AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
Exhibit 2.1
[EXECUTION COPY]
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
This Amendment No. 1 to the Asset Purchase Agreement (the
“Amendment”) is made and entered into as of January 25, 2007 (the
“Effective Date”) by and between Verso Technologies Inc., a Minnesota
corporation (“Buyer”), Paradyne Networks, Inc., a Delaware corporation
(“Seller”), and Zhone Technologies, Inc., a Delaware corporation
(“Zhone”), for the purpose of amending that certain Asset Purchase
Agreement dated as of December 29, 2006 (the “Purchase Agreement”) by and
between Buyer, Seller, and for the limited purposes stated therein, Zhone,
and certain exhibits and schedules thereto. Capitalized terms not defined
herein shall have the meanings given to them in the Purchase Agreement.
RECITALS
WHEREAS, the parties desire to amend the Purchase Agreement on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendments to Purchase Agreement. The parties
hereby amend the Purchase Agreement as follows:
(A) Purchase Price. The definition of “IP Payment Date” in
clause (b)
of Section 2.3 is hereby changed from “January 19, 2007” to “January
31, 2007” such
that clause (b) now reads as follows:
"(b) On January 31, 2007 (the “IP Payment Date”), cash in the
amount of One Million Five Hundred Thousand Dollars ($1,500,000),
payable by wire transfer to an account designated by Seller not later
than two (2) business days prior to the IP Payment Date (the “IP
Payment”); and”
(B) Covenant Not to Compete. The first paragraph of Section
9.5 is
hereby amended and replaced in its entirety to read as follows:
“9.5 Covenant Not to Compete. For the period from the
Closing Date until two (2) years from the Closing Date (the
“Noncompete Period”), without the prior written consent of
Buyer, neither Zhone nor Seller shall (and shall cause each of its
respective controlled affiliates not to) (collectively, the
“Noncompete Parties”), on a worldwide basis, directly or
indirectly, own, manage, operate or control any business or entity
that engages in the design, manufacture or marketing of (a) any
products or services provided by the Business as of the Closing Date
or (b) any products or services substantially equivalent in form, fit
and function to such products or services of the Business
(“Competitive Business”); provided
that this covenant not to compete shall be null and void and of no force or
effect if Buyer fails to pay the IP Payment by the If Payment Date and/or the
Inventory Payment pursuant to Section 2.5; provided further,
however, that the foregoing covenants shall not prohibit, or be
interpreted as prohibiting, any of the Noncompete Parties from:”
(C) Purchased Assets. Schedule 1.1 of the Purchase Agreement
(Purchased Assets) is hereby amended to delete the following Service Agreement
from
those already listed in Section A (1) thereof:
(a) NSP Post Sale Technical Support Program Agreement dated August
13, 2001 between LISCO (Local Internet Service Company) and Paradyne
Corporation
(D) Purchased Assets. Schedule 1.1 of the Purchase Agreement
(Purchased Assets) is hereby amended to add the following Software IT
Agreements to
those already listed in Section A (2)(b) thereof:
(h) Xxxxxx & Xxxxxxxx — Netplane — ATM
Stack
(i) Dy4 Systems, Inc.
(j) Interphase
(E) Excluded Agreements. Schedule 1.2 of the Purchase Agreement
(Excluded Agreements) is hereby amended to add the following Service Agreement
to
those already listed in Section A thereof:
(26) NSP Post Sale Technical Support Program Agreement dated August
13, 2001 between LISCO (Local Internet Service Company) and Paradyne
Corporation
(F) Sufficiency of Assets. Schedule 4.5 of the Purchase Agreement
(Sufficiency of Assets) is hereby amended to delete the following Software
Agreements
from those already listed in Section 1(c) thereof:
(iv) Dy4 Systems, Inc.
(vii) Xxxxxx & Xxxxxxxx — Netplane — ATM Stack
(ix) Interphase
2. General. All references to IP Payment Date under the
Purchase Agreement and the License Agreement shall be the date after giving
effect to the amendment set forth in Section 1(A) above, and except as amended
by this Amendment, the terms and conditions of the Purchase Agreement shall
remain in full force and effect.
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3. Governing Law. This Amendment shall be construed under and governed by the internal
laws of the State of California without regard to its conflict of laws provisions.
4. Entire Agreement. This Amendment and the Purchase Agreement and
the other exhibits and schedules hereto, including the License Agreement,
reflect the
entire agreement of the parties with respect to the subject matter hereof and
supersede
all previous written or oral negotiations, commitments and writings.
5. No Breach or Default. The parties hereto agree that no breach or
default
under the Purchase Agreement shall exist (and Seller and Zhone hereby waive
any
such breach or default that may have existed prior to the date of this
Amendment) as a
result of the non-payment of the IP Payment on January 19, 2007 under the
Purchase
Agreement.
6. Execution in Counterparts. For the convenience of the parties and
to
facilitate execution, this Amendment may be executed in two or more
counterparts,
each of which shall be deemed an original, but all of which shall constitute
one and the
same document, and such counterparts may be delivered by facsimile.
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[EXECUTION COPY]
IN WITNESS WHEREOF, this Amendment has been duly executed on behalf of
the parties as of the Effective Date.
| VERSO TECHNOLOGIES, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| PARADYNE NETWORKS, INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ZHONE TECHNOLOGIES, INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
