AMENDMENT #2 TO THE
ASSET PURCHASE AGREEMENT
This Amendment #2 ("Amendment #2") to that certain Asset Purchase Agreement
dated March 19, 2003 by and among the Parties as amended by Amendment No. 1
dated March 26, 2003 (collectively, the "Agreement"), is entered into this 23
day of April 2003 by and among Seller, Parent and Purchaser. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Agreement.
RECITALS
WHEREAS, Seller invoices its customers on a monthly basis following the end
of such calendar month for services rendered to such customers during such
calendar month;
WHEREAS, pursuant to Section 2.3 of the Agreement, the Purchase Price shall
be adjusted to the extent that the Preliminary Closing Date Qualified
Receivables Amount is different from the Signing Date Qualified Receivables
Amount;
WHEREAS, the Preliminary Closing Date Qualified Receivables Amount will not
include services rendered by Seller to its customers that will not have been
invoiced for services provided in April 2003; and
WHEREAS, the parties intended that Seller should be entitled to receive, as
a post-Closing adjustment to the Purchase Price, an amount equal to the
aggregate amount billed by Seller for services rendered by Seller to its
customers prior to the Closing;
WHEREAS, the parties also desire to amend Schedule 2.1 to the Agreement to
add as an Excluded Asset, any claims or causes of action of the Seller under
chapter 5 of the Bankruptcy Code.
WHEREAS, pursuant to Section 2.4(c) of the Agreement, the parties also
desire to amend Schedules 1A, 2.4 and 2.6 of the Agreement to reclassify certain
Excluded Assets as Acquired Assets and certain Other Contracts as Designated
Contracts.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as
follows:
1. Amendment to Section 2.3 of the Agreement. Section 2.3 of the
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Agreement shall be amended to add Section 2.3(e), titled "Subsequent Purchase
Price Adjustment." Immediately after the title, Section 2.3(e) of the Agreement
shall state the following: "After the Closing, and during Seller's normal
billing cycle, Seller shall invoice its customers for services rendered and
travel expenses incurred during the month of April. Seller shall provide copies
of those invoices to Purchaser. Within five (5) days after receipt of such
invoices, Purchaser shall pay Seller an amount equal to the aggregate amounts of
such invoices for services provided by Seller and travel expenses incurred by
Seller in April. Seller shall promptly remit to Purchaser all amounts collected
under such invoices after receipt of such amounts."
2. Amendment to Schedule 2.1. Schedule 2.1 shall be amended and
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supplemented with the following item, as an Excluded Asset thereunder:
"Any claims or causes of action of the Seller under chapter
5 of the Bankruptcy Code, excluding any claims or causes of
action of Seller relating to Designated Contracts or Other
Contracts that Purchaser elects pursuant to Paragraph 2.4(c)
of the Agreement to have Seller assume and assign to
Purchaser (this Excluded Asset shall not be subject to
Paragraph 2.4(c) of the Agreement)."
3. It is understood and agreed by the parties that the amendment
described in paragraph 2 above shall be effective as of March 19, 2003.
4. Amendments to Schedules 1A, 2.4 and 2.6. In consideration of the
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Purchase Price increase set forth on Amendment #2, Schedule 1 attached hereto,
Schedule 1A of the Agreement is amended to include the assets set forth on
Amendment #2, Schedule 1. Schedule 2.4 of the Agreement is amended to include
the contracts set forth on Amendment #2, Schedule 2 attached hereto. No
Purchase Price increase shall result from the inclusion of such contracts in
Schedule 2.4. Purchaser shall assume the liabilities and Liens, if any,
associated with such included assets and contracts and such liabilities shall be
deemed added to Schedule 2.6 of the Agreement and become part of the Assumed
Liabilities.
5. Except as specifically set forth in this Agreement, the Agreement,
as amended by this Amendment #2, shall remain in full force and effect.
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IN WITNESS WHEREOF, the Parties, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first written
above.
PRIMAVERA SOFTWARE, INC.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title:
PRIMAVERA SYSTEMS, INC.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title:
EVOLVE SOFTWARE, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name Xxxxx Xxxxxx
Title: President
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