Amendment No. 1 to
ASSET PURCHASE AGREEMENT
dated as of June 14, 2000
and amended as of June 22, 2000
by and among
RADIANT SYSTEMS, INC.,
HEWLETT-PACKARD COMPANY
and
VERIFONE, INC.
This Amendment No. 1 to ASSET PURCHASE AGREEMENT dated as of June 14, 2000
(the "Agreement") is made and entered into as of June 22, 2000 by and among
RADIANT SYSTEMS, INC., a Georgia corporation ("Purchaser"), VERIFONE, INC., a
Delaware corporation ("Seller") and HEWLETT-PACKARD COMPANY, a Delaware
corporation, as Seller's shareholder ("Shareholder").
RECITALS:
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WHEREAS, Seller, Shareholder and Purchaser entered into the Agreement
and now desire to make certain amendments set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. In Section 1.03(b), the following sentence shall be added at the end of
the existing paragraph: "In the event that Purchaser and Seller fail to
agree on the allocation as specified above, Purchaser and Seller shall
appoint an appraiser who shall determine the allocation of the
consideration paid by Purchaser for the Assets, and the determination of
such appraiser shall be final and binding on the parties."
2. The second sentence of Section 1.04 Closing shall be deleted in its
entirety and restated as follows: "At the Closing, Purchaser will pay
the Purchase Price by wire transfer of immediately available funds: (a)
to the escrow agent, Two Million Five Hundred Thousand Dollars
($2,500,000) (the "Escrowed Amount"), to be held, administered and
disbursed by the escrow agent pursuant to the terms of the Escrow
Agreement; and (b) to Shareholder the balance of the Purchase Price."
3. Purchaser expressly (a) acknowledges that the consents contemplated by
Section 5.06 have not been obtained by Seller and (b) waives any and all
rights resulting from such noncompliance, including without limitation
the provisions of Section 1.06, Section 5.02, Section 5.06, Section
8.01(a) and Section 10.01(b) insofar as they relate to such
noncompliance.
4. In Section 1.05(c), the reference to "three (3) years" in the second
sentence shall be deleted and restated as "five (5) years."
5. In Section 2.05 (Financial Statements) (a) the term "balance sheet" in
the first sentence shall be replaced by "statement of reserves"; (b) the
term "financial condition" in the second sentence shall be replaced by
"reserve position"; and (c) the phrase "income, expenses, assets and
liabilities" in the third sentence shall be replaced by "income,
expenses and reserve position."
6. Purchaser expressly (a) acknowledges that HP made an employment offer to
one employee subsequent to June 14, 2000, which offer was subsequently
withdrawn
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by HP, and (b) waives any and all rights resulting from such
noncompliance with the provisions of Section 4.08(b), including without
limitation the provisions of Section 5.02, section 8.01(a) and Section
1.01(b) insofar as they relate to such noncompliance.
7. Section 4.08(e) shall be deleted in its entirety.
8. Section 5.12 shall be deleted in its entirety.
9. The Disclosure Schedule shall be amended and restated as follows (and
for purposes of determining any liability under the Agreement or this
amendment, the Disclosure Schedule as amended and restated hereby shall
be the sole basis for determining any such liability):
(a) Section 2.03 of the Disclosure Schedules is amended by adding: "Master
Integrated Services Agreement by and between Dataserve Computer Maintenance,
Inc. and TimeCorp Systems, Inc. dated May 25, 1995; TimeCorp Minuteman System
Corporate Helpdesk Support Agreement by and between TimeCorp Systems, Inc. and
The Hillhaven Corporation dated March 27, 1991; and Software License and
Ancillary Services Agreement by and between Marriott International, Inc. and
TimeCorp dated March 17, 2000."
(b) Section 2.06 of the Disclosure Schedule is hereby amended by adding
under Section 2.06(a): "(2) HP has made changes to its Benefit Plans and has
provided other benefits generally in the ordinary course of business."
(c) Section 2.06 of the Disclosure Schedule is further amended by adding:
"Section 2.06(d): (1) HP has made accounting changes on a company-wide basis in
the ordinary course of business."
(d) Section 2.14(d) of the Disclosure Schedule is amended by adding: "Some
or all of the Marks set forth herein (registered and pending) may be registered
or recorded in the name of TimeCorp Systems, Inc. Seller is the successor-in-
interest to TimeCorp Systems, Inc."
(e) Section 2.14(e) of the Disclosure Schedule is amended by adding: "The
Patent and Pending Invention Dislcosure set forth herein may be registered or
recorded in the name of TimeCorp Systems, Inc. Seller is the successor-in-
interest to TimeCorp Systems, Inc. In addition, the Registered Business IP is
subject to existing licenses."
(f) 2.17(a)(iv) and (v) of the Disclosure Schedule is hereby amended by
adding to the end of such Section: "Certain of the foregoing contacts may also
relate to Section 2.17(a)(vii) and (xi)."
(g) Exhibit 2.05 of the Disclosure Schedule is hereby deleted in its
entirety and replaced by Exhibit 2.05 attached hereto.
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(h) Exhibit 2.20(a) of the Disclosure Schedule is hereby deleted in its
entirety and replaced by Exhibit 2.20(a) attached hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party as of the date first above written.
RADIANT SYSTEMS, INC.
By:/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
-----------------------------------
Title: Chief Financial Officer
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VERIFONE, INC.
By:/s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
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Title: VP, Secretary & General Counsel
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HEWLETT-PACKARD COMPANY
By:/s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
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Title: VP, Secretary & General Counsel
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