Exhibit 10.16
AMENDMENT TO AGREEMENT OF SALE
THIS AMENDMENT AGREEMENT made this 1st day of April, 1999 by and among
Applied Cellular Technology, Inc. ("ACT"), Universal Commodities Corporation,
("Buyer"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Chai") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ["▇▇▇▇▇" hereinafter
collectively referred to as "Sellers"] and GDB Software Services, Inc., a New
York corporation ("Acquiree").
WHEREAS, the parties entered into an Agreement of Sale dated June 30,
1998 (the "Agreement of Sale") whereby Buyer acquired one hundred percent (100%)
of the issued and outstanding shares of Acquiree; and
WHEREAS, the Buyer is in the process of preparing for an Initial
Public Offering ("IPO"); (the tentative name of such corporation is "Inteletek,
Inc."); and
WHEREAS, such Agreement of Sale contained a provision whereby the
Acquiree, could upon the achievement of certain agreed upon EBIT amounts, earn
additional payments, defined in Section 2.2(c) of such Agreement of Sale as
Additional Consideration.
WHEREAS, the parties wish to fix the amount of such "Additional
Consideration" and method and manner of payment.
NOW, THEREFORE, in exchange for the mutual covenants contained herein
and other good and valuable consideration, the parties agree as follows:
1. Additional Consideration. The total amount to be paid as Additional
Consideration shall be One Million Five Hundred Thousand Dollars
($1,500,000.00), and shall be paid to Sellers by Buyer, at its sole discretion,
in a combination of either cash and/or shares of the restricted common stock of
Inteletek, Inc. ("Inteletek Stock"). The ratio of cash and/or Inteletek Stock
that is paid by Buyer shall be determined by Buyer at the time of payment. The
valuation of the Inteletek Stock conveyed to Sellers shall be determined as the
"Offering Price" of the Inteletek Stock at the time of the IPO. The allocation
of the Additional Consideration; unless otherwise agreed, shall be apportioned
equally between Chai and ▇▇▇▇▇.
Such Inteletek Stock shall be restricted for a one (1) year
period from the date of issuance.
The parties agree that, if necessary, Sellers shall enter into a
Registration Rights Agreement which shall more clearly define the parties'
rights and obligations with regard to the Inteletek Stock issued pursuant to
this Agreement.
2. Registration Rights. In the event that Inteletek Stock is issued to
Sellers pursuant to this Amendment Agreement, such Inteletek Stock shall be
issued in accordance with the Registration Rights Agreement and shall contain
the following restricted legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and are
"restricted securities" as that term is defined in Rule 144 under the
Act. The shares may not be sold or offered for sale except pursuant to
an effective registration statement under the Securities Act of 1933
or an opinion of counsel for the corporation that registration is not
required under such Act."
Inteletek shall make very good faith effort to prepare and
file a Registration Statement with respect to such Inteletek Stock
conveyed hereunder within one (1) year of the date of issuance.
3. Additional Consideration. The parties agree that this Amendment
Agreement shall supercede and replace all the obligations and duties under the
Additional Consideration provision as provided for in the Agreement of Sale and
that the payment of the amount as hereinabove provided shall be construed as the
full and complete payment of the amounts due under the Agreement of Sale.
4. Rights of Recession. In the event that Inteletek is not able to
successfully complete the IPO within one (1) year of the date of this Amendment
Agreement, this Amendment Agreement shall be terminated and the parties' rights
with regard to any payment of the Additional Consideration shall revert to those
as provided in the Agreement of Sale.
5. Miscellaneous.
5.1 Further Assurances. At any time, and from time to time, after
the date of this Amendment Agreement, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to confirm or perfect title to any property transferred hereunder or
otherwise to carry out the intent and purposes of this Amendment Agreement.
5.2 Waiver. Any failure on the part of any party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
5.3 Arbitration. Any and all disputes and differences between or
among the parties with respect to the construction or performance of the terms
of this Amendment Agreement which cannot be resolved amicably shall be resolved
by arbitration before the American Arbitration Association in accordance with
its rule then sitting in the State of New Jersey.
5.4 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have given if delivered in person or if
sent by prepaid first class registered or certified mail, return receipt
requested, fax or recognized courier then upon receipt thereof to the following
addresses:
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To Sellers: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Acquiree: GDB Software Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇, Esquire
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To ACT: Applied Cellular Technology, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with copies to: ▇▇▇▇ ▇. Creme, Esquire
Merra, Kanakis, Creme & ▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Buyer: Universal Commodities Corporation
▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATT: ▇▇▇▇ ▇▇▇▇▇▇▇
5.5 Headings. The section and subsection headings in this Amendment
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Amendment Agreement.
5.6 Counterparts. This Amendment Agreement may be executed
simultaneously 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.
5.7. Governing Law. The laws of the State of New Jersey shall
govern this Amendment Agreement.
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5.8 Binding Effect. This Amendment Agreement shall be binding upon
the parties hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors and assigns.
5.9 Entire Agreement. This Amendment Agreement is the entire
agreement of the parties covering everything agreed upon or understood in the
transaction. In instances of inconsistencies between this Amendment Agreement
and the Agreement of Sale the former shall govern. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof, and except as
modified herein the terms and conditions of the Agreement of Sale, shall remain
in full force and effect.
5.10 Severability. If any part of this Amendment Agreement is
deemed to be unenforceable the balance of this Amendment Agreement shall remain
in full force and effect.
THE BALANCE OF THIS PAGE HAS BEEN
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Amendment Agreement
the day and year first above written.
GDB SOFTWARE SERVICES, INC. ( "Acquiree")
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Its duly authorized President
SELLERS:
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
APPLIED CELLULAR TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its duly authorized President
UNIVERSAL COMMODITIES CORPORATION
("Buyer")
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Its duly authorized President
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