AMENDMENT TO OPTION PURCHASE AGREEMENT
EXHIBIT
10.2
AMENDMENT
TO OPTION PURCHASE AGREEMENT
This
Amendment (“Amendment”),
dated
as of February 21, 2006 (“Amendment
Effective Date”)
is an
amendment to that certain Option Purchase Agreement (“Option
Agreement”)
dated
as of April 29, 2004 by and among Datawatch
Corporation,
a
Delaware corporation with offices located at 000 Xxxx Xxxx, Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 (“Datawatch”)
jointly and severally with Personics
Corporation,
a
Delaware corporation with offices located at 000 Xxxx Xxxx, Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 (“Personics”)
(Datawatch and Personics are collectively referred to herein as “Buyer”),
on the
one hand, and Xxxxxxx
X. Xxxxx,
a sole
proprietor doing business as Math Strategies, having its principal place of
business at 000 Xxxxx Xxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(Huger and Math Strategies being referred to herein as “Math
Strategies”),
on
the other hand.
Recitals:
A. Unless
otherwise defined herein, all capitalized terms used herein shall have the
same
meaning ascribed to them in the Option Agreement.
B. Contemporaneously
herewith, the parties have executed an amendment to the License Agreement
extending the term thereof until April 30, 2015.
C. The
Option to purchase the Software Products granted to Buyer under the Option
Agreement expires April 28, 2006.
D. Buyer
and
Math Strategies have agreed to extend and modify the Option as provided
herein.
Now,
Therefore,
in
consideration of the premises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged by the parties, the parties hereby agree as follows:
1. Section
2
of the
Option Agreement is deleted in its entirety and replaced with the
following:
2. Option
Grant
and Term.
For one
hundred dollars ($100) paid to Math Strategies, the receipt and sufficiency
of
which is acknowledged by Math Strategies, and otherwise subject to the
provisions of this Agreement, Math Strategies hereby grants to Buyer an option
(“Option”)
to
purchase the Software Products. The right of Buyer to exercise the Option shall
commence as of April 29, 2004 and expire on the earlier of April 30, 2015,
and
the termination of the License Agreement for any reason.
2. Section
5
of the
Option Agreement is hereby deleted in its entirety and replaced with the
following:
5. Purchase
Price.
The
purchase price (“Purchase
Price”)
for the
Software Products payable to Math Strategies at Closing shall be calculated
in
accordance with the following formula: Purchase
Price = A x 8.0/1.407693; where
A
equals
the sum of the
1
royalties
paid and payable for the four (4) calendar quarters immediately prior to the
date the Option is exercised by Buyer. For the sake of clarity, an example
of
the calculation is set forth on Attachment A.
3. Section
6
is
hereby amended by replacing, “000 Xxxx Xxxxxx, Xxxxxx, XX 00000” with “Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000”; and replacing “Xxxxx Xxxxxxx &
Xxxxxxxxx, LLP” with “Xxxxxx, Hall & Xxxxxxx LLP.”
4. All
other
provisions of the Option Agreement shall remain in full force and
effect.
In
Witness Whereof,
the
parties have executed this Agreement as of the Amendment Effective Date first
above written.
THIS
AGREEMENT CONTAINS BINDING ARBITRATION PROVISIONS THAT ARE ENFORCEABLE BY THE
PARTIES.
|
MATH
STRATEGIES
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx, individually and as a
Sole
Proprietorship
|
DATAWATCH
CORPORATION
By:
/s/
Xxxxxx Xxxxxx
Name: Xxxxxx
Xxxxxx
Title:
President
& CEO ,
Duly Authorized
|
|
|
Personics,
Inc.
By:
/s/
Xxxxxx Xxxxxx
Name: Xxxxxx
Xxxxxx
Title:
President
& CEO ,
Duly Authorized
|
2
ATTACHMENT
A
Example
of Purchase Price Calculation
|
Quarter
|
Royalty
for Quarter
|
Royalty
for 4 Preceding Quarters,
|
|
Inclusive
|
||
|
Q4-02
|
505660
|
1648077
|
|
Q1-03
|
000000
|
0000000
|
|
Q2-03
|
348836
|
1523521
|
|
Q3-03
|
318629
|
1478299
|
|
Q4-03
|
367594
|
1340233
|
|
Q1-04
|
339539
|
1374598
|
|
Q2-04
|
381931
|
1407693
|
|
Q3-04
|
342304
|
1431368
|
|
Q4-04
|
358310
|
1422084
|
|
Q1-05
|
410526
|
1493071
|
|
Q2-05
|
351041
|
1462181
|
|
Q3-05
|
395341
|
1515218
|
|
Q4-05
|
439963
|
1596871
|
Set
forth
above are the royalties paid by Datawatch to Math Strategies for each quarter
from Q4 of 2002 through Q4 of 2005. The calculations of the Purchase Price
if
the Option was exercised immediately after the end of Q3 of 2004 would be as
follows:
| Royalties paid for the four quarters ended at the end of Q3 of 2004: | $ | 1,431,368 | ||
| Multiplied by 8 ÷ 1.407693, or 5.683057 | x 5.683057 | |||
| Purchase Price (rounded to the nearest dollar) | $ | 8,134,546.00 |
3
