Exhibit 2.2
FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT (the "Amendment") is
made as of February 6, 2004 by eNucleus Inc., a Delaware corporation
("eNucleus"), Financial ASPx Inc., a Delaware corporation ("Buyer"), and
PrimeWire, Inc., a Delaware corporation ("PrimeWire") (collectively referred to
herein as the "Parties").
Recitals
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A. The Parties have previously entered into that certain Asset Purchase
Agreement dated January 21, 2004 (the "Asset Purchase Agreement").
B. The Parties desire to amend the Asset Purchase Agreement as more fully
set forth in this Amendment.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree to amend the Asset Purchase
Agreement as follows:
1. Article 4 of the Asset Purchase Agreement is hereby amended by adding
the following:
"4.30 Subsidiaries
(a) Other than the following, PrimeWire has no subsidiaries and does
not own, directly or indirectly, any capital stock or other
equity securities of any corporation, or have any direct or
indirect interest in any business other than the Business:
(1) Prime Financial Group, Inc.
(2) Financial Services Interactive, Inc.
(3) AYB Insurance Services, Inc.
(b) Prime Financial Group, Inc. has no assets of any type or kind
relating to or used, held for use or useful in the conduct of the
Business other than the following:
(1) the trademark "PrimeWire", Registration No. 2335608;
(2) the trademark "A Stroll in the PARC", Registration No.
2395912;
(3) the trademark "Human Resources on the Web", Registration No.
2493657;
(4) the trademark "Agency Self-Service" and related application,
Serial No. 76541172;
(5) the trademark "ASSETS" and related application, Serial No.
76541173;
(6) Equipment Lease Agreement No. 1554 with C.I.T. Technology
Financial Services;
(7) Equipment Lease Agreement with Citicorp Vendor Finance
(formerly National Computer Leasing);
(8) Equipment Lease Agreement No. 1971 with C.I.T. Technology
Financial Services;
(9) Equipment Lease Agreement with Minolta Business Systems;
(10) Concurrent User Subscription Agreement with WebEx
Communication, Inc. dated March 29, 2001; and
(11) Subscription Agreement with Xxxxxxxx and Memorial Hospital
dated November 7, 2001.
(c) AYB Insurance Services, Inc. has no assets of any type or kind
relating to or used, held for use or useful in the conduct of the
Business other than the following:
(1) Maryland Insurance Administration Certificate of
Qualification;
(2) Georgia Insurance Agency License;
(3) Indiana Insurance License; and
(4) Various other state insurance licenses.
(d) Financial Services Interactive, Inc. has no assets of any type or
kind relating to or used, held for use or useful in the conduct
of the Business."
2. Article 3, Section 3.2(a) of the Asset Purchase Agreement is hereby
amended to add the following:
"(7) PrimeWire shall cause all of its subsidiaries to deliver to
Buyer any documents or instruments that Buyer or its counsel
reasonably request to assign and transfer to Buyer any assets
relating to or used, held for use or useful in the conduct of the
Business."
3. Article 3, Section 3.2(c), (3) of the Asset Purchase Agreement is
deleted in its entirety and replaced with the following:
Buyer, eNucleus and PrimeWire hereby approve a $350,000 operating
budget for the first six month period following the Closing Date (the
"6 Month Operating Budget") with the understanding that a more
detailed operating budget for the 12 month period following the
Closing Date (the "Operating Budget") shall be agreed upon on or
before March 1, 2004. Subject to an Overriding Event, or changes
mutually agreed to by Buyer, eNucleus and Xxxxxx, Buyer agrees to
fully fund the 6 Month Operating Budget and the Operating Budget on a
year to date basis. Subject to an Overriding Event, or changes
mutually agreed to by Buyer, eNucleus and Xxxxxx, the 6 Month
Operating Agreement will be made available and provided to the
PrimeWire division in a timely manner to allow the PrimeWire division
to pay its current obligations as they become due.
4. Article 2, Section 2.4 (i) of the Asset Purchase Agreement is deleted
in its entirety and replaced with the following:
The Parties agree and acknowledge that the Net Revenues generated from
the Online Benefits Agreement will not be included in the
determination of Net Revenues for purposes of calculating Earnout
Amounts hereunder; provided, however, that $500,000 of revenues from
the Online Benefits Agreement shall count towards the calculation of
the Net Revenues for purposes of to Section 2.4(e)(1).
5. Annex III to the Asset Purchase Agreement is deleted in its entirety
and replaced with Amended Annex III attached hereto.
6. Annex II to the Asset Purchase Agreement is deleted in its entirety
and replaced with Amended Annex II attached hereto.
7. Schedule 4.12(a)(6) to the Asset Purchase Agreement is amended to add
the following:
"13. Xxxxxx Estate Security Agreement relating to the Xxxxxx Note
(which PrimeWire has already provided to Buyer)."
8. Except for the express provisions of this Amendment, the Asset
Purchase Agreement shall remain unmodified and in full force and
effect.
In witness, the Parties have executed this Amendment.
ENUCLEUS INC.
By: /s/
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Xxxx Xxxxxxx
Chief Executive Officer
FINANCIAL ASPx INC.
By: /s/
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Xxxx Xxxxxxx
Chief Executive Officer
PRIMEWIRE, INC.
By: /s/
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Xxxxxx Xxxxxx, President
Amended Annex II
Assumed Contract Obligations
1. Hosting Agreement with Inflow, pursuant to that certain Data Network
Exchange Facility Services Agreement, dated December 4, 2000 between Inflow,
Inc. and Prime Financial Group, Inc.
2. Without assuming any Liabilities under the Office lease for Marietta,
Georgia office with Parkaire Medical, Purchaser shall assume only the obligation
to pay a monthly rental of $5,000 per month through September 30, 2004.
3. Agreement with Synchrologic for data synchronization software.
4. Agreement with Data Junction, now called Pervasive Corp. for data
exchange software and service.
5. Lease with Citicorp Vendor Finance.
Amended Annex III
Excluded Assets
All of the capital stock of Prime Financial Group, Inc.
All of the capital stock of Financial Services Interactive, Inc.
Color copier leased from Minolta Business Services.
Office furniture, laptop computer and printer in Rockville, Maryland
location.
Any employee compensation tax credits or refunds received from the Internal
Revenue Service.
