EXHIBIT 10.75
AMENDMENT NO. 2 TO MANAGEMENT AGREEMENT
THIS AMENDMENT NO. 2 (this "SECOND AMENDMENT") is made as of this 30th
day of November 2002 by and between INSCI CORP., formerly known as
xxxxx-xxxxxxxxxx.xxx, corp., a Delaware corporation with an address at Two
Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "COMPANY"), and
SELWAY MANAGEMENT, INC., a Delaware corporation, with an address at 00 Xxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 ("SELWAY") and amends that certain Management
Agreement as of November 1, 2000 by and between the Company and Selway, as
amended by Amendment No. 1 to Management Agreement dated as of June 21, 2001 by
and between the Company and Selway (collectively the "INITIAL AGREEMENT"). All
capitalized terms used in this Second Amendment and not defined herein shall
have the meaning ascribed thereto in the Initial Agreement.
RECITALS
WHEREAS: the Company and Selway entered into the Initial Agreement
pursuant to which Selway provides the Company with ongoing
management and consulting services with respect to the
development of the Company's business; and
WHEREAS: Selway and the Company desire to amend the Initial
Agreement to alter the terms relating to the consideration
paid to Selway for its services and the term of the Initial
Agreement, as amended by this Second Amendment from and
after the date of this Second Amendment, all as more fully
described in this Second Amendment;
NOW THEREFORE, in consideration for the foregoing and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree to modify and amend certain provisions of the Initial Agreement as
follows:
1. AMENDMENTS TO THE INITIAL AGREEMENT
The Company and Selway each hereby agree to make the following
amendments to the Initial Agreement:
A. CONSIDERATION
Section 2.1 of the Initial Agreement as it relates to the
payment of compensation for services provided by Selway for the benefit of the
Company is amended by omitting such Section 2.1 in its entirety and substituting
the following therefor:
"2.1 As of November 30, 2002 remit to Selway One Hundred and Sixty
Five Thousand and 00/100 Dollars ($165,000.00) (the "ACCELERATED
PAYMENT") made payable to Selway, which amount shall not be
refundable for any reason whatsoever. Such Accelerated Payment
shall be payable through the issuance by the Company of a
Debenture (as defined in the Investment Agreement dated as of
June 21, 2001 (the "INVESTMENT AGREEMENT") by and among the
Company, Selway Partners and Selway), which Debenture shall be
in the aggregate principal amount of the Accelerated Payment
(the "ACCELERATED PAYMENT DEBENTURE"). Such Accelerated Payment
Debenture shall be substantially in the form annexed as EXHIBIT
A to the Fourth Amendment to Investment Agreement dated as of
November 30, 2002 by and among the Company, Selway and Selway
Partners, which Accelerated Payment Debenture shall be subject
to the terms and conditions of the Investment Agreements (as
defined in the Investment Agreement), including without
limitation, being subject to the security interest granted by
the Company in favor of the holder of such Accelerated Payment
Debenture pursuant to such Investment Agreements."
B. TERMINATION AND EXPIRATION
(i) Section 5.1 of the Initial Agreement is amended by
deleting the first sentence in its entirety and substituting the following
therefor:
"The term of this Agreement shall commence on and as of the date
hereof and shall continue until November 30, 2003 (the "TERMINATION
DATE"), unless sooner terminated in accordance with Section 5.5
below."
(ii) Section 5.5 of the Initial Agreement is amended and
restated in its entirety as follows:
"5.5. This Agreement may be terminated prior to the Termination Date
upon the occurrence of either of the following events: (i) the
mutual written agreement of the parties hereto; or (ii) upon
written notice of termination "For Cause" (as defined below)
by the Company to Selway."
2. AUTHORIZATION; ENFORCEABILITY
All corporate action on the part of the Company necessary for the
authorization, execution, delivery and performance of all its obligations under
this Second Amendment has been taken. This Second Amendment, when executed and
delivered by the Company, will constitute the valid, binding and enforceable
obligations of the Company, legally enforceable against it in accordance with
its terms, except: (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
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3. INITIAL AGREEMENT RATIFIED AND CONFIRMED
The Initial Agreement, as specifically amended by this Second
Amendment, is and shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed. Selway and the Company each hereby confirm
that all representations and warranties made by each of them in the Initial
Agreement are true and correct as of the date hereof.
4. MISCELLANEOUS
The Initial Agreement, as amended by this Second Amendment, constitutes
the entire understanding of the parties with respect to its subject matter and
supersedes all previous agreements, arrangements and understandings, written or
oral. No waiver or modification of this Second Amendment will be valid or
binding unless in writing and signed by both parties and no waiver of any breach
or default will be deemed to be a waiver of any preceding or subsequent breach
or default. In the event of any express conflict between the terms of this
Second Amendment and the Initial Agreement, this Second Amendment shall govern.
This Second Amendment may be executed in several counterparts and by each party
on a separate counterpart each of which when executed and delivered shall be an
original, and all of which together shall constitute one instrument. This Second
Amendment shall for all purposes be construed in accordance with the laws of the
State of New Jersey.
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IN WITNESS WHEREOF, the parties have signed this Second Amendment as of
the date first written above.
SELWAY MANAGEMENT, INC. INSCI CORP.
By: By:
---------------------------- -----------------------------
Name: Name
Title: Title:
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