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Exhibit 99.3
THIRD AMENDMENT TO
ASSET PURCHASE AGREEMENT
This Third Amendment to Asset Purchase Agreement (this "Amendment") is
made as of July 10, 2000, to that certain Asset Purchase Agreement, dated as of
May 3, 2000, as amended by an Amendment dated as of June 5, 2000 and a Second
Amendment dated as of June 9, 2000 (the "Agreement"), by and among SYSTEM
SOFTWARE ASSOCIATES, INC., a Delaware corporation, GORES TECHNOLOGY GROUP, a
California corporation, and SSA ACQUISITION CORPORATION, a Delaware corporation.
WHEREAS, the parties hereto have entered into the Agreement and now
desire to further amend certain provisions of the Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED, by and among the parties hereto,
as follows:
1. Defined Terms. Any capitalized terms used but not defined herein
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shall have the meaning set forth in the Agreement.
2. Amendments to the Agreement.
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(a) Subparagraph (a) of Section 1.06 of the Agreement is amended by
deleting that subparagraph in its entirety as substituting the following in
place thereof:
"(a) In consideration for the Acquired Assets, the Purchaser shall
pay to Seller at the Closing (i) cash by wire transfer in an amount determined
pursuant to the first sentence of Section 1.06(b) below (the "Cash Proceeds")
less (ii) the Deposit (as defined in Section 1.07 below) and any interest
credited thereon plus (iii) a number of shares equal to 20% of Purchaser's
common stock, par value $.01 per share, to be outstanding immediately after the
Closing (the "Stock Proceeds") plus (iv) the Seller Rights (as defined in
Section 9.01 below) (the Seller Rights together with the Cash Proceeds and the
Stock Proceeds, the "Purchase Price"). Seller recognizes the percentage of
common stock to be issued to Seller pursuant to clause (iii) hereof will be
adjusted if warrants are issued to the Investor; and provided further that
Seller shall be required to transfer the Dilution Amount (as defined in Section
9.01 below), if any, to Purchaser if a Dilution Event (as defined in Section
9.01 below) occurs."
(b) Section 1.07 of the Agreement is amended by deleting the word
"Initial" in the first sentence thereof. Section 1.07 of the Agreement is
further amended by deleting the second sentence thereof in its entirety. Section
1.07 of the Agreement is further amended by adding the following sentence at the
end of such Section:
"Seller acknowledges that Gores will receive, in consideration for the
Deposit, preferred stock of Purchaser with a liquidation preference over the
Stock Proceeds."
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(c) Subparagraph (b) of Section 2.02 of the Agreement is amended by
deleting the word "and" immediately before "(4)" set forth therein and inserting
"; and (5) an instrument evidencing the Seller Rights" immediately before the
period at the end thereof.
(d) Section 4.04 is amended by deleting the words "or the HSR Act".
(e) Section 5.04 is amended by deleting the last two sentences
thereof and adding the following sentence: "Notwithstanding the foregoing,
Purchaser does not believe that a filing under the HSR Act is required."
(f) Subparagraph (c) of Section 5.10 of the Agreement is amended by
deleting the date "June 16, 2000" set forth therein and substituting "July 11,
2000" in place thereof.
(g) Section 5.16 of the Agreement is hereby amended by inserting the
following sentences after the last sentence thereof:
"Purchaser shall be a co-proponent of Seller's plan of reorganization
or liquidation. If Purchaser is not otherwise required to be a reporting
company under the Securities Exchange Act of 1934, as amended, Purchaser shall
provide to its stockholders (i) quarterly unaudited and annual audited financial
statements of Purchaser and (ii) an annual management discussion and analysis of
operations. "
(h) Section 5.18 of the Agreement is amended by deleting the phrase
"$20,000,000 of which shall be represented by common stock" and substituting
"$10,000,000 of which shall be represented by common stock and preferred stock,
which preferred stock shall have a redemption feature providing the holder
thereof with a full return on its capital contribution, plus cumulative
dividends equal to fifteen percent (15%) per annum" in place thereof.
(i) Subparagraph (b) of Section 6.01 of the Agreement is deleted.
(j) Subparagraph (v) of Section 7.01 of the Agreement is amended by
deleting the date "June 17, 2000" set forth therein and substituting "July 22,
2000" in place thereof.
(k) Subparagraph (vi) of Section 7.01 of the Agreement is amended by
deleting the date "June 17, 2000" set forth therein and substituting "July 22,
2000" in place thereof.
(l) Subparagraph (viii) of Section 7.01 of the Agreement is amended
by deleting the date "June 19, 2000" set forth therein and substituting "July
11, 2000" in place thereof.
(m) Section 8.08 of the Agreement is amended by inserting the
following immediately before the first period therein:
"; Seller acknowledges, however, that Purchaser may reimburse Gores
for its costs and expenses incurred in connection herewith"
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(n) Section 9.01 of the Agreement is amended by inserting the
following terms in alphabetical order:
""Dilution Amount" means that number of shares having a value equal to
the costs and expenses incurred by Purchaser in connection with the registration
of the Stock Proceeds or the common stock issuable upon Seller's exercise of the
Seller Rights under the Securities Act of 1933, as amended, or applicable Blue
Sky laws (to the extent such registration is required as a result of a Dilution
Event)."
""Dilution Event" means the failure of Seller to consummate its plan
of reorganization or liquidation and distribute the Stock Proceeds and the
Seller Rights within 180 days of the Closing."
""Investor" means an entity to be formed by Romulus Holdings, Inc.
with Cerebus Partners L.P. (on behalf of various funds and accounts managed by
it), Magten Asset Management and Lloyd Miller."
""Seller Rights" means the right of Seller to purchase units of stock
of Purchaser consisting of $5.3565 million face amount of Purchaser's preferred
stock and twenty percent (20%) of Purchaser's common stock, at an aggregate cost
of $5.3565 million. The terms of the preferred stock shall be the same as the
preferred stock issued to the Investor."
(o) The Agreement is hereby amended by deleting all references to
"Deposits" set forth therein and substituting "Deposit" in place thereof.
(p) Item 3 of Schedule 1.04 is hereby amended to read as follows:
"All expenses and obligations of Seller incurred in the ordinary course of
business prior to the Closing Date but unpaid as of the Closing Date, so long as
payment of amounts so incurred plus the amount required to retire the DIP
Financing does not exceed $11,740,000."
3. Effect on the Agreement. Except as specifically set forth herein,
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the Agreement shall remain in full force and effect. In the event of any
conflict between the terms of the Agreement and the terms of this Amendment, the
terms of this Amendment shall govern.
4. Governing Law. This Amendment shall be governed by the laws of
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the State of Delaware without regard to the conflict of laws of the State of
Delaware or any other jurisdiction.
5. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Amendment shall become effective
when each party hereto shall have received counterparts thereof signed by all
the other parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
SYSTEM SOFTWARE ASSOCIATES, INC.
By: /s/ Kirk J. Isaacson
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Name: Kirk J. Isaacson
Title: Vice President and General Counsel
GORES TECHNOLOGY GROUP (for purposes of
Article 4 only)
By: /s/ David McGovern
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Name: David McGovern
Title: Vice President
SSA ACQUISITION CORPORATION
By: /s/ David McGovern
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Name: David McGovern
Title: Vice President
