SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
This SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT is made this 6th day of
April, 2001, by, between and among OSAGE SYSTEMS GROUP, INC., a Delaware
corporation ("Osage"), and its wholly owned subsidiaries, OSAGE COMPUTER GROUP,
INC., a Delaware corporation ("Osage Computer"), SOLSOURCE COMPUTERS, INC., a
California corporation ("SolSource"), X.X. XXXXX, INC., a Texas corporation ("XX
Xxxxx"), OPEN SYSTEM TECHNOLOGIES, INC., a Delaware corporation ("OST"), OPEN
BUSINESS SYSTEMS, INC., an Illinois corporation ("OBS"), OSAGE SYSTEMS GROUP
MINNESOTA, INC., a Minnesota corporation ("OSGM"), OSAGE iXi, INC., a Delaware
corporation ("Osage iXi"), (Osage, Osage Computer, SolSource, XX Xxxxx, OST,
OBS, OSGM and Osage iXi also referred to individually as "Seller" and
collectively as "Sellers"), XXXXXXX COMPUTER RESOURCES, INC., a Delaware
corporation ("Xxxxxxx") and XXXXXXX SELECT INTEGRATION SOLUTIONS, INC. ("PSIS")
(Xxxxxxx and PSIS also referred to individually as "Purchaser" and collectively
as "Purchasers").
WHEREAS, Sellers and Purchasers entered into an Asset Purchase Agreement dated
the 9th day of February, 2001;
WHEREAS, Sellers and Purchasers entered into a First Amendment to Asset Purchase
Agreement dated the 28th day of February, 2001 (the Asset Purchase Agreement and
First Amendment are collectively referred to as "Agreement");
WHEREAS, Purchasers forwarded to Sellers a termination notice dated March 26,
2001, incident to which the Purchasers terminated the Agreement because of the
failure of certain conditions precedent to be satisfied;
WHEREAS, it is Purchasers' desire to rescind their termination notice
terminating the Agreement, but only upon the condition that the Agreement is
amended accordingly;
WHEREAS, pursuant to the provisions of Section 13.8, the parties reserved the
right to amend or modify this Agreement in a writing signed by the parties;
WHEREAS, it is the desire of the Sellers and Purchasers to enter into this
Second Amendment to Asset Purchase Agreement ("Second Amendment") to reinstate
the Agreement and to modify certain of its provisions.
NOW, THEREFORE, in consideration of the above premises and the mutual promises,
covenants, agreements, representations and warranties herein contained, the
parties hereto agree as follows:
1. The termination notice forwarded by Purchasers to Sellers on March 26,
2001, is hereby rescinded.
2. Section 3.1 of the Agreement is hereby deleted in its entirety, and in lieu
thereof, the following Section 3.1 shall be inserted:
3.1 Amount of Purchase Price. The purchase price for the Purchased Assets
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No. 1 and the Purchased Assets No. 2 to be acquired by Xxxxxxx and
PSIS shall be the greater of One Million Dollars ($1,000,000.00) or
the sum of:
(a) the net book value of the Fixed Assets as of the Closing Date
(which amount was $1,355,706 as of December 31, 2000 and will be
increased by acquisitions or decreased by dispositions,
depreciation and amortization of Fixed Assets in the ordinary
course of business prior to the Closing Date);
(b) the amount of the Vendor Receivable as of the Closing Date; and
(c) the value of the Committed Inventory determined by its cost as of
the Closing Date.
The purchase price to be paid to the Sellers hereunder by Xxxxxxx and
PSIS, as applicable, shall be allocated as set forth on Exhibit F
attached hereto. Each Seller and Xxxxxxx and PSIS agree that each
shall act in a manner consistent with such allocation in (a) filing
Internal Revenue Form 8594; and (b) in paying sales and other transfer
taxes in connection with the purchase and sale of assets pursuant to
this Agreement. To the extent that any transaction contemplated herein
are not exempt from sales and other transfer taxes pursuant to Section
1146(c) of the Bankruptcy Code, Xxxxxxx and PSIS shall pay such sales
and other transfer taxes, and any such costs will not be deducted from
the purchase price to be paid to the Sellers hereunder.
3. Section 3.2 of the Agreement is hereby deleted in its entirety, and in lieu
thereof, the following Section 3.2 shall be inserted:
3.2 Payment of Purchase Price. The purchase price shall be payable to
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Sellers or to its creditors as may be directed by the Bankruptcy Court
by Xxxxxxx and PSIS in cash by wire transfer and immediately available
funds on the Closing Date.
4. The conditions precedents to the Agreement contained in Sections 8.1, 8.2,
8.3, 8.4, 8.5, 8.9 and 8.12 shall be deemed satisfied or waived by Xxxxxxx
and PSIS. The condition precedent requiring the Bankruptcy Court to have
entered an order authorizing the sale of the Purchased Assets to
Xxxxxxx/PSIS pursuant to the Agreement on or before April 14, 2001, shall
remain in full force and effect.
5. Section 8 of the Agreement is amended by inserting at the end of Section
8.12, the following Sections 8.13 and 8.14:
8.13 Each Seller shall have delivered to Xxxxxxx and PSIS, as applicable,
at or before the Closing, the following documents, all of which shall
be in form and substance reasonably acceptable to Xxxxxxx and PSIS and
their counsel:
(a) Instruments of transfer required by Section 1.7;
(b) Copies of resolutions of the Board of Directors of each Seller
and any other necessary corporate actions, certified by the
Secretary or Assistant Secretary of each Seller, authorizing the
execution, delivery and performance of this Agreement and the
consummation of the transaction contemplated hereby and attesting
to the signatures of the officers signing documents on behalf of
each Seller;
(c) Each Seller shall have entered into the non-competition
agreements as set forth in Exhibits H and I; and
(d) Possession of Purchased Assets No. 1 and Purchased Assets No. 2
shall be provided to Xxxxxxx and PSIS, as applicable.
8.14 The Bankruptcy Court shall have entered into an order authorizing the
sale of the Purchased Assets to Xxxxxxx/PSIS pursuant to the Agreement
(the "Sale Order") on or before April 14, 2001.
6. Section 9.4(b) is deleted in its entirety, and Sections 9.4(c) and (d) are
renumbered 9.4(b) and (c), respectively.
7. The offset rights contained in Sections 1.6(a), 2.2 and 2.3 (against the
amount due under the Promissory Note) shall be deleted because of the
elimination of the Promissory Note formerly contained in Section 3.2(a).
8. Section 12.1 is deleted in its entirety, and in lieu thereof, the following
Section 12.1 shall be inserted:
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12.1 Closing of the sale and purchase of the Purchased Assets No. 1 and
Purchased Assets No. 2 (the "Closing") shall take place at the offices
of Xxxxxxx'x and PSIS's counsel, Xxxxxxxxx & Dreidame Co., LPA, on or
before the third Business Day following the entry of the Sale Order
(described in Section 8.14), or at such other time or place as may be
mutually agreed to in writing by Xxxxxxx and PSIS and Sellers, and as
permitted in Section 8.10 (the "Closing Date").
Except as amended by this Second Amendment, the parties ratify, reaffirm and
reinstate the terms of the Asset Purchase Agreement dated February 9, 2001, as
amended by the First Amendment to Asset Purchase Agreement dated February 28,
2001.
IN WITNESS WHEREOF, the parties have entered into this SECOND AMENDMENT TO ASSET
PURCHASE AGREEMENT as of the day and year first above written.
XXXXXXX COMPUTER RESOURCES, INC.
By:
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Xxxxxxx X. Xxxxxxx
President
XXXXXXX SELECT INTEGRATION
SOLUTIONS, INC.
By:
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Xxxxxxx X. Xxxxxxx
Chief Executive Officer and President
OSAGE SYSTEMS GROUP, INC.
By:
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Xxxx Xxxxxx
Chairman and Chief Executive Officer
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OSAGE COMPUTER GROUP, INC.
By:
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Xxxx Xxxxxx
Chairman and Chief Executive Officer
SOLSOURCE COMPUTERS, INC.
By:
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Xxxx Xxxxxx
Chairman and Chief Executive Officer
X.X. XXXXX, INC.
By:
----------------------------------
Xxxx Xxxxxx
Chairman and Chief Executive Officer
OPEN SYSTEM TECHNOLOGIES, INC.
By:
----------------------------------
Xxxx Xxxxxx
Chairman and Chief Executive Officer
OPEN BUSINESS SYSTEMS, INC.
By:
----------------------------------
Xxxx Xxxxxx
Chairman and Chief Executive Officer
6
OSAGE SYSTEMS GROUP MINNESOTA,
INC.
By:
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Xxxx Xxxxxx
Chairman and Chief Executive Officer
OSAGE iXi, INC.
By:
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Xxxx Xxxxxx
Chairman and Chief Executive Officer
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