AMENDMENT NO. 1 TO PURCHASE AGREEMENT
Exhibit 10.1
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
This
Amendment No. 1 to the Purchase Agreement dated as of February 15,
2019 (this “Amendment”), by and among
OpenALPR Technology, Inc., a Florida corporation
(“Seller”), Novume
Solutions, Inc., a Delaware corporation (“Buyer”), and Xxxxxxx Xxxx
(“Founder”).
RECITALS
A. Seller,
Buyer and Founder are parties to that certain Asset Purchase
Agreement dated as of November 14, 2018 (the “Purchase Agreement”). All
capitalized terms used but not defined herein shall have the
meanings set forth in the Purchase Agreement.
B. The
parties hereto desire to amend the Purchase Agreement pursuant to
Section 13.2 thereof as set forth in this Amendment.
NOW,
THEREFORE, in consideration of the premises, and of the mutual
promises and covenants herein contained, the sufficiency of which
are hereby acknowledged, and wishing to be legally bound hereby,
the parties hereto hereby agree as follows:
Amendments
1. Definition of Base Purchase
Price. Schedule A of the Purchase Agreement is hereby
amended by deleting the definition of Base Purchase Price and
replacing it with the following new definition:
““Base
Purchase Price” means $7,000,000 in
cash.”
2. Definition of Election Amount.
Schedule A of the Purchase Agreement is hereby amended by deleting
the definition of Election Amount.
3. Definition of Election Notice.
Schedule A of the Purchase Agreement is hereby amended by deleting
the definition of Election Notice.
4. Definition of Promissory Note.
Schedule A of the Purchase Agreement is hereby amended by inserting
the following definition:
““Promissory
Note” means that certain promissory note in the
principal amount of $5,000,000 issued by Buyer to Seller and dated
as of the Closing Date, in substantially the form issued to other
lenders by Buyer on or around the Closing Date, which Buyer expects
to include the terms set forth on Exhibit E.”
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5. Section 2.7(a). Section 2.7(a)
of the Purchase Agreement is hereby amended by deleting such
section in its entirety and replacing it with the following new
Section 2.7(a):
“(a) Purchase Price.
Subject to the terms and conditions of this Agreement, in full
consideration for Seller’s sale, transfer, conveyance,
assignment and delivery of the Transferred Assets to Buyer, and
Seller’s execution and delivery of, and its performance of
its obligations contained in, this Agreement and the Other
Agreements, at the Closing, Buyer shall (1) pay to Seller in
accordance with Section
2.7(c) the Estimated Purchase Price, subject to adjustment
after the Closing pursuant to Section 2.7(d), issue to Seller
the Promissory Note, issue to Seller 600,000 shares of Common Stock
of Buyer (the “Subject Shares”)
(collectively, the “Purchase Price”) and (2)
assume the Assumed Liabilities as provided in Section
2.4.”
6. Section 2.7(c). Section 2.7(c)
of the Purchase Agreement is hereby amended by deleting such
section in its entirety and replacing it with the following new
Section 2.7(c):
“(c) Closing Payments; Issuance
of Promissory Note; Issuance of Stock. At the Closing, Buyer
shall (i) pay to Seller, by wire transfer of immediately available
funds, to an account designated in writing by Seller by written
notice to Buyer not less than five (5) Business Days prior to the
Closing Date, an amount equal to the Estimated Purchase Price, (ii)
issue to Seller the Subject Shares, and (iii) issue to Seller the
Promissory Note.”
7. Section 3.20. Section 3.20 of
the Purchase Agreement is hereby amended by deleting the following
words from the beginning of the first sentence of Section 3.20: “To the
Extent that an Election Notice will be
provided,”.
8. Section 10.2(e). Section
10.2(e) of the Purchase Agreement is hereby amended by deleting
such subsection in its entirety and replacing it with the following
new subsection 10.2(e):
“(e) the
Estimated Purchase Price in immediately available funds pursuant to
the wire transfer instructions provided by Seller, a stock
certificate in Seller’s name representing the Subject Shares,
and the executed Promissory Note.”
9. Section 13.13. Section 13.13 of
the Purchase Agreement is hereby amended by deleting such section
in its entirety and replacing it with the following new Section
13.13:
No Third-Party Rights. Other
than Sections which are specifically for the benefit of Buyer
Indemnified Parties or the Seller Indemnified Parties, this
Agreement is not intended and shall not be construed to create any
rights in any Persons other than Buyer and Seller, and no Person
shall assert any rights as third-party beneficiary
hereunder.
10. Exhibit D. Exhibit D of the
Purchase Agreement shall be in the form attached hereto as Exhibit
D.
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Miscellaneous
11. Except as expressly
amended by this Amendment, the Purchase Agreement remains in full
force and effect, the terms thereof are incorporated herein by
reference, and nothing in this Amendment shall otherwise affect any
other provision of the Purchase Agreement or the rights and
obligations of the parties thereto.
[Signature Page Immediately Follows]
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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Amendment on the date first above
written.
By:
/s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Chief Executive Officer
OPENALPR
TECHNOLOGY, INC.
By:
/s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Chief Executive Officer
/s/ Xxxxxxx
Xxxx
XXXXXXX
XXXX
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EXHIBIT D
Software
– 40%
Tangible
personal property - at book value
Goodwill
– remainder
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EXHIBIT E
Borrower:
Novume Solutions, Inc. and its subsidiaries
Total
Amount: $20,000,000 (of which Seller will represent
$5,000,000)
Collateral:
Seller and lenders shall share pro rata a senior secured lien on
all assets of Novume Solutions, Inc. (except to those accounts
receivables financed with Xxxxx Fargo).
Term:
24 months
Interest
Rate: 16%, 10% cash paid quarterly & 6% annual accretion paid
at maturity or early retirement in whole or part.
Prepayment:
Callable in year 1 at 120% of par plus accrued; year 2 at 110%. The
notes may be prepaid in whole or part anytime during the term. The
accrued interest would be paid pro-rata with any partial early
prepayment.
Maturity
Payment: Note will mature at 105% of face
Warrants:
Term of 5 years from issuance and strike price of average of 30
days preceding closing price from issuance.
Covenants:
Including but not limited to (i) limitations on asset sales, (ii)
restricted payments, (iii) additional indebtedness and (iv)
limitations on capital expenditures.
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