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EXHIBIT 2.3
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT (this
"AMENDMENT") is made as of March 23, 2001, between E-CENTIVES, INC., with
offices at 0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"BUYER") and INKTOMI CORPORATION, with offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxx
Xxxx, XX 00000 (the "SELLER," and together with the Buyer, the "PARTIES").
Capitalized terms not defined herein shall have the meaning assigned to such
terms in the Asset Purchase Agreement (as defined below).
WITNESSETH:
The Parties are parties to that certain Asset Purchase
Agreement dated as of January 18, 2001, as amended by Amendment No. 1 to Asset
Purchase Agreement dated as of March 16, 2001 (as it may be amended or otherwise
modified from time to time, the "ASSET PURCHASE AGREEMENT"), pursuant to which
the Parties have agreed to certain conditions and restrictions relating to a
transaction in which the Buyer will purchase all of the assets (and assume
certain of the liabilities) of the Commerce Product Business unit of the Seller
in return for shares of common stock of the Buyer.
The Parties agree as follows:
Extension of Termination Date. Sections 9(a)(ii) and (iii)
of the Asset Purchase Agreement governing termination are hereby deleted in
their entirety and are amended to read in their entirety as follows:
(vi) the Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing (A) if any of the
conditions set forth in Section 7(a) of this Agreement shall have become
incapable of fulfillment and shall not have been waived by the Seller,
or (B) if the Closing shall not have occurred on or before March 28,
2001, by reason of the failure of any condition precedent under Section
7(a) hereof (unless the failure results primarily from the Buyer itself
breaching any representation, warranty, or covenant contained in this
Agreement); or
(vii) the Seller may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing (A) if any of the
conditions set forth in Section 7(b) of this Agreement shall have become
incapable of fulfillment and shall not have been waived by the Seller,
or (B) if the Closing shall not have occurred on or before March 28,
2001, by reason of the failure of any condition precedent under Section
7(b) hereof, unless the failure results primarily from the Seller itself
breaching any representation, warranty, or covenant contained in this
Agreement.
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EFFECT OF THE AMENDMENT.
All references to the Asset Purchase Agreement or any related
document shall mean the Asset Purchase Agreement as amended by this Amendment.
Except as specifically amended above, the Asset Purchase Agreement shall remain
in full force and effect in the original form agreed by the Parties, and is
hereby ratified and confirmed.
DESCRIPTIVE HEADINGS.
The descriptive headings of this Amendment are inserted for
convenience only and do not constitute a part of this Amendment.
GOVERNING LAW.
This Amendment shall be governed by and construed and enforced in
accordance with the domestic laws of the State of California.
COUNTERPARTS.
This Amendment may be executed and delivered in counterparts,
each of which shall constitute an original, and all of which together shall
constitute one Amendment. A facsimile, telecopy or other reproduction of this
Amendment may be executed by either Party, and an executed copy of this
Amendment may be delivered by either Party by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such Party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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Counterpart Signature Page
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
The parties have caused this Amendment No. 2 to Asset Purchase Agreement
to be executed by their duly authorized officers as of the day and year first
written above.
INKTOMI CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Executive Vice President and
Chief Financial Officer
E-CENTIVES, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Chairman and Chief Executive Officer
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