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AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of February 23,
2001, to the ASSET PURCHASE AGREEMENT (the "Purchase Agreement"), dated as of
October 25, 2000, is made and entered into by and among LONDON BRIDGE SOFTWARE
HOLDINGS PLC, a corporation organized under the laws of England and Wales
("Parent"), LONDON BRIDGE PHOENIX SOFTWARE, INC. (formerly known as London
Bridge Acquisition Company, Inc.), a Delaware corporation and an indirect wholly
owned subsidiary of Parent (the "Purchaser"), and PHOENIX INTERNATIONAL LTD.,
INC., a Florida corporation (on behalf of itself and its subsidiaries the
"Seller").
W I T N E S S E T H:
WHEREAS, Parent, the Purchaser and the Seller are parties to the
Purchase Agreement;
and
WHEREAS, the parties desire to enter into this Amendment No. 1 in order
to amend certain terms and conditions of the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein and in the Purchase
Agreement, the parties do hereby agree to amend the Purchase Agreement as
follows:
1. Section 1.6 of the Purchase Agreement is hereby amended by
adding the following to the end of such Section 1.6:
"If the Purchaser exercises the New Zealand Share Option, any and all
indebtedness, liabilities and obligations owed by Phoenix International
A.P. Limited New Zealand to Parent or any of its Affiliates or by
Parent or any of its Affiliates to Phoenix International A.P. Limited
New Zealand shall be cancelled and terminated as of the Closing.
Notwithstanding the foregoing, if the New Zealand Share Option is
exercised, the intercompany payable from Phoenix to Phoenix
International A.P. Limited New Zealand shall be an Assumed Liability to
the extent there is an equal and opposite intercompany receivable
recorded in Phoenix International A.P. Limited New Zealand."
2. Section 2.2(a) of the Purchase Agreement is hereby deleted in
its entirety and replaced with the following:
"deposit in escrow with the escrow agent identified in the form of
Escrow Agreement attached as Exhibit 2.2(a) (the "Escrow Agreement")
(i) an amount equal to 25% of the Purchase Price (the "Escrow Amount")
and (ii) $6,500,000 (the "Holdback Amount"), which amounts shall be
held and disbursed in accordance with the terms of this Agreement and
such Escrow Agreement; and"
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3. Section 2.3(b) of the Purchase Agreement is hereby amended by
deleting the first sentence of such Section 2.3(b) in its entirety and replacing
it with the following:
"As promptly as practicable following the Closing Date (but in any
event within twenty (20) business days, the Purchaser will prepare (in
consultation with the Seller) and deliver to the Seller a revised
balance sheet which shall reflect the net working capital of the Seller
as of the Closing Date after application of the agreed upon adjustments
which shall be calculated in accordance with the methodology described
in Schedule 2.3(a) (the "Preliminary Purchase Price Adjustment")."
4. Section 5.12(c) of the Purchase Agreement is hereby deleted in
its entirety and replaced with the following:
"COBRA Coverage. Notwithstanding anything in this Agreement to the
contrary, the Purchaser shall offer and provide all notice,
continuation coverage and benefits required under Section 4980B of the
Code and/or Part 6 of Title I of ERISA (collectively, "COBRA Coverage")
to each of the Transferred Employees and each "qualified beneficiary"
(as defined under Section 4980B of the Code and/or Part 6 of Title I of
ERISA (collectively, "COBRA")) ("Qualified Beneficiary") whose status
as such arises as a result of an applicable relationship to one or more
of the Transferred Employees, as may be required on or after the
Closing, regardless of whether such COBRA Coverage is statutorily or
otherwise required to be provided by the Purchaser or the Seller or any
of their respective affiliates (present or future)."
5. Pursuant to Section 5.3(b) of the Purchase Agreement, the
Purchaser hereby approves the revised Section 1.2(d) to the Seller Disclosure
Letter (including the revised Exhibit 1.2(d) thereof) delivered by the Seller to
the Purchaser on the date hereof. In addition, the Purchaser hereby agrees
promptly after the Closing Date to enter into good faith negotiations to amend
the "voice contract" with AT&T included in the revised Section 1.2(d) of the
Seller Disclosure Letter, including amending the contract to waive any accrued
penalties thereunder; provided, that if such penalties are not waived by AT&T,
the liabilities associated with such penalties shall remain with the Seller and
be an Excluded Liability.
6. Except as set forth in this Amendment No. 1, the Purchase
Agreement shall remain in full force and effect.
7. This Amendment No. 1 may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
constitute one and the same Amendment.
8. Except as otherwise provided in this Amendment No. 1,
capitalized terms used in this Amendment No. 1 have the meaning given to such
terms in the Purchase Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be
duly executed, as of the date first above written.
LONDON BRIDGE SOFTWARE HOLDINGS PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Director
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LONDON BRIDGE PHOENIX SOFTWARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer
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PHOENIX INTERNATIONAL LTD., INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer
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