Exhibit 10.17
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT AGREEMENT made this 1st day of April, 1999 by and
among Inteletek, Inc., ("Purchaser"), Xxxxxxx X. Xxxxxxxx ("Shareholder") and
Fiscal Advantage Corporation, a Texas corporation ("Seller").
WHEREAS, the parties entered into an Asset Purchase Agreement
dated January 4, 1999 (the "Asset Purchase Agreement") whereby Purchaser agreed
to purchase and Seller agreed to sell certain assets of the Seller; and
WHEREAS, the Purchaser is in the process of preparing for an
Initial Public Offering ("IPO"); (the tentative name of such corporation is
"Inteletek, Inc."); and
WHEREAS, such Asset Purchase Agreement contained a provision
whereby the Seller, could upon the achievement of certain agreed upon "Projected
EBIT Amounts," earn additional payments, defined in Section 3.1(ii) and 3.1(iii)
of such Asset Purchase Agreement as "Earnout Payments."
WHEREAS, the parties wish to fix the amounts of such "Earnout
Payments" and method and manner of payment.
NOW, THEREFORE, in exchange for the mutual covenants contained
herein and other good and valuable consideration, the parties agree as follows:
1. Earnout Payments. The total amount to be paid as Earnout
Payments shall be Two Hundred Fifty Thousand Dollars ($250.000.00) and shall be
paid to Seller by Purchaser, at its sole discretion, in a combination of either
cash and/or shares of the restricted common stock of Inteletek, Inc. ("Inteletek
Stock"). The ratio of cash and/or Inteletek Stock that is paid by Purchaser
shall be determined by Purchaser at the time of payment. The valuation of the
Inteletek Stock conveyed to Seller shall be determined as the "Offering Price"
of the Inteletek Stock at the time of the IPO.
Such Inteletek Stock shall be restricted for a one year (1)
period from the date of issuance.
The parties agree that, if necessary, Shareholder shall enter
into a Registration Rights Agreement which shall more clearly define the
parties' rights and obligations with regard to the Inteletek Stock issued
pursuant to this Agreement.
2. Registration Rights. In the event that Inteletek Stock is
issued to Seller pursuant to this Amendment Agreement, such Inteletek Stock
shall be issued in accordance with the Registration Rights Agreement and shall
contain the following restricted legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and are "restricted
securities" as that term is defined in Rule 144 under the Act.
The shares may not be sold or offered for sale except pursuant to
an effective registration statement under the Securities Act of
1933 or an opinion of counsel for the corporation that
registration is not required under such Act."
Inteletek shall make very good faith effort to prepare and
file a Registration Statement with respect to such Inteletek
Stock conveyed hereunder within one (1) year of the date of
issuance.
3. Earnout Payments. The parties agree that this Amendment
Agreement shall supercede and replace all the obligations and duties under the
Earnout Payments provision as provided for in the Asset Purchase Agreement and
that the payment of the amount as hereinabove provided shall be construed as the
full and complete payment of the amounts due under the Asset Purchase Agreement.
4. Rights of Recession. In the event that Inteletek is not able
to successfully complete the IPO within one (1) year of the date of this
Amendment Agreement, this Amendment Agreement shall be terminated and the
parties' rights with regard to any payment of the Earnout Payment shall revert
to those as provided in the Asset Purchase Agreement.
5. Miscellaneous.
5.1. Further Assurances. At any time, and from time to time,
after the date of this Amendment Agreement, each party will execute such
additional instruments and take such action as may be reasonably requested by
the other party to confirm or perfect title to any property transferred
hereunder or otherwise to carry out the intent and purposes of this Amendment
Agreement.
5.2. Waiver. Any failure on the part of any party hereto to
comply with any of its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
5.3. Arbitration. Any and all disputes and differences between
or among the parties with respect to the construction or performance of the
terms of this Amendment Agreement which cannot be resolved amicably shall be
resolved by arbitration before the American Arbitration Association in
accordance with its rule then sitting in the State of New Jersey.
5.4. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have given if delivered in person or
if sent by prepaid first class registered or certified mail, return receipt
requested, fax or recognized courier then upon receipt thereof to the following
addresses:
To Shareholder: Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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To Seller: Fiscal Advantage Corporation
0000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
To Purchaser: Inteletek, Inc.
0000 Xx. 000 Xxxxx
Xxxxxxxxxx, XX 00000
ATT: Xxxx Xxxxxxx
with copies to: Xxxx X. Creme, Esquire
Merra, Kanakis, Creme & Xxxxxx, P.C.
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
5.5. Headings. The section and subsection headings in this
Amendment Agreement are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Amendment Agreement.
5.6. Counterparts. This Amendment Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
5.7. Governing Law. The laws of the State of New Jersey shall
govern this Amendment Agreement.
5.8. Binding Effect. This Amendment Agreement shall be binding
upon the parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors and assigns.
5.9. Entire Agreement. This Amendment Agreement is the entire
agreement of the parties covering everything agreed upon or understood in the
transaction. In instances of inconsistencies between this Amendment Agreement of
Sale the former shall govern. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof, and except as modified herein
the terms and conditions of the Agreement of Sale, shall remain in full force
and effect.
5.10. Severability. If any part this Amendment Agreement is
deemed to be unenforceable the balance of this Amendment shall remain in full
force and effect.
THE BALANCE OF THIS PAGE HAS BEEN
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Amendment
Agreement the day and year first above written.
FISCAL ADVANTAGE CORPORATION
("Seller")
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
Its duly authorized President
SHAREHOLDER:
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
INTELETEK, INC.
("Purchaser")
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
Its duly authorized President
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