Exhibit 10.39
FIRST AMENDMENT TO MASTER TRANSACTION AGREEMENT
THIS FIRST AMENDMENT TO MASTER TRANSACTION AGREEMENT ("Amendment") is by
and among Integrated Information Systems, Inc., a Delaware corporation ("IIS"),
Goliath Networks, Inc., a Wisconsin corporation ("GNI"), Xxxxxxx X. Xxxxxx as
receiver for GNI ("Receiver"), (the Receiver and GNI are collectively referred
to herein as "Seller"), Xxxx X. Xxxxxx, a resident of Wisconsin ("Xxxxxx" and,
as the sole shareholder of GNI, "Shareholder"), and AnchorBank, fsb ("Anchor").
The effective date of this Amendment (the "Effective Date") shall be deemed to
be the date the Receiver executes this Amendment, as listed on the signature
page of this Amendment.
RECITALS
A. GNI was engaged in the business of providing information technology
consulting services;
B. Xxxxxxx X. Xxxxxx is the receiver for GNI in a case under Chapter 128 of
the Wisconsin Statutes pending in the Wisconsin Circuit Court for Dane County
(the "Court"), Case No. 01 CV 3506 (the "Chapter 128 Creditors' Action");
C. It is contemplated that the Purchased Assets will be sold, transferred
and conveyed, and the other transactions contemplated herein will be
consummated, pursuant to an order (the "Sale Order") of the Court under Chapter
128 of the Wisconsin Statutes;
D. IIS desires to employ substantially all of the employees of Seller and
to that end will pay to Seller certain amounts;
E. IIS desires to purchase from Seller and Seller desires to sell, assign
and convey to IIS the Purchased Assets, consisting primarily of certain
incidental fixed and other assets;
F. The parties mutually desire that IIS make arrangements for IIS to occupy
the premises (or portion thereof) currently occupied by Seller at (i) 0000 Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000 and (ii) Riverfront Plaza Building,
0000 Xxxxx Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000;
G. To those ends, the parties entered into the Master Transaction
Agreement, dated December 21, 2001 (the "MTA");
H. On January 4, 2002, the Receiver filed with the Court a Motion to Sell
all Inventory, Equipment, Intangible Assets and Specified Accounts Receivable of
Goliath Networks, Inc. (the "Motion to Sell") and a Notice of Hearing on the
Receiver's Motion to Sell all Inventory, Equipment, Intangible Assets and
Specified Accounts Receivable of Goliath Networks, Inc.;
I. On January 22, 2002, Xxxxxxxxx Xxxxxxxx filed with the Court an
objection to the Motion to Sell (the "Xxxxxxxx Objection"), a copy of which is
attached hereto as Exhibit A; and
J. The parties to the MTA desire to amend the MTA to clarify that Seller is
not selling, transferring or otherwise conveying, and the Receiver is not
requesting the Court to approve of the sale, transfer or conveyance, to IIS of
the Xxxxxxxx Methodologies (as defined below), including any related
documentation, hardware or software;
K. Section 3.21(d) of the MTA provides: At or before Closing of the
Agreement, Anchor will satisfy fully sales taxes which remain owing by GNI, make
payment of withheld employee contributions to the Goliath Networks Inc. 40l(k)
Plan (the "GNI Plan") which are required under the GNI Plan prior to its
termination and will make payment of the administrative termination fees of the
GNI Plan, but only to the extent the GNI Plan cannot pay such expenses; and
L. Anchor remains ready willing and able to loan the funds necessary to
make the payments required by Section 3.21(d), however the amounts required for
the sales tax and administration termination fees that the GNI Plan cannot pay
are not yet determined.
The parties agree as follows:
1. DEFINITIONS. Capitalized terms used and not defined herein shall have
the meanings given to them in the MTA.
2. SECTION 1.1. Section 1.1 of the MTA is hereby amended by inserting the
following definition in alphabetical order:
"XXXXXXXX METHODOLOGIES"-- The term Xxxxxxxx Methodologies shall have the
meaning given to that term in the Methodologies License Agreement dated June 11,
2001 by and Goliath Networks, Inc., a Wisconsin corporation, and Xxxxxxxxx X.
Xxxxxxxx, doing business as e-Volved Solutions, an unincorporated sole
proprietorship.
3. SECTION 2.3(e). Section 2.3(e) of the MTA is hereby amended by deleting
the section in its entirety and inserting the following therefor:
(e) all telephone numbers, the Intellectual Property Assets (and the
goodwill associated therewith) listed on Schedule 2.3(e), which
specifically excludes the Xxxxxxxx Methodologies;
4. SECTION 3.15(a). Section 3.15(a) of the MTA is hereby amended by
deleting the section in its entirety and inserting the following therefor:
(a) The term "Intellectual Property Assets" means all intellectual
property owned or licensed (as licensor or licensee) by Seller in
which Seller has a
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proprietary interest, excluding the Xxxxxxxx Methodologies, and which
constitutes part of the Purchased Assets, including:
5. SECTION 3.21(d). Section of the MTA is hereby amended by deleting the
section in its entirety and inserting the following therefor:
(d) Anchor shall lend GNI and the Receiver funds sufficient to make the
payments described hereafter, and forward said funds on behalf of
Goliath as provided hereafter. Anchor's duty to loan said funds shall
survive the Closing.
(i) 401(K) EMPLOYEE CONTRIBUTIONS. At Closing, Anchor shall lend to
GNI and the Receiver an amount equal to the funds withheld as
employee contributions to the Goliath Networks Inc. 401(k) Plan
(the "GNI Plan") which have not been paid to the GNI Plan and
forward said funds to the GNI Plan Administrator; and
(ii) SALES TAX. Upon final determination, or upon an amount being
agreed upon between GNI, Receiver and the Wisconsin Department of
Revenue as to amounts required to be paid in settlement of GNI
Sales tax liability, Anchor shall lend to GNI and the Receiver
and forward to the Wisconsin Department of Revenue that amount to
satisfy GNI sales tax obligation to the Wisconsin Department of
Revenue.
6. EFFECT AS AN AMENDMENT. Except as expressly modified herein, the MTA
shall remain in full force and effect.
7. EXECUTION OF AMENDMENT. This Amendment may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Amendment and all of which, when taken together, will be deemed to constitute
one and the same amendment. The exchange of copies of this Amendment and of
signature pages by facsimile transmission shall constitute effective execution
and delivery of this Amendment as to the parties and may be used in lieu of the
original Amendment for all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for all purposes.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective
Date set forth below.
INTEGRATED INFORMATION SYSTEMS, INC., GOLIATH NETWORKS, INC., A WISCONSIN
A DELAWARE CORPORATION CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx. By: /s/ Xxxx X. Xxxxxx
Its: CEO Its: CEO
/s/ Xxxxxxx X. Xxxxxx
AS RECEIVER FOR GOLIATH NETWORKS, INC.
EFFECTIVE DATE: January 23, 2002
ANCHORBANK, FSB
By: /s/ Xxxxx Xxxxxxx
Its: Vice President
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX, SHAREHOLDER
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX, IN HIS CAPACITY AS
A DIRECTOR OF GNI
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX, IN HIS CAPACITY AS
AN OFFICER OF GNI
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