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EXHIBIT 2.2
AMENDMENT ONE TO ASSET PURCHASE AGREEMENT
Pursuant to Item 601(b)(2) of Regulation S-K, the exhibits and schedules
to this Amendment One to Asset Purchase Agreement have been omitted. Such
exhibits and schedules will be submitted to the Securities and Exchange
Commission upon request.
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AMENDMENT ONE TO ASSET PURCHASE AGREEMENT
among
COMPAQ COMPUTER CORPORATION
and
DIGITAL EQUIPMENT CORPORATION
(collectively, "Seller")
and
ABOVENET COMMUNICATIONS INC.
("Purchaser")
and
PX ACQUISITION CORP.
("Sub")
Dated as of June 18, 1999
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AMENDMENT ONE TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT ONE TO ASSET PURCHASE AGREEMENT is made as of the 18th day
of June, 1999, by and among COMPAQ COMPUTER CORPORATION, a Delaware corporation,
and DIGITAL EQUIPMENT CORPORATION, a Massachusetts corporation, (collectively,
"SELLER"); ABOVENET COMMUNICATIONS INC., a Delaware corporation ("PURCHASER");
and PX ACQUISITION CORP., a Delaware corporation and wholly owned subsidiary of
Purchaser ("SUB").
Seller, Purchaser and Sub are parties to an Asset Purchaser Agreement
dated as of May 21, 1999 (the "APA"). The parties hereby amend the APA as set
forth herein, with effect from and after June 18, 1999.
ARTICLE I
AMENDMENTS
1.1 Definitions. Unless otherwise defined herein, defined terms in the APA
shall have the same meanings herein as therein. In Section 1.1 of the APA, the
definition of the "PAIX Financial Statements" is changed to read as follows:
"PAIX FINANCIAL STATEMENTS" means the financial statements of the PAIX
Business that are prepared by Seller and are attached and incorporated hereto as
Exhibit A. The PAIX Financial Statements may, but do not necessarily, consist of
the following: (i) audited Financial Statements as of December 26, 1998 and
December 27, 1997, and for each of the three years in the period ended December
26, 1998 ("1998 PAIX YEAR-END FINANCIALS"), (ii) unaudited Financial Statements
as of March 31, 1999 and for the three months then ended ("3/31 PAIX QUARTERLY
FINANCIALS"), (iii) unaudited Statements of Revenues and Direct Expenses for the
period from December 28, 1998 to the Closing Date ("PAIX CLOSING DATE
FINANCIALS"), (iv) unaudited closing balance sheet as of the Closing Date ("PAIX
CLOSING BALANCE SHEET"), and (v) unaudited Statements of Revenues and Direct
Expenses for the period from July 1, 1997 to June 30, 1998 and from July 1, 1998
to the Closing Date ("ADDITIONAL PAIX FINANCIAL INFORMATION").
1.2 Notices. Seller's address for notices pursuant to Section 15.3 of the
APA is changed to:
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If to Seller, addressed as follows:
Compaq Computer Corporation
00000 Xxxxx Xxxxxxx 000
XX: 110605
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Compaq Computer Corporation
00000 X. Xxxxxx Xxxxxx
XX: CAC07-16
Xxxxxxxxx, XX 00000
Attention: X. Xxxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
ARTICLE II
MISCELLANEOUS
2.1 Entire Understanding. This Amendment One sets forth the entire
agreement and understanding of the parties hereto in respect to the subject
matter hereof. Except as amended hereby the APA shall continue in full force and
effect according to its terms.
2.2 Counterparts. This Amendment One may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
SELLER
COMPAQ COMPUTER CORPORATION
By /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------
Name Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Title Vice President
------------------------------
DIGITAL EQUIPMENT CORPORATION
By /s/ XXXXXX X. XXXXXXX, XX.
-------------------------------
Name Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Title Vice President
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PURCHASER
ABOVENET COMMUNICATIONS INC.
By /s/ XXXXXXX XXXX
-------------------------------
Name Xxxxxxx Xxxx
------------------------------
Title CEO
------------------------------
SUB
PX ACQUISITION CORP.
By /s/ XXXXXX X. XXXXXX
-------------------------------
Name Xxxxxx X. Xxxxxx
------------------------------
Title President
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