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AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT (the "Amendment") is
entered into as of September 1, 1996 by and between PSINET INC. ("Seller") and
MINDSPRING ENTERPRISES, INC. ("Buyer").
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement, and Amendment No. 1 thereto, dated as of June 28, 1996
(collectively, the "Purchase Agreement"); and
WHEREAS, capitalized terms that are used but not otherwise defined
herein shall have the meanings ascribed to them in the Purchase Agreement; and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement in
accordance with and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. The definition of "Assets" as set forth in ANNEX 1 to the
Purchase Agreement is hereby amended to read as follows:
ASSETS shall mean, collectively, all right, title, benefit and
interest of Seller in and to the following assets, rights, benefits and
privileges, both tangible and intangible (including without limitation the
Business as a "going concern" and customer relationships and reputation of
Seller ("Goodwill")), wherever situated or located, owned, leased, used, held
for use or otherwise held by Seller in connection with the Business, and shall
include all such assets existing on the date of this Agreement and all such
assets acquired between that date and the Second Closing Date:
(a) All Seller Contracts with Subscribers (excluding Bulk
Customers);
(b) All Leases, including without limitation the Lease for the
Harrisburg Facility (described in SCHEDULE 4.10 attached
hereto);
(c) All of the benefits of all preexisting marketing programs
(including Retail, Affinity and Bounty Programs) other than
Seller's arrangements with MPATH Interactive, Inc.;
(d) All of the ownership rights to the Pipeline Software (including
auto registration software), including, but not limited to, all
work currently being undertaken to upgrade and/or improve such
software;
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(e) Rights to the Local Content published by the Pipeline Group;
(f) All engineering, business and other books, papers, files and
records directly relating to the Business, including, but not
limited to, customer lists;
(g) All manufacturer's warranties with respect to the Assets, to the
extent assignable;
(h) All Intellectual Property;
(i) A paid up non-exclusive license to use and modify (but not to
sublicense) the software described in SCHEDULE ANNEX 2; and
(j) All furniture, fixtures, equipment and other fixed assets
located at the Harrisburg Facility as of June 28, 1996 and materially necessary
to the operation of the Harrisburg Facility in the ordinary course of business
as set forth on SCHEDULE ANNEX 3 attached hereto, as well as all other
furniture and non-fixed assets located at the Harrisburg Facility on the Second
Closing Date (all of the property described in this subparagraph (j) being
deemed part of the Harrisburg Facility).
2. The net book value of the Harrisburg Facility is One Million One
Hundred Twenty Nine Thousand Dollars ($1,129,000) and the Second Note shall be
in the original principal amount of Nine Million Nine Hundred Twenty Nine
Thousand Dollars ($9,929,000).
3. SCHEDULE ANNEX 1 to the Purchase Agreement is hereby deleted in
its entirety.
4. SCHEDULE ANNEX 2 to the Purchase Agreement is hereby amended by
(a) deleting the first bullet item ("Interactive Voice Response (IVR) system
which includes the license, programming and other enhancements and the PSINet
enhanced data.") and (b) adding an asterisk ("*") after the fifteenth bullet
item ("Source code for InterRamp auto-registration client and server software
and perpetual license to use and modify, but not resell, such software.").
5. SCHEDULE ANNEX 3 attached hereto shall be deemed SCHEDULE ANNEX
3 of the Purchase Agreement, as amended by this Amendment.
6. The Purchase Agreement is hereby ratified and confirmed and,
except as expressly modified hereby, shall continue unmodified and in full
force and effect.
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7. This Amendment may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Amendment to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment, or has caused this Amendment to be duly executed and delivered in
its name on its behalf, all as of the day and year first above written.
BUYER
MINDSPRING ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXXX (SEAL)
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Name: Xxxxxxx X. Xxxxxx
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Title: Chairman and CEO
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SELLER
PSINET INC.
By: /s/XXXXXX X. XXXXX (SEAL)
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Name: Xxxxxx X. Xxxxx
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Title: COO
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SCHEDULE LIST
ANNEX 2 Intellectual Property
ANNEX 3 Inventory of Fixed Assets
MindSpring Enterprises, Inc. agrees to furnish supplementally a copy of any of
the exhibits listed above to the Commission upon reqest.
