EXHIBIT 2.2
Confidential Treatment Requested
Under 17 C.F.R. (S)(S) 200.80(B)(4),
200.83 and 240.24B-2
AMENDMENT NO. 1
TO PARTNERSHIP PURCHASE
AGREEMENT
This Amendment No.1 to Partnership Purchase Agreement (this
"Amendment") is made as of the 30th day of November, 1999 between ADP, Inc.
("ADP"), ADP Financial Information Services, Inc. ("ADP FIS"), Newgen Results
Corporation ("Newgen"), NGR Acquisition Corp. ("NGR") and Computer Care ("CC").
RECITALS
Whereas, ADP, ADP FIS, Newgen, NGR and CC are parties to that certain
Partnership Purchase Agreement dated October 22, 1999 (the "Agreement"); and
Whereas, ADP, ADP FIS, Newgen, NGR and CC wish to amend the Agreement
as herein set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt of which is hereby acknowledged, ADP, ADP
FIS, Newgen, NGR, and CC agree as follows:
1. DEFINITIONS. All capitalized terms used herein but not otherwise
defined herein shall have the meaning given such terms in the Agreement.
2. AMENDMENTS.
2.1 SCHEDULE 2.5. Part II of Schedule 2.5 is hereby amended by adding
the following item (g) thereto: "(g) The assets of Computer Care do not include
any rights in the domain name `xxxxx.xxx'. All rights in this domain name will
be assigned to ADP, Inc. prior to the Closing Date."
2.2 SCHEDULE 2.11. Schedule 2.11 to the Agreement is hereby amended by
adding the following (i) to the end of item e of Part I thereof: "and ADP
proposal and [***]
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acceptance each dated November 1999", (ii) a new item to the end of part I.
thereof: "(k) Printing Services Agreement between [***] and Picture Perfect
Promotions dated April 20, 1999" and (iii) a new item to the end of part II
thereof: "c. [***]"
2.3 SCHEDULE 2.16. Schedule 2.16 is hereby amended by deleting it in
its entirety and replacing it with Schedule 2.16 attached hereto.
2.4 SECTION 1.2 (a). Section 1.2 (a) of the Agreement is hereby amended
by deleting subsection (i) thereof and replacing it with the following: "(i)
eleven million twenty-five thousand dollars ($11,025,000) less".
2.5 ARTICLE 5. Article 5 of the Agreement is hereby amended by deleting
Section 5.10 (Data Conversion) thereof in its entirety.
2.6 SECTION 5.2 (a). Section 5.2 (a) of the Agreement is hereby amended
(i) by deleting the first two sentences thereof and replacing it with the
following: "All accounts receivable of the Partnership existing as of the close
of business on the Closing Date (the "RETAINED RECEIVABLES") shall, immediately
prior to the Closing, be transferred to and shall be the property of, the
Partners. `Accounts receivable' shall mean all rights to receive payment for
work completed by the Partnership for a customer whether or not a xxxx, invoice
or other evidence of the completion of such work exists as of such date and
nothing in this Agreement shall prevent the Partners from billing any customer
of the Partnership after the Closing Date with respect to any Retained
Receivable." and (ii) by deleting the phrase "At the Closing," at the beginning
of the third sentence thereof and replacing it with the following: "Within five
(5) business days of the Closing Date,".
2.7 SECTION 5.3 (b). The first sentence of Section 5.3 (b) of the
Agreement is hereby amended by adding the phrase "during the three year period
after the Closing Date" after the phrase "E-Service Reminders ( the `E-SERVICE
REMINDER SERVICES')".
2.8 SECTION 5.4(a). Section 5.4 (a) of the Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
" (a) The Partners each covenant and agree that for a period of one (1) year
following the Closing Date, neither it nor any of its Affiliates or their
respective Representatives shall, without the prior written consent of the
Buyers, hire or solicit (directly or indirectly) for employment any person
listed on Schedule 2.16(d) hereto. For a period of 120 days after the Closing
Date, none of the Partners or their Affiliates or Representatives shall, without
the prior written consent of the Buyers, hire or solicit (directly or
indirectly) for employment any person listed on Schedule 5.4(a). ADP agrees to
assign [***] and [***] to provide consulting services for Computer Care as
independent contractors. [***] shall provide services for two months following
the Closing Date and Computer Care agrees to reimburse ADP [***] for the first
month and [***] for the second
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month. [***] shall provide consulting services until such time as Newgen shall
determine, but no later than March 31, 2000, and Computer Care agrees to
reimburse ADP [***] during such time period that Newgen requests his services.
[***] shall devote two-thirds of his time to Computer Care during the first
month and one-third of his time during the second month. [***] will devote
one-third of his time to Computer Care. ADP agrees that Computer Care may, at no
charge, have the accounting services currently performed by [***] continue to be
provided by such persons on Computer Care's behalf until such time as Newgen has
completed the transition of its ownership of Computer Care. Newgen shall use
commercially reasonable efforts to expedite such transition; provided, however,
that such services shall not extend in any event beyond March 31, 2000. "ADP
Employees" shall mean, collectively, [***] or any other person employed by ADP
or its Affiliates who provide similar services to Newgen during the time periods
set forth above. The ADP Employees will be employees of ADP. ADP shall not
deemed to be in breach of its obligations with respect to the services to be
provided by the ADP Employees if any of them voluntarily terminate their
employment with ADP or ADP terminates their employment for cause. The ADP
Employees' relationship with Newgen will be that of an independent contractor
and nothing in this Agreement should be construed to create a partnership, joint
venture, or employer-employee relationship. The ADP Employees are not the agents
of Newgen and are not authorized to make any representation, contract, or
commitment on behalf of Newgen. The ADP Employees will not be entitled to any of
the benefits which Newgen may make available to its employees, such as group
insurance, profit-sharing or retirement benefits. ADP will be solely responsible
for all tax returns and payments required to be filed with or made to any
federal, state or local tax authority with respect to the ADP Employees'
performance of services for Newgen. Newgen will regularly report amounts paid to
the ADP Employees by filing Form 1099-MISC with the Internal Revenue Service as
required by law. Because the ADP Employees are independent contractors, Newgen
will not withhold or make payments for social security; make unemployment
insurance or disability insurance contributions; or obtain worker's compensation
insurance on the ADP Employees' behalf. ADP hereby agrees to accept exclusive
Liability for complying with all applicable state and federal laws governing
independent contractors, including obligations such as payment of taxes, social
security, disability and other contributions based on fees paid to the ADP
Employees under this Agreement. ADP hereby agrees to indemnify and defend Newgen
against any and all Taxes or contributions owing to the ADP Employees, and such
indemnification obligation shall not be subject to the limitations set forth in
Section 9.2(b) hereof."
2.9 SECTION 5.4 (e). Section 5.4 (e) of the Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"(e) To the extent permitted under the applicable employee Benefit
Plans of the Buyers, (i) all Partnership Employees shall be entitled to receive
all of the benefits provided by the standard benefit plans of the Buyers,
subject to the terms and conditions of such benefit plans, that are available to
employees of a similar job and classification, title and pay grade, and (ii)
each Partnership Employee shall be eligible to receive medical benefits under
the medical plans of the Buyers, which medical plans shall not require a waiting
period with respect to any Partnership Employee and shall not exclude coverage
for pre-existing medical conditions. The
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Closing Date shall be the applicable date for purposes of determining benefit
credit under the pension plans of the Buyers. For purposes of calculating
service dates with respect to benefits under the Buyers' dental plan, pension
plan (as to vesting requirements only) or 401(k) plan (as to vesting
requirements only), and with respect to vacation, sick leave, insurance and all
other employee benefits offered by the Buyers or their Affiliates to its
employees, the length of service of each Partnership Employee to whom a WARN ACT
notice is not given prior to the six month anniversary of the Closing Date shall
be counted as if such Partnership Employee had been an employee of the Buyers or
such Affiliate during such time such Partnership Employee was employed by the
Partnership or either Partner prior to the Closing Date; PROVIDED, HOWEVER, that
the Buyers shall not be responsible for any unused vacation or sick time that
has accrued prior to the Closing Date; BUT, PROVIDED, FURTHER, that solely to
the extent such Partnership Employee had accrued vacation days available as of
the Closing Date, each Partnership Employee shall be allowed to use (with
supervisor approval and in accordance with Buyers' vacation procedures with
respect to notice) up to five days of such accrued vacation time between the
Closing Date and December 31, 1999 without reimbursement by the Partners to the
Buyers."
3. GENERAL.
3.1 SUCCESSORS. This Amendment shall be binding upon ADP, ADP FIS,
Newgen, NGR and CC and their respective successors and assigns, and shall inure
to the benefit of ADP, ADP FIS, Newgen, NGR and CC and their successors and
assigns.
3.2 CONFIRMATION OF THE AGREEMENT. Except as amended hereby, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
3.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be deemed an original and all of which taken
together, shall constitute one and the same instrument.
3.4 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
California.
3.5 REFERENCES TO THE AGREEMENT. Each reference in the Agreement to
"this Agreement," hereunder," "hereof," or words of like import, and each
reference to the Agreement in any and all instruments or documents provided for
in the Agreement or delivered or to be delivered thereunder or in connection
therewith, shall, except where the context otherwise requires, be deemed a
reference to the Agreement, as amended hereby.
IN WITNESS WHEREOF, ADP, ADP FIS, Newgen, NGR, and CC have executed
this Amendment as of the date first above written.
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ADP, INC.
By: /s/ signature illegible
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Title: President
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ADP FINANCIAL INFORMATION SERVICES, INC.
By: /s/ signature illegible
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Title: President
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COMPUTER CARE
By: ADP, Inc.
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Its: General Partner
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By: /s/ signature illegible
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Title: President
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NEWGEN RESULTS CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Title: Senior Vice President and Chief Financial Officer
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NGR ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxx
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Title: Senior Vice President and Chief Financial Officer
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