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EXHIBIT 10.35
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
is dated as of June 5, 1997, by and among BRISTOL TECHNOLOGY SYSTEMS, INC., a
Delaware corporation ("Bristol"); CASH REGISTERS, INCORPORATED, a Kentucky
corporation ("Purchaser"); XXXXX XXXXXXXX, a resident of the State of Indiana
("Shareholder"); and ELECTRONIC BUSINESS MACHINES, INC., an Indiana Corporation
("Company").
RECITALS
WHEREAS, the parties hereto entered into that certain Agreement and Plan
of Merger, dated April 14, 1997 (the "Merger Agreement"), pursuant to which
Company is to merge with and into Purchaser in a tax-free reorganization.
WHEREAS, the parties hereto now desire to amend the Merger Agreement
pursuant to the terms and conditions provided below.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained and contained in the Merger
Agreement, the parties hereto agree to amend the Merger Agreement as follows:
1. Closing; Purchase Price Adjustments.
A. Section 1.1 of the Merger Agreement shall be amended in that the term
"Closing Date" shall be redefined to mean the date the Certificates are filed,
which shall be the later of (i) June 6, 1997, or (ii) the date on which the
Company and/or Purchaser obtains financing in an amount necessary to pay on the
Closing Date the aggregate balance owed by the Company to Micros as of that
date; provided, however, that if the Merger does not close by June 11, 1997,
then the Merger Agreement and this Agreement shall terminate, which termination
shall be by mutual agreement of the parties.
B. Section 1.4 of the Merger Agreement shall be amended and restated in
its entirety as follows:
"1.4 Closing. If the conditions to close, as set forth in Article 5, below,
are satisfied, then the parties hereto shall meet on the Closing Date at the
offices of Company, located at 000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx 00000,
commencing at 9:00 a.m. local time (the "Closing"), or at such other place
or in such other manner as the parties shall mutually agree. At the Closing,
Purchaser and Company shall file the Certificates and, thereafter (and on
the Closing Date) (i) Purchaser shall deliver to Shareholder Three Hundred
Thirty-Seven Thousand Dollars ($337,000) in immediately available funds; and
(ii) Bristol shall deliver to Shareholder Four Hundred Sixty-Three Thousand
Dollars ($463,000) worth of Restricted Stock.(1) In addition, (i) Purchaser
shall deposit with Xxxxxxxx, Xxxxxx & Xxxxxxx, LLP (the "Escrow Agent")
Sixty-Three Thousand Dollars ($63,000) in immediately available funds; and
(ii) Bristol shall deposit with Escrow Agent Eighty-Seven Thousand Dollars
($87,000) worth of Restricted Stock. Escrow Agent shall (i) hold the cash
and the Restricted Shares in an Escrow Account substantially in the form of
Exhibit "C" hereto (the "Escrow Agreement"); and (ii) distribute the cash
and the Restricted Shares in accordance with the Escrow Agreement and
Section
______________________________
(1) The exact number of shares of Restricted Stock which Bristol is to
deliver to Shareholder on the Closing Date (which shall be rounded down to the
nearest whole number of shares) shall be determined by and based upon the
average of the May 23, 1997and May 27, 1997 closing price of Bristol's publicly
traded Common Stock as reported in the Wall Street Journal (i.e. 3 15/16). The
Restricted Stock delivered by Bristol to Shareholder on the Closing Date shall
hereinafter be referred to as the "Restricted Shares."
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1.5, below. In addition to the above, seventy-five (75) days after
the Closing Date, (i) Purchaser shall deliver to Shareholder an additional
Twenty-One Thousand Fifty-Two Dollars and Fifty Cents ($21,052.50) in
immediately available funds; and (ii) Bristol shall deliver to Purchaser
Twenty-Eight Thousand Nine Hundred Forty-Seven Dollars and Fifty Cents
($28,947.50) worth of Restricted Stock."
C. Section 1.7 of the Merger Agreement shall be deleted in its entirety.
2. Representations and Warranties.
A. The first sentence of Section 2.4(a) of the Merger Agreement shall be
amended and restated in its entirety as follows: "As of the first day
immediately following the Closing Date, the Company shall own no real property."
B. Section 2.5(d) of the Merger Agreement shall be amended in that the
environmental representations and warranties contained in such Section shall be
interpreted to apply to all real property owned and/or leased by the Company on
or prior to the day immediately following the Closing Date.
C. Section 2.9 of the Merger Agreement shall be amended in that the
representations and warranties contained in such Section shall be interpreted to
apply only to the period following the day immediately subsequent to the Closing
Date.
3. Covenants.
A. Section 4.10 of the Merger Agreement shall be amended and restated in
its entirety as follows:
"On the day immediately following the Closing Date, (i) Surviving
Corporation shall transfer the Facilities to F&J, LLC; and (ii) F&J, LLC
shall assume all loans secured by the Facilities (including any loans made
or guaranteed by the SBA), in each case in a manner pre-approved by Bristol
in its absolute and sole discretion. Shareholder acknowledges that Surviving
Corporation is retaining title to the Facilities for a period of one (1) day
following the Closing Date to simplify negotiations and to accommodate
Shareholder, and Shareholder expressly agrees that he will indemnify, defend
and hold harmless Bristol, Purchaser and Surviving Corporation from and
against any and all Liability, including Tax and environmental Liability,
arising from or related to the Facilities or the transfer of the Facilities
from Surviving Corporation to F&J, LLP, provided, however, that this
indemnity specifically excludes (i) the capital gains tax liability incurred
by Surviving Corporation in connection with the transfer of the Facilities
by Surviving Corporation to F&J, LLP on the day immediately following the
Closing Date; and (ii) all Liability expressly incurred by Surviving
Corporation under those certain Leases described in Section 6.2, below. If
Bristol, Purchaser or Surviving Corporation incur any Liability required to
be indemnified by Shareholder under this Section 4.10, then, in addition to
any other right or remedy available to Bristol, Purchaser or Surviving
Corporation under this indemnity, under the other provisions of this
Agreement, at law, in equity or otherwise, Bristol, Purchaser and/or
Surviving Corporation shall have the right to offset such Liability against
(i) any fees or commissions otherwise due Shareholder under that certain
Independent Contractor Agreement described in Section 6.2, below; or (ii)
any rental payments or other obligations due F&J, LLP under those certain
Leases described in Section 6.2, below."
4. Deliveries.
A. The following sentence shall be added to the end of Section 6.5 of
the Merger Agreement: "In addition, seventy-five (75) days following the Closing
Date, Purchaser shall deliver to Shareholder Twenty-One Thousand Fifty-Two
Dollars and Fifty Cents ($21,052.50) in immediately available funds."
B. The following sentence shall be added to the end of Section 6.6 of
the Merger Agreement: "In addition, seventy-five days following the Closing
Date, Bristol shall deliver to Shareholder
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Twenty-Eight Thousand Nine Hundred Forty-Seven Dollars and Fifty Cents
($28,947.50) worth of Restricted Stock."
5. Construction. Except as expressly amended herein, the terms and
conditions of the Merger Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
BRISTOL TECHNOLOGY SYSTEMS, ELECTRONIC BUSINESS MACHINES,
INC., a Delaware corporation INC., an Indiana corporation
By:____________________________ By:______________________________
Xxxxxxx X. Xxxxxx, President Xxxxx Xxxxxxxx, President
CASH REGISTERS, INCORPORATED,
a Kentucky corporation
By:____________________________ By:______________________________
Xxxxxxx X. Xxxxxxx, President Xxxxx Xxxxxxxx
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