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AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment (the "Amendment") to the Asset Purchase Agreement (the
"Asset Purchase Agreement") dated as of July 22, 1996 between Texas Instruments
Incorporated, a Delaware corporation ("Seller"), and Genicom Corporation, a
Delaware corporation ("Buyer"), is made as of September 30, 1996 between Seller
and Buyer pursuant to Section 12.7 of the Asset Purchase Agreement. All
capitalized terms used herein but not defined herein have the meaning given
such terms in the Asset Purchase Agreement.
SECTION 1. Amendment to Asset Purchase Agreement. The parties hereto
hereby agree to amend the Asset Purchase Agreement as follows:
1. The sentence following the heading in Section 1.1(c) of the Asset
Purchase Agreement shall be deleted in its entirety and replaced with
the following: "All accounts receivable of the Business, other than
accounts receivable on the books of Seller's European and Asian
operations, as of the Closing Date (as hereinafter defined)."
2. Section 2.1 of the Asset Purchase Agreement shall be deleted in its
entirety and replaced with the following: "2.1 Purchase Price. In
consideration of the conveyance to Buyer of the Purchased Assets,
Buyer shall deliver to Seller the Purchase Price (as hereinafter
defined) and assume the Assumed Liabilities (as hereinafter defined).
At the Closing, Buyer will (i) pay to Seller an aggregate cash amount
equal to Twenty Million Dollars ($20,000,000) (the "Cash Amount") and
(ii) deliver to Seller the Promissory Note (as hereinafter defined),
the Security Agreement (as hereinafter defined) and the Pledge
Agreement (as hereinafter defined) (the aggregate of the Cash Amount
and the aggregate principal amount of the Promissory Note referred to
as the "Unadjusted Purchase Price"), subject to adjustment pursuant
to Section 2.2 (as adjusted, the "Purchase Price"). As used herein,
the term "Promissory Note" shall mean the subordinated promissory
note substantially in the form of Exhibit B hereto in an aggregate
principal amount of Nine Million Dollars ($9,000,000), the term
"Security Agreement" shall mean the Subordinated Guaranty and
Security Agreement in substantially the form of Exhibit C hereto, and
the term "Pledge Agreement" shall mean the Pledge Agreement in
substantially the form of Exhibit D hereto."
3. Section 2.2(a)(ii) of the Asset Purchase Agreement shall be deleted
in its entirety and replaced with the following:
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"(ii) Based on the Pre-Closing Statement, if the amount
equal to the Net Book Value Estimate minus $20 million (the "Net
Book Value Adjustment") is a positive number, then the Cash
Amount shall be increased by such amount. If the Net Book Value
Adjustment is a negative number, the Cash Amount shall be
reduced by the absolute value of such amount."
4. Section 2.2(b) shall be deleted in its entirety and replaced with the
following:
"(b) Post-Closing Statement. (i) As soon as practicable,
but in no event more than fourteen (14) days after the Closing
Date, Seller shall furnish Buyer a statement reflecting the
Closing Net Book Value (as hereinafter defined) prepared in
accordance with Seller's Accounting Policies and consistent with
the methodology used to prepare the Pre-Closing Statement. As
soon as practicable, but in no event more than 90 days after the
Closing Date, Buyer shall furnish Seller a statement (the
"Post-Closing Statement") reflecting the Net Book Value of the
Business immediately prior to the Closing (the "Closing Net Book
Value") prepared in accordance with Seller's Accounting Policies
(as hereinafter defined). In connection with the preparation of
the Post-Closing Statement as soon as practicable after the
Closing Date, a physical inventory of the Business' Alliance
Airport (Ft. Worth, TX) warehouse shall be taken as of the
Closing Date. Representatives of Buyer and Seller shall
participate jointly in conducting the physical inventory."
5. The last sentence of Section 2.2(c) of the Asset Purchase Agreement
shall be deleted in its entirety and replaced with the following:
"Conversely, if the amount of the Closing Differential is a negative
amount, then the Purchase Price shall be adjusted downward by an
amount equal to the absolute value of the Closing Differential. If
the Closing Differential results in a downward adjustment of less
than $1,000,000 such amount may, at Seller's option, be offset
against any amounts payable to Seller pursuant to the terms of the
Transition Master Services Agreement or the Sales Agency Agreement or
paid by
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Seller to Buyer by wire transfer of immediately available funds. If
the Closing Differential results in a downward adjustment of greater
than $1,000,000, up to $1,000,000 of such amount may, at Seller's
option, be offset against any amounts payable to Seller pursuant to
the Transition Master Services Agreement or the Sales Agency
Agreement or paid by Seller to Buyer by wire transfer of immediately
available funds and the excess over $1,000,000 (if any) shall be paid
by Seller to Buyer by wire transfer of immediately available funds."
6. Section 3.1(b) shall be deleted in its entirety and replaced with the
following: "(b) all liabilities and obligations of Seller arising
in the ordinary course of the Business between the date of the
Pre-Closing Statement and the Closing Date other than accounts
payable on the books of the Business to the extent that the same
remain unpaid and undischarged on the Closing Date and are accrued or
reserved for on the Post-Closing Statement;"
7. The first sentence of Section 9.7(a) of the Asset Purchase Agreement
shall be deleted in its entirety and replaced with the following:
"At or prior to the Closing, Buyer will offer employment to the
individuals listed on Schedule 9.7(a) (such employment to become
effective at 12:01 a.m. Dallas, Texas time on October 1, 1996 (the
"New Employment Start Date") and to be contingent upon the
consummation of the transactions contemplated by this Agreement)."
8. The first sentence of Section 9.7(b) of the Asset Purchase Agreement
shall be deleted in its entirety and replaced with the following:
"Seller shall terminate the employment of the domestic employees
listed on Schedule 9.7(a) on the Closing Date effective as of
midnight Dallas, Texas time on September 30, 1996."
9. The following sentence shall be added to the end of Section 9.7(d)(v)
of the Asset Purchase Agreement: "Notwithstanding anything to the
contrary herein and solely for the purpose of applying Buyer's
vacation policy, such new hires will be deemed to have commenced
employment with Buyer on September 30, 1996."
10. The last sentence of Section 9.7(f) of the Asset Purchase Agreement
shall be deleted in its entirety and replaced with the following:
"Any vacation days attributable to employee's employment with Buyer
shall be used prior to an employee's use of vacation days carried
over from employee's employment with Seller."
11. Section 9.11 of the Asset Purchase Agreement shall be deleted in its
entirety.
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12. Schedule 10.4 to the Asset Purchase Agreement shall be deleted in its
entirety. Section 10.4 of the Asset Purchase Agreement shall be
deleted in its entirety and replaced with the following: "Section
10.4 Reserved."
13. Section 10.5 of the Asset Purchase Agreement shall be deleted in its
entirety and replaced with the following: "10.5 Employees. Buyer
shall have received acceptances of employment offers from all of the
employees designated as Code 1 employees on Schedule 9.7(a), at least
75% of the employees designated as Code 2 employees on Schedule
9.7(a), at least 80% of the employees designated as Code 3 employees
on Schedule 9.7(a) and at least 60% of the employees designated as
Code 4 employees on Schedule 9.7(a)."
14. The following sentence shall be added to the end of Section 14.14 of
the Asset Purchase Agreement: "Notwithstanding the provisions of
Sections 14.11 and 14.14 of this Agreement to the contrary, Seller
agrees that Buyer may make a collateral assignment to the Agent (as
such term is defined in the loan agreement entered into by Buyer as
of January 12, 1996, as amended, of Buyer's rights under (i) Section
13.1(b) of this Agreement for Seller's breach of the warranties set
forth in the second sentence of Section 5.5 of this Agreement, (ii)
the second sentence of Section 5.6 of this Agreement, and (iii) the
third sentence of Section 5.7 of this Agreement."
15. Revised Schedules 1.1(a), 1.1(f), 1.1(g), 9.1, 9.7(a) and 9.7(b) to
the Asset Purchase Agreement, copies of which are attached hereto
shall replace for all purposes those Schedules previously delivered
by Seller to Buyer having the same number.
16. The following section shall be added to the Asset Purchase Agreement:
"9.12 Supply of Parts. For the period commencing on the Closing
Date and ending in the second anniversary thereof, Seller shall use
its commercially reasonably efforts to maintain an adequate supply of
parts manufactured by Seller for products sold by Seller on or prior
to the Closing Date for sale to Buyer at prices not to the exceed the
market price therefor at the time of such sale."
17. The following section shall be added to the Asset Purchase Agreement:
"9.13 Shared Assets. After the Closing Date, Seller shall reimburse
Buyer for the replacement of, or, at Seller's option, purchase
certain shared assets to be agreed upon by Buyer and Seller, which
have a maximum aggregate value of up to $300,000. If Seller elects
to
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reimburse Buyer for the replacement of such assets, Seller may, at
Seller's option, do so by offsetting against any amounts payable to
Seller pursuant to the terms of the Transition Master Services
Agreement or the Sales Agency Agreement."
18. Section 13.1(f) of the Asset Purchase Agreement shall be deleted in
its entirety and replaced with the following: "(f) Reserved."
SECTION 2. Effect of Amendment. Except as specifically provided herein,
the Asset Purchase Agreement is in all respects ratified and confirmed, and all
the terms, conditions and provisions thereof shall be and remain in full force
and effect. For any and all purposes, from and after the date of this
Amendment, any and all references hereafter to the Asset Purchase Agreement
shall refer to the Asset Purchase Agreement as hereby amended.
SECTION 3. Entire Agreement. The Asset Purchase Agreement, as amended
hereby, together with the Collateral Agreements and Schedules, as amended
hereby, and Exhibits thereto, contain the entire understanding of the parties
relating to the subject matter thereof, and the foregoing cannot be changed or
terminated orally and supersede all prior agreements and understanding relating
to the subject matter thereof, other than that certain nondisclosure agreement
dated January 29, 1996, as amended to date, between Seller and Buyer which
shall remain in full force and effect and the Nonsolicitation Agreement which
shall remain in effect until the Closing. After the Closing, the
Nonsolicitation Agreement shall be superseded by Section 9.4 of the Asset
Purchase Agreement.
SECTION 4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of laws.
SECTION 5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
as of the date first above written.
TEXAS INSTRUMENTS INCORPORATED
By: Xxxxxx X. Xxxxxxxxxx
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Title: President, Personal Productivity Products
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GENICOM CORPORATION
By: Xxxxx X. Xxxx
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Title: Senior VP Finance and Chief Financial Officer
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