EXHIBIT 4.7
FIRST AMENDMENT
TO
ASSET PURCHASE AND SALE AGREEMENT
INTRODUCTION
THIS AGREEMENT, dated as of February 9, 1999 (this
"Amendment"), is by and between SITE TECHNOLOGIES, INC., a California
corporation having an address at 000 Xx Xxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx
00000 (the "Seller"), and STARBASE CORPORATION, a Delaware corporation having an
address at 0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx 00000 (the
"Purchaser").
RECITALS
Purchaser and Seller entered in an Asset Purchase and Sale
Agreement dated December 18, 1998 (the "Existing Purchase Agreement"). Pursuant
to the Original Purchase Agreement, the Purchaser is purchasing certain Assets
of the Seller. Capitalized terms used and not otherwise defined or amended in
this Amendment shall have the meanings respectively assigned to them in the
Existing Purchase Agreement.
On February 2, 1999, the Seller filed a voluntary petition for
relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy
Code") Case No. 99-50736-JRG-11 in the United States Bankruptcy Court for the
Northern District of California, San Xxxx division (the "Bankruptcy Court") and
is presently operating its business as a debtor-in-possession pursuant to the
provisions of 11 U.S.C. xx.xx. 1107 and 1108.
The parties have entered into this Amendment in order to amend
the Existing Purchase Agreement, all upon the terms and provisions and subject
to the conditions hereinafter set forth.
AGREEMENT
In consideration of the foregoing, the mutual covenants and
agreement hereinafter set forth and other good and valuable consideration (the
receipt and adequacy of which are hereby acknowledged by the Seller), the
parties hereto hereby agree as follows:
Section 1. Amendment to Existing Purchase Agreement. The
Existing Purchase Agreement is hereby amended as follows, effective as of the
date first written above:
(A) In Section 2.05(a) of the Existing Purchase Agreement, the
number "750,000" in the first sentence is hereby replaced by the number
"625,000" and the number
"750,000" in the second sentence is hereby replaced by the number "625,000"
without the deletion or modification of any other material.
(B) In Section 2.08(a) of the Existing Purchase Agreement,
item (iii) "Approval by Shareholders of Seller" is hereby deleted in its
entirety.
(C) In Section 2.08(a) of the Existing Purchase Agreement,
item (viii) "No Actions, Suits or Proceedings" is hereby deleted in its
entirety.
(D) In Section 2.08(b) of the Existing Purchase Agreement,
item (v) "Opinion of Counsel to Seller" is hereby deleted in its entirety, and
the following is hereby inserted in its respective place:
Approval of Seller's Motions by Bankruptcy Court. The Seller
shall have filed each of a (i) NOTICE OF MOTION AND MOTION FOR ORDER
ESTABLISHING BIDDING PROCEDURES AND AUTHORIZING BREAKUP FEE AND FIRST
AMENDMENT TO LICENSE AGREEMENT; (ii) NOTICE OF MOTION AND MOTION TO
SELL ASSETS OUT OF THE ORDINARY COURSE OF BUSINESS (11U.S.C. ss.
363(b)) AND FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES AND
INTERESTS (11 U.S.C. ss. 363 (f)); and (iii) NOTICE OF MOTION AND
MOTION TO ASSUME AND ASSIGN EXECUTORY CONTRACTS (11 U.S.C. ss.ss.365
(a), (f)) substantially in the form previously provided to the
Purchaser (collectively, the "Motions"), each Motion shall be
reasonably acceptable to Purchaser in form and substance and an order
of the Bankruptcy Court in form acceptable to the Purchaser shall have
been issued with respect to each of the Motions which orders shall not
be subject to a stay or appeal (collectively, the "Final Order") no
later than March 31, 1999.
(E) In Section 2.09 of the Existing Purchase Agreement, the
text is hereby deleted in its entirety, and the following text is hereby
inserted in its respective place:
Subject to Section 7.02(b), the closing of the purchase and
sale of the Assets shall take place at the offices of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx within five (5) days after the issuance of the Final
Order, or at such other time as the parties may mutually agree in
writing (such time and date being referred to herein as the "Closing
Date").
(F) In Section 3.03 of the Existing Purchase Agreement, the
parenthetical is hereby deleted in its entirety and the following new
parenthetical is hereby inserted in its respective place:
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(including, without limitation, the Final Order, but not
including any filings and notices under applicable bulk sales laws,
which under applicable law is the responsibility of the Purchaser)
(G) In Section 4.07 of the Existing Purchase Agreement, the
following is hereby inserted at the beginning of the sentence, without the
deletion or modification of any other material:
Except as otherwise provided on Schedules 3.03 or 3.04,
(H) In Section 5.01(a) of the Existing Purchase Agreement, the
words "one (1) year" are hereby replaced by the words "six (6) months", without
the deletion or modification of any other material.
(I) In Section 5.01(b) of the Existing Purchase Agreement, the
words "one (1) year" are hereby replaced by the words "six (6) months", without
the deletion or modification of any other material.
(J) In Section 5.03(a) of the Existing Purchase Agreement, the
first and second sentences are hereby deleted in their entirety and the
following are hereby inserted in their respective places:
125,000 Shares (prior to any adjustment pursuant to Section
2.05(a)) shall be placed in an escrow account (the "Escrow Fund") with
Greater Bay Trust Company (the "Escrow Agent") following the Closing to
be available for indemnification claims pursuant to Section 5.01, if
any (the "Indemnification Shares") for a period not to exceed one
hundred eighty (180) days following the Closing (the "Escrow Period"),
except as otherwise provided below. At the expiration of the Escrow
Period, all Shares (less the number of any Shares paid or claimed to be
payable in connection with any claim pursuant to Section 5.01) shall be
released from the Escrow Fund.
(K) In Section 5.04 of the Existing Purchase Agreement, the
heading and the text are hereby deleted in their entirety and the following are
hereby inserted in their respective places:
5.04 Notice and Breakup Fee
In recognition of the time and expense expended by Purchaser
with respect to the purchase of the Assets, the Seller hereby covenants
and agrees that prior to the Closing Date or the termination of this
Agreement, it will notify Purchaser of any and all inquiries which it
receives pursuant to the bankrupty proceeding of the Seller in the
Bankruptcy Court, regarding the purchase of some or all of the Assets
pursuant to the proposed competing bid procedure set forth in the
MOTION FOR ORDER ESTABLISHING
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BIDDING PROCEDURES AND AUTHORIZING BREAKUP FEE AND FIRST AMENDMENT TO
LICENSE AGREEMENT. The Seller further covenants and agrees, that if any
termination of this Agreement pursuant to Section 7.02(c) shall be
followed by a sale of substantially all the Assets to one or more
purchasers, Seller shall pay to Purchaser a breakup fee equal to the
Purchaser's reasonable costs and expenses not to exceed five percent
(5%) of the purchase price paid by the competing bidder.
(L) In Section 5.05(a) of the Existing Purchase Agreement, the
following is hereby inserted following the word "Closing" and prior to the
period at the end of the first sentence:
(the "Lock-Up Period")
(M) In Section 5.05(a) of the Existing Purchase Agreement, the
second sentence is hereby deleted in its entirety, and the following is hereby
inserted in its respective place:
Subsequent to the Lockup Period, no more than five percent
(5%) of the prior business day's trading volume in the Shares may be
sold on any given day.
(N) In Section 5.09 of the Existing Purchase Agreement, the
text is hereby deleted in its entirety, and the following is hereby inserted in
its respective place:
[Deleted]
(O) In Section 5.10 of the Existing Purchase Agreement, the
text is hereby deleted in its entirety, and the following is hereby inserted in
its respective place:
[Deleted]
(P) In Section 5.11 of the Existing Purchase Agreement, the
first sentence is hereby deleted and is hereby replaced in its entirety by the
following:
Purchaser will use its reasonable efforts to register the
Shares with the Securities and Exchange Commission within six (6)
months after the receipt of the Final Order by preparing and filing a
registration statement in compliance with the Securities Act and
applicable rules and regulations thereunder, with such registration
statement declared or ordered effective by the Securities and Exchange
Commission.
(Q) In Section 7.02(c) of the Existing Purchase Agreement, the
text is hereby deleted in its entirety, and the following is hereby inserted in
its respective place:
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by Purchaser or Seller if the Bankruptcy Court does not
approve the transactions contemplated hereby in its Final Order.
Section 2. Bringdown of Representations, Etc. As of the date
of this Amendment, both before and after giving effect to the terms and
provisions of this Amendment: (a) the representations and warranties of each of
the Purchaser and the Seller set forth in the Existing Purchase Agreement are
true and correct in all material respects with the same effect as though those
representations and warranties had been made on and as of the date hereof; and
(b) except for the Chapter 11 bankruptcy proceeding in the Bankruptcy Court,
there are no actions, suits or proceedings pending or, to the best knowledge of
the undersigned, threatened or contemplated by any person for the liquidation or
dissolution of the Seller or otherwise threatening its existence or challenging
or calling into question the power or authority of the Seller to execute or
deliver any Purchase Document to which it is or will be a party or to perform
any of its obligations thereunder.
Section 3. Counterparts. This Amendment may be signed in two
or more counterpart copies of the entire document or of signature pages to the
document, each of which may be executed by one or more of the parties hereto,
but all of which, when taken together, shall constitute a single agreement
binding upon all of the parties hereto.
Section 4. Governing Law, Etc. This Amendment shall be
governed by and construed in accordance with the applicable terms and provisions
of Sections 1 through 7 (as well as any applicable definitions or provisions
appearing elsewhere) of the Existing Purchase Agreement as amended hereby, which
terms and provisions are incorporated herein by reference.
Section 5. Agreement to Continue as Amended. The Existing
Purchase Agreement and the other Purchase Documents, as supplemented, modified
and amended by this Amendment, shall remain and continue in full force and
effect after the date hereof.
Section 6. Entire Agreement. This Amendment contains the
entire agreement of the parties and supersedes all other representations,
warranties, agreements and understandings, oral or otherwise, among the parties
with respect to the matters contained herein.
[intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first written above.
STARBASE CORPORATION
By: -----------------------------------
Name:
Title:
SITE TECHNOLOGIES, INC.
By: -----------------------------------
Name:
Title:
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