FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") dated as
of February 16, 2000 among Compaq Computer Corporation, a Delaware corporation
("Parent"), ITY Corp., a Delaware corporation ("Buyer") and wholly-owned
subsidiary of Parent, and InaCom Corp. a Delaware corporation ("Seller").
W I T N E S S E T H :
WHEREAS, Compaq Sub and InaCom (the "Parties") have entered into an
Asset Purchase Agreement dated as of January 4, 2000 (the "Asset Purchase
Agreement") whereby Compaq Sub will purchase from InaCom the Purchased Assets
and will assume the Assumed Liabilities;
WHEREAS, the Parties hereto wish to amend the Asset Purchase Agreement
as set forth below:
NOT, THEREFORE, it is agreed:
1. Adjustment of Purchase Price. Section 2.09 of the Asset Purchase
Agreement is hereby amended by deleting subsection 2.09(a)(ii) in its entirety
and substituting in lieu thereof the following:
"(ii) If Final Net Worth is less than $275 million, Seller
shall pay to Buyer, in the manner and with interest as
provided in 2.09(b), an amount equal to the excess, if any, of
$275 million over Final Net Worth (the "Make-Up Payment").
2. Grounds for Termination. Section 12.01 of the Asset Purchase Agreement
is hereby amended by deleting the section in its entirety and substituting in
lieu thereof the following:
"SECTION 12.01. Grounds for Termination. This Agreement shall terminate
prior to Closing if:
(a) the Closing shall not have been consummated on or before
March 31, 2000 unless the parties otherwise agree; provided
that any party whose breach of any provision of this Agreement
has resulted in the failure of the Closing to be consummated
by such time shall be deemed to have consented to any
extension approved by the other party.
(b) Seller and Buyer shall agree;
(c) there shall be any law or regulation that makes
consummation of the transaction contemplated hereby illegal or
otherwise prohibited or consummation of the transactions
contemplated hereby would violate any nonappealable final
judgment, injunction, order or decree of any court of
competent jurisdiction.
3. Defined Terms. Defined terms used herein but not otherwise defined
herein shall have the meanings specified in the Asset Purchase Agreement.
4. Captions. The captions in this Amendment are included for convenience of
reference only and shall be ignored in the construction or interpretation of the
provisions of this Amendment.
5. Counterparts; Effectiveness. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective when each party to this Amendment shall have
received a counterpart hereof signed by the other party hereto.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of law rules of such state.
7. Agreement as Amended. From and after the effective date hereof, all
references to the Asset Purchase Agreement shall be deemed references to the
Asset Purchase Agreement as amended and supplemented hereby.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed in their respective corporate names by their respective officers, each
of whom is duly and validly authorized and empowered, all as of the day and year
first written above.
INACOM CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
COMPAQ COMPUTER CORPORATION
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President and
Corporate Treasurer, Acting CFO
ITY CORP.
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President and Treasurer
