EXHIBIT 10.11B
AMENDMENT
TO
ASSET PURCHASE AGREEMENT
Amendment to Asset Purchase Agreement, dated as of February 1,
2001 ("Amendment"), by and among Infocrossing, Inc. (successor in interest to
Computer Outsourcing Services, Inc.), a Delaware corporation ("Parent" or
"COSI"), ETG, Inc. (formerly known as COSI Acquisition Corp.), a Delaware
corporation (the "Company"), Enterprise Technology Group, Incorporated, a New
Jersey corporation ("ETG"), Warren Ousley and Peter Miller.
W I T N E S S E T H:
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WHEREAS, Parent, the Company, ETG, Warren Ousley and Peter Miller are
parties to an Asset Purchase Agreement (the "Agreement"), dated as of December
16, 1998 (all capitalized terms used herein but not defined shall have the
respective meanings ascribed to them in the Agreement); and
WHEREAS, Parent, the Company, ETG and the Principal Stockholders desire
to amend the Agreement and modify certain obligations and benefits related to
the Agreement as more fully set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. The following definitions shall be deleted from Section 1.1 of the
Agreement:
"Cumulative Catch-Up"; "Cumulative First Year PTI Shortfall";
"Excess First Year PTI"; "Excess Second Year PTI"; "First Year
Catch Up"; "First Year PTI Shortfall"; "Second Post-Closing
Amendment"; "Second Year PTI"; "Third Post-Closing
Adjustment"; and "Third Year PTI".
2. Section 2.5 shall be amended and restated as follows:
2.5 Intentionally Omitted.
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3. Section 3.3(b) of the Agreement shall be amended and restated as
follows:
(b) PARENT WARRANTS. In addition to the Closing Purchase Price,
Parent shall grant to ETG on February 1, 2001, a warrant to
purchase 65,000 shares of COSI Common Stock (the "Parent
Warrant"). The Parent Warrant shall be subject to the
provisions of the warrant attached hereto as Exhibit A. All
or a portion of the Parent Warrant shall be subject to
forfeiture, as provided in the last sentence of this Section
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3.3(b), to the extent that the Company sustains any losses,
obligations, liabilities or damages in connection with claims
made by Cariplo S.p.A. or Intesa Sistemi e Servizi s.c.p.a.
(each shall be referred to herein as "Cariplo"), including
court costs and reasonable attorneys' fees incurred in
connection therewith (collectively, the "Cariplo Amount"), but
only to the extent that the Cariplo Amount relates to a
failure to perform or breach of contract committed by the
Company prior to September 16, 2000, which losses,
obligations, liabilities or damages shall not include
approximately $200,000 in fees remaining to be paid to the
Company by Cariplo under the Company's existing agreement with
Cariplo, which amount the parties agree relate to services
performed by the Company after January 1, 2001, and then only
if (i) the Cariplo Amount results from a suit filed, or
threatened in writing, by or on behalf of Cariplo or its
successors or assigns on or prior to January 31, 2002 or
counterclaim made by Cariplo in connection with a suit filed
by the Company or any of its affiliates on or prior to January
31, 2002; (ii) Warren Ousley is promptly informed of any
claims or counterclaims made by Cariplo; and (iii) Warren
Ousley is given the opportunity to assist in the defense of
the claim. The number of Parent Warrants to be forfeited shall
be equal to lesser of (i) all of the Parent Warrants and (ii)
the result of the (A) Cariplo Amount, less any portion, if
any, of the Cariplo Amount paid to the Company pursuant to the
terms of the Severance Agreement between the Company and
Warren Ousley dated as of September 16, 2000, divided by (B)
the difference between the (1) fair market value of the common
stock of the Company (which shall be the closing price of such
common stock) on the date the Cariplo Amount is determined
(the "Determination Date") and (2) the exercise price of the
Parent Warrants; provided, however, that in the event that the
Parent Warrants are out-of-the money on the Determination
Date, all of the Parent Warrants shall be forfeited; provided,
further, that the Parent Warrant that shall not be subject to
forfeiture pursuant to this Section 3.3(b) unless a suit has
been filed, or threatened in writing, or counterclaim is made
by Cariplo on or prior to January 31, 2002; provided, further,
that if a court of competent jurisdiction determines that no
amounts are due Cariplo with respect to such claims or
counterclaims made on or prior to January 31, 2002, the Parent
Warrant shall no longer be subject to forfeiture.
4. Sections 3.3(c), (d) and (e) of the Agreement are hereby deleted in
their entirety.
5. Sections 3.4(b), (c) and (d) of the Agreement are hereby deleted in
their entirety.
6. The first sentence of Section 9.1 of the Agreement shall be amended and
restated as follows:
9.1 Survival of Representations, Warranties, Covenants and
Agreements. Except as otherwise specifically provided for
herein, the representations, warranties, covenants and
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agreements of the parties hereto included or provided for
herein, or in other instruments or agreements specifically
delivered or to be delivered in accordance with this Agreement
as modified by the Schedule Amendment, shall survive until
March 1, 2003.
7. Section 9.7 of the Agreement shall be amended and restated as follows:
9.7 Right of Offset. ETG acknowledges and agrees that Parent and
the Company shall be entitled to offset against any and all
amounts payable by Parent and the Company from time to time
under this Agreement.
6. Each of ETG, Warren Ousley and Peter Miller hereby acknowledges that
the respective Non-Competition and Non-Solicitation Agreements
(collectively, the "Non-Competition Agreements") between each of them
and the Company, dated as of December 18, 1998, are in full force and
effect in accordance with their respective terms and that the Non-
Competition and Non-Solicitation provisions set forth in Section 2 of
each of such agreements shall extend until January 31, 2002 and agree
that Section 2.2 of such agreements shall also apply to ETG Channel
Partners and members of the ETG Advisory Board (current and future)
such that each of ETG, Warren Ousley and Peter Miller shall not
solicit, place or recruit any ETG Channel Partner or member of the ETG
Advisory Board (current and future) with a view to influencing or
inducing such party to terminate or materially lessen his, her or its
relationship with the Company or any Company Affiliate (as defined
therein), or to develop relationships with any of them or and person
that would have the same effect.
7. As a condition to entering into this Amendment, each of Warren Ousley
and Peter Miller agrees that so long as he or his Affiliates owns,
directly or indirectly, shares of COSI Common Stock, he shall, or shall
cause his Affiliates, if applicable, to vote all the shares of COSI
Common Stock owned, directly or indirectly, by him and/or his
Affiliates, in favor of Mr. Zach Lonstein, another designee to be named
by Mr. Zach Lonstein, and the designees of the holders of the Company's
8% Redeemable Series A Cumulative Convertible Participating Preferred
Stock at each Annual Meeting of the stockholders of Parent (and at each
special meeting of stockholders of Parent at which directors are
elected).
8. ETG and the Principal Stockholders, jointly and severally, represent
and warrant as follows: (i) ETG is a corporation duly organized,
validly existing and in good standing under the laws of the State of
New Jersey, and has all necessary corporate power and authority to
carry on its business as now conducted, to enter into this Amendment,
to carry out its obligations hereunder and to consummate the
transactions contemplated under this Amendment; (ii) the execution,
delivery and performance of this Amendment and the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of ETG; and (iii) this Amendment has been
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duly executed and delivered by ETG, and assuming due authorization,
execution and delivery by each of Parent and the Company, this
Agreement constitutes a legal, valid and binding obligation of ETG and
the Principal Stockholders enforceable against ETG and the Principal
Stockholders in accordance with its terms.
9. ETG and the Principal Stockholders, jointly and severally, agree to
indemnify and hold harmless Parent, the Company and their respective
stockholders, directors, officers, employees, Affiliates and agents
and their respective successors and assigns against (i) any and all
damage, loss, claim, expense, deficiency or cost resulting from the
breach by ETG or the Principal Stockholders of any representation or
warranty made by ETG or the Principal Stockholders hereunder; (ii) any
and all damage, loss, claim, expense, deficiency or cost resulting
from the failure to comply in any material respect with any covenant
made by ETG or the Principal Stockholders hereunder; (iii) any and all
damage, loss, claim, expense, deficiency or cost resulting from any
damages incurred in connection with this Amendment by ETG or the
Stockholders, including but not limited to any damages caused by ETG
and the Principal Stockholders in connection with the execution of
this Amendment; and (iv) any and all actions, suits, proceedings,
demands, assessments, Judgments, costs, costs of collection and legal
and other expenses incident to any of the foregoing.
10. The Parent and the Company, jointly and severally, represent and
warrant as follows: (i) each is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and has all necessary corporate power and authority to carry on its
business as now conducted, to enter into this Amendment, to carry out
its obligations hereunder and to consummate the transactions
contemplated under this Amendment; (ii) the execution, delivery and
performance of this Amendment and the transactions contemplated hereby
have been duly authorized by all necessary corporate action on its
part; and (iii) this Amendment has been duly executed and delivered by
it, and assuming due authorization, execution and delivery by each of
ETG and the Principal Stockholders, this Agreement constitutes a legal,
valid and binding obligation of enforceable against Parent and the
Company in accordance with its terms.
11. If any provision of this Amendment is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this
Amendment will remain in full force and effect. Any provision of this
Amendment held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable. This Amendment may not be modified, changed or otherwise
amended except in writing and signed by each party to this Amendment.
12. This Amendment may be executed in counterparts, each of which shall be
deemed an original and 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 set forth above.
INFOCROSSING, INC.
By: /s/
Name: Nicholas J. Letizia
Title: CFO
ETG, INC.
By: /s/
Name: Nicholas J. Letizia
Title: CFO
ENTERPRISE TECHNOLOGY GROUP,
INCORPORATED
By: /s/
Name: Warren E. Ousley
Title: President
/s/
Warren Ousley
Address: 18 Wetherill Drive
/s/
Peter Miller
Address: 307 S. Lincoln
Hinsdale, IL 60521
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