AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT between DAEWOO SHIPBUILDING & MARINE ENGINEERING CO., LTD. and DEWIND LTD.
AMENDMENT
NO. 1
TO
between
DAEWOO
SHIPBUILDING & MARINE ENGINEERING CO., LTD.
and
XXXXXX
LTD.
This AMENDMENT NO. 1 TO ASSET PURCHASE
AGREEMENT, dated as of September 3, 2009 (this “Amendment”), is between Daewoo
Shipbuilding & Marine Engineering Co., Ltd., a Korean corporation (“Buyer”) and XxXxxx Ltd., a UK
private limited company (“Seller”). Capitalized
terms used, but not defined, in this Amendment have the meanings given to such
terms in the Agreement (defined below).
WHEREAS,
the Buyer and Seller (each a “Party” and, collectively, the
“Parties”) are parties
to that certain Asset Purchase Agreement dated as of August 10, 2009 (the “Agreement”); and
WHEREAS, the Parties desire to
amend the terms and conditions of the Agreement as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the
respective representations, warranties and covenants contained in this
Amendment, and intending to be legally bound, the Parties agree as
follows:
Section
1.4 Purchase Price.
Section 1.4 of the Agreement is hereby
deleted in its entirety and amended and restated as follows:
“1.4 Purchase
Price. The consideration to be paid by Buyer to Seller for the
Turbine Assets shall be $3,000,000 (the “Purchase
Price”). This Purchase Price excludes any payments of the
European Union Value Added Tax, German
VAT (Umsatzsteuer)
or
any other similar tax (each a “Tax”) that may apply to the
sale of the Turbine Asset. Buyer shall pay the Purchase Price in
immediately available funds on the Closing Date (defined
below). Seller shall pay any Tax that may be payable in connection
with the sale of the Turbine Assets, and Seller shall be entitled to receive and
keep any refund available thereon.”
Section
3.9 Solvency.
A new Section 3.9 of the Agreement is
hereby added to read in its entirety as follows:
“3.9 Solvency.
(a) Upon
Closing, Seller will not be rendered insolvent by any of the transactions
contemplated by this Agreement and the Ancillary Agreements. “Insolvent” means, with respect
to any party, that the sum of the debts and other probable liabilities of such
party exceeds the fair saleable value of such party’s assets as of immediately
following the consummation of the transactions contemplated hereby.
(b)
Immediately after giving effect to the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements: (i) Seller will be
able to pay its liabilities as they become due in the usual course of its
business, and (ii) Seller will not have unreasonably small capital with which to
conduct its present or proposed business.”
Section
3.10 Business of Seller.
A new Section 3.10 of the Agreement is
hereby added to read in its entirety as follows:
“3.10 Business of
Seller. Immediately prior to the Closing, (a) Seller’s only
business activity was to sublicense the rights under the Prior License (and
maintain such sublicenses) to BBS and SEG, and (b) BBS and SEG are the only
sublicensees to the rights under the Prior License.”
Miscellaneous.
Except as
specifically amended hereby, the Agreement shall continue in full force and
effect in accordance with its terms. This Amendment shall be governed
by and interpreted and enforced in accordance with the Laws of the State of
California, without giving effect to any choice of Law or conflict of Laws rules
or provisions (whether of the State of California or any other jurisdiction)
that would cause the application of the Laws of any jurisdiction other than the
State of California.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed by
their respective authorized officers as of the date first written
above.
DAEWOO
SHIPBUILDING & MARINE
ENGINEERING CO., LTD. |
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By:
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/s/ |
Name:
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Title:
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XXXXXX
LTD.
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By:
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/s/ |
Name:
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Title:
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