Exhibit 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This First Amendment (this "Amendment"), dated as of the 14th day of
February, 2003, to the Asset Purchase Agreement (the "Agreement"), dated as of
the 27th day of January, 2003, by and between Video Network Communications,
Inc., a Delaware corporation ("Purchaser"), and WilTel Communications, LLC
(formerly Xxxxxxxx Communications, LLC), a Delaware limited liability company
("WCLLC"), and Xxxxxxxx Communications Procurement, LP, a Delaware limited
partnership (each, a "Seller" and collectively, "Sellers"). All capitalized
terms not otherwise defined herein shall have the meanings given to such terms
in the Agreement.
WHEREAS, the parties wish to modify the provisions in the Agreement
relating to transition assistance following the Closing Date (as defined below).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises and obligations contained herein, the Parties hereto hereby
agree as follows:
1. The Closing will occur on February 14, 2003 (the "Closing Date").
2. Section 4.13 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"4.13 Transition Assistance.
(a) From the date hereof, Sellers will not in any manner take
or cause to be taken any action which is designed, intended or might
reasonably be anticipated to have the effect of discouraging customers,
clients, sponsors, suppliers, vendors, lessors and other associates of
the Webcasting Business from maintaining the same business
relationships with Purchaser after the date of this Agreement as were
maintained with the Webcasting Business prior to the date of this
Agreement.
(b) Sellers will be responsible for sending all invoices to
customers and collecting the revenue therefrom for Webcasting Business
services provided on or before the Closing Date. Purchaser will be
responsible for sending all invoices to customers and collecting the
revenue therefrom for Webcasting Business services provided after the
Closing Date. To the extent there are any Webcasting Business services
provided that include both pre- and post-Closing periods, Sellers will
send the invoices therefor but the revenue therefrom will be
prorated, with Sellers being entitled to receive the revenue
attributable to the Webcasting Business services provided on or before
the Closing Date and Purchaser being entitled to receive the revenue
attributable to the Webcasting Business services provided after the
Closing Date.
(c) Sellers will be responsible for payment of all expenses
incurred on or before the Closing Date. Purchaser will be responsible
for payment of all expenses incurred after the Closing Date. To the
extent there are any expenses, including, without limitation, expenses
under the Real Property Lease, that include both pre- and post-Closing
periods such expenses will be prorated, with Sellers being responsible
for expenses attributable to the pre-Closing period and Purchaser being
responsible for expenses attributable to the post-Closing period.
(d) Each of WCLLC and Purchaser shall designate a person who
shall be responsible for coordinating with the other Party the payment
of expenses and sending of invoices and receipt of payments from
customers. By March 25, 2003, and again by June 25, 2003, each of WCLLC
and Purchaser will prepare and send to the other Party a statement (the
"Reconciliation Statement") which reconciles any amounts received or
paid by such Party to which the other Party should be entitled to or
required to pay pursuant to paragraphs (b) and (c) above. The amounts
shown on the Reconciliation Statements will be netted and any payments
required thereby in order to comply with paragraphs (b) and (c) above
will be made by Sellers or Purchaser, as applicable, by March 31, 2003
and June 30, 2003, respectively, to the other Party at an account
designated by such Party."
3. This Agreement shall be governed by and construed in accordance with
the substantive law of the State of New York without giving effect to the
principles of conflicts of law thereof.
4. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
5. Except as specifically amended hereby, the Agreement is in all
respects confirmed, ratified and approved.
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2
IN WITNESS WHEREOF, the Parties have caused this Amendment to be
executed by their duly authorized representatives as of the date first above
written.
"Purchaser" "Sellers"
Video Network Communications, Inc. WilTel Communications, LLC
By: /s/ Xxxx Xxxxx By: /s/ Xxx Xxxxxxx
-------------------- ---------------------------------
Name: Xxxx Xxxxx Name: Xxx Xxxxxxx
Title: Director and Attorney-in-Fact Title: Vice President, Controller and
Chief Accounting Officer
Xxxxxxxx Communications Procurement,
LP, by Xxxxxxxx Communications
Procurement, LLC, its General Partner
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
(Amendment No. 1 to Asset Purchase Agreement)
