AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
This Amendment No. 3 to Asset Purchase Agreement ("Amendment") is made and
entered into as of November 8, 2005, by and among Tectonic Network, Inc., a
Delaware corporation and its subsidiary Tectonic Solutions, Inc., a Georgia
corporation (each a Seller, and collectively the "Seller"), and Boston Equities
Corporation, a Nevada corporation ("Boston"), and Tectonic, Inc. a Delaware
corporation and subsidiary of Boston (the "Buyer') with respect to the following
facts:
A. Seller and Boston entered into that certain Asset Purchase Agreement
dated as of October 3, 2005, as amended by that certain Amendment No. 1 to Asset
Purchase Agreement dated October 12, 2005 and by that certain Amendment No. 2 to
Asset Purchase Agreement dated October 28, 2005 (the "Agreement").
B. Seller, Boston and Buyer now wish to amend the Agreement as set forth
herein.
IN CONSIDERATION OF the foregoing premises and mutual covenants contained
herein and in the Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties to this
Amendment agree as follows:
1. Amendments to Agreement. The specific provisions of the Agreement
indicated below are hereby amended as follows:
(a) Purchase Price. Section 4.1 is hereby amended to provide as
follows:
The total consideration to be paid by the Buyer for the Assets
and the assumption of the Assumed Liabilities (the "Purchase Price")
shall be: (i) cash in the amount of $1,350,000, plus (ii) cash in
the amount of any operating expenses actually incurred or accrued
between October 31, 2005 and the Closing Date (up to a maximum of
$150,000), plus (iii) any amounts outstanding under the Senior
Secured Super-Priority Debtor-in-Possession Loan and Security
Agreement of even date herewith between Seller and Buyer (the "Loan
Agreement"). Buyer shall make an initial nonrefundable payment of
$250,000 within one business day of the entry of the Sale Order.
Buyer shall make an additional nonrefundable payment of not less
than $200,000 within one business day of the entry of the court
order approving the extension of Closing Date as contemplated by
Amendment No. 3 to this Agreement. The balance of the Purchase Price
shall be paid on the Closing Date. In the event that the Closing
does not occur as a result of any breach by Buyer on the Closing
Date, Seller shall be entitled to retain the deposit.
(b) Closing Date. Section 5.2 is hereby amended to provide that the
Closing Date shall take place on or before November 15, 2005, time being of the
essence; provided, however, that if the Final Order (as defined in the Loan
Agreement) and the order approving the extension of Closing Date as contemplated
by Amendment No. 3 to this Agreement ("Extension Order") have not been entered
as of such date, then the Closing Date shall be one business day following the
entry of those orders, time being of the essence.
Buyer acknowledges that the form of Final Order, as submitted on
November 8, 2005 to the Court (which is attached hereto), fulfills all
requirements concerning the Final Order, and that the Buyer has no objections to
its form or content. Buyer further acknowledges that the form of Extension Order
as attached hereto, is acceptable in form and content to Buyer.
(c) Access to Information. Section 9.1 is hereby amended by adding
the following sentences to the end of that Section:
Buyer, and Boston Equities Corporation, shall maintain the
confidentiality of all information provided to it under the terms of
this Agreement, shall not use the information for any reason or
purpose other than to evaluate and consummate the transactions
contemplated herein and shall not disclose the information to any
third party without Seller's prior written consent. Buyer and Boston
Equities Corporation hereby acknowledge that the information
provided pursuant to the Agreement is necessary to the operation of
the Seller's business, and that the Buyer would not be able to
operate the business being acquired from the Seller (as set forth
otherwise in this Agreement) without the information. From and after
the Closing, the foregoing provisions shall not apply to or restrict
in any manner Buyer's use of any information of the Seller relating
to any of the Assets or the Assumed Liabilities
(d) Conditions Precedent. Clause (h) of Section 6.2 is hereby
deleted in its entirety.
(e) Termination. Clause (c) of Section 10.1 is hereby deleted in its
entirety.
2. Impact on Other Provisions. All other terms and conditions of the
Agreement not specifically amended by this Amendment, shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their authorized representatives as of the date first written above.
TECTONIC NETWORK, INC., TECTONIC SOLUTIONS, INC.,
a Delaware corporation a Georgia corporation
as debtor and debtor-in-possession as debtor and debtor-in-possession
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By: By:
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Its: Its:
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BOSTON EQUITIES CORPORATION, TECTONIC, INC.,
a Nevada corporation a Delaware corporation
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By: Xxxx Xxxxxx Xxxxx By: Xxxx Xxxxxx Xxxxx
Its: President Its: President
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