Exhibit 2.1
AMENDMENT TO STOCK AND ASSET ACQUISITION AGREEMENT
This Amendment dated effective as of February 6, 2004 is entered into by
and among ClearBlue Technologies, Inc., a Delaware corporation (the
"Transferor") and NaviSite, Inc., a Delaware corporation (the "Transferee"), and
the wholly-owned subsidiaries of the Transferor set forth on the signature pages
hereto (collectively, the "Deferred Entities") and amends that certain Stock and
Asset Acquisition Agreement dated as of August 8, 2003 by and among the
Transferor, Transferee and each of the Deferred Entities (the "Agreement").
Capitalized terms used but not otherwise defined in this Amendment have the
meaning ascribed thereto in the Agreement.
WHEREAS, under the terms of the Agreement, Transferor agreed that
upon the six month anniversary of the Closing Date, Transferor would sell,
transfer, convey, assign and deliver to the Transferee the Deferred Shares,
under certain conditions, without any additional consideration therefore.
WHEREAS, Transferor and Transferee have agreed to amend the
Agreement so as to enable Transferor to effect the Transfer of the Deferred
Shares to Transferee on or before August 8, 2005 (the "Transfer Date") in
exchange for Transferee's agreement to operate and manage the Deferred Entities
until the Transfer Date in a manner consistent with Section 1.01(c) of the
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment. The first sentence of Section 1.01(c) of the Agreement is
deleted in its entirety and replaced with the following sentences:
"On or before August 8, 2005, the Transferor shall sell, transfer, convey,
assign and deliver to the Transferee (the "Deferred Shares Transfer
Date"), and the Transferee shall purchase, acquire and accept from the
Transferor, the Deferred Shares, without additional consideration
therefore, provided, however, that the Transferee may notify Transferor in
writing at any time prior to August 8, 2005 that Transferee has opted not
to acquire all or any one of the Deferred Entities. On the 30th day
following the receipt of such notice, the Transferor shall become
responsible for the management and operation of all the Non-Acquired
Entities and any and all obligations of the Transferee under Section
1.01(c) of the Agreement to manage and operate any of the Deferred
Entities identified by the Transferee in the notice as a Non-Acquired
Entity shall cease and become null and void."
2. No Other Amendments. Except as expressly set forth herein, the
Agreement shall continue in full force and effect without alteration or
amendment.
3. Validity and Binding Effect. Each party represents, warrants and
confirms that this Amendment is a valid, legal and binding obligation of such
party enforceable in accordance with its terms and that the Agreement is in full
force and effect and has not been supplemented, modified or otherwise amended,
cancelled or terminated, except pursuant to this Amendment.
4. Amendments. This Amendment and the Agreement may not be further amended
except by as provided in Section 14(a) of the Agreement.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Transferor, Transferee and each of the Deferred
Entities, intending to be legally bound hereby, have executed this First
Amendment as of the day and year first written above.
TRANSFEROR:
CLEARBLUE TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: President
TRANSFEREE:
NAVISITE, INC.
By: /s/ Xxx Xxxxxxx
---------------------
Name: Xxx Xxxxxxx
Title: CFO
DEFERRED ENTITIES:
CLEARBLUE TECHNOLOGIES/NEW YORK, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: President
CLEARBLUE TECHNOLOGIES/SANTA XXXXX, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: President
CLEARBLUE TECHNOLOGIES/DALLAS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: President
CLEARBLUE TECHNOLOGIES/SAN FRANCISCO, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: President
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