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EXHIBIT 10.25
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT dated as of February
4, 1998 (this "Amendment"), between L-3 Communications Corporation, a Delaware
corporation ("Buyer"), and California Microwave, Inc., a Delaware corporation
("Seller"). Capitalized terms used herein, but not otherwise defined herein,
shall have the meanings ascribed to them in the Purchase Agreement (as defined
below).
R E C I T A L S
A. Buyer and Seller have entered into and executed an
Asset Purchase Agreement dated as of December 19, 1997 (the
"Purchase Agreement"); and
B. The parties desire to amend the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations and warranties made herein and in the
Purchase Agreement, and of the mutual benefits to be derived hereby and thereby,
the parties agree that the Purchase Agreement shall be amended, and the same
hereby is amended, as follows:
1. Section 1.1(m) of the Purchase Agreement hereby is amended by
deleting the word "exclusively", and replacing it with the word "primarily".
2. Section 2.4 of the Purchase Agreement hereby is amended by
adding a new clause (f) after the words "September 30, 1997" to read as follows:
"; and (f) all liabilities and obligations of Seller relating to or arising out
of the lawsuits commenced by Xxxxxxx & Company and Nu Visions Manufacturing,
Inc. that are described in Schedule 3.5 attached hereto and the other matters
described in Schedule 3.5".
3. Section 2.5 of the Purchase Agreement hereby is amended by
deleting the words contained on lines four through six thereof and replacing
them with the following words: "the "Excluded Liabilities"), including without
limitation any and all debts, claims, liabilities, obligations or commitments of
Seller or the Business (except those that constitute Assumed Liabilities)
relating to or arising out of any of the following:".
4. Section 2.5 of the Purchase Agreement hereby is further
amended by adding the following new paragraph at the end thereof:
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"The term "Excluded Liabilities" also shall include without
limitation any and all Losses relating to or arising out of any failure
or alleged failure by Seller or Buyer to comply with any bulk sales laws
of any jurisdiction."
5. Section 2.7 of the Purchase Agreement hereby is amended by
adding a new paragraph (e) at the end thereof to read as follows:
"(e) If any of the cash or cash equivalents held in non-U.S. bank
accounts for the benefit of the STS Division referred to in Section 2.7(b) are
not transferred by Seller to Buyer as of the Closing Date (the "Non-Transferred
Foreign Cash"), then the Non-Transferred Foreign Cash (i) shall not constitute
an Asset being conveyed to Buyer pursuant to the Purchase Agreement, (ii) shall
not be reflected as an Asset on the Closing Statement of Net Assets or the Final
Closing Statement of Net Assets, and (iii) shall not be included in the
calculation of any adjustment to the Purchase Price pursuant to this Section 2.7
of the Purchase Agreement. If within 180 days after the Closing Date Seller
transfers to Buyer any of the Non- Transferred Foreign Cash, then Buyer shall
pay to Seller promptly thereafter, by the wire transfer of immediately available
funds, the U.S. dollar equivalent of the Non-Transferred Foreign Cash so
transferred (to be based on spot currency exchange rates in effect as of two
days prior to the transfer for value on the transfer date). Buyer shall use
commercially reasonable efforts to facilitate the transfer of the
Non-Transferred Foreign Cash within such 180-day period. If any Non-Transferred
Foreign Cash is not transferred to Buyer by Seller within such 180-day period,
then Buyer shall no longer be obligated to receive and pay for the same as
aforesaid."
6. Section 2.7(a) of the Purchase Agreement hereby is amended by
deleting the words "$25,099,080 (which amount is the book value of the net
assets as shown on the adjusted September Balance Sheet" and replacing them with
the word "$28,099,080".
7. Section 2.7(b) of the Purchase Agreement hereby is amended by
adding the following new sentence after the first sentence thereof: "In
connection with the preparation of the Closing Statement of Net Assets, Buyer
and Seller agree that there will be no increase in any liability or reserve in
respect of any of the items described on Schedule 2.7(b) attached hereto from
the liability or reserve in respect thereof (if any) included in the September
Balance Sheet and no other adjustment to the Purchase Price on account of such
items."
8. The Schedules to the Purchase Agreement hereby are amended by
adding a new Schedule 2.7(b). A new Schedule 2.7(b), a copy of which is attached
hereto as Exhibit A ("Schedule 2.7(b)") is incorporated herein by reference.
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9. Section 7.1 of the Purchase Agreement hereby is amended by
adding the words "and Section 5.2(f)" at the end thereof.
10. The definition of "Business" contained in Section 10.1 of the
Purchase Agreement hereby is amended by deleting the word "Buyer" and replacing
it with the word "Seller".
11. Section 10.1 of the Purchase Agreement hereby is amended by
deleting the words "Trademark Consent Agreement" and replacing them with the
words "Trademark License Agreement".
12. Section 10.4(ii) of the Purchase Agreement hereby is amended
by deleting the words
"555 Twin Xxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile: 650/596-6600"
and replacing them with the words
"1143 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile: 408/743-4244"
13. Section 10.5(h) of the Purchase Agreement hereby is amended
by deleting the words "Section 8.2" and replacing them with the words "Article
IX".
14. Item 4 to Schedule 2.4(a) to the Purchase Agreement hereby is
amended by deleting the names "Xxxxx Xxxxx;" and "Xxx Xxxxx;".
15. Item 3 to Schedule 3.3 to the Purchase Agreement hereby is
amended by deleting the Attachment to Schedule 3.3 in its entirety. An amended
Attachment to Schedule 3.3, a copy of which is attached hereto as Exhibit B
("Attachment to Schedule 3.3") and incorporated herein by reference, shall be
substituted therefor, and all references in Item 3 to Schedule 3.3 to an
attachment shall, from and after the date hereof, mean and refer to such amended
Attachment to Schedule 3.3.
16. Item 2 to Schedule 3.5 to the Purchase Agreement hereby is
amended by adding the following new sentence at the end thereof: "On January 6,
1998, Xxxxxxx & Company filed a complaint against Seller, Satellite Transmission
Systems, et al. alleging breach of contract, fraud and interference with
contractual rights and claiming damages of $290,000 for breach of contract and
loss of promised income and unspecified damages for fraud and punitive damages."
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17. Item 3 to Schedule 3.5 to the Purchase Agreement hereby is
amended by adding the following sentence at the end thereof: "On January 22,
1998, CM-STS received a complaint dated December 25, 1998, filed by Nu Vision
against Seller in the Supreme Court of the State of New York in Suffolk County
alleging breach of contract against Seller and claiming damages of $143,702.37."
18. Item 2 to Schedule 3.7 to the Purchase Agreement hereby is
amended by deleting the Attachment to Schedule 3.7(a) in its entirety. An
amended Attachment to Schedule 3.7(a), a copy of which is attached hereto as
Exhibit C ("Attachment to Schedule 3.7(a)") and incorporated herein by
reference, shall be substituted therefor, and all references in Item 2 to
Schedule 3.7 to an attachment shall, from and after the date hereof, mean and
refer to such amended Attachment to Schedule 3.7(a).
19. Item 1 to Schedule 3.8 to the Purchase Agreement hereby is
amended to read in its entirety as follows: "1.
[Intentionally deleted.]"
20. Item 2 to Schedule 3.8 to the Purchase Agreement hereby is
amended to read in its entirety as follows: "Reference is made to the claims and
suits described in Schedule 3.5."
21. Item 1 to Schedule 3.11(a) to the Purchase Agreement hereby
is amended by deleting the attached list referred to in Item 1 to Schedule
3.11(a) in its entirety. An amended Attachment to Item 1 to Schedule 3.11(a), a
copy of which is attached hereto as Exhibit D ("Attachment to Item 1 to Schedule
3.11(a)") and incorporated herein by reference, shall be substituted therefor,
and all references in Item 1 to Schedule 3.11(a) to an attached list shall, from
and after the date hereof, mean and refer to such amended Attachment to Item 1
to Schedule 3.11(a).
22. Item 5 to Schedule 3.11(a) to the Purchase Agreement hereby
is amended by deleting the Attachment to Item 5 to Schedule 3.11(a) in its
entirety. An amended Attachment to Item 5 to Schedule 3.11(a), a copy of which
is attached hereto as Exhibit E ("Attachment to Item 5 to Schedule 3.11(a)") and
incorporated herein by reference, shall be substituted therefor, and all
references in Item 5 to Schedule 3.11(a) to an attachment shall, from and after
the date hereof, mean and refer to such amended Attachment to Item 5 to Schedule
3.11(a).
23. Item 7(j) to Schedule 3.11(a) to the Purchase Agreement
hereby is amended by deleting the attached list referred to in Item 7(j) to
Schedule 3.11(a) in its entirety. An amended Attachment A to Item 7(j) to
Schedule 3.11(a), a copy of which is attached hereto as Exhibit F ("Attachment A
to Item 7(j) to Schedule 3.11(a)") and incorporated herein by reference, shall
be substituted therefor, and all references in Item 7(j) to Schedule 3.11(a) to
an attached list shall, from and after the
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date hereof, mean and refer to such amended Attachment A to Item 7(j) to
Schedule 3.11(a).
24. Item 9(b) to Schedule 3.11(a) to the Purchase Agreement
hereby is amended by deleting the words "July 1" contained thereof and replacing
them with the words "April 3".
25. Item 9(h) to Schedule 3.11(a) to the Purchase Agreement
hereby is amended by deleting the names "Xxxxx Xxxxx;" and "Xxx Xxxxx;".
26. Item 10(b) to Schedule 3.11(a) to the Purchase Agreement
hereby is amended to read in its entirety as follows:
"10(b). [Intentionally deleted.]"
27. Item 3(viii)(b) to Schedule 3.11(c) to the Purchase Agreement
hereby is amended to read in its entirety as follows: "3(viii)(b).
[Intentionally deleted.]"
28. Item 2 to Schedule 3.18(b) to the Purchase Agreement hereby
is amended to read in its entirety as follows:
"2. [Intentionally deleted.]"
29. Schedule 3.24 to the Purchase Agreement hereby is amended by
deleting the Attachment to Schedule 3.24 in its entirety. An amended Attachment
to Schedule 3.24, a copy of which is attached hereto as Exhibit G ("Attachment
to Schedule 3.24") and incorporated herein by reference, shall be substituted
therefor, and all references in Schedule 3.24 to an attachment shall, from and
after the date hereof, mean and refer to such amended Attachment to Schedule
3.24.
30. Schedule 5.2(e) to the Purchase Agreement hereby is amended
by deleting the Attachment to Schedule 5.2(e) in its entirety. An amended
Attachment to Schedule 5.2(e), a copy of which is attached hereto as Exhibit H
("Attachment to Schedule 5.2(e)") and incorporated herein by reference, shall be
substituted therefor, and all references in Schedule 5.2(e) to an attachment
shall, from and after the date hereof, mean and refer to such amended Attachment
to Schedule 5.2(e).
31. As expressly amended hereby, the Purchase Agreement shall
remain in full force and effect, and the Buyer and the Seller hereby ratify and
confirm the same.
32. This Amendment may be executed (including by facsimile
transmission) by the parties with counterpart signature pages or in one or more
counterparts, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment
as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By:______________________________________
Name:
Title:
CALIFORNIA MICROWAVE, INC.
By:______________________________________
Name:
Title:
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EXHIBIT B
ATTACHMENT TO SCHEDULE 3.3
California Microwave, Inc. -- Satellite Transmission Systems division
("CMI-STS") authorizations (prior FCC approval required for transfer of
Experimental and Fixed Satellite licenses):
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Call Sign/File No. Service Location Licensee
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E970258 Fixed Satellite Hauppauge, NY CMI-STS
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KA2XUA Experimental Hauppauge, NY CMI-STS
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