EXHIBIT 10.29
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
This Amendment No. 1 to the Asset Purchase Agreement (this "AMENDMENT") is
made as of August 31, 2000, among Aquis IP Communications, Inc., a Delaware
corporation (the "COMPANY"), Aquis Communications Group, Inc., a Delaware
corporation ("AQUIS GROUP"), and Aquis Communications, Inc., a Delaware
corporation ("AQUIS" and, together with Aquis Group, the "STOCKHOLDERS"), and
Sunstar IP Communications, LLC, a Delaware limited liability company (the
"PURCHASER").
R E C I T A L S
The Company, the Stockholders and the Purchaser are parties to that certain
Asset Purchase Agreement dated as of July 13, 2000 (the "AGREEMENT"). The
parties to the Agreement desire to amend the Agreement as set forth herein.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENT OF SECTION 2.5. Section 2.5 of the Agreement is hereby
amended to read in its entirety as follows:
"SECTION 2.5. PAYMENTS AT CLOSING.
(a) At the Closing, the Purchaser shall (i) assume the Assumed
Liabilities and (ii) pay the Closing Purchase Price based on the
Estimated Purchase Price Certificate to the Company by delivering (A)
an amount in cash equal to $300,000 by wire transfer of immediately
available funds to an account or accounts designated by the Company
not less than three business days before Closing and (B) a promissory
note substantially in the form of EXHIBIT I attached hereto (the
"NOTE") and a Security Agreement substantially in the form of EXHIBIT
A attached to the Note (the "SECURITY AGREEMENT") granting a security
interest in the Purchased Assets in favor of the Company.
(b) The Purchaser agrees that following an Event of Default (as
defined in the Security Agreement), (i) the Company will have the
right pursuant to the Security Agreement, among other rights, to
require the reconveyance of all ownership interests in or to otherwise
sell or realize upon, the Purchased Assets without any payment
obligation to Purchaser including reimbursement to Purchaser of any
amounts previously paid, as well as any amounts paid after the date
hereof, pursuant to the Agreement and (ii) the Purchaser will make
available
the Purchased Assets for delivery to the Company in accordance with
the reasonable instructions of the Company."
2. AMENDMENT OF SECTION 2.9. Section 2.9 of the Agreement is hereby
amended to read in its entirety as follows:
"SECTION 2.9. CLOSING. The closing (the "CLOSING") of the
Transactions hereunder will take place at Dechert, 4000 Xxxx Atlantic
Tower, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, on August 31, 2000
(the "CLOSING DATE")."
3. EFFECTIVENESS. This Amendment shall be effective as of the date first
written above when executed by the Company, the Stockholders and the
Purchaser.
4. COUNTERPARTS. This Amendment may be executed in two or more
counterparts (including by means of telecopied signature pages), all
of which shall be considered one and the same agreement.
5. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
the choice of law provisions thereof.
6. INCORPORATION OF AMENDMENT. On and after the date hereof, each
reference in the Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall be a reference to the Agreement
as amended hereby.
7. NO OTHER AMENDMENTS. Except as expressly set forth in this amendment,
no other amendment or modification is made to any other provisions of
the Agreement, and the Agreement shall remain in full force and
effect, as amended hereby, and as so amended the Company, the
Stockholders and the Purchaser hereby reaffirm all of their respective
rights and obligations thereunder.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Agreement as of the date first written above.
AQUIS IP COMMUNICATIONS, INC.
By: /s/ D. XXXXX XXXXXXXX
-------------------------------
Name: D. Xxxxx Xxxxxxxx
Title: Vice President
AQUIS COMMUNICATIONS GROUP, INC.
By: /s/ D. XXXXX XXXXXXXX
-------------------------------
Name: D. Xxxxx Xxxxxxxx
Title: Vice President
AQUIS COMMUNICATIONS, INC.
By: /s/ D. XXXXX XXXXXXXX
-------------------------------
Name: D. Xxxxx Xxxxxxxx
Title: Vice President
SUNSTAR IP COMMUNICATIONS, LLC
By: /s/ XXXX XXXXX
-------------------------------
Name: Xxxx Xxxxx
Title: President and Chief
Executive Officer
