2nd Supplementary Agreement to Purchase Agreement of December 5, 2004


    EXHIBIT
      10.3

    
       

      Working
        Translation deed no 5/2006 as signed on 10 January 2006

       

    

     

     

    

      Deed
        No
        A. Record 5/2006

       

      Today,
        January ten, two thousand and six

       

      -
        January
        10, 2006 -

       

      appeared
        before me, Etienne Petitpierre

       

      Notary
        public with official place of business in Basel, Switzerland

       

      in
        my
        office premises located at Gerbergasse 1, 4001, Switzerland 

       

      1.   Mr.
        Ulrich Wüseke,

      born
        8
        December 1955,

      residing
        at Töpferweg 41, 

      32429
        Minden, 

      Germany

       

      acting
        here not in his own name, but according to powers of attorney dated 9 January
        2006 presented to the notary in the originals and taken to the files as
        photocopy on behalf of

       

      a)   Mr.
        Paul
        Gauselmann

      born
        26
        August 1934

      residing
        at Alter Moorweg 11, 

      32339
        Espelkamp,

      Germany

       

      b)   Mr.
        Michael
        Gauselmann,

      born
        28
        November 1955,

      residing
        at Frotheimer Weg 54, 

      32339
        Espelkamp, 

      Germany

       

      2.   Dr.
        Bernd
        Meyer-Witting,

      born
        2
        July 1960,

      with
        business address at Mainzer Landstrasse 46,

      60325
        Frankfurt am Main,

      Germany,

       

      acting
        here not in his own name, but according to power of attorney dated 8 December
        2005 presented to the notary in the original and taken to the files as photocopy
        as 

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      representative
        with sole power of representation for GTECH
        Corporation,
        55
        Technology Way, West Greenwich, Rhode Island, 02817 USA,

       

      


       

      The
        persons present under Nos. 1 and 2 are personally known to the acting notary.
        

       

      At
        the
        request of the persons appearing before me, I hereby certify the
        following

       

      2nd
        SUPPLEMENTARY AGREEMENT

       

      to
        the

       

      Purchase
        Agreement of 5 December 2004

       

      The
        Parties notarially recorded on 5 December 2004 a Master Agreement (A. Record
        294/2004 of Notary Etienne Petitpierre, with offices in Basel - "MA")
        and a
        Purchase Agreement (A. Record 293/2004 - "PA"),
        as
        well as a Supplementary Agreement to the PA (A. Record 64/2005) dated 4 March
        2005, as a bundle of annexes. The aforementioned Purchase Agreement of 5
        December 2004 shall now be amended and/or supplemented, with all other
        provisions remaining in effect in their present form. The amendments and/or
        supplements depend in part (but only where this is expressly indicated) on
        the
        occurrence of the circumstances defined in Annex 1 ("Circumstances").
        In this
        PA, all references to the MA are solely to the new version of the MA of today’s
        date unless otherwise expressly provided herein:

       

      I.

      Conditions,
        Effective Date (§3)

       

      1.

        The
        following sentence shall be added at the end of § 3.1:

       

      "In
        the
        preceding sentence, in the event of the occurrence of the Circumstances,
        the
        date "29 December 2006" shall be replaced by "29 December 2007"."

       

      2.

        The
        following additional paragraph is to be added at the end of §
3.3.1:

       

      "The
        existence of a regulatory permit shall be evidenced by sending a copy of
        the
        permit or of the clearance statement. A temporary regulatory permit or clearance
        statement, or one such having a fixed term, shall suffice.

       

       

      
        
          
          

        

        
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      Any
        regulatory permit or clearance statement that has only been granted orally
        must
        be evidenced via a letter of confirmation to be sent to the relevant authority.
        The writing must refer to the date of the discussion, contact person involved,
        and the content of the discussion.

       

      In
        the
        event of the occurrence of the Circumstances, and unless the Closing Conditions
        have also been satisfied by 30 November 2007, any unissued regulatory permit
        specified in Annex
        § 3.3.1 Parts B and
        C
        shall
        not
        be used for the calculation of the necessary regulatory permits whose absence
        is
        waived pursuant to § 3.3.1 sentence 3 unless net sales in the area for which a
        regulatory permit was not issued ("Non-Critical
        Area")
        reached at least EUR 400,000.00 between 1 December 2006 and 30 November
        2007.

       

      The
        relevant net sales shall be determined by adding all invoice amounts, for
        the
        actual value of the goods (excluding VAT, transportation costs, insurance
        costs,
        and the like, and less all returns of new devices), that were prepared for
        goods
        delivered in this period; the corresponding invoiced value of goods for orders
        that exist in writing and are received by 30 November 2007 shall be added
        to
        that amount. In the case of rental, leasing, participation and WAP devices,
        the
        net sales or invoiced value of goods is calculated by multiplying the relevant
        number of units by the net list price.

       

      In
        the
        event that the goods are billed in a currency other than the euro, the euro
        amount to be specified shall be determined by taking the average of the euro
        rate vis-à-vis the respective currency (as quoted in the Wall Street Journal,
        European edition) on 1 December 2006 and 30 November 2007.

       

      This
        exceptional provision shall apply to a maximum of 20 regulatory
        permits."

       

      3.

        The
        following paragraph is added to § 3.7:

       

      "In
        the
        event of the occurrence of the Circumstances, the foregoing paragraph shall
        not
        apply."

       

      4.

        The
        following new paragraph is inserted:

       

      "§
        3.8. Effective
        immediately, the Buyer shall be informed in full regarding all permit
        proceedings initiated after 5 December 2004. The Buyer shall thereupon initiate
        and conduct, to a reasonable extent and within a reasonable period of time,
        the
        Buyer’s own regulatory permit proceeding, insofar as such proceeding is
        permissible for the Buyer and is not pointless, does not adversely affect
        the
        Buyer in another permit proceeding, or negatively affect a previously issued
        permit.

       

       

      
        
          
          

        

        
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      The
        outcome of such regulatory permit proceedings shall not be relevant to the
        existence of the Closing Condition as defined in § 3.2.1. Such proceedings shall
        also not be relevant for the purposes of § 3.3.1."

       

      5.

        The
        following new paragraph is inserted:

       

      "§
        3.9      The
        Parties shall, no later than 15 February 2006, review in good faith the content
        of the lists of regulatory permits in terms of the continued necessity of
        such
        permits for the AI Group, and, if applicable, the shortening of the same,
        and
        the Parties shall make any relevant adjustment. However, no adjustment shall
        be
        made unless both Parties agree to the same.

       

      The
        foregoing provisions shall not apply in the event that the Circumstances
        shall
        occur."

       

      II.

      Purchase
        Price (§ 4)

       

      1.

        An
        additional paragraph is added at the end of § 4.5.8:

       

      "If
        regulatory permits have not been obtained but the corresponding Closing
        Condition has nevertheless been satisfied pursuant to § 3.3.1, then in the event
        of the occurrence of the Circumstances, the EBITDA value for fiscal year
        2006
        shall be adjusted as follows:

       

      the
        average gross profit or loss achieved in the non-licensed, Non-Critical Areas
        described in § 3.3.1 in fiscal years 2006 and 2007 shall be added to the
        EBITDA."

       

      2.
        

        §
4.6.1
        is reworded to read as follows:

       

      "The
        term
        "net financial debt" refers to the balance that results from the
        interest-bearing assets, the book values of the rental, leasing, participation,
        and WAP devices listed under plant, property, and equipment, and the
        interest-bearing liabilities on the closing balance sheet. For purposes hereof,
        the book value in the closing balance sheet for devices delivered by 31 December
        2005 for the first time based on a corresponding agreement is to be accounted
        for at 50% and at 75% for all other devices delivered in like
        fashion."

       

      3.

        Annex
        § 4.6.5 shall
        be
        replaced by Annex
        § 4.6.5 NEW.

       

       

      
        
          
          

        

        
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      III.

      Payment
        and Due Date of 

      Purchase
        Price (§ 5)

       

      1.

        §
5.1
        is
        reworded to read as follows:

       

      "On
        the
        Transaction Date, the Buyer shall pay to the Sellers a provisional purchase
        price in accordance with § 6 ("Provisional
        Purchase Price"),
        but
        not less than EUR 20,000,000.00 in the event of the occurrence of the
        Circumstances. The advance payment effected pursuant to § 16.4 shall be
        credited towards this payment obligation."

       

      2.

        The
        following sentence is added to § 5.2:

       

      "The
        Sellers shall have a duty of repayment in the event of the occurrence of
        the
        Circumstances, but only for the amount exceeding EUR 20,000,000.00 that was
        paid
        to the Sellers pursuant to § 5.1."

       

      The
        following paragraph is also be added to § 5.2: 

       

      "In
        the
        event of the occurrence of the Circumstances, if the Purchase Price should
        be
        less than the value of EUR 20,000,000.00 based on the closing balance sheet
        to
        be prepared pursuant to § 8, then the balance shall be retained without a duty
        of repayment and interest-free by the Sellers ("Balance
        I")."

       

      3.

        §
5.3
        is
        reworded to read as follows:

       

      "Any
        earn-out payment by the Buyer to the Sellers shall be due 15 banking days
        after
        it has been determined to be binding and incontestable pursuant to § 7, to the
        extent that the payment duty is not discharged, whether in full or in part,
        by a
        set-off against Balance I, if any."

       

      IV.

      Earn-Out
        (§ 7)

       

      1.

        The
        following new paragraph is inserted in § 7.4:

       

      "In
        the
        event of the occurrence of the Circumstances Annex
        § 7.4 NEW
        shall
        apply."

       

       

      
        
          
          

        

        
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      2.

        The
        following new paragraph is inserted as follows:

       

      "§
        7.5      The
        Buyer
        may set off Balance I, if any against any earn-out payment duty. Any then
        remaining balance is described hereinafter as "Balance PA". Such Balance
        PA may
        be set off against claims of the Buyer under the MA."

       

      V.

      Balance
        Sheets (§ 8)

       

      1.
        

        The
        following sentence is inserted at the end of § 8.1 par. 2:

       

      "Should
        the Circumstances nevertheless occur, the Sellers shall also appoint the
        balance-sheet auditor for the year 2007 if the Transaction Date falls within
        calendar year 2007."

       

      2.

        The
        following sentence is inserted at the end of § 8.2 par. 2:

       

      "The
        same
        shall apply to the year 2007, provided that the Circumstances
        occur."

       

      VI. 

      Rights
        of Cancellation and Standstill Premium (§ 16)

       

      1.

        The
        following sentence is added at the end of § 16.1.2:

       

      "The
        Buyer shall be entitled, within the limits of § 3.3.1 and subject to these being
        counted towards the limits set out therein, to withdraw any applications,
        provided it has informed the Sellers in advance and in a comprehensive and
        clear
        manner."

       

      2.

        The
        following sentence is added to § 16.1.3: 

       

      "In
        the
        event of the occurrence of the Circumstances, the foregoing basic deadline
        (29
        December 2006) shall be extended to 29 December 2007."

       

      3.

        A
        new §
16.1A is inserted as follows:

       

      "The
        right of cancellation shall expire one (1) month after receipt of a written
        notice from the Buyer regarding the occurrence of the grounds for
        cancellation."

       

       

      
        
          
          

        

        
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      4.

        The
        following
        sentence is added to § 16.2:

       

      "In
        the
        event of the occurrence of the Circumstances, the standstill premium shall
        increase to EUR 20,000,000.00. The provisions regarding the Extension Premium
        in
§ 16A remain unaffected." 

       

      5.

        A
        new §
16.3 is inserted:

       

      "If
        the
        Circumstances occur and if, in order to prevent an immediately imminent denial,
        the Buyer is compelled to withdraw an application in the course of a permit
        proceeding pursuant to Annex
        § 3.3.1 Part (A),
        the
        Agreement shall be terminated upon receipt of the statement of withdrawal,
        and
        the standstill premium shall fall due. This shall be considered an event
        of
        definite non-Consummation within the meaning of § 16A (i).

       

      However,
        this provision shall not apply unless the Buyer informs the Sellers in advance
        and in a comprehensive and clear manner regarding the imminent denial, and
        an
        attorney who specializes in compliance issues and has been engaged by both
        Parties confirms that the denial is imminent and that the cause for the denial
        cannot be cured."

       

      6.

        A
        new §
16.4 is inserted as follows:

       

      "Within
        15
        banking days after the occurrence of the Circumstances, the Buyer must remit,
        in
        full, the standstill premium to the account indicated in § 5.4, in the form of
        an interest-free advance payment, barring any regulatory/compliance-related
        impediments to such payment. 

       

      In
        the
        event of such an impediment, the Buyer must make the advance payment to an
        escrow account to be designated by the Sellers. The Parties shall jointly
        strive
        to reach an economically comparable alternative solution within a short period
        of time. 

       

      If
        the
        right to the standstill premium fails to arise, and no Consummation occurs,
        the
        advance payment must be repaid to the Buyer without interest within 15 banking
        days after it has been conclusively established that a Consummation cannot
        take
        place for reasons other than those indicated in § 16.1, but in any case no later
        than 15 banking days after 31 December 2007. If after the expiration of the
        aforementioned period of 15 banking days, the advance payment has not been
        repaid to the Buyer, then from that date forward interest shall accrue on
        the
        advance payment at the rate of five (5) percentage points above the base
        interest rate set by the European Central Bank (ECB)."

       

       

      
        
          
          

        

        
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      7.

        A
        new §
16A is inserted as follows:

       

      "Extension
        Premium (§ 16A)

       

      Notwithstanding
        and in addition to the standstill premium, in the event of the occurrence
        of the
        Circumstances, the Buyer must pay to the Sellers, on 1 July 2007 and 1 October
        2007, an extension premium of EUR 5,000,000.00 in each case.

       

      The
        duty
        to pay the respective extension premium shall not apply (i) if the existence
        of
        a definite non-Consummation (e.g. a denial of any of the antitrust clearances
        required pursuant to § 3.4, § 3.5 or § 3.6, a denial of any Regulatory Approval
        by a regulatory authority described in Annex
        § 3.3.1 Part (A)
        and/or a
        denial of any of the Regulatory Approvals described in § 3.3.2) has been
        established prior to the relevant extension date and is known to the Parties,
        or
        (ii) if the Consummation has occurred prior to the relevant Extension
        Date."

       

      


       

      This
        deed
together
        with the Annexes was
        read
        aloud to the persons appearing and,
        to the
        extent that reading them aloud was not suitable, was submitted for review
        and
        signed individually by them,
        was
        approved by them and was signed together with the Notary as
        follows:

       

      


       

       

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