Sample Business Contracts

Asset Purchase Agreement [Amendment] - Unisys Corp. and Broadway & Seymour Inc.

Sponsored Links


     THIS AMENDMENT (this "Amendment"), dated as of September 17, 1997, by
and between Unisys Corporation, a Delaware corporation ("Buyer"), and Broadway &
Seymour, Inc., a Delaware corporation ("BSI"), to the Asset Purchase Agreement
(the "Original Agreement"), dated as of July 24, 1997, by and between such
parties. Capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Original Agreement.

                             Background Statement

     Buyer and BSI entered into the Original Agreement regarding the
acquisition by Buyer from BSI of the software products commonly referred to as
"VisualImpact" and "Echo" and certain assets and obligations related thereto.
Buyer and BSI wish to amend certain terms of the Original Agreement hereby, as
more specifically set forth herein.

                            Statement of Agreement

     In consideration of the mutual covenants herein contained, the parties
hereto agree as follows:

1. Earn-Out Maximum and Minimum. Section 1.4(b) of the Original Agreement is
   hereby amended and restated in its entirety as follows:

     (b) Within forty-five days after the end of each calendar quarter during
         the Earnout Period, Buyer shall pay to BSI an amount equal to
         ten percent (10%) of Buyer's End User Revenue (as defined below)
         during that calendar quarter. The maximum additional consideration
         payable hereunder shall be the Maximum Earnout Amount (as defined
         below). Buyer shall continue to make quarterly payments, as provided
         above, throughout the Earnout Period (including payment for the final
         quarter of calendar year 2000), or until the Earn-Out Payments total
         the Maximum Earnout amount, whichever occurs first. The minimum
         additional consideration payable hereunder is One Hundred Fifty
         Thousand Dollars ($150,000) per calendar quarter (it being understood
         that with respect to the quarter ending September 30, 1997, such
         minimum amount shall equal the pro rata portion of $150,000 in respect
         of such calendar quarter, which shall be paid by Buyer at Closing, and
         it being further understood that on or before December 31, 1997 Buyer
         shall pay to BSI an amount equal to $150,000 for the quarter ended
         December 31, 1997 (which prepayments shall be subject to adjustment in
         later quarters in the event the amount due hereunder is less than the
         amount so prepaid)), beginning with the calendar quarter ending
         September 30, 1997, with an aggregate of up to the Minimum Earnout
         Amount (as defined below). If the cumulative additional consideration
         paid to BSI under the terms of this Section 1.4 is less than $150,000
         for any calendar quarter,

<PAGE>   2
         Buyer shall pay the difference to BSI with its payment due for such
         calendar quarter until the aggregate amount of the Minimum Earnout
         Amount has been paid by Buyer under this Section 1.4; provided,
         however, that in the event Buyer pays to BSI an amount in excess of
         $150,000 in respect of any calendar quarter, for any subsequent
         quarter(s) in which the amount due hereunder is less than $150,000,
         the amount of any such excess over $150,000 for such prior quarter
         shall be credited to Buyer for purposes of determining the payment due
         in respect of such subsequent quarter(s); provided, further, that for
         any calendar quarter in which (i) the amount due hereunder is less
         than $150,000 (the difference being referred to as the "Difference")
         and (ii) Buyer pays to BSI an amount equal to $150,000, for any
         subsequent quarter(s) in which the Earn-Out Payment due is greater
         than $150,000, then for such subsequent quarter(s) Buyer shall be
         entitled to apply the amount of the Difference (until the entire
         amount of such Difference shall have been so applied) such that Buyer
         shall be required to pay to BSI only an amount equal to $150,000 for
         such subsequent quarter(s). For the purposes hereof, (A) "Maximum
         Earnout Amount" means $3,500,000 less the Documentation Adjustment
         Amount (as defined below), (B) "Minimum Earnout Amount" means
         $2,000,000 less the Documentation Adjustment Amount and (C)
         "Documentation Adjustment Amount" means the lesser of (I) $500,000 and
         (II) the reasonable documented cost incurred by Buyer (including,
         without limitation, out-of-pocket expenses and allocated time of
         Buyer's employees at their respective burdened cost) to develop,
         prepare and complete internal documentation and test and acceptance
         plans for the versions of the Software in existence as of the date
         hereof (including, without limitation, VisualImpact Release 4.0) in
         accordance with TEAM Method and Carnegie Mellon University's System
         Engineering Institute's published standards; provided, however, that
         Buyer shall provide to BSI a written summary, in reasonable detail, of
         all such incurred costs, and BSI shall be entitled to review such
         reported costs with Buyer.

2. Effect on the Original Agreement. Except as otherwise expressly set forth
   herein, all terms and conditions of the Original Agreement shall remain
   in full force and effect. Upon the effectiveness of this Amendment, each
   reference in the Original Agreement to "this Agreement", "hereunder",
   "hereof,", "herein", "hereto", or words of like import shall mean and be a
   reference to the Original Agreement as amended hereby, and each reference to
   the Original Agreement in  any other document, instrument or agreement
   executed and/or delivered in connection with the Original Agreement shall
   mean and be a reference to the Original Agreement as amended hereby.

3. Counterparts. This Amendment may be executed in one or more counterparts,
   each of which shall be deemed an original, but all of which together shall
   constitute one and the same instrument.

<PAGE>   3

     IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.

                                   UNISYS CORPORATION

                                   By:    /s/ Lawrence C. Russell
                                   Name:  Lawrence C. Russell
                                   Title: President, Information Services Group

                                   BROADWAY & SEYMOUR, INC.

                                   By:    /s/ Lillian N. Wilson
                                   Name:  Lillian N. Wilson
                                   Title: Vice President, General Counsel
                                          and Secretary