AMENDMENT NO. 2 TO PURCHASE AGREEMENT
Exhibit 10.2
AMENDMENT NO. 2 TO PURCHASE AGREEMENT
This
Amendment No. 2 to the Purchase Agreement dated as of March 8, 2019
(this “Amendment”), by and among
OpenALPR Technology, Inc., a Florida corporation
(“Seller”), Novume
Solutions, Inc., a Delaware corporation (“Buyer”), and Xxxxxxx Xxxx
(“Founder”).
RECITALS
A. Seller,
Buyer and Founder are parties to that certain Asset Purchase
Agreement dated as of November 14, 2018, as amended by Amendment
No. 1 to Purchase Agreement dated February 15, 2019 (as amended,
the “Purchase
Agreement”). All capitalized terms used but not
defined herein shall have the meanings set forth in the Purchase
Agreement.
B. The
parties hereto desire to amend the Purchase Agreement pursuant to
Section 13.2 thereof as set forth in this Amendment.
NOW,
THEREFORE, in consideration of the premises, and of the mutual
promises and covenants herein contained, the sufficiency of which
are hereby acknowledged, and wishing to be legally bound hereby,
the parties hereto hereby agree as follows:
Amendments
1. Definition of Current Assets.
Schedule A of the Purchase Agreement is hereby amended by deleting
the definition of Current Assets.
2. Definition of Current
Liabilities. Schedule A of the Purchase Agreement is hereby
amended by deleting the definition of Current
Liabilities.
3. Definition of Estimated Purchase
Price. Schedule A of the Purchase Agreement is hereby
amended by inserting the following definition:
““Estimated
Purchase Price” means (a) the Base Purchase Price,
minus (b) the
Estimated Prepaid Maintenance Contract Adjustment
Amount.”
4. Definition of Final Purchase
Price. Schedule A of the Purchase Agreement is hereby
amended by inserting the following definition:
““Final
Purchase Price” means (a) the Base Purchase Price,
minus (b) the
Prepaid Maintenance Contract Adjustment Amount.”
5. Definition of Net Working
Capital. Schedule A of the Purchase Agreement is hereby
amended by deleting the definition of Net Working
Capital.
6. Definition of Net Working Capital
Adjustment Amount. Schedule A of the Purchase Agreement is
hereby amended by deleting the definition of New Working Capital
Adjustment Amount.
7. Definition of Prepaid Maintenance
Contract. Schedule A of the Purchase Agreement is hereby
amended by inserting the following definition.
“”Prepaid
Maintenance Contract” means a maintenance contract
which extends over a period of time covering both a period prior to
the Closing Date and a period following the Closing and for which a
prepayment was received by Seller prior to the Closing
Date.”
8. Definition of Prepaid Maintenance
Contract Adjustment Amount. Schedule A of the Purchase
Agreement is hereby amended by inserting the following
definition.
1
“”Prepaid
Maintenance Contract Adjustment Amount” means (i) for
each Prepaid Maintenance Contract, the amount determined by
multiplying the amount prepaid by a fraction, the numerator of
which is the number of days from the Closing Date to the end of the
Prepayment Period and the denominator of which is the number of
days in the Prepayment Period and (ii) adding together the sum of
all amounts determined in accordance with the foregoing clause
(i).”
9. Definition of Prepayment
Period. Schedule A of the Purchase Agreement is hereby
amended by inserting the following definition.
“”Prepayment
Period” means the actual number of days of maintenance
covered by a specific payment made under a Prepaid Maintenance
Contract.”
10. Section 2.3. The first
paragraph of Section 2.3 of the Purchase Agreement is hereby
amended by deleting such section in its entirety and replacing it
with the following new Section 2.3:
“2.3
Excluded Assets.
Notwithstanding anything to the contrary in this Agreement, the
Transferred Assets shall not include any of the following
(collectively, the “Excluded
Assets”):”
11. Section 2.7. Section 2.7 of the
Purchase Agreement is hereby amended by deleting such section in
its entirety and replacing it with the following new Section
2.7:
“2.7
Purchase Price.
(a) Purchase
Price. Subject to the terms and conditions of this
Agreement, in full consideration for Seller’s sale, transfer,
conveyance, assignment and delivery of the Transferred Assets to
Buyer, and Seller’s execution and delivery of, and its
performance of its obligations contained in, this Agreement and the
Other Agreements, at the Closing, Buyer shall (1) pay to Seller in
accordance with Section
2.7(c) the Estimated Purchase Price, subject to adjustment
after the Closing pursuant to Section 2.7(d), issue to Seller
the Promissory Note, issue to Seller 600,000 shares of Common Stock
of Buyer (the “Subject Shares”)
(collectively, the “Purchase Price”) and (2)
assume the Assumed Liabilities as provided in Section 2.4.
(b) Preliminary
Closing Statement. At least five (5) Business Days prior to
the Closing Date, Seller shall prepare and deliver to Buyer a list
of Prepaid Maintenance Contracts, together with Seller’s good
faith calculation and estimate or computation (including all
calculations in reasonable detail) of:
(i) the Prepaid
Maintenance Contract Adjustment Amount (the “Estimated Prepaid Maintenance Contract
Adjustment Amount”), and
(ii) the
Estimated Purchase Price.
Buyer
shall be entitled to comment on and request reasonable changes to
the Prepaid Maintenance Contract Adjustment Amount, and Seller
shall provide Buyer and its representatives access to information
that Buyer reasonably requests relating to the Prepaid Maintenance
Contract Adjustment Amount and the preparation thereof. Seller
shall consider in good faith any changes Buyer proposes to the
Estimated Prepaid Maintenance Contract Adjustment Amount and revise
such amount if, based on its good faith assessment, such changes
are warranted. Buyer may accept the Estimated Prepaid Maintenance
Contract Adjustment Amount without
waiving its rights to challenge such position pursuant to
Section
2.7(d).
2
(c) Closing
Payments; Issuance of Promissory Note; Issuance of Stock. At
the Closing, Buyer shall (i) pay to Seller, by wire transfer of
immediately available funds, to an account designated in writing by
Seller by written notice to Buyer not less than five (5) Business
Days prior to the Closing Date, an amount equal to the Estimated
Purchase Price, (ii) issue to Seller the Subject Shares, and (iii)
issue to Seller the Promissory Note.
(i) Within
one hundred twenty (120) days after the Closing Date, Buyer shall
prepare and deliver to Seller a statement (the “Closing Statement”)
setting forth Buyer’s good faith calculation of: (A) the
Prepaid Maintenance Contract Adjustment Amount, and (B) the Final
Purchase Price..
(ii) During
the thirty (30) days immediately following Seller’s receipt
of the Closing Statement (the “Closing Statement Review
Period”), Buyer shall provide Seller and its
representatives access to information that Seller reasonably
requests that Buyer used to determine the Estimated Prepaid
Maintenance Contract Adjustment Amount.
(iii) If Seller disagrees with
any of the items included in the Closing Statement, then Seller
may, on or prior to the last day of the Closing Statement Review
Period, deliver a written notice of such disagreement to Buyer (a
“Notice of
Disagreement”). To be in proper form, each
disagreement contained in a Notice of Disagreement must specify in
reasonable detail the nature and amount of such disagreement, as
well as a reasonable basis therefor and relevant supporting
documentation and calculations (each disagreement meeting the
requirements of this Section 2.7(d)(iii) and included in a
timely Notice of Disagreement, a “Disputed Item”). If
Seller does not deliver a timely Notice of Disagreement meeting the
requirements of this Section 2.7(d)(iii), then the Closing
Statement delivered by Buyer pursuant to Section 2.7(d)(i) above shall be final
and binding on the parties and deemed to set forth the Final
Purchase Price. If Seller delivers a timely Notice of Disagreement
meeting the requirements of this Section 2.7(d)(iii), then (A) during
the thirty (30) day period following delivery of such Notice of
Disagreement (the “Resolution Period”),
Buyer and Seller shall seek in good faith to resolve the Disputed
Item(s); and (B) all items included in the Closing Statement with
which Seller does not in the Notice of Disagreement disagree shall
be final and binding on the parties and shall be utilized in the
computation of the Final Purchase Price. During the Resolution
Period, Seller shall provide Buyer and its representatives with
access to information that Buyer reasonably requests relating to
the Notice of Disagreement and Seller’s preparation
thereof.
(iv) If,
at the end of the Resolution Period, Buyer and Seller have not
resolved each Disputed Item, then Buyer and Seller shall have the
right to submit the unresolved Disputed Items to an independent
auditor for review and resolution. Such independent auditor shall,
and Buyer and Seller shall cause such independent auditor to, (A)
act as an expert and not an arbitrator, (B) make a final
determination based solely on the applicable provisions of this
Agreement (and not by independent review), (C) base its decision on
a single presentation submitted in writing by each of Buyer and
Seller and on one written response to each such presentation
(unless such independent auditor requests an additional response
from either Buyer or Seller), and not on independent investigation,
(D) with respect to each unresolved Disputed Item, render a
determination that must be within the ranges of values claimed by
each of Buyer and Seller, and (E) render a final determination as
to each Disputed Item within forty-five (45) days following the end
of the Resolution Period (the “Auditor Review Period”).
During the Auditor Review Period, each of Buyer and Seller shall
provide such independent auditor with reasonable access to
information relating to any Disputed Item. The fees and expenses of
such independent auditor shall be borne by Seller, on the one hand,
and Buyer, on the other hand, in the same proportion that the
aggregate amount of the items unsuccessfully disputed by each (as
finally determined by such independent auditor) bears to the
aggregate amount of the Disputed Items submitted to such
independent auditor for review and resolution.
(v) The final
determination as to each Disputed Item as determined by such
independent auditor shall be final and binding on the parties
hereto, absent a showing of fraud or willful misconduct, and shall
be utilized in the computation of the Final Purchase
Price.
(i) If
the Final Purchase Price is greater than the Estimated Purchase
Price, then Buyer shall pay to Seller an amount equal to such
excess within five (5) Business Days of the final determination of
such amount, by wire transfer of immediately available funds to an
account designated in writing by Seller.
3
(ii) If
the Final Purchase Price is less than the Estimated Purchase Price,
then Seller shall pay to Buyer an amount equal to such shortfall
within five (5) Business Days of the determination of the Final
Purchase Price.
(iii) For
the avoidance of doubt, any payment made under this Section 2.7(e) shall constitute an
adjustment to the Purchase Price.”
12. Miscellaneous. Except as
expressly amended by this Amendment, the Purchase Agreement remains
in full force and effect, the terms thereof are incorporated herein
by reference, and nothing in this Amendment shall otherwise affect
any other provision of the Purchase Agreement or the rights and
obligations of the parties thereto.
[Signature Page Immediately Follows]
4
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Amendment on the date first above
written.
By:
/s/Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Chief Executive Officer
OPENALPR
TECHNOLOGY, INC.
By:
/s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Chief Executive Officer
/s/Xxxxxx
Xxxx
XXXXXXX
XXXX
5
