AMENDMENT TO ASSET PURCHASE AGREEMENT
AMENDMENT
TO ASSET PURCHASE AGREEMENT
This
Amendment to Asset Purchase Agreement (the “Amendment”) by and between GPS
INDUSTRIES, INC. a Nevada corporation (“Buyer”) and UPLINK CORPORATION, a Texas
corporation (“Seller”) is made and entered into as of January 18, 2008 with
reference to the following:
A. Buyer
and
Seller have entered into that certain Asset Purchase Agreement dated as of
August 31, 2007 (the “Purchase Agreement”). Defined terms not defined
herein shall have the meanings ascribed to them in the Purchase
Agreement.
B. Concurrently
with the execution of this Amendment, the parties are closing the transfer
of
the Purchased Assets.
C. The
parties wish to amend certain provisions of the Purchase Agreement as set forth
herein.
ARTICLE
I.
AMENDMENT
The
Purchase Agreement is hereby amended as follows:
1.1. Section 1.1
is hereby amended by adding at the end of the definition of “Intellectual
Property” the following: “including, without limitation, all rights to the name
“UpLink”.’
| 1.2. |
Section 2.2(B)
is hereby deleted.
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1.3.
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Sections 2.2(C)
and (D) are hereby amended by adding to each such Section the
following:
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“Attached
as Appendix A is an updated Appendix A as of December 31, 2007,
which replaces in its entirely Appendix A as previously attached to the Purchase
Agreement.”
| 1.4. |
Section 2.2
is further amended by adding the following as Sections (E) and
(F):
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“(E) Any
liability (including costs of defense, settlement costs, and judgment amount)
the allegations in the Complaint entitled “ProLink Holdings vs. UpLink
Corporation et al.” (the “ProLink Case”) and any amended or subsequent actions,
if any, involving the same patents, namely Patent No. 6,236,940 (May 22,
2001)(Display Monitor for Golf Cart Yardage and Information System); Patent
No.
6,470,242 (October 22,2002) (Display Monitor for Golf Cart Yardage); or Patent
No. 6,525,690 (Feb. 25, 2003) Golf Course Yardage and Information System with
Zone Detection. Buyer hereby elects to defend the ProLink Case, at its expense,
and Seller consents to such election.”
“(F) The
Parties agree that it will be necessary to reconcile the Assumed Liabilities
with actual figures as of the Closing Date as such information becomes
available. The Parties shall use their best efforts to update Appendix A as
of the Closing Date, within 30 days after the Closing Date, it being understood
that there will be no increase in the amount of the Assumed Liability in
Appendix A on line “Accrued partner fee - Club Car” to be assumed by Buyer. The
parties agree that Seller will not assume or retain any additional operating
liabilities as a result of this reconciliation which shall be consistent with
the line items and associated amounts contained in Appendix A. Seller’s
retained liabilities shall be those allocated to it in Appendix A in effect
as
of Closing.”
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1.5.
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Section 2.3
(G) is hereby amended by adding at the end: “other than the Prolink Case.”
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1.6.
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Section 2.3
(N) is hereby amended by adding at the end: “other than the Prolink
Case.”
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1.7.
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Section 2.3
is hereby further amended by adding a new subparagraph Q as
follows:
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“(Q) Amounts
owed to Silicon Valley Bank.”
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1.8.
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Section 2.4(ii)
is hereby amended by deleting “an aggregate amount of $18,000,000” and
substituting the following for subparagraphs (a), (b) and
(c):
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“(a) notes
(the “Secured Notes”) in the aggregate principal amount of $1,521,328 payable in
six equal monthly cash installments of $253,554.67 each, together with interest
on the unpaid balance thereon at prime plus 1%, commencing on January 31,
2008 with a final principal and interest payment on June 30, 2008. The Secured
Notes will be secured by a security interest in the assets of Buyer granted
in a
Security Agreement in the form attached hereto as Exhibit L (the “Security
Agreement”);
(b) 120,000
shares of Buyer’s Series B Preferred Stock (the “Preferred Shares”) and warrants
to purchase 4,918,033 shares of Buyer’s Common Stock (the “Preferred Warrant”)
at an exercise price of $0.122 per share; and
“(c) 142,083,334
shares of Common Stock (the “GPS Shares”) to be deposited in Escrow pursuant to
Section 8.4.”
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1.9.
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Section 2.4.1
is hereby amended by substituting “42%” for “34%” on the second line and
“(59,675,000)” for “(43,916,667)” on the third
line.
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1.10.
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Section 2.5(B)
is hereby amended by substituting “Closing” for “date hereof” in the first
line thereof.
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1.11.
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Section 3.2(A)
is hereby amended by deleting subparagraph (1) and adding at the end
thereof a new paragraph (ii):
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“(ii) an
agreement or agreements (the “Secured Holder Agreements”) from the holders of
the liens listed on Schedule 1.5, (2 and 13) that upon payment of the
Secured Notes such liens will be released.”
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1.12.
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Section 3.2(B)
is hereby amended by adding at the end thereof new paragraphs
(7)-(10)
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”(7)
the
Secured Notes;
(8)
the
Security Agreement and executed UCC-1s;
(9)
the
Series B Preferred Stock Certificate; and
(10)
the
Preferred Warrant.
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1.13.
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Section 4.9
is hereby amended by adding after “Schedule 4.9”
on the first line: “and the ProLink
Case.”
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1.14.
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Section
4.12(B) is hereby amended by adding after “Schedule
4.12(b)”
on the first line “and the ProLink
Case,”
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1.15.
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Section
4.12(E) is hereby amended by adding after “Schedule
4.12(e)”
on the first line “and the ProLink
Case,”
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1.16.
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Section 4.16
is hereby amended by adding after “Schedule 4.16”
on the first line: “and the ProLink
Case,”
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| 1.17. |
There
shall be added a new Section 4.25 as follows:
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“4.25 Club
Car Agreement.
Seller
and Club Car, Inc. are currently engaged in active negotiations to complete
the
Development Agreement and patent license referred to in Section 6.13, and Club
Car, Inc has not advised Seller that it intends to terminate such negotiations.”
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1.18.
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Section 5.6
B is hereby amended by substituting “565,876,867” for “524,912,778” and
adding thereafter “which includes shares of Buyer’s Common Stock issuable
upon conversion of the Preferred
Shares.”
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1.19.
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Section 5.6
D is hereby amended by adding “and the Preferred Shares” after “GPS
Shares” on the first line.
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1.20.
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Sections 5.9
and 5.10 are hereby amended by adding at the beginning of such Sections:
“Except for the ProLink Case,”
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| 1.21. |
There
shall be added a new Section 6.13 as
follows:
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“6.13 Change
of Name.
As
soon
as practicable following Closing (but in no event later than ten business days),
Seller shall change its corporate name to a name which does not include UpLink
or any similar name.”
| 1.22. |
There
shall be added a new Section 6.14 as
follows:
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“6.14 Club
Car Agreement.
Seller
shall continue to use its best efforts to complete the Development Agreement
and
the IQLink non-exclusive patent license as generally outlined in the Letter
of
Intent dated June 28, 2007 between Seller and Club Car, Inc. attached
hereto as Exhibit J with payment for development of at least $750,000 plus
a royalty of at least $10 per vehicle for not less than 60,000 vehicles (the
“Minimum Terms”). Seller shall keep Buyer informed as to the status of the
negotiations and provide drafts of any proposed agreement. Provided that the
Minimum Terms have been met and the Development Agreement as completed is in
form and substance reasonably satisfactory to Buyer, upon execution, Seller
shall assign to Buyer (at or after Closing) the Development Agreement and Buyer
shall accept such assignment.”
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1.23.
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Section 7.1
is hereby amended by (a) adding “Except for the ProLink Case,” at the
beginning of (E) and (b) deleting
(F).
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1.24.
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Section 7.2
is hereby amended by (a) adding “Except for the ProLink Case,” at the
beginning of (F), and (b) deleting
(M),
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1.25.
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Section 8.5(A)
is hereby amended by deleting such Paragraph and substituting the
following: “On the First Anniversary Date, all of the GPS Shares except
for any remaining Target Shares that continue to be subject to the
Repurchase Right shall be released from escrow to the extent such
Shares
otherwise to be released are not necessary to cover the Offset Amount
or
the amount that in the reasonable and good faith judgment of Buyer
may be
necessary to satisfy any unresolved or unsatisfied Losses specified
in any
Claim Notice that has been delivered in good faith and in accordance
with
the terms hereof prior to the date of the scheduled release (a
“Pending
Claim Amount”).”
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ARTICLE
II.
SELLER’S
SCHEDULES
Attached
to this Amendment are Seller’s revised Schedules.
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ARTICLE
III.
EFFECT
OF AGREEMENT
Except
as
expressly set forth herein, the terms of the Purchase Agreement remain in full
force and effect.
IN
WITNESS WHEREOF, each of the parties has executed this Amendment as of the
date
first above written.
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a
Nevada corporation
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UPLINK
CORPORATION,
a
Texas corporation
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By:
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/s/
Xxxxxxx Xxxx
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By:
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/s/
Xxxxx X. Xxxxxx, Xx.
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Name:
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Xxxxxxx
Xxxx
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Name:
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Xxxxx
X. Xxxxxx, Xx.
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Title:
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Chief
Executive Officer
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Title:
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Chief
Executive Officer
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