EXHIBIT 10.21
AMENDMENT TO PURCHASE AGREEMENT
This Amendment dated April 8, 2004 (this "Amendment"), to the Asset Purchase
Agreement dated April 4, 2004 between Fujitsu Transaction Solutions, Inc., a
Delaware corporation (the "Buyer"), Optimal Robotics Corp., a Canadian
corporation now known as Optimal Group Inc. ("Optimal Corp.") and Optimal
Robotics Inc., a Delaware corporation ("Optimal Inc." and, together with Optimal
Corp., the "Sellers" and each, individually, a "Seller"), is hereby made among
Buyer and Seller.
W I T N E S S E T H:
WHEREAS Buyer and Sellers are the original parties to the Purchase Agreement;
AND WHEREAS, it is proposed that certain amendments be made to the Purchase
Agreement in the manner and as more fully set forth herein and that such
amendments be adopted in accordance with Section 28 of the Purchase Agreement.
NOW THEREFORE in consideration of the premises, the parties hereto agree as
follows:
1. Defined Terms. Capitalized terms used herein but not defined
shall have the meanings assigned to them in the Purchase Agreement.
2. Amendments to Exhibit 5(A) to the Purchase Agreement. Exhibit
5(A) to the Agreement is hereby replaced by the following:
"The parties acknowledge that in the context of an audit of only those
assets and liabilities of the Seller that form part of the Business, there
is no assurance that the audit opinion of KPMG LLP will be unqualified.
The parties also acknowledge and agree that the physical inventory count
of product and service replacement parts inventory will be conducted
within 21 days of Closing and that the audit opinion of KPMG LLP may be
qualified as a result."
3. Amendment to Section 5(B) of the Purchase Agreement. Section 5(B)
of the Purchase Agreement is hereby amended by deleting the provision in its
entirety and substituting the following in lieu thereof:
(B) Prior to the Closing Date, Seller will inspect the product and
service replacement parts inventory to take into account
defective and obsolete inventory and inventory in excess of
Buyer's expected business requirements, which will be
written-off in accordance with Canadian generally accepted
accounting principles, and excluded for purposes of
determining the value of the inventory pursuant to this
paragraph (B). Within 7 days of Closing, Seller shall provide
Buyer with a detailed list of all inventory (including
defective and obsolete inventory, and inventory in excess of
Buyer's expected business requirements) included in the
Purchased Assets as of March 31, 2004. Within sixty (60) days
following the Closing Date, Buyer will conduct a physical
audit of all
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such inventory (the "Inventory Audit"). In the event the
Inventory Audit reflects that the book value of the listed
inventory as reflected on the books and records of Seller as
of the Closing Date exceeds by more than U.S. Two Hundred
Thousand dollars (US$200,000), the book value of the inventory
found during the physical inventory, the Purchase Price shall
be reduced by the amount of such amount in excess of U.S. Two
Hundred Thousand dollars (US$200,000). No adjustment shall be
made in the event the book value of the listed inventory is
less than the inventory found during the physical inventory.
Subject to Section 5(C) below, in the event of a decrease in
the Purchase Price, the amount of such decrease shall be
immediately paid by Seller to Buyer in cash, by certified
check or bank wire transfer. In the event of a dispute
resolved in accordance with the terms of Section 5(C) below,
payment shall be made within five (5) days of the
determination of the Neutral Accounting Firm.
4. Amendment to Section 9(D) of the Purchase Agreement. Section 9(D)
of the Purchase Agreement is hereby amended by deleting the provision in its
entirety and substituting the following in lieu thereof:
(D) Removing Excluded Assets. On or prior to the termination of
the Transition Services Agreement dated April 8, 2004 between
the parties and Fujitsu Transaction Solutions Canada Inc.,
Seller shall remove all Excluded Assets from all facilities
and other real property to be occupied by Buyer. Such removal
shall be done in such manner as to avoid any Material damage
to the facilities and other properties to be occupied by Buyer
and any Material disruption of the business operations to be
conducted by Buyer after the Closing. Any Material damage to
the Purchased Assets or to the facilities resulting from such
removal shall be paid promptly by Seller to Buyer. Should
Seller fail to remove the Excluded Assets as required by this
Section, Buyer shall have the right, but not the obligation,
to remove the Excluded Assets at Seller's sole reasonable cost
and expense to store the Excluded Assets and to charge Seller
all reasonable storage costs associated therewith. Seller
shall promptly reimburse Buyer for all reasonable costs and
expenses incurred by Buyer in connection with any Excluded
Assets not removed by Seller on or before the 30th following
the termination of the Transition Services Agreement upon
presentation of reasonable evidence of same.
5. Amendment to Section 30 of the Purchase Agreement. Section 30 of
the Purchase Agreement is hereby amended by deleting the provision in its
entirety and substituting the following in lieu thereof:
30. Expenses. Each party shall pay all expenses and costs incurred
or to be incurred by it in negotiating, closing, and carrying
out this Agreement, including, without limitation, all legal,
accounting and printing fees and expenses; provided, at
Closing, Buyer shall pay Seller U.S. Three Million dollars
(US$3,000,000), representing the break fee under the
agreement(s) between Seller and XXX Xxxxxxxxxxx (and certain
of its affiliates) disclosed in the proxy circular filed by
Optimal Corp. on
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March 11, 2004; and further, provided, that Buyer shall
reimburse Seller within 30 days of Closing for all reasonable
costs up to a maximum of U.S. Three Hundred and Fifty Thousand
Dollars (US$350,000) in the aggregate related to (x) obtaining
shareholder approval of the transactions contemplated herein,
(y) obtaining the enforceability opinion under Section
13(B)(viii) and (z) the audit of the Closing Balance Sheet
pursuant to Section 5(A); and further provided that if any
amount paid to Seller for the NCR break fee is not paid to
NCR, Seller shall return such unpaid amounts to Buyer.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
FUJITSU TRANSACTION SOLUTIONS INC. OPTIMAL ROBOTICS CORP.
By: /s/ Xxxx Xxxx By: /s/ Xxxx Xxxxxxxx
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(Signature) (Signature)
Name: Xxxx Xxxx Name: Xxxx Xxxxxxxx
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(Please print) (Please print)
Title: Executive Vice-President Title: Co-Chairman & CEO
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OPTIMAL ROBOTICS INC.
By: /s/ Xxxxx Xxxx
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(Signature)
Name: Xxxxx Xxxx
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(Please print)
Title: President & COO
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