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EXHIBIT 10.13
EXECUTION COPY
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT, (this
"Amendment") made as of the 9th day of February, 2000, by and among printCafe,
Inc. ("Buyer"), a Delaware corporation and the successor by merger to Prograph
Systems, Inc., a Pennsylvania corporation ("Prograph"), and the shareholders of
Programmed Solutions, Inc, a Connecticut corporation ("PSI") set forth on the
signature page hereof (each, a "Shareholder," and collectively, the
"Shareholders") amends the Stock Purchase Agreement among Prograph and the
Shareholders dated as of January 13, 2000 (the "January 13th Agreement").
BACKGROUND
The Shareholders own all of the issued and outstanding capital
stock (the "Stock") of PSI, which is engaged in the business of designing,
producing, distributing and servicing production and systems management software
and related products for the commercial printing industry.
The Shareholders entered into a stock purchase agreement with
Prograph as of January 13, 2000.
Subsequent to January 13, 2000, Prograph merged with and into
Buyer to "reincorporate" in Delaware as "printCafe, Inc.", and Buyer paid a
deposit of $500,000 of the Aggregate Cash Consideration (as defined in the
January 13th Agreement) to the Shareholders.
The Shareholders and Buyer wish to amend certain provisions of
the January 13th Agreement.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Section 1.3 of the January 13th Agreement is hereby amended in its entirety
as follows:
1.3 The Purchase Price. The Aggregate Cash Consideration plus the
Aggregate Buyer Shares shall comprise the Aggregate Purchase Price. The
Per Share Purchase Price shall be equal to the quotient of the Aggregate
Purchase Price divided by the total number of shares of Common Stock of
PSI outstanding at the Closing. For purposes of this Agreement,
"Aggregate Cash Consideration" equals $15,000,000.00, and "Aggregate
Buyer Shares" means 1,724,138 shares of Buyer Common Stock. At the
Closing, Buyer shall pay to the Shareholders interest on $14,500,000 at
a rate of 8.5% per annum from and including February 1, 2000 to the
Closing Date. Exhibit A hereto sets forth the number of shares of PSI
Common Stock held by each Shareholder and the amount of the Aggregate
Cash Consideration and the number of shares of the Aggregate Buyer
Shares to be issued at the Closing to each Shareholder.
2. The parties hereto acknowledge and agree that no payment is due pursuant to
Section 1.4 of the January 13th Agreement.
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3. Section 5.2(e) of the January 13th Agreement is hereby amended in its
entirety as follows:
(e) The proposed financing of Buyer by Creo Products Inc., or an
affiliate thereof, shall occur simultaneously with the Closing on
substantially the terms previously disclosed to the Shareholders.
4. Section 5.3(a)(i) of the January 13th Agreement is hereby amended in its
entirety as follows:
(i) certificates of the Securityholder Agent, dated as of the
Closing Date, confirming (1) the truth and correctness of all of the
representations and warranties of the Shareholders contained in Article
II herein as of the Closing Date and as of all times between the date
hereof and the Closing Date, and (2) that all agreements and covenants
of the Shareholders specified herein have been complied with, and (3)
that no Shareholder has exercised or taken any action with a view to
exercising any rights of rescission under the Pennsylvania Securities
Act of 1972, as amended, with respect to the transactions contemplated
hereby;
5. Section 5.3(b)(i) of the January 13th Agreement is hereby amended in its
entirety as follows:
(i) a wire transfer to the trust account of Xxxxxxxx & Xxxxxxx on behalf
of the Shareholders in the amount of $13,500,000 plus the interest specified in
Section 1.3.
6. Section 6.1 of the January 13th Agreement is hereby amended in its entirety
as follows:
6.1 Indemnification by Shareholders and Buyer.
(a) Subject to Section 6.2(a) below, from and after the Closing
Date, the Shareholders shall indemnify and hold harmless PSI, Buyer and
any of their affiliates, and their respective officers, directors,
shareholders, representatives and agents (a "Buyer Indemnified Party")
against, and reimburse such Buyer Indemnified Party for, any liability,
damage, loss, obligation, demand, judgment, fine, penalty, cost or
expense, including reasonable attorneys' fees and expenses, and the
costs of investigation incurred in defending against or settling such
liability, damage, loss, cost or expense or claim therefor and any
amounts paid in settlement thereof (collectively "Damages") imposed on
or reasonably incurred by such Buyer Indemnified Party as a result of
any breach of any representation, warranty or covenant, on the part of
the Shareholders set forth in Article II of this Agreement; provided,
however, that no Shareholder shall be required to make any
indemnification payments until and unless the amount of cumulative
Damages incurred by Buyer Indemnified Parties exceeds $50,000.
(b) Subject to Section 6.2(b) below, from and after the Closing
Date, Buyer shall indemnify and hold harmless the Shareholders and any
of their affiliates, and their respective, representatives and agents (a
"Shareholder Indemnified Party") against, and reimburse such Shareholder
Indemnified Party for, any Damages imposed on or reasonably incurred by
such Shareholder Indemnified Party as a result of any breach of
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any representation, warranty or covenant, on the part of Buyer set forth
in Article III of this Agreement; provided, however, that Buyer shall
not be required to make any indemnification payments until and unless
the amount of cumulative Damages incurred by Shareholder Indemnified
Parties exceeds $50,000.
7. Section 6.2 of the January 13th Agreement is hereby amended in its entirety
as follows:
6.2 Buyer Holdback; Limitations.
(a) As the sole and exclusive remedy for satisfying Shareholders'
indemnification obligations set forth in this Agreement, Buyer shall be
entitled to hold back from the Closing proceeds $1,000,000 of the
Aggregate Cash Consideration and 10% of the Aggregate Buyer Shares (the
"Escrowed Proceeds"), to be held in escrow for a period of one year
following the Closing Date (the "Expiration Date"). On the first
anniversary of the Closing Date, if no Damages shall have been incurred
during such one-year period, Buyer shall immediately turn over to each
of the Shareholders the portion of the Escrowed Proceeds allocable to
them.
(b) For a one year period following the Closing Date, Buyer shall
be required to provide up to $1,000,000 and 172,414 shares of Buyer's
Common Stock as the sole and exclusive remedy for satisfying Buyer's
indemnification obligations set forth in this Agreement.
(c) Solely for purposes of this Section 6.2, the parties agree
that each share of Buyer Common Stock shall be deemed to be worth the
then current fair market value per share at any time that such shares
are required to be valued for purposes of satisfying indemnity
obligations.
8. Section 6.5 of the January 13th Agreement is hereby amended in its entirety
as follows:
6.5 Third-Party Claims. In the event an indemnified party becomes
aware of a third-party claim which such party believes may result in a
demand for indemnification hereunder, such party shall notify the
Securityholder Agent, with a copy to the Escrow Agent, or Buyer, as the
case may be, of such claim, and the indemnifying party (the
Securityholder Agent, as representative for the Shareholders, or the
Buyer, as the case may be), shall be entitled, at their expense, to
participate in any defense of such claim. The indemnified party shall
have the right in its sole discretion to settle any such claim;
provided, however, that except with the consent of the indemnifying
party, no settlement of any such claim with third-party claimants shall
alone be determinative of the amount of any claim for indemnification.
In the event that the indemnifying party has consented to any such
settlement, such party shall have no power or authority to object under
any provision of this Article VI to the amount of any claim by the
indemnified party with respect to such settlement.
9. Section 7.2(b) of the January 13th Agreement is hereby amended in its
entirety as follows:
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(b) There shall be endorsed on the certificates evidencing the
shares of Buyer Stock delivered at Closing a legend substantially
similar to the following:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT") OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND
ARE "RESTRICTED SECURITIES" AS DEFINED BY RULE 144 UNDER THE 1933
ACT. THE SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
REGISTERING THE SHARES UNDER THE 1933 ACT AND THE SECURITIES LAWS
OF ANY STATE REQUIRING SUCH REGISTRATION, OR IN LIEU THEREOF, AN
OPINION OF COUNSEL, WHICH OPINION IS SATISFACTORY TO THE ISSUER
OF THE SHARES, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACTS."
10. Section 8 .2(a)(ii) and (iii) of the January 13th Agreement are hereby
amended in their entirety as follows:
(ii) by Buyer by written notice to the Securityholder Agent if
any of the conditions set forth in Section 5.1 shall not have been, or
if it becomes apparent that any of such conditions will not be,
fulfilled by 5:00 p.m. EST on February 8, 2000, unless such failure
shall be due to the failure of Buyer to perform or comply with any of
the covenants, agreements, or conditions hereof to be performed or
complied with by it prior to the Closing; or
(iii) by the Shareholders by written notice from the
Securityholder Agent to Buyer if any of the conditions set forth in
Section 5.2 shall not have been, or if it becomes apparent that any of
such conditions will not be, fulfilled by 5:00 p.m. EST on February 8,
2000, unless such failure shall be due to the failure of PSI or the
Shareholders to perform or comply with any of the covenants, agreements
or conditions to be performed or complied with by them prior to the
Closing.
11. Section 8.7 of the January 13th Agreement is hereby amended in its entirety
as follows:
8.7 Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given, made and received
only when delivered (personally, by courier service such as Federal
Express, or by other messenger) or when deposited in the United States
mails, registered or certified mail, postage prepaid, return receipt
requested, addressed as set forth below:
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(a) If to Buyer:
Xxxx Xxxx
c/o printCafe, Inc.
00 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
with copy to:
Xxxxxxx D'Xxxxxx
c/o printCafe, Inc.
00 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
1.1.1 If to the Securityholder Agent:
Xxxxxxxx Xxxxxxx
c/o Programmed Solutions, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
With copy to:
Xxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Xxxx Xxxxxxx Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxxx
00 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Any party may alter the address to which communications or
copies are to be sent by giving notice of such change of address to the
other parties in conformity with the provisions of this Section for the
giving of notice.
12. The January 13th Agreement, as amended hereby, remains in full force and
effect.
-Signature Page Follows-
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
"BUYER"
printCafe, Inc.
By:
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Xxxx Xxxx, President
"SHAREHOLDERS"
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Xxxxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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Xxxxxx X. Xxxx
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Xxxxxx Xxxxxx
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Agreed, with respect to Section 6.3,
"ESCROW AGENT"
Chicago Title Insurance Company
BY:
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NAME:
TITLE:
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