Amendment to Asset Purchase and Sale Agreement
Amendment made this 29th day of March, 2002 by and between ePlus
Technology, Inc., a Virginia corporation, with a principal place of business at
000 Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 ("Buyer") and Elcom Services Group, Inc.,
a Delaware corporation, with a principal place of business at 00 Xxxxxx Xxx,
Xxxxxxx, XX 00000 (the "Seller"), elcom, inc., a Delaware corporation, with a
principal place of business at 00 Xxxxxx Xxx, Xxxxxxx, XX 00000 ("elcom") , and
Elcom International, Inc., a Delaware corporation, with a principal place of
business at 00 Xxxxxx Xxx, Xxxxxxx, XX 00000 ("EII"). Collectively, the Seller,
elcom and EII are referred to herein as the "Elcom Group".
Whereas, the parties have entered into an Asset Purchase and Sale
Agreement dated March 25, 2002 (the "Agreement")
Whereas, the parties desire to amend the Agreement.
Now, therefore, for good and valuable consideration, the parties hereto
agree as follows:
1. Delete the terms "the Preferred Supplier Agreement" from Section 1.1 of
the Agreement.
2. Delete Section 1.1 of the Agreement and insert the following new Section
1.1:
1.1 "Preferred Supplier Agreement": a mutually agreed preferred
supplier agreement as described in Section 8.12.
3. Delete Section 1.7 and insert the following new Section 1.7:
1.7. "Purchase Price": Two million one hundred fifty thousand dollars
($2,150,000) to be paid by wire transfer at Closing.
4. Insert the following two new sections in Section 1 of the Agreement:
1.12 "Escrow Amount": such amount to be determined by the parties in
accordance with the Managed Services Agreement; provided in no
event shall such amount exceed six hundred thousand dollars
($600,000).
1.13 "Payroll Obligation": the Seller's obligation to pay salary to
the Transferred Employees for the period from March 25, 2002 to
March 31, 2002, which such amount is approximately equal to one
hundred sixty nine seven hundred fifty dollars ($169,750).
5. Notwithstanding anything contained in Section 6 of the Agreement, upon
the date of Closing all Non-Disclosure Agreements by and between the
parties shall terminate.
6. Delete the third sentence of Section 7.1.
7. Delete Section 7.1.3 and insert in its place the following section:
7.1.3 The Purchase Price less the Escrow Amount and the Payroll
Obligation shall be paid by Buyer to the Sellers by wire
transfer in accordance with Sellers' instructions.
8. Delete Section 7.1.8.
9. Notwithstanding anything contained in Section 8.4, the non-solicitation
requirements set forth therein shall not apply with respect to Xxx
Xxxxx.
10. Delete Section 8.9.
11. Insert the following new Sections:
8.10 All terms and conditions contained in Section 8 shall become
effective at midnight on March 31, 2002.
8.11 All restrictions on employees imposed by Seller to the extent
assignable are assigned to Buyer and Seller hereby waives the
right to enforce said restrictions without Buyer's express
direction.
8.12 elcom and Buyer agree that they shall execute and deliver a
Preferred Supplier Agreement within ten (10) days of the
Closing. Such agreement shall provide that if elcom is requested
by a user of its eProcurement solutions to provide
recommendations of a provider of information technology products
and financing solutions to purchase information technology
products, elcom shall offer the Buyer solutions to its users as
elcom's preferred provider of IT Products and financing
solutions for the purchase of IT products. Buyer shall pay elcom
a mutually agreed portion of revenues received by Buyer from
such user in consideration of elcom offering the Buyer
solutions. elcom shall have no liability if any user decides not
to select the Buyer solutions or if it selects the Buyer
solutions and Buyer fails to earn any revenue from such
arrangement.
8.13 Within two (2) business days of delivery to Buyer of evidence
that Seller has paid to the Transferred Employees the Payroll
Obligation, Buyer shall pay to Seller the Payroll Obligation by
wire transfer. In the event that Buyer fails to pay to Seller
the Payroll Obligation in accordance herewith,
without prejudice to any other remedy, Seller may terminate the
Managed Services Agreement by providing written notice of
termination to Buyer.
12. Delete Section 10.1.4 and insert the following new Section 10.1.4:
10.1.4 The parties shall have executed and delivered a version of each
of the Managed Services Agreement and the Middleware Software
License Agreement satisfactory to the parties.
13. Unless otherwise as provided herein, the Agreement shall remain in full
force and effect and to the extent of any conflict between the terms and
conditions of this Amendment and the Agreement, the terms and conditions
of this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date first set forth above.
ELCOM SERVICES GROUP, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
ELCOM INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
elcom, inc.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
ePlus Technology, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: SVP, Secretary and Treasurer
