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EXHIBIT 10.2
AMENDMENT (NO.1)
TO THE ASSET PURCHASE AGREEMENT
Amendment (No. 1), dated as of March 13, 1998, to the ASSET PURCHASE
AGREEMENT, dated as of February 27, 1998 (the "AGREEMENT"), by and among (i)
▇▇▇▇▇▇▇▇▇ Industries, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇▇"), (ii)
Integrated Technology Holdings Corp., a Delaware corporation and a wholly-owned
subsidiary of ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇ SUBSIDIARY"), (iii) Integrated Technology
Corp., a New Jersey corporation (the "COMPANY"), and (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an
individual residing at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"PRINCIPAL").
WHEREAS, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Subsidiary, the Company and the Principal
have determined that it is in the best interest of the parties, and in
furtherance of their purposes, to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter contained, the parties hereto agree as follows:
1. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary hereby waive the
requirement of the Company and the Principal to deliver the Interim Financial
Statements (as defined in the Agreement). Accordingly, the Agreement is amended
as follows:
(a) The defined term "Interim Balance Sheet" shall be deleted
in its entirety and a new term "Balance Sheet" shall be added and shall have the
meaning set forth in Section 3.07 of the Agreement.
(b) The third sentence of Section 3.06 shall be deleted in its
entirety; and the term "Financial Statements" set forth in Section 3.06 shall
mean the December 31 Financial Statements (as defined in Section 3.06).
(c) The first and second sentences of Section 3.07 shall be
amended by deleting them in their entirety and replacing them with the
following:
"Except as set forth in the Financial Statements or
on SCHEDULE 3.07 hereto, the Liabilities on the balance sheet
included in the Financial Statements (the "Balance Sheet")
consist solely of accrued obligations and Liabilities incurred
by the Company in the ordinary course of business to Persons
which are not Affiliates of the Company. There are no
Liabilities of the Company of any kind whatsoever, whether or
not accrued and whether or not contingent or absolute,
determined or determinable or otherwise, including without
limitation documentary or standby letters of credit, bid or
performance bonds, or customer or third party guarantees, and
no existing condition, situation or set of circumstances that
could reasonably result in
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such a Liability, other than (i) Liabilities disclosed on
SCHEDULE 3.07, or in the Financial Statements and (ii)
Liabilities which have arisen after December 31, 1997 (the
"Balance Sheet Date") in the ordinary course of business and
consistent with past practice (none of which is a Liability
for breach of contract, breach of warranty, tort, infringement
claim or lawsuit) which, whether individually or in the
aggregate, could or could reasonably be expected to have a
Material Adverse Effect."
(d) The term "Interim Balance Sheet" set forth in Section 3.16
and in the first sentence of Section 3.27 shall be replaced with the term
"Balance Sheet". The term "Interim Financial Statements" set forth in the third
sentence of Section 3.27 shall be replaced with the term "Financial Statements."
The first sentence of the second paragraph of Section 3.27 shall be amended by
adding the following words after the term "Closing Date" the first time such
term appears: "or one hundred eighty (180) days after each installment of the
account is due, with respect to the receivable due from Air Jamaica described on
Schedule 3.09."
2. Section 10.02 of the Agreement is hereby amended by
deleting it and restating it in its entirety as follows:
"SECTION 10.02. INDEMNIFICATION PROVISIONS FOR BENEFIT OF ▇▇▇▇▇▇▇▇▇ AND
▇▇▇▇▇▇▇▇▇ SUBSIDIARY. In the event the Company or the Principal breaches (or in
the event any third party alleges facts that, if true, would mean the Company,
or the Principal has breached) any of their representations, warranties,
agreements and covenants contained herein, then the Company and the Principal,
jointly and severally, agree to indemnify ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary
from and against all damages, costs, liabilities, losses and expenses, including
reasonable attorneys' fees and expenses, which ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ Subsidiary
may suffer through and after the date of the claim for indemnification resulting
from, arising out of, relating to, in the nature of or caused by the breach (or
the alleged breach). In addition, the Company and the Principal, jointly and
severally, shall indemnify ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary from and against
all damages, costs, liabilities, losses and expenses, including reasonable
attorneys' fees and expenses, which ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ Subsidiary may suffer
at any time resulting from, arising out of, relating to, in the nature of or
caused by the items described on SCHEDULE 3.19 and such items shall not be
included in the term "Assumed Liabilities"; provided that with respect to Item 6
of SCHEDULE 3.19, the Company and the Principal shall not be required to so
indemnify ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary solely as a result of the failure
by the Company to deliver to ▇▇▇▇▇▇▇▇▇ Subsidiary valid title to the aircraft
which are the subject of the dispute referred to in such Item 6. Notwithstanding
anything contained herein to the contrary, (i) ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
Subsidiary shall not seek indemnification from the Company or the Principal
relating to a products liability claim to the extent (and only to the extent)
that ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary are entitled to
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coverage (following any deductible) under a product liability insurance policy,
if any, maintained by either of them, it being understood and agreed that
neither ▇▇▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇▇▇ Subsidiary shall be under any obligation
whatsoever to maintain any such product liability insurance policy, (ii)
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary shall not have the right to be indemnified
against damages, costs, liabilities and expenses that result from, arise out of,
relate to, or are in the nature of or caused by an action or inaction of
▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ Subsidiary that occurs or continues after the Closing
Date, even if ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Subsidiary are entitled hereunder to be
indemnified for damages, costs, liabilities and expenses arising out of similar
or equivalent action or inaction of the Company or the Principal with respect to
a time prior to the Closing date, (iii) the Company and the Principal hereby
covenant to diligently pursue the litigation described in Items 1 through 4 on
SCHEDULE 3.19 and shall pay over, assign and convey to ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
Subsidiary all amounts recovered relating to such litigation, less reasonable
legal fees and expenses actually incurred following the Closing Date relating to
such litigation (it being understood that neither ▇▇▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇▇▇
Subsidiary assume or shall assume and shall not be deemed to have assumed under
this Agreement or the transactions contemplated hereunder any liabilities,
contingent or otherwise, or obligations arising out of or in connection with
such litigation) and (iv) the Company and the Principal shall diligently pursue
the matter described in Item 6 of SCHEDULE 3.19 to ensure that valid title to
the aircraft described in Item 6 of SCHEDULE 3.19 is delivered to ▇▇▇▇▇▇▇▇▇
Subsidiary."
3. The Company and the Principal hereby covenant and agree to
deliver to ▇▇▇▇▇▇▇▇▇, within three months of the Closing Date, a pro forma Form
1020S for the Company for the period from January 1, 1998 through the Closing
Date and the related Form K-1 of the Principal to verify that the Interim Period
Tax Distribution shall not exceed the actual tax liability of the Principal (the
"Actual Tax Liability") attributable to the income of the Company for the period
from January 1, 1998 through the Closing Date. Following such delivery, either
(x) the Principal shall promptly return to ▇▇▇▇▇▇▇▇▇ Subsidiary an amount equal
to the excess of the Interim Period Tax Distribution over the Actual Tax
Liability or (y) ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ Subsidiary shall promptly pay Principal
an amount equal to the excess of the Actual Tax Liability over the Interim
Period Tax Distribution. In the event that the actual Form 1020S filed by the
Company and the related K-1 differ from the pro forma Form 1020S and K-1
delivered hereunder, appropriate adjustment shall be made between the parties so
that the Interim Period Tax Distribution equals the Actual Tax Liability.
4. 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.
5. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the date set forth above.
▇▇▇▇▇▇▇▇▇ INDUSTRIES,INC.
By: /s/ Zivi ▇. ▇▇▇▇▇▇
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Zivi ▇. ▇▇▇▇▇▇
President and
Chief Executive Officer
INTEGRATED TECHNOLOGY
HOLDINGS CORP.
By: /s/ Zivi ▇. ▇▇▇▇▇▇
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Zivi ▇. ▇▇▇▇▇▇
President
INTEGRATED TECHNOLOGY CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: President
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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