Exhibit 10.1
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (this "Amendment") is
made as of May 15, 2006, by and among Covansys Corporation, a Michigan
corporation (the "Company"), the Company's Subsidiaries and Affiliates
listed on the signature page to this Amendment (together with the Company, each
a "Seller" and collectively "Sellers") and Saber Solutions, Inc., f/k/a
Cobalt Public Sector, Inc., a Delaware corporation ("Buyer").
RECITALS
A. We have entered into an Asset Purchase Agreement, dated March 8, 2006
(the "Asset Purchase Agreement"), which provides for the sale of the Business by
Sellers to Buyer on the terms and subject to the conditions set forth therein.
B. We have decided that a number of changes should be made to the Asset
Purchase Agreement.
C. We are entering this Amendment to amend the Asset Purchase Agreement as
provided below.
D. The Asset Purchase Agreement can be amended by us in accordance with
Section 12.8 thereof.
Based on all of the foregoing considerations, our mutual promises in this
Amendment and other considerations important to us, which we acknowledge are
sufficient to legally bind us, we agree as follows:
1.1 DEFINITIONS. The terms used in this Amendment that are defined in the
Asset Purchase Agreement and are not otherwise defined in this Amendment have
the meanings given them in the Asset Purchase Agreement. Use of terms such as
"we" and "our" refers to Sellers and Buyer together.
(a) We are adding the following definition in its proper
alphabetical order in Article 11 of the Asset Purchase
Agreement:
"Required Other Consents" means all Consents that are
required:
(i) for the consummation of the transactions contemplated by
this Agreement and by the other Transaction Documents (including,
without limitation, the transfer of the Purchased Assets to Buyer);
(ii) in order to prevent a breach of or default under or a
right of termination or modification of any material Contract to
which any Seller is a party (including, without limitation, the
Assumed Contracts) or to which any portion of the Purchased Assets
is subject;
(iii) for the conduct of the Business as heretofore conducted
and ownership of the Purchased Assets following the Closing; or
(iv) without limiting the generality of the foregoing, for
Sellers to provide all services required to be provided to Buyer
under the Transition Services Agreement."
(b) We are amending the definition of "Target Net Book Value"
contained in Article 11 of the Asset Purchase Agreement to read in its
entirety as follows:
"Target Net Book Value means $30,000,000."
(c) Further, we are deleting the following definitions and
references to definitions:
(i) the definition of "Contract Adjustment Amount" contained
in Article 11;
(ii) the Term and Section references for "Contract Adjustment
Amount" contained in Section 11.1; and
(iii) the Term and Section references for "Flaw" contained in
Section 11.1.
1.2 DELETED PROVISIONS. We are deleting the following provisions of the
Asset Purchase Agreement:
(a) the last sentence of Section 2.3(b) (relating to the Contract
Adjustment Amount);
(b) Sections 4.17, 4.18 and 5.3 (Closing conditions relating to the
Contract Adjustment Amount);
(c) Section 4.11 (Closing condition relating to Material Adverse
Effect);
(d) Section 4.21 (Closing condition relating to rejection of
Contracts under Section 8.20);
(e) Section 4.22 (Noncompetes);
(f) Section 6.9(g) (representation and warranty relating to Flaw in
Customer Contracts);
(g) Section 8.20(a) (relating to rejection of Customer Contracts);
(h) Section 9.2(a)(iii) (indemnity for breach of Section 6.9(g));
and
(i) Schedule 4.4(a) to the Asset Purchase Agreement.
1.3 CLOSING. We are amending Section 2.1 of the Asset Purchase Agreement
to read in its entirety as follows:
"The consummation of the transactions contemplated in this Agreement (the
"Closing") shall take place at the offices of Xxxxxxxx & Xxxxx LLP, 000
Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00 a.m., local time,
on June 1, 2006 or, if any of the conditions to Closing set forth in
Article 4 and Article 5 hereof have not been satisfied or waived by the
Party entitled to the benefit thereof on or prior to such date, on the
second business day following satisfaction or waiver of such Conditions
(the "Closing Date"). The Closing may also take place at such other place
or on such other date as may be mutually determined by the Parties."
1.4 PURCHASE PRICE. We are amending Section 2.3(a) of the Asset Purchase
Agreement to read in its entirety as follows:
"(a) The aggregate purchase price for the Purchased Assets (the "Purchase
Price") shall be equal to the sum of (i) $35,000,000, less (ii) an amount
equal to the Estimated Net Book Value Adjustment. For purposes of this
Agreement, "Estimated Net Book Value Adjustment" shall be equal to an
amount equal to the Target Net Book Value, less the Estimated Net Book
Value."
1.5 PURCHASE PRICE ADJUSTMENT. We are amending Section 2.3(d) of the Asset
Purchase Agreement to read in its entirety as follows:
"(i) If Buyer disagrees with Sellers' calculation of Closing Net Book
Value delivered pursuant to Section 2.3(c), Buyer may, within 120 days
following the last day of the
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month in which the Closing falls or thirty (30) days after Sellers have
delivered the certificate set forth in Section 2.3(c), whichever is later
(the "Objection Period") deliver a written notice (the "Objection Notice")
to Sellers disagreeing with such calculation and setting forth Buyer's
calculation of such amount. Any such Objection Notice shall specify those
items or amounts as to which Buyer disagrees, and Buyer shall be deemed to
have agreed with all other items and amounts contained in Sellers'
calculation of Closing Net Book Value delivered pursuant to Section
2.3(c).
(ii) Buyer's ability to object to Sellers' calculation of Closing Net Book
Value shall be restricted as set forth in this subparagraph. The
restriction on Buyer's ability to object will apply (A) solely to the
extent such objection is based on a disagreement with, or alleged
inaccuracy of, any accrual, reserve or other item and (B) in each case
solely to the extent such disagreement, or alleged inaccuracy, is with
respect to Sellers' calculation of (1) the time and costs that will be
required to be expended or incurred by Sellers (or Buyer after the Closing
Date) in connection with each Customer Contract in order to complete
Sellers' obligations thereunder or (2) the estimated time or date on which
each Customer Contract will be completed following the Closing Date;
provided, that the restriction on Buyer's ability to object under this
subparagraph (ii) will apply in each case only if Sellers can objectively
demonstrate and prove such items were calculated as of the Closing Date
and on a basis consistent with this Agreement and past practice and
methodology and consistent with that used in the preparation of the Latest
Balance Sheet. If Buyer does not deliver an Objection Notice within the
Objection Period, then the amount of Closing Net Book Value shall be
deemed to be finally determined as set forth on Sellers' calculation
thereof."
1.6 NONASSIGNABILITY OF CONTRACTS. We are amending Section 2.6 of the
Asset Purchase Agreement to read in its entirety as follows:
"Nonassignability of Contracts. Notwithstanding anything to the contrary
herein, to the extent that the assignment hereunder by Sellers to Buyer of
any Assumed Contract is not permitted or is not permitted without the
consent of any other party to such Assumed Contract, this Agreement shall
not be deemed to constitute an assignment of any such Assumed Contract if
such consent is not given or if such assignment otherwise would constitute
a breach of, or cause a loss of contractual benefits under, any such
Assumed Contract, and Buyer shall assume no obligations or liabilities
under any such Assumed Contract. Sellers shall use their reasonable
commercial efforts to obtain all Consents necessary for the sale,
transfer, assignment and delivery of the Purchased Assets (including the
Assumed Contracts) to Buyer hereunder, and following the Closing, Sellers
shall continue to use their reasonable commercial efforts to obtain any
further consents related to the assignment of the Customer Contracts.
Sellers shall advise Buyer in writing at least five (5) Business Days
prior to the Closing with respect to any Assumed Contract which either
Seller knows or has substantial reason to believe will or may not be
subject to assignment to Buyer hereunder at the Closing. Without in any
way limiting Sellers' obligation hereunder, if any such consent is not
obtained or if such assignment is not permitted irrespective of consent
and if the Closing shall occur, Sellers shall cooperate with Buyer
following the Closing Date in any reasonable arrangement designed to
provide Buyer with the rights and benefits (subject to the obligations)
under any such Assumed Contract (other than with respect to any Unassumed
Customer Contract), including enforcement for the benefit of Buyer of any
and all rights of either Seller against any other party arising out of any
breach or cancellation of any such Assumed Contract by such other party
and, if requested by Buyer, acting as an agent on behalf of Buyer or as
Buyer shall otherwise reasonably require. Also, with respect to any
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Customer Contract which is not assigned to Buyer as of the Closing,
Sellers shall transfer to Buyer any employees, software or other assets
associated with such Contract, as specified by Buyer, Sellers shall assign
any economic benefit of such Contract to Buyer as of the Closing Date and,
so long as all economic benefit is assigned to Buyer, Buyer and Sellers
shall enter into a mutually agreeable subcontract for the purpose of
reasonably providing Sellers with availability of personnel to perform the
services required by such Contract."
1.7 SELLERS' COVENANTS AND CONDITIONS TO CLOSING. Solely for the purpose
of satisfying the conditions to the obligation of Buyer to close pursuant to
Article 4 of the Asset Purchase Agreement, and not for any other purpose
(including, without limitation, for purposes of any rights to indemnification
pursuant to Article 9 of the Asset Purchase Agreement), we agree as follows:
(a) The following sentence shall be added to the end of Section 4.1
of the Asset Purchase Agreement:
"Notwithstanding the foregoing, and solely for the purposes of
determining the conditions to the obligations of Buyer to consummate the
transactions hereunder, the following representations and warranties need
not be true and correct in any material respect as of the Closing Date
(but shall have been true and correct as of the date hereof):
(a) The last sentence of Section 6.4 (no Material Adverse Effect
since the date of the Last Balance Sheet);
(b) Section 6.9(a) (Customer Contracts);
(c) The second and third sentences of Section 6.9(d) (performance
under Customer Contracts);
(d) Section 6.9(f) (Customer Contract performance);
(e) Section 6.9(g) (Software Product Flaws); and
(f) Section 6.9(h) (estimates and summaries)."
For the avoidance of doubt, nothing in this Section 1.7 shall be deemed to
modify the indemnification provisions of the Asset Purchase Agreement.
1.8 CONSENTS. We are amending Section 4.4 of the Asset Purchase Agreement
to read in its entirety as follows:
"Each of the following Consents shall have been duly made or obtained by
Sellers and delivered to Buyer: (a) all Consents necessary to assign to
Buyer at least ninety percent (90%) of the Pro-Forma Remaining Contract
Value shown on Schedule 6.9(a)(i) as of the date hereof (it being
understood and agreed that the Pro Forma Remaining Contract Value of any
Contract which not a Contract (e.g., unexecuted) prior to the date hereof
and was to be entered into and executed following the date hereof, shall
only be included in the calculation of the 90% (both in the numerator and
the denominator) to the extent it was executed prior to the Closing Date)
of all Customer Contracts (the Consents described in clause (a) are
collectively referred to as the "Required Customer Contracts Consents");
and (b) all Required Other Consents other than those specified in clause
(a). Notwithstanding the foregoing, Sellers shall use their reasonable
commercial efforts to obtain the Consents from all customers and other
Persons (whether or not a Consent is
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required to be delivered pursuant to Section 4.4(a)). All Consents shall
be (A) substantially in the form attached hereto as Exhibit 4.4 or (B) in
such other form and substance reasonably satisfactory to Buyer, and no
such Consent shall have been revoked. For purposes of this Section 4.4, a
customer Consent will "have been duly made or obtained" if the customer
has irrevocably committed in writing to give such Consent on or as of the
Closing or if the customer has given a written Consent which is both (i)
reasonably satisfactory to Buyer and (ii) conditional only upon the
Closing, processing of administrative forms, delivery by Buyer of customer
requested documentation or assurances, and/or actions solely within the
control of Buyer.
1.9 TRANSITION SERVICES AGREEMENT. We are amending Section 4.8 of the
Asset Purchase Agreement to read in its entirety as follows:
"4.8 Transition Services Agreement. Sellers and Buyer (or any of its
designees) shall have entered into a Transition Services Agreement (the
"Transition Services Agreement"), in the form and substance of Exhibit C
attached hereto (provided that, notwithstanding anything contained in
Exhibit C to the contrary, the Transition Services Agreement shall (unless
otherwise designated by Buyer) continue until the later of (i) September
30, 2006 and (ii) the term otherwise specified in the Transition Services
Agreement) and such Transition Services Agreement shall be in full force
and effect as of the Closing and shall not have been amended or modified
and (ii) Exhibit B attached thereto shall be in form and substance
reasonably satisfactory to Buyer."
1.10 ARRANGEMENT WITH CERTAIN EMPLOYEES. We are amending Section 4.10 of
the Asset Purchase Agreement to read in its entirety as follows:
"4.10 Arrangements with Employees.
(a) With respect to each of the Employees listed by Buyer on
Schedule 8.11(b) with respect to whom Buyer (or its designee) has
indicated its intention to offer employment as of the Closing (the
"Offered Employees"), Sellers shall have used their reasonable commercial
efforts to cause such Offered Employee to execute a Saber Solutions, Inc.
Employment Agreement in form and substance as provided by Buyer to Sellers
(the "Saber Employment Agreement"), pursuant to procedures agreed to by
Sellers and Buyer prior to Closing.
(b) With respect to each Offered Employee who has not executed on or
before the Closing Date the Saber Employment Agreement pursuant to Section
4.10(a) above, Buyer shall have assumed and Sellers shall assign to Buyer
at Closing as an Assumed Contract, the employment agreement, employee
technology and confidentiality agreement, proprietary information
agreement or similar agreement or Contract as specified on Schedule 6.14
(except for any Covansys Retention Bonus Agreement and except for any
Claremont Technology Group, Inc. Employment Agreement) of such Offered
Employee. For purposes of clarity, in no event shall Buyer assume or shall
Sellers assign to Buyer any Covansys Retention Bonus Agreement or any
Claremont Technology Group, Inc. Employment Agreement (including with
those Offered Employees set forth on Schedule 4.10(b)), which shall be for
all purposes under this Agreement Excluded Assets.
(c) With respect to any of the employees of the Business who have
not executed an employment agreement, employee technology and
confidentiality agreement, proprietary information agreement or similar
agreement or Contract with the Company that contain similar proprietary
rights provision as those contained in the Non-disclosure and Proprietary
Rights Agreement attached hereto as Exhibit E and have not executed a
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Saber Employment Agreement, the Company shall have entered into a
Non-disclosure and Proprietary Rights Agreement with such employee,
substantially in the form attached hereto as Exhibit E."
1.11 INDIA PERSONNEL SERVICES AGREEMENT. We are replacing Exhibit D to the
Asset Purchase Agreement with the Exhibit D attached to this Amendment. We agree
that Exhibit D in the form attached to the Asset Purchase Agreement is null and
void, and that we will consider Exhibit D to this Agreement to replace it for
all purposes.
1.12 EMPLOYEES. We are amending Section 8.11(a) of the Asset Purchase
Agreement to read in its entirety as follows:
"Sellers have provided Buyer with a true, correct and complete list
of all of the Employees and contractors engaged primarily in the Business
as of February 24, 2006 and shall at least six (6) days before the Closing
Date provide such a list (as of seven (7) days) before the Closing Date,
in each case indicating the most recent rate of pay of each such Employee
and contractors during the twelve (12) months preceding the date hereof,
the date of employment and title or job position of each such Employee and
contractor, and the status of each such Employee and contractor as active,
on leave, full-time, part-time or otherwise."
We are amending Section 8.11(b) of the Asset Purchase Agreement to read in
its entirety as follows:
"At least four (4) days before the Closing, Buyer shall deliver to
the Company Schedule 8.11(b) which shall list the active Employees used in
the Business as indicated on the list delivered by Sellers pursuant to
Section 8.11(a), to whom Buyer (or its designee) intends to offer
employment. As soon as practicable following Sellers' receipt of Schedule
8.11(b), but in any event at least one (1) day prior to closing, Sellers
shall provide Buyer an estimate of the severance expense to be paid by
Buyer pursuant to this Section 8.11(b). Following Buyer's receipt of
Sellers' estimate, Buyer may amend Schedule 8.11(b) in its sole discretion
by providing written notice to Sellers. Any such Employee who accepts
Buyer's offer of employment shall be referred to herein as a "Rehired
Employee". Nothing in this Agreement shall obligate Buyer to continue to
employ any Rehired Employee for any period of time or limit the ability of
Buyer to modify any wage, salary or benefit to any Rehired Employee or
terminate the employment of any Rehired Employee at any time following the
Severance Date for any reason, including without cause. However, if Buyer
fails to offer employment to any person on the list delivered by Sellers
in accordance with Section 8.11(a) above, and Sellers terminate any such
Employee to whom Buyer fails to offer employment, Buyer shall reimburse
Sellers the amount of any out-of-pocket severance expense which is
actually paid by any Seller to any such Employee according to Sellers'
existing severance policy as provided to Buyer, or as required by
applicable law. For purposes of this Section 8.11(b), the term "active
Employees" shall include all full-time and part-time employees, employees
on military leave, maternity leave, short-term disability and leave under
the Family and Medical Leave Act of 1993. Any Employee who is on short
term disability or on a leave of absence of the type described above shall
remain the liability of Sellers and shall continue to receive benefits to
the extent provided under Sellers' employee benefit plans until such time
as the Employee actively returns to work with Buyer."
1.13 401(k). We are amending Section 8.11(e) of the Asset Purchase
Agreement to read in its entirety as follows:
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"Sellers shall (i) prior to or on Sellers' next payroll date, make all
matching contributions that would otherwise be made for the plan year
(without regard to any year-end employment requirements) with respect to
the Rehired Employees' contributions to the Covansys 401(k) Retirement
Plan (the "Sellers Savings Plan"), (ii) prior to or on the Severance Date,
amend the Sellers Savings Plan to fully vest the employer contribution
accounts of all Rehired Employees and (iii) prior to or on the Severance
Date, amend the Sellers Savings Plan to permit Rehired Employees to roll
over in-kind promissory notes evidencing outstanding participant plan
loans without default to Buyer's 401(k) savings plan. Buyer agrees it will
cause its 401(k) savings plan to accept a rollover of outstanding plan
loans of Rehired Employees in existence as of the Severance Date."
1.14 INDEMNIFICATION OF BUYER. We are amending Section 9.2(b) to read in
its entirety as follows:
"The indemnification provided for in Section 9.2(a), shall be subject to
the following limitations:
(i) Sellers will not be liable to any Buyer Party for any
Adverse Consequences under Section 9.2(a)(i) (other than in respect
of any Buyer Fundamental Representation or the representations made
under Section 6.8 (Tax Matters)) unless and until the aggregate
amount of Adverse Consequences relating to all such breaches,
excluding Adverse Consequences related to breaches of Buyer
Fundamental Representations or the representations made under
Section 6.8 (Tax Matters), exceeds $750,000 (the "Buyer Threshold"),
at which time Sellers shall be liable for the amount of all such
Adverse Consequences in excess of the Buyer Threshold;
(ii) Notwithstanding the foregoing subsection (i) and subject
to subsection (iv), a Buyer Party may not assert any additional
claims against Sellers (A) pursuant to Section 9.2(a)(i) (other than
in respect of the Buyer Fundamental Representations or the
representations made under Section 6.8 (Tax Matters)) once Sellers
have paid $6,000,000 to Buyer pursuant to such Section 9.2(a)(i) for
benefits of representations and warranties (other than with respect
to the Buyer Fundamental Representations, the representations made
under Section 6.8 (Tax Matters) or, for the avoidance of doubt, the
Specified Customer Contract Representations) or (B) pursuant to
Section 9.2(a)(i), with respect to a breach of any representation or
warranty contained in this Agreement, or pursuant to Section
9.2(a)(iv), with respect to breach of any covenant contained in this
Agreement, to the extent (and solely the extent) that the Adverse
Consequences are directly attributable to or directly arise from the
untruth or inaccuracy of any Completion Representations (and are not
attributable to and do not arise from the untruth or inaccuracy of
any other statement, representation, warranty or covenant in this
Agreement), once Sellers have paid $1.00 to Buyer pursuant to such
Section 9.2(a)(i) for benefits of such representations and
warranties or pursuant to such Section 9.2(a)(iv) for benefits of
such covenants;
(iii) For purposes of this Article 9, "Completion
Representations" means all statements contained in this Agreement
(including the Schedules hereto) relating solely to (1) the time and
costs that will be required to be expended or incurred by Sellers
(or Buyer after the Closing Date) in connection with each Customer
Contract in order to complete Sellers' obligations thereunder
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or (2) the estimated time or date on which each Customer Contract
will be completed;
(iv) The parties agree and understand that the limitation set
forth in clause (B) of subparagraph (ii) will not limit Buyer's
right to assert claims for Adverse Consequences attributable to or
arising from any other statement, representation, warranty or
covenant in this Agreement. For purposes of clarity, and
notwithstanding anything to the contrary herein, clause (B) of
subparagraph (ii) will in no way limit a Buyer Party's ability to
assert a claim against Sellers for any breach of any representation,
warranty or covenant which relates to, arises out of or is a result
of any of the following:
(A) a breach of any Assumed Contract;
(B) a violation of law;
(C) a breach of warranty under a Customer Contract or
Assumed Contract;
(D) a tort;
(E) any product liability;
(F) an infringement or misappropriation claim with
respect to products delivered or developed (including works in
progress) or services performed; or
(G) any charge, complaint, action, suit, proceeding,
hearing, investigation, claim or demand relating to any of the
foregoing.
(v) Sellers will not be liable to any Buyer Party for any
Adverse Consequences under Section 9.2(a)(ii) and a Buyer Party may
not assert any claims against Sellers pursuant to Section 9.2(a)(ii)
once Sellers have paid $1.00 to Buyer pursuant to such Section
9.2(a)(ii) for benefits of representations and warranties in respect
of Sections 6.9(a), 6.9(f), and 6.9(h); and
(vi) notwithstanding anything in Section 9.2(a) to the
contrary, in the event that Buyer makes a claim for indemnification
pursuant to Section 9.2(a) (other than pursuant to Section
9.2(a)(ii), Section 9.2(a)(v) or Section 9.2(a)(viii)), arising out
of a claim by a customer for pre-Closing breach of its Customer
Contract (that is an Assumed Contract), Sellers shall only be
required to indemnify a Buyer Party thereunder for any out-of-pocket
Adverse Consequences paid, or to be paid, by such Buyer Parties
(i.e., Sellers shall not be liable for any lost profits,
consequential damages or the like unless paid out-of-pocket by Buyer
Party to a third party)."
1.15 GUARANTEE OF BUYER OBLIGATIONS. New Section 8.23 is added to the
Asset Purchase Agreement to read as follows:
"8.23 Continuing Obligations Under Certain Assumed Contracts. In order to
facilitate the consummation of the transactions contemplated by this
Agreement, Sellers may agree to remain potentially liable under the
Customer Contracts and lease agreements listed on Schedule 8.23 which are
being transferred to Buyer under this Agreement (the "Indemnified
Contracts"). For purposes of this Agreement, the Indemnified Contracts
shall be deemed Assumed Contracts (so long as necessary Consent is
obtained in accordance with such Contract). For purposes of this
Agreement, Sellers' agreement to remain potentially liable to the customer
under the Indemnified Contracts (i) will not
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otherwise change the nature of any obligation under any Indemnified
Contract as an Assumed Liability and (ii) will not otherwise be an
Excluded Liability and will not otherwise constitute any obligation under
the Indemnified Contracts as an Excluded Liability. Buyer shall reimburse
Sellers for all out-of pocket costs incurred by Sellers under any
Indemnified Contract except to the extent that any such costs do not
constitute Assumed Liabilities, constitute Excluded Liabilities and/or are
otherwise indemnifiable by Sellers pursuant to this Agreement. Saber
Software, Inc. and Saber Holdings, Inc. shall guarantee all obligations of
Buyer under this Section 8.23."
1.16 BUYER PARTICIPATION IN BUSINESS PRIOR TO CLOSING. New Section 8.24 is
added to the Asset Purchase Agreement to read as follows:
"8.24 Buyer Participation in Business Prior to Closing. Subject to (and
without limiting) the provisions of this Agreement, including, without
limitation, Article 3 hereof, until Closing, Sellers shall operate the
Business without any direction or involvement from Buyer, except to the
extent specifically requested by Sellers or as otherwise specifically set
forth in the Agreement. Any such direction or involvement from Buyer as
requested by Sellers shall be at Buyer's sole cost and expense, and shall
be conducted solely through and as approved by Xxxxxx Xxxxxxxx."
1.17 EXCLUSIVE REMEDY. We are amending the last sentence of Section 9.6 to
read in its entirety as follows:
"The Parties hereto further agree that the provisions of Section
9.2(a)(ii) shall be the sole and exclusive remedies available to any Buyer
Party for any claim for breach of the Specified Customer Contract
Representations."
1.18 ARRANGEMENTS WITH CERTAIN EMPLOYEES.
(a) DELETION OF SCHEDULEE 4.10(a). We are deleting Schedule 4.10(a)
in its entirety.
(b) AMENDMENT OF SCHEDULE 1.1(c). We are amending Item IV of
Schedule 1.1(c) of the Disclosure Schedules to the Asset Purchase Agreement in
its entirety to read in its entirety as follows:
"Only as provided in Section 4.10(b) of the Agreement (i.e., not including
any Covansys Retention Bonus Agreement or any Claremont Technology Group,
Inc. Employment Agreement), and only to the extent such agreements are
specified on Schedule 6.14 (or entered into pursuant to Section 4.10), the
employment agreements, employee technology and confidentiality agreements,
proprietary information agreements and similar agreements and Contracts
(except for any Covansys Retention Bonus Agreement and except for any
Claremont Technology Group, Inc. Employment Agreement), each of which is
in the specified form attached hereto as Exhibit 1, between the Company or
its Affiliates and each of the Offered Employees listed on Schedule
8.11(b)."
1.19 OTHER PROVISIONS UNCHANGED. We agree that except as expressly
modified by the terms of this Amendment, the provisions of the Asset Purchase
Agreement continue in full force and effect without modification. If any
provision of the Asset Purchase Agreement (whether or not we have specifically
referred to it in this Amendment) conflicts with any provision of this
Amendment, the provision of this Amendment will control. The date of the Asset
Purchase Agreement shall remain as March 8, 2006 and all references to "as of
the date hereof", "as of the date of this Agreement" or similar terms or phrases
of like import shall mean March 8, 2006.
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1.20 COUNTERPARTS. This Amendment No. 1 to Asset Purchase Agreement may be
executed in two or more counterparts (including by use of facsimiled signature
pages), any one of which need not contain the signatures of more than one party,
but all such counterparts taken together shall constitute one and the same
Amendment No. 1 to Asset Purchase Agreement.
1.21 GOVERNING LAW. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Amendment No. 1 to Asset
Purchase Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of Delaware of any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
* * * * * *
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IN WITNESS WHEREOF, we have executed this Amendment No. 1 as of the date
indicated in the first paragraph of this Amendment.
COVANSYS CORPORATION
By:
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Name:
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Its:
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COVANSYS CONSULTING SERVICES CORPORATION
By:
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Name:
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Its:
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SABER SOLUTIONS, INC.
By:
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Name:
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Its:
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