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Exhibit
10.4
AMENDMENT
No. 1
This Amendment No. 1,
dated as of December 31, 2007, is between Unisys Corporation,
a Delaware corporation (“ Seller ”), and FLO
Corporation, a Delaware Corporation (“ Buyer ”),
and it amends that certain Asset Purchase Agreement dated as of
October 5, 2007 (the “ Agreement ”),
between Seller and Buyer. Capitalized terms used herein without
definition shall have the meanings given such terms in the
Agreement.
For good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto
agree that the Agreement is hereby amended as follows:
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1. |
Article I “ Definitions ” of the Agreement
is hereby amended as follows: |
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a. |
The definition of “ Closing Payment ” is
amended to replace the reference to “Section 2.5(a)”
with a reference to “Section 2.5(b)”. |
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b. |
There is inserted in the proper alphabetical order the
following definition: |
“Deposit” shall
mean the $1,200,000 deposit remitted by Buyer to Seller on
December 31, 2007, such amount to be dealt with as set forth
in Sections 2.5 and 2.6 of this Agreement.
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c. |
The definitions of “ Promissory Note ” and
“ Security Agreement ” are deleted. |
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d. |
The definition of “ Transaction Documents ”
is amended to delete the references to “the Promissory
Note” and “the Security Agreement”. |
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2. |
Section 2.1(f) is amended to insert, immediately after the
word “including” the following “, subject to
Section 5.12 hereof,”. |
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3. |
Section 2.5 is amended to read in its entirety as
follows: |
Section 2.5 Purchase
Price .
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(a) |
As consideration for the Transferred Assets, which will include
additional enhancements to the interface software for rtGO, in
addition to assuming the Assumed Liabilities, Buyer shall pay to
Seller $8,780,000 (the “Purchase Price”). |
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(b) |
The Purchase
Price (less the Deposit and less the amount of Prepaid Memberships
as of the Closing Date)(such amount, the
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“Closing
Payment”) shall be paid at the Closing by wire transfer of
immediately available funds to the Seller Account.
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(c) |
One day prior to the Closing Date, Seller shall inform Buyer of
the amount of Prepaid Memberships as of such date so that Buyer may
deduct such amount from the amount due at Closing. |
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4. |
The first sentence of Section 2.6(a) is amended to read in
its entirety as follows: |
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(a) |
Closing Date. The closing of the transactions contemplated by
this Agreement (the “Closing”) shall take place at the
offices of Unisys Corporation, Unisys Way, Blue Bell, PA 19422 on
the fifth Business Day following the date on which all the
conditions to Closing in Article VI are satisfied or waived, or on
such other date or at such other location as may be mutually agreed
upon by Buyer and Seller. The time and date on which the Closing
occurs is hereinafter referred to as the “Closing
Date.” The Closing shall be effective as of the Effective
Time. |
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5. |
Section 2.6(b)(iii) is amended to delete the words
“and the Promissory Note”. |
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6. |
Section 2.6 is amended to insert a new subsection
(d) thereof to read in is entirety as follows: |
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(d) |
Buyer shall forfeit and Seller shall be entitled to retain the
Deposit if Seller shall have terminated this Agreement pursuant to
Section 9.1(b) and Buyer’s failure to fulfill any of its
obligations under this Agreement shall have been the principal
cause of the failure of the Closing Date to have occurred on or
prior to February 29, 2008. |
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7. |
Section 5.12 of the Agreement is amended to delete the
words “Promptly after the date of this Agreement,” and
replace them with the words “Promptly after the satisfaction
or waiver of all the conditions to Closing in Article
VI,”. |
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8. |
Section 6.1 of the Agreement is amended to insert a new
subsection (h) thereof to read in is entirety as
follows: |
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(h) |
Buyer shall have obtained financing or other sources of capital
sufficient to enable it to make the Closing Payment. |
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9. |
Section 6.2 of the Agreement is amended to insert a new
subsection (g) thereof to read in is entirety as
follows: |
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(g) |
Buyer shall have obtained financing or other sources of capital
sufficient to enable it to make the Closing Payment. |
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10. |
Section 9.1(b) of the Agreement is amended to delete the
words “December 31, 2007” and to replace them with the
words “February 29, 2008”. |
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11. |
Section 9.2 is amended to insert the words “Section
2.6(d),” immediately after the words “notwithstanding
anything to the contrary herein,” and immediately before the
words “this Section 9.2,”. |
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12. |
On and after the date hereof, all references to the
“Agreement” shall be deemed to be references to the
Agreement as amended by this Amendment No. 1, and the
Agreement as so a |
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