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EXHIBIT 10.40
AMENDMENT TO PURCHASE AGREEMENT
This AMENDMENT TO PURCHASE AGREEMENT is entered into as of the 27th
day of September, 2000 by and between Xxxxxxx Technology Corporation, a
Connecticut corporation ("Seller") and Systems Technology, Inc., a Delaware
corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, the Seller and Buyer have entered into a Asset Purchase
Agreement dated September 7, 2000 (the "Purchase Agreement") pursuant to which
the Buyer purchased from Seller substantially all of the assets of its
Xxxxxxx-Xxxxx Division.; and
WHEREAS, the Seller and Buyer wish to amend the Purchase Agreement
as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
covenants and agreements contained herein and in the Purchase Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Section 2.1(a) of the Purchase Agreement is hereby amended in
full as follows:
"Buyer shall pay to Seller the sum of: (i) Six Million Seven
Hundred Fifty Thousand Dollars ($6,750,000); minus (ii) all payments
(including deposits) received by or on behalf of the Division for the
period commencing on July 1, 2000, and continuing until the Closing Date;
plus (iii) all obligations paid by or on behalf of the Division (excluding
taxes except as set forth in (iv) below) for the period commencing on July
1, 2000 and continuing until the Closing Date; plus (iv) One-Hundred
Seventy-Five Thousand Dollars ($175,000) in consideration for income tax
obligations of the Seller attributable to the Division for the period
commencing on July 1, 2000 and continuing until the Closing Date. The
portion of the purchase price set forth in clauses (i) - (iii) shall be
paid on the Closing Date and the portion of the purchase price set forth
in clause (iv) shall be paid as follows: $100,000 on June 30, 2001 and
$75,000 on September 1, 2001, provided however, that if (1) the Company
shall be unable to pay its debts generally as they become due, (2) files a
petition to take advantage of any insolvency statute; (3) makes an
assignment for the benefit of creditors; (4) commences a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or substantially all of its property; or (5) files
a petition or answer seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or similar law of any
other country; then the obligations set forth in clause (iv) are forgiven
and discharged. Such purchase price by wire transfer of immediately
available funds, provided that Buyer may pay a portion of the purchase
price set forth in clause (i) in any alternate form agreed to by Seller in
Seller's sole discretion."
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2. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement.
3. This Amendment shall be construed and enforced in accordance with
and governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment to Purchase Agreement as of the date and year first written above.
XXXXXXX TECHNOLOGY CORPORATION
By: __________________________
Title:
SYSTEMS TECHNOLOGY, INC.
By:___________________________
Title:
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