EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
AMENDMENT No. 1, dated as of July 15, 2004 (this "Amendment"), by and
between McAfee, Inc. ("McAfee"), a Delaware corporation formerly named Networks
Associates, Inc. (on behalf of itself as well as on behalf of Networks
Associates Technology, Inc., a Delaware corporation; McAfee International B.V.,
a Netherlands corporation; Network Associates (India) Private Limited, an Indian
private limited company; and McAfee Japan Co., Ltd., a Japanese corporation) and
Network General Corporation, a Delaware corporation (formerly named Starburst
Technology Holdings, Inc.) ("Purchaser") (each, a "Party" and collectively, the
"Parties").
W I T N E S S E T H :
WHEREAS, the Parties have previously entered into an Asset Purchase
Agreement, dated as of April 22, 2004 (the "APA"), and capitalized terms used
but not defined herein shall have the meaning set forth in the APA;
WHEREAS, the terms of the APA as in effect prior to this Amendment
provided that on the Closing Date Purchaser was, among other things, to acquire
the Accounts Receivable of the Business with respect to sales prior to the
Closing Date, subject to an obligation of McAfee to repurchase all uncollected
such Accounts Receivable on the 60th day after Closing;
WHEREAS, the terms of the APA as in effect prior to this Amendment
provided that a calculation of Modified Working Capital would be delivered by
McAfee at the Closing that would reflect Modified Working Capital levels as of
close of business on the day immediately prior to the Closing;
WHEREAS, the Parties now mutually desire to amend the APA as further
set forth herein to, among other things, (1) provide that McAfee will retain at
Closing the Accounts Receivable of the Business for the period prior to the
Closing Date, (2) eliminate such Accounts Receivable from the definition of
Modified Working Capital, and (3) change the date of the Modified Working
Capital set forth in the compliance certificate delivered pursuant to Section
9.3(b) to as of the close of business on June 30, 2004;
WHEREAS, pursuant to Section 11.3 of the APA, the APA may be amended by
at any time by execution of an instrument in writing signed by Purchaser and
McAfee (on behalf of the Sellers).
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Parties hereto hereby agree as follows:
SECTION 1. AMENDMENT OF APA SECTION 1.1.
(a) The Parties agree that the definition of "Trademarked Assets" is
hereby deleted and replaced with the following:
" "Trademarked Assets" has the meaning set forth in
Section 8.9(b) hereof."
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(b) The Parties agree that the definition of "Modified Working Capital"
is hereby deleted and replaced with the following:
" "Modified Working Capital" means, as of the date of
determination, (x) the aggregate dollar value of Modified
Inventory (without reserves), less (y) those items
constituting Assumed Liabilities pursuant to Section 2.3(a)(i)
(trade payables) and Sniffer Deferred Revenue, determined in
each case in accordance with GAAP (excluding reserves in the
case of Modified Inventory), provided that for purposes of
calculating Modified Working Capital, the portion of Sniffer
Deferred Revenue that is manual deferred revenue (excluding
manual adjustments for Japan, Brazil and SAP 3.0) shall not be
less than $8.0 million."
SECTION 2. AMENDMENT OF APA SECTION 2.2.
(a) The Parties agree that Section 2.2(a)(ix) of the APA is hereby
deleted and replaced with the following:
"(ix) all Accounts Receivable with respect to sales
by the Business on or after the Closing Date;"
(b) The Parties agree that Section 2.2(b)(iii) of the APA is hereby
deleted and replaced with the following:
"(iii) (A) all Accounts Receivable outstanding as of
the close of Business on the date prior to the Closing Date
and (B) all cash on hand and cash equivalents of any Seller;"
SECTION 3. AMENDMENT OF APA SECTION 2.3.
The Parties agree that Section 2.3(c)(xii) of the APA is hereby deleted
and replaced with the following:
"(xii) any channel incentives or other distribution
discounts attributable to the period prior to the Closing
Date."
SECTION 4. AMENDMENT OF APA SECTION 2.5.
(a) The Parties agree that the first sentence of Section 2.5(b) is
hereby deleted and replaced with the following:
"Purchaser shall pay the Purchase Price, minus the Second
Closing Amount, in cash or immediately available funds to the
Sellers on the Closing Date by electronic wire transfer to an
account or accounts of Sellers designated by McAfee at least
three (3) days prior to the Closing Date, provided that if
there is any Decreased Amount, the Purchase Price shall be
reduced by such amount payable to Sellers on the Closing
Date."
(b) The Parties agree that the following shall be inserted as a new
Section 2.5(c) of the APA:
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"(c) NAI agrees to use commercially reasonable
efforts to collect the Accounts Receivable outstanding as of
the close of business on the date prior to the Closing Date as
soon as practicable after the Closing Date, and shall not
extend the payment due dates for such Accounts Receivable
other than in the ordinary course of business consistent with
past practice. During the period from and including the
Closing Date through and including the 60th day after the
Closing Date, Purchaser agrees to pay to NAI interest on the
aggregate outstanding balance of uncollected Accounts
Receivable of the Business attributable to the period prior to
the Closing Date. Interest shall be calculated and payable
based on a per annum rate of three percent (3%) on the daily
uncollected balance. After such 60th day, NAI will deliver to
Purchaser a schedule in reasonable detail indicating the
aggregate Closing Date Accounts Receivable balance, the daily
collection experience on such receivables, the daily interest
payable on the uncollected Accounts Receivable and the
aggregate interest payable for such period. The amount payable
under this Section 2.5(c) shall be paid promptly (following
delivery of the schedule referred to in this paragraph) by
wire transfer of immediately available funds to an account
designated by NAI in the above calculation. If there is any
dispute as to the amount payable, Purchaser will pay that
amount that is not in dispute and the dispute will be resolved
in the manner contemplated beginning in the second sentence of
Section 2.6(c)."
SECTION 5. AMENDMENT OF APA SECTION 2.6.
(a) The Parties agree that the first sentence of Section 2.6(a) is
hereby deleted and replaced with the following two sentences:
"Within thirty (30) days after the Closing Date, NAI will
deliver to Purchaser a certificate that sets forth in
reasonable detail a calculation of Modified Working Capital as
of the opening of business on the Closing Date (such
certificate being the "Supplemental Certificate"). Within
thirty (30) days after the delivery of such Supplemental
Certificate, Purchaser (with the assistance of NAI to the
extent requested by Purchaser) will, at its own expense,
review the calculation of Modified Working Capital as of the
opening of business on the Closing Date delivered by NAI in
the Supplemental Certificate."
(b) The Parties agree that the last sentence of Section 2.6(e) is
hereby deleted and replaced with the following:
"The term "Final Modified Working Capital Calculation" means
the Modified Working Capital amount (i) as shown in the
Supplemental Certificate if Purchaser does not deliver the
Calculation pursuant to Section 2.6(a), (ii) as shown in the
Calculation pursuant to Section 2.6(a) if no Objection Notice
is timely received pursuant to Section 2.6(b), or (iii) if an
Objection Notice is timely received, as determined by the
procedures set forth in Section 2.6(c)."
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SECTION 6. AMENDMENT OF APA SECTION 4.5.
The Parties agree that the last sentence of Section 4.5 is hereby
deleted and replaced with the following:
"Purchaser shall pay seven hundred fifty thousand dollars
($750,000) (such amount, the "Second Closing Amount") of the
Purchase Price in cash or immediately available funds to the
Sellers at the Second Closing by electronic wire transfer to
an account or accounts of Sellers designated by NAI at least
three (3) days prior to the date of the Second Closing."
SECTION 7. AMENDMENT OF APA SECTION 8.9.
(a) The Parties agree that Section 8.9(a) of the APA is hereby deleted
and replaced with the following:
"(a) Purchaser will promptly pay to NAI any Accounts
Receivable attributable to sales by the Business prior to the
Closing Date which are collected by Purchaser on or after the
Closing Date. Sellers shall promptly pay to Purchaser any
Accounts Receivable attributable to sales by the Business on
or after the Closing Date which are collected by Sellers on or
after the Closing Date."
(b) The Parties agree that Section 8.9(b) of the APA is hereby deleted.
(c) The Parties agree that Section 8.9(c) of the APA is hereby
renumbered as Section 8.9(b).
SECTION 8. AMENDMENT OF APA SECTION 9.3(b).
The Parties agree that subsection (ii) of Section 9.3(b) of the APA is
hereby deleted and replaced with the following:
"(ii) sets forth in reasonable detail a calculation
of Modified Working Capital as of June 30, 2004 (the "NAI
Officer's Certificate")."
SECTION 9. AMENDMENT OF APA SECTION 10.2(h).
The Parties agree that Section 10.2(h) of the APA is hereby amended to
delete the reference to "Section 10.2(f)(iii)" contained in the proviso to
Section 10.2(h) and replace it with "Section 10.2(h)."
SECTION 10. AMENDMENT OF SECTION 6B OF THE ASSET SCHEDULE.
The Parties agree that Section 6B of the Asset Schedule is hereby
deleted and replaced with Exhibit A attached hereto. The Parties further agree
that Section 6B of the Asset Schedule may be supplemented or amended, by written
agreement of McAfee and the Purchaser, to reflect any changes as of the date of
the Second Closing.
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SECTION 11. MISCELLANEOUS.
(a) Except as specifically provided for in this Amendment, the terms of
the APA shall be unmodified and shall remain in full force and effect.
(b) This Amendment shall be binding upon and shall inure to the benefit
of the Parties and their respective successors and permitted assigns, except
that neither this Amendment nor any rights or obligations hereunder shall be
assigned or delegated by either Party except in connection with an assignment of
the APA in accordance with the terms thereof. This Amendment is not intended to
confer upon any person or entity other than the Parties and their permitted
assigns any rights or remedies.
(c) This Amendment may be amended only by a written instrument signed
by each of the Parties. No provision of this Amendment may be extended or waived
orally, but only by a written instrument signed by the Party against whom
enforcement of such extension or waiver is sought. All notices and other
communications provided for herein shall be dated and in writing.
(d) This Amendment may be executed in counterparts, each of which when
so executed shall be deemed to be an original, and such counterparts shall
together constitute one and the same instrument. This Amendment shall be
effective upon execution by both of the Parties. This Amendment shall be
governed by and construed in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Amendment as of the day and year first above written.
MCAFEE, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: EVP and General Release
NETWORK GENERAL CORPORATION
By: /s/ XXXX XXXXXX
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Name:
Title:
EXHIBITS
The following exhibits listed below shall be supplementally provided
upon request by the SEC:
Exhibit A New Section 6B of Asset Schedule
