FIRST AMENDMENT TO
OPTION AND ACQUISITION AGREEMENT
This First Amendment to Option and Acquisition Agreement (this "Amendment")
is made effective as of February 26, 2003, by and among the Motor Information
Systems Division of Hearst Business Publishing, Inc., a Delaware corporation
("Purchaser"), Comp-Est, Inc., an Ohio corporation ("Seller"), and Xxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxx Xxxxxxx, Xxxx Xxxxxx, and Xxxxxx Xxxxx, formerly
known as Xxxxxx Xxxxxxxx, as the present shareholders of Seller (collectively,
the "Stockholders"), and Xxxxx Xxxxxx and Xxxx Xxx, as former shareholders of
Seller (collectively, the "Former Stockholders") (with Seller executing this
Amendment on behalf of the Former Stockholders).
RECITALS
WHEREAS, effective as of February 6, 1998, Purchaser, Seller, the
Stockholders, and the Former Stockholders entered into an Option and Acquisition
Agreement (the "Agreement"), pursuant to which Purchaser acquired an option to
purchase substantially all of the assets of Seller or all of the shares of stock
held by the Stockholders, Xxxxx Xxxxxx and Xxxx Xxx;
WHEREAS, pursuant to a letter to Seller dated January 8, 2003, Purchaser
exercised its option to purchase substantially all of the assets of Seller as
set forth in the Agreement; and
WHEREAS, the parties wish to amend the Agreement as set forth in this
Amendment.
AGREEMENT
The parties, in consideration of the mutual promises and covenants
contained herein, hereby agree as follows:
1. Definitions.
(a) The definition of the term "Agreement" set forth in the opening
paragraph of the Agreement and as used in this Amendment shall, unless
context otherwise specifies or requires, include the Agreement and this
Amendment, it being the intent of the parties that this Amendment and the
Agreement shall be construed as a single instrument.
(b) The parties acknowledge that Seller has redeemed all of the shares
of Seller previously owned by the Former Stockholders and such persons no
longer own any shares or have any beneficial interest in Seller. Therefore,
the definition of the term "Stockholders" as used in the Agreement and this
Amendment shall have the meaning ascribed thereto in the opening paragraph
of this Amendment.
(c) All other capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Agreement.
2. Excluded Assets. Section 2.02 of the Agreement is hereby amended to
include the following subsections after current subsection (d):
(e) Owned Automobiles. All right, title and interest of Seller in and to
the following automobiles: (i) 1997 Ferrari F355 Spider, VIN#
ZFFXR48AOV0108684, (ii) 1998 Corvette, VIN# 000XX0000X0000000, (iii)
1998 Corvette, VIN# 000XX0000X0000000; and (iv) 1999 Challenger Mobile
Home;
(f) Officer and Employee Receivables. The Officer Loans and Employee
Advances as reflected in the unaudited balance sheet of Seller as of
and for the fiscal period then ended December 31, 2002;
(g) Checking Account. All right, title and interest in and to the business
checking account number 00000000 with Fifth Third Bank, Central Ohio;
and
(h) Oral Lease. All right, title and interest in and to the month-to-month
lease by and between Xxxxx Xxxxxxxxx, as landlord, and Seller, as
tenant, for the premises described as 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxx 00000.
3. Liabilities Not Assumed. Section 2.04(h) of the Agreement is hereby
deleted in its entirety and replaced with the following:
(h) Indebtedness. Any liabilities arising out of, relating to or otherwise
in respect of indebtedness for borrowed money, including without
limitation, (i) guaranties, lines of credit and letters of credit,
(ii) loans and other financial accommodations from Fifth Third Bank to
Seller; or (iii) the notes payable to Xxxxx Xxxxxxxxx, Xxxx Xxxxx and
Enterprise Logistics, Inc. as reflected in the unaudited balance sheet
of Seller as of and for the fiscal period then ended December 31,
2002.
4. Financial Statements and Condition. Section 5.08(a) of the Agreement is
hereby deleted in its entirety and replaced with the following:
(a) Prior to the execution of this Agreement, Seller has delivered to
Purchaser true and complete copies of the unaudited balance sheet and
statements of operations as of and for the fiscal period then ended
December 31, 2002 (collectively, the "Financial Statements"). All such
Financial Statements fairly present in all material respects the
financial condition and results of operations of Seller as of the
dates thereof and for the periods covered thereby.
5. Excluded Entities. Notwithstanding any provision of the Agreement to the
contrary, the parties hereby acknowledge and agree that neither Enterprise
Logistics, Inc., Superior Solutions, Inc. nor the businesses operated by either
of those entities are, or shall be deemed for any intent or purpose to be, an
Asset of Seller hereunder.
6. Real Property Lease. Notwithstanding the fact that the month-to-month
lease by and between Xxxxx Xxxxxxxxx, as landlord, and Seller, as tenant, for
the premises described as 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 (the "LEASE
AGREEMENT"), is included as an Asset for purposes of the Agreement, upon the
consummation of the transactions contemplated by the Agreement, Xxxxx Xxxxxxxxx
and CCC Information Services, Inc., a Delaware corporation ("CCC"), shall enter
into a new lease agreement, substantially in the form attached hereto as Exhibit
A, covering the leased premises, which lease agreement shall supercede the Lease
Agreement in all respects and shall constitute the entire agreement between the
parties with respect thereto.
7. Sale of Assets to CCC. Seller understands and acknowledges that
Purchaser has agreed to sell the Assets to CCC immediately following Closing.
Notwithstanding anything to the contrary in this Amendment or any of the
documents executed in connection with the Closing, Purchaser acknowledges and
agrees that Seller has not and does not consent to an assignment of the
Agreement by Purchaser to CCC.
8. Reaffirmation. The parties do hereby ratify and affirm all of the terms
and provisions of the Agreement and such terms, as amended and supplemented by
this Amendment, shall remain in full force and effect.
IN WITNESS WHEREOF, Purchaser and Seller, by their respective duly
authorized officers, and the Stockholders have caused this Amendment to be
executed as of the date first written above.
PURCHASER: STOCKHOLDERS:
HEARST BUSINESS PUBLISHING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxxxx
---------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx, individually
Title: President
/s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx, individually
SELLER:
/s/ Xxx Xxxxxxx
COMP-EST, INC. -----------------------------
Xxx Xxxxxxx, individually
By: /s/ Xxxxx Xxxxxxxxx
---------------------- /s/ Xxxx Xxxxxx
Name: Xxxxx Xxxxxxxxx -----------------------------
Title: President Xxxx Xxxxxx, individually
/s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx, individually
FORMER STOCKHOLDERS:
/s/ Xxxxx Xxxxxxxxx
------------------------
Comp-Est, Inc.
Xxxxx Xxxxxxxxx, President
on behalf of Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------
Comp-Est, Inc.
Xxxxx Xxxxxxxxx, President
on behalf of Xxxx Xxx
ACKNOWLEDGED AND AGREED:
CCC INFORMATION SERVICES, INC.
/s/ Xxxxxx Xxxxx
-----------------------
SVP Corporate
and Business Development
