AMENDMENT NO. 2 TO THE ASSET PURCHASE AGREEMENT
Exhibit 10.3
EXECUTION COPY
AMENDMENT NO. 2 TO THE ASSET PURCHASE AGREEMENT
AMENDMENT NO. 2 TO THE ASSET PURCHASE AGREEMENT (this “Amendment”), dated as of
January 31, 2007, between SKYTEL CORP., a Delaware corporation (“Seller”), and XXXX
INDUSTRIES, INC., a California corporation (“Purchaser”).
W I T N
E S S E T H:
WHEREAS, the parties hereto have entered into that certain Asset Purchase Agreement, dated as
of November 10, 2006, as amended by Amendment No. 1 to the Asset Purchase Agreement, dated as of
November 16, 2006 (the “Asset Purchase Agreement”); and
WHEREAS, the parties desire to amend the Asset Purchase Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Amendment and not otherwise defined in
this Amendment shall have the meanings set forth in the Asset Purchase Agreement.
2. Amendments to the Asset Purchase Agreement.
(a) Section 4.1 of the Asset Purchase Agreement is hereby amended by adding, after the
existing paragraph, the following new paragraph:
“Notwithstanding anything to the contrary in the preceding paragraph, the Closing will be
deemed to have occurred at 11:59 p.m. (New York City time) on the Closing Date.”
(b) Schedule 5.11(g) to the Asset Purchase Agreement is hereby amended and restated in
its entirety as set forth on Exhibit A hereto.
(c) Article VII of the Asset Purchase Agreement is hereby amended by adding, after
Section 7.13, the following new Section 7.14:
“7.14 Third Party Software. Purchaser hereby acknowledges that (i) computer hardware
transferred as Purchased Assets, including laptops, may contain Third Party Software and (ii)
Purchaser is not receiving any license to use any such Third Party Software by virtue of the Asset
Purchase Agreement or any transaction document contemplated thereby. Purchaser hereby agrees not
to use any such Third Party Software which Purchaser does not have a license to use. Within 30
days following the Closing Date, Purchaser shall (a) remove from
any computer hardware that constitutes a
Purchased Asset any copy of Third Party Software which Purchaser does not have a license to
use and (b) deliver to Seller a certificate duly signed by an officer of Purchaser certifying that
Purchaser has complied with its obligations under clause (a) of this sentence.”
(d) The form of Intellectual Property Agreement, attached to the Asset Purchase Agreement as
Exhibit C thereto, is hereby amended and restated in its entirety as set forth on
Exhibit B hereto.
(e) The form of Telecommunication Services Agreement, attached to the Asset Purchase Agreement
as Exhibit D thereto, is hereby amended and restated in its entirety as set forth on
Exhibit C hereto.
(f) The form of Reseller Agreement, attached to the Asset Purchase Agreement as Exhibit
E thereto, is hereby amended and restated in its entirety as set forth on Exhibit D
hereto.
(g) The form of Colocation Agreement, attached to the Asset Purchase Agreement as Exhibit
G thereto, is hereby amended and restated in its entirety as set forth on Exhibit E
hereto.
(h) The form of Corporate Account Agreement, attached to the Asset Purchase Agreement as
Exhibit H thereto, is hereby amended and restated in its entirety as set forth on
Exhibit F hereto.
3. Effect on the Asset Purchase Agreement.
(a) On and after the date hereof, each reference in the Asset Purchase Agreement to “this
Agreement”, “herein”, “hereof”, “hereunder” or words of similar import shall mean and be a
reference to the Asset Purchase Agreement as amended hereby.
(b) Except as specifically amended by this Amendment, the Asset Purchase Agreement shall
remain in full force and effect and the Asset Purchase Agreement, as amended by this Amendment, is
hereby ratified and confirmed in all respects.
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4. Governing Law. This Amendment and the legal relations between the parties hereto
arising hereunder shall be governed by, construed and enforced in accordance with the laws of the
State of New York (without regard to the internal conflict of laws provisions of such State).
5. Headings. The headings and captions in this Amendment are for convenience of
reference only and shall not define, limit or otherwise affect any of the terms or provisions
hereof.
6. Counterparts. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same amendment, and all signatures need not
appear on any one counterpart.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective authorized officers as of the date first written above.
| SKYTEL CORP. |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | SVP and Chief Financial Officer | |||
| XXXX INDUSTRIES, INC. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| The undersigned hereby joins as a party to this Amendment for the limited purposes provided in Section 11.9 of the Asset Purchase Agreement: MCI LLC |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | SVP and Chief Financial Officer | |||
