EXHIBIT 10.4
AMENDMENT NO 1. TO ASSET PURCHASE AGREEMENT
This Amendment No. 1 to the Asset Purchase Agreement (the "Amendment
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No.1"), dated as of January 21, 2002 (the "Amendment No.1 Effective Date"), by
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and between Dtomi, Inc., a Nevada corporation ("Dtomi"), and International
Manufacturers Gateway, Inc., a Delaware corporation ("IMG"), hereby amends the
Asset Purchase Agreement, dated as of January 14, 2002 by and between Dtomi and
IMG (the "Original Agreement").
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For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows.
1. Original Agreement.
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(a) Section 5.2 of the Original Agreement is hereby deleted in its
entirety and such Section 5.2 is hereby further amended and restated by
inserting the following text:
"5.2 Acquiror's Conditions. Acquiror's obligation to
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close this transaction shall be subject to and contingent upon the satisfaction
(or waiver by Acquiror in its sole discretion) of each of the following
conditions:
5.2.1 All representations and warranties of
Transferor set forth in this Agreement shall have been accurate as of the
Effective Date and shall be accurate as of the Closing Date, as if made on the
Closing Date.
5.2.2 All of the covenants and obligations
that Transferor are obligated to perform or comply with pursuant to this
Agreement prior to or at the Closing shall have been performed and complied
with; and (ii) Transferor shall have made the deliveries of documents required
to be made pursuant to Section 6.2.1.
5.2.3 To the extent, if any, that Acquiror is
required to obtain any Governmental Authorizations that relate to the Businesses
or the ownership, use, and operation of the Purchased Assets, Acquiror shall
have obtained such Governmental Authorizations and such Governmental
Authorizations shall be in full force and effect as of the Closing Date or
subject to issuance to Acquiror upon consummation of this transaction.
5.2.4 As of the Closing Date, there shall not be
in effect any legal requirement or any injunction or other order that prohibits
the transfer of any portion of the Purchased Assets by Transferor to Acquiror.
5.2.5 Between the Effective Date and the Closing
Date, there shall have been no damage to or destruction of any of the Purchased
Assets (excluding damage or destruction (i) caused by Acquiror or any of its
affiliates; or (ii) that does not have a material adverse effect on the
Businesses), nor any taking of any material portion of the Purchased Assets by
eminent domain.
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5.2.6 Since the Effective Date, there shall not
have been commenced or threatened against Acquiror or Transferor or any related
person of Acquiror or Transferor any proceeding (i) seeking damages or other
relief in connection with, any aspect of this transaction, or (ii) that could
reasonably be expected to have the effect of preventing this transaction or
making this transaction illegal.
5.2.7 Transferor shall have executed all
documents necessary to transfer and assign any of the Transferor's Intellectual
Property which is being transferred pursuant to this Agreement.
5.2.8 Transferor shall have executed the Escrow
Agreement, on terms and conditions acceptable to Acquiror."
(b) Section 6.2.1 of the Original Agreement is hereby deleted in its
entirety and such Section 6.2.1 is hereby further amended and restated by
inserting the following text:
"6.2.1 At the Closing, Transferor shall deliver,
or cause to bedelivered, to Acquiror:
(a) A fully executed Xxxx of Sale and
Assignment and Assumption in the form of Exhibit C to this
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Agreement (the "Xxxx of Sale") conveying to Acquiror all personal
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property to be acquired by Acquiror pursuant to this Agreement
and providing for (i) the assignment to Acquiror of the contract
rights, and all other intangible personal property included in
the Purchased Assets and (ii) Acquiror's assumption of the
Assumed Liabilities;
(b) A duly authorized and executed Escrow
Agreement required by Section 3.4;
(c) A Certificate of an officer of Transferor
certifying to the attached resolutions of the board of directors
and shareholders, if the board of directors deems it necessary,
of Transferor authorizing this transaction;
(d) A Certificate of an authorized officer of
the Transferor certifying as to the accuracy of the Transferor's
representations and warranties under Section 7.1;
(e) All necessary documents to transfer and assign
any Intellectual Property which is being transferred pursuant to
this Agreement."
2. Miscellaneous.
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(a) Any capitalized term used in this Amendment No. 1 without
definition shall have the meaning given to such term in the Original
Agreement.
(b) Upon the Amendment No. 1 Effective Date, having received the
requisite shareholder approval from IMG, the parties deem that the transaction
contemplated under the Original Agreement and this Amendment No. 1 is hereby
closed. In connection with the removal
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of (i) certain Closing conditions of Dtomi and (ii) required Closing deliveries
by IMG, the parties hereby acknowledge and agree that they will make all
necessary changes post-Closing to (y) Exhibit A, Exhibit B and Schedule 4.2.1 of
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the Original Agreement, copies of which are attached hereto as Exhibit A,
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Exhibit B and Schedule 4.2.1, respectively and (z) the Share Allocation
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Schedule, attached hereto, which is a schedule to the Escrow Agreement, attached
as Exhibit D to the Original Agreement.
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(c) This Amendment No. 1 sets forth the entire understanding and
agreement of the parties, and supersedes any and all prior contemporaneous oral
or written agreements or understandings between the parties as to the subject
matter of this Amendment No. 1. This Amendment No. 1 shall be governed by the
laws of the State of Washington. This Amendment No. 1 may be executed by
facsimile and in one (1) or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused duplicate originals of
this Amendment No. 1 to be executed as of the Amendment No. 1 Effective Date.
DTOMI, INC.
/s/ Xxxxxxx Xxxxxxx
By: Xxxxxxx Xxxxxxx
Its: President
INTERNATIONAL MANUFACTURERS
GATEWAY, INC.
/s/ R. Xxxxx Xxxxxx
By: R. Xxxxx Xxxxxx
Its: President
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