AMENDMENT TO ASSET PURCHASE AGREEMENT
EXHIBIT 2.5
AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement (this “Amendment”) dated as of November 30, 2007,
by and among Xxxxx Micro Software, Inc., a Delaware corporation, and E Frontier Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Purchaser (collectively the
“Buyer”), on the one hand, and e frontier, Inc., a company organized under the laws of Japan
(“Parent”) and e frontier America, Inc., a California corporation and a wholly-owned subsidiary of
Parent (“Seller”), on the other hand, is entered into by and among the undersigned with reference
to the following facts:
WHEREAS, Buyer, Parent and Seller are parties to that certain Asset Purchase Agreement dated
as of November 12, 2007 (the “Agreement”);
WHEREAS, pursuant to Section 11.1 of the Agreement the parties desire to enter into this
Amendment in order to amend the Agreement as set forth herein.
NOW, THEREFORE, the parties agree as follows.
1. Amendment of Section 2.1 of the Agreement. Section 2.1 of the Agreement is hereby
amended by adding the following sentence at the end of Section 2.1: “Notwithstanding any other
provision of this Agreement, in the event Parent and Seller do not, at the Closing, sell, transfer,
convey, assign and deliver to Buyer exclusive right, title and interest in and to U.S. Trademark
Registration No. 3,170,199 for ‘MANGA STUDIO’ related to International Class 009, then the Purchase
Price shall be reduced by $400,000. Buyer shall set off such $400,000 against the Holdback Amount.
In its sole discretion, Buyer may effect such set off by retaining (i) the amounts of the Holdback
Amount that may otherwise be deliverable to Seller on December 31, 2007 and January 31, 2008 and
(ii) $150,000 of the amount of the Holdback Amount that may otherwise be deliverable to Seller on
March 31, 2008.”
2. Amendment of Section 2.2 of the Agreement. Section 2.2 of the Agreement is hereby
amended by adding the following new Section 2.2(d):
“(d) Notwithstanding any other provision of this Agreement, if Parent and Seller do not
obtain, before December 25, 2007, the Consents necessary to assign the Seller Contracts listed on
Schedule 2(d) attached hereto to Buyer, then Buyer shall be entitled to retain $25,000 of
the Holdback Amount.”
3. Amendment of Article 7 of the Agreement. Article 7 of the Agreement is hereby
amended by adding the following new Sections 7.12, 7.13, 7.14, 7.15, 7.16, 7.17 and 7.18:
“7.12 Use of Leased Real Property. Parent and Seller agree that Buyer and the
employees listed on Schedule 8.1(g) may continue to use the leased real property located at
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000 until such time as Buyer can relocate
such employees.”
“7.13 Use of Name. Before December 7, 2007, Parent, Seller and Buyer shall execute
and deliver a royalty-free license, in a form acceptable to Buyer, for Buyer to use (i) the
name “e frontier” and any logo associated with the name “e frontier” for a period of one year
from the Closing Date; and (ii) the “xxxxxxxxx.xxx” Internet domain name and address for a period
of three months from the Closing Date. Further, such license shall provide that, for a period of
one year from the Closing Date, Parent and Seller shall redirect all electronic traffic relating to
the Business and the Purchased Assets from the “xxxxxxxxx.xxx” Internet domain and address to an
Internet domain and address designated by Buyer.”
“7.14 Poser License. Before December 15, 2007, Parent, Seller and Buyer shall execute
and deliver a royalty-free license, in a form acceptable to Buyer, for Parent and Seller to use
Poser SDK and the name of PoserFusion™ in their Shade product.”
“7.15 Japanese Content Paradise. Before December 15, 2007, Parent, Seller and Buyer
shall execute and deliver an agreement, in a form acceptable to Buyer, pursuant to which Parent and
Seller agree to manage and operate the Japanese version of Content Paradise for a period of one
year following the Closing.”
“7.16 Distribution Agreement. Before December 15, 2007, Parent, Seller and Buyer
shall execute and deliver a distribution agreement, in a form acceptable to Buyer and Parent,
pursuant to which Parent and Seller agree to distribute Buyer’s products in such territories as may
be agreed by the parties and Buyer agrees to distribute Parent’s and Seller’s products in such
territories as may be agreed by the parties.”
“7.17 Work for Hire Agreement. Before December 15, 2007, Buyer, Seller and the
Aquazone engineer and artist shall enter into a work for hire agreement in a form acceptable to
Buyer and Parent.”
“7.18 Serial Number Generator SDK License. Before December 15, 2007, Parent, Seller
and Buyer shall execute and deliver a royalty-free license, in a form acceptable to Buyer, for
Parent and Seller to use the serial number generator SDK that is included in the Purchased Assets.”
4. Amendment of Section 8.1 of the Agreement. Section 8.1 of the Agreement is hereby
amended by removing Sections 8.1(h), (i), (j), (k), (l) and (m) and by renumbering Sections 8.1(n)
and (o) as Sections 8.1(h) and (i), respectively.
5. Amendment of Section 8.1(g) of the Agreement. Section 8.1(g) of the Agreement is
hereby amended and restated in its entirety as follows:
“(g) Employees. Not less than 85% of the individuals listed on Schedule
8.1(g) shall have entered into an offer letter providing for them to become employees of Buyer
following the Closing. If, by the terms of his offer letter, Xxx Xxxxxx is not eligible to
commence employment with Buyer on the first business day following the Closing Date, Xx. Xxxxxx
shall remain an employee of Seller until he becomes eligible to commence employment with Buyer;
provided that (i) Seller shall cause Xx. Xxxxxx to perform services for Buyer during the period
between the Closing Date and the date on which he becomes eligible to commence employment with
Buyer (the “Transition Period”), and (ii) Buyer shall reimburse Seller for wages paid to Xx. Xxxxxx
during the Transition Period.”
6. Counterparts. This Amendment may be executed in counterparts with the same force
and effect as if each of the signatories had executed the same instrument.
7. Definitions. Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement.
8. Other. Except as provided herein, the Agreement shall continue in full force and
effect in accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first
above written.
“Buyer”
|
“Parent” | |
XXXXX MICRO SOFTWARE INC.
|
E FRONTIER, INC. | |
By: /s/ Xxxxxxx X. Xxxxx, Xx.
|
By: /s/ Xxxxxxx Xxxx | |
Name: Xxxxxxx X. Xxxxx, Xx.
|
Name: Xxxxxxx Xxxx | |
Title: President and Chief Executive Officer
|
Title: Corporate Director | |
| “Seller” | ||
E FRONTIER ACQUISITION CORPORATION
|
E FRONTIER AMERICA, INC. | |
By:/s/ Xxxxxxx X. Xxxxx, Xx.
|
By: /s/ Xxxxxxx Xxxx | |
Name: Xxxxxxx X. Xxxxx, Xx.
|
Name: Xxxxxxx Xxxx | |
Title: President and Chief Executive Officer
|
Title: CEO and President |
Schedule 2(d)
| Agreement | Type | |
ASKNET AG
|
Software Reseller & Distribution Agreement | |
CELSYS CO, LTD.
|
Software Distribution & Publishing Agreement | |
COMMISSION JUNCTION, INC.
|
CJ Access Advertiser Service Agreement | |
KEY TECHNOLOGY GMBH
|
Electronic Agreement | |
MindVision
|
License Agreement | |
MindVision
|
Vise 8 for MAC License Agreement | |
MindVision
|
Vise X for MAC OS X License Agreement | |
MindVision
|
Vise X for MAC OS X License Agreement | |
MindVision
|
Vise X for MAC OS X License Agreement | |
MindVision
|
VSE X MAC OS X License Agreement | |
Pearson Eductation, Inc.
|
Publication Agreement | |
Re:Launch
|
Sales Representative Agreement | |
Thomson-Course Technology
|
Publishing Agreement | |
TRANS-EUROPE KFT
|
International Distribution Terms | |
GE Capital
|
Equipment Leases |
