AMENDMENT NO. 1 TO ASSET AND STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Asset and Stock Purchase Agreement (the
"Amendment") is made this 30th day of September, 2002, by and among XXXXXX XXX,
INC., a Delaware corporation ("Seller"), EXETER EDUCATIONAL MANAGEMENT SYSTEMS,
INC., a Massachusetts corporation and wholly-owned subsidiary of Seller
("EEMS"), XXXXXX MAE SOLUTIONS (INDIA) PRIVATE, LTD., an Indian corporation
owned by Seller and EEMS ("SM-India" together with Seller and EEMS, the
"Companies"), and SYSTEMS & COMPUTER TECHNOLOGY CORPORATION, a Delaware
corporation ("Buyer").
B A C K G R O U N D:
The parties hereto entered into that certain Asset and Stock
Purchase Agreement dated January 10, 2002 (the "Purchase Agreement") pursuant to
which Buyer acquired on January 10, 2002 (the "Initial Closing") all of the
assets used in connection with the operation of the Business of Xxxxxx Xxx
Solutions, a division of Seller (the "SMS Division"), other than the Excluded
Assets.
Pursuant to the Purchase Agreement, the Buyer will purchase on
September 30, 2002 (the "Subsequent Closing"), the issued and outstanding
capital stock of EEMS owned by Seller and the issued and outstanding capital
stock of SM-India owned by Seller and EEMS.
Prior to the Subsequent Closing, the parties hereto desire to
amend and restate Schedule 3.1(b) to the Purchase Agreement.
NOW, THEREFORE, in consideration of the promises and the
mutual representations, warranties, covenants and agreements hereinafter set
forth, and upon the terms and subject to the conditions hereinafter set forth,
the parties, intending to be legally bound, hereby agree as follows:
A. Certain Defined Terms. All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Purchase
Agreement.
B. Amendments
1. WHEREAS clause. The seventh WHEREAS clause of the Purchase
Agreement is amended and restated in its entirety and an additional WHEREAS
clause is added immediately thereafter as follows:
"WHEREAS, the 538 shares of common stock of EEMS and one share
of common stock of SM-India owned by Seller, together with the
3,722,099 shares of capital stock of SM-India owned by EEMS,
are all of the outstanding capital stock of EEMS and SM-India
(the "Sub Shares");"
"WHEREAS, Seller desires to sell to Buyer and Buyer desires to
purchase from Seller, on the Subsequent Closing Date (as
defined below), the issued and outstanding capital stock of
EEMS owned by Seller and the issued and outstanding capital
stock of SM-India owned by Seller;"
2. Section 2.3(a). Section 2.3(a) of the Purchase Agreement is
amended and restated in its entirety as follows:
"Seller, upon the terms and conditions hereinafter set forth,
shall sell, assign, convey, transfer and deliver to Buyer, and
Buyer shall pay for, on the Subsequent Closing Date, free and
clear of all Liens, the following shares of EEMS and SM-India,
to be adjusted as permitted by Section 6.1 hereof, (i) 538
shares of the common stock of EEMS owned by Seller, and (ii)
one share of the common stock of SM-India owned by Seller."
3. Schedules.
a. Schedule 3.1(b) of the Purchase Agreement is amended and
restated in its entirety as set forth on Exhibit A attached hereto.
b. Schedule 4.4(b) of the Purchase Agreement is amended and
restated in its entirety with respect to SM-India as set forth on Exhibit A
attached hereto.
c. Schedule 4.7 of the Purchase Agreement is amended such
that a new section is hereby added as set forth on Exhibit A attached hereto.
d. Schedule 4.10 of the Purchase Agreement is amended and
restated only with respect to the insurance information regarding SM-India as
set forth on Exhibit A attached hereto.
e. Schedule 4.12(a) of the Purchase Agreement is amended
and restated only with respect to the section entitled " SM-India Employee
Compensation" as set forth on Exhibit A attached hereto.
f. Schedule 4.14 of the Purchase Agreement is amended such
that a new car lease for SM-India is hereby added as set forth on Exhibit A
attached hereto.
g. Schedule 4.20 of the Purchase Agreement is amended and
restated only with respect to the section entitled "Employee Loan Balances for
SM-India Employees' Compensation" as set forth on Exhibit A attached hereto.
h. Schedule 13.5(b) of the Purchase Agreement is amended
and restated in its entirety as set forth on Exhibit A attached hereto.
4. Section 4.1(d). The first sentence of Section 4.1(d) of the
Purchase Agreement is amended and restated in its entirety as follows:
"The authorized capital stock of EEMS consists of 200,000
shares of common stock, of which 538 shares have been duly
authorized and validly issued, and outstanding as fully paid
and non-assessable and are beneficially owned by and
registered in the name of Seller."
C. Full Force and Effect. Except as amended hereby, all of the terms
and conditions of the Purchase Agreement shall remain in full force and effect.
D. Entire Agreement. This Amendment constitutes the entire agreement
and understanding between the parties hereto with respect to the subject matter
of this Amendment and supersedes any and all prior agreements and
understandings, written or oral, relating to the subject matter of this
Amendment.
E. Headings. The headings in this Amendment are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
F. Governing Law. This Amendment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
G. Counterparts; Facsimile Signatures. This Amendment may be executed
in one or more counterparts (including by facsimile signature), 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 executed this
Amendment as of the date first written above.
XXXXXX XXX, INC.
By: /s/ Xxxxxx X. Autor
-------------------------------------------------
Name: Xxxxxx X. Autor
Title: Senior Vice President
EXETER EDUCATIONAL MANAGEMENT
SYSTEMS, INC.
By: /s/ Xxxxxx X. Autor
-------------------------------------------------
Name: Xxxxxx X. Autor
Title: President and Chief Executive Officer
XXXXXX MAE SOLUTIONS (INDIA) PRIVATE,
LTD.
By: /s/ Xxxxxx X. Autor
-------------------------------------------------
Name: Xxxxxx X. Autor
Title: Director
SYSTEMS & COMPUTER TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President and Chief Financial
Officer
