreme
Court of New South Wales, Australia, case number 20239/01, or
the Contract underlying such claim;"
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7. The following is hereby inserted into the Purchase Agreement as
Section 10.4(e):
"(e) Notwithstanding the terms of Section 10.3, or any other
subsection of Section 10.4, of this Purchase Agreement, SCT
shall have, at its sole cost and expense, the sole and
exclusive right to control the defense of the claims
enumerated in Section 10.1(a)(iii) of this Purchase Agreement
and neither the Company nor the Purchaser shall have any right
to participate in the defense of, or settle, such claims
without the prior written consent of SCT."
8. The following is hereby inserted into the Purchase Agreement as
Section 10.10:
"10.10 Survival. Subject to the time limitations set forth in
Section 10.6(a), all representations, warranties, covenants
and agreements contained in this Agreement or any Transaction
Document shall survive the Closing, except that the
representations, warranties, covenants and agreements
contained in the SCT Note, the SCT Mortgage, the SCT Guaranty,
the License Agreement and the Transition Services Agreement
shall be effective for the periods specified in such
agreements."
9. The following text is hereby added as a disclosure listed on
Schedule 3.21 to the Purchase Agreement in addition to the other
disclosures listed thereon on the date of the Agreement:
"A Claim has been brought by Integral Energy Australia against
the Company in the Supreme Court of New South Wales,
Australia, case number 20239/01."
10. The Parties hereby further agree that the delivery of the License
Agreement at the Closing shall (a) satisfy the covenants of
Sellers in Section 5.17(b) and (ii) fulfill the condition
precedent set forth in Section 6.17 of the Purchase Agreement.
11. The Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Capitalized terms used but
not otherwise defined in the Amendment shall have the meaning
assigned to them in the Purchase Agreement.
12. The Amendment will be governed by and construed under the laws of
the State of Delaware without regard to principles pertaining to
conflict of laws.
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13. Except as specifically amended hereby, the Purchase Agreement
shall remain in full force and effect as is hereby ratified and
confirmed.
[Signatures on the following page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date first written above.
INDUS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
CEO
SYSTEMS & COMPUTER TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Executive Vice President
SCT UTILITY SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Senior Vice President
SCT FINANCIAL CORPORATION
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Senior Vice President
SCT PROPERTY, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Senior Vice President
SCT INTERNATIONAL LIMITED
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Director
[Signatures continued on the following page]
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SCT TECHNOLOGIES (CANADA), INC.
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Senior Vice President
SCT SOFTWARE & RESOURCE
MANAGEMENT CORPORATION
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Senior Vice President
SYSTEMS & COMPUTER TECHNOLOGY INTERNATIONAL B.V.
By: /s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Director
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