AMENDMENT TO ASSET PURCHASE AGREEMENT AND DISCLOSURE SCHEDULE
Exhibit 2.2
AMENDMENT TO ASSET PURCHASE AGREEMENT
AND DISCLOSURE SCHEDULE
AND DISCLOSURE SCHEDULE
This Amendment to Asset Purchase Agreement and Disclosure Schedule is entered into as
of August 27, 2008 (this “Amendment”), by and among BroadSoft M6, LLC, a Delaware limited
liability company (the “Purchaser”),
BroadSoft, Inc., a Delaware corporation (the
“Company”), and GENBAND Inc., a Delaware corporation (the “Seller”).
Recitals
Whereas, the Purchaser, the Company, and the Seller are parties to that certain Asset
Purchase Agreement, dated as of August 14, 2008 (the “Purchase Agreement”), pursuant to which the
Purchaser agreed to purchase, and the Seller agreed to sell, the Assets. Capitalized terms used
herein without definition shall have the meaning given to such terms in the Purchase Agreement;
Whereas, the Disclosure Schedule to the Purchase Agreement (the “Disclosure
Schedule”) is the schedule delivered by the Seller to the Company and the Purchaser and is
incorporated in the Purchase Agreement by reference; and
Whereas, in connection with the Closing, the Purchaser, the Company, and the Seller
now desire to amend the Purchase Agreement and the Disclosure Schedule, as set forth herein.
Agreements
Now, Therefore, for and in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Amendment hereby agree as follows:
1. Amendment to Section 1.8 of the Purchase Agreement. Section 1.8 of the Purchase Agreement
is hereby amended and restated in its entirety to read as follows:
1.8 Allocation. Within sixty (60) days following the Closing Date, the parties shall use
their good faith, commercially reasonable efforts to agree to an allocation of the Purchase Price
among the various assets within each of the classes of the Assets (the “Allocation”). If and to
the extent the Purchaser and the Seller agree to the Allocation, (a) such Allocation shall be
binding on the parties, (b) the parties shall prepare and timely file all applicable federal and
state income and sales Tax forms in a manner consistent with such Allocation, and (c) except as
otherwise required pursuant to the Code, neither party shall take a position inconsistent with the
Allocation on any Tax Return, or otherwise. If the parties are unable to reach a timely agreement
regarding the Allocation, each party shall be entitled to adopt its own position regarding the
allocation of the Purchase Price among the various assets within each of the classes of Assets.
2. Amendment to Section 10.5 of the Purchase Agreement. Section 10.5 of the Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
10.5 Partnership Relationship. Within sixty (60) days following the Closing Date, the Seller
shall enter into the Company’s Premier Network Solutions Agreement for Network Device Partners
and shall become a “BroadSoft Premier Network Solutions partner” for a term of three (3)
years, with a bi-annual relationship review.
3. Amendment to Article 10 of the Purchase Agreement. There shall be added to the Agreement a
new Section 10.8, which shall read in its entirety as follows:
10.8 Red Gap Communications, Inc. Within fourteen days after the execution of the Settlement
Agreement and Limited Release, among the Seller, Tekelec and Red Gap Communications, Inc. (“Red
Gap”), the Purchaser and the Company shall deliver to Red Gap (i) 1,000 Enhanced Business Feature
Set Licenses, (ii) 1,000 Unified Messaging & Voicemail Licenses including CommuniGate Messaging
Licenses, and (iii) 1,000 Web Portal Licenses, including upgrade to M6 7.0 (collectively, the
“Licenses”). For the one year period beginning on the date of delivery of the Licenses by the
Purchaser and the Company to Red Gap, the Purchaser and the Company shall provide Red Gap, free of
charge, with maintenance in accordance with the terms of the Master Agreement for Sale, License and
Support of Products between VocalData, Inc. and Red Gap Communications, Inc. dated September 15,
2004.
4. Amendments to Exhibit A to the Purchase Agreement.
(a) The following definitions are hereby deleted in their entirety from Exhibit A
(Definitions) to the Purchase Agreement:
High Level Allocation. “High Level Allocation” shall have the meaning set forth in Section
1.8.
Detailed Allocation. “Detailed Allocation” shall have the meaning set forth in Section 1.8.
(b) The following definitions are hereby added to Exhibit A (Definitions) to the Purchase
Agreement, in alphabetical order:
Allocation. “Allocation” shall have the meaning set forth in Section 1.8.
Licenses. “Licenses” shall have the meaning set forth in Section 10.8.
Red Gap. “Red Gap” shall have the meaning set forth in Section 10.8.
5. Amendment and Restatement of the Disclosure Schedule of the Purchase Agreement. The
Disclosure Schedule is hereby amended and restated in entirety to be the form attached hereto as
Exhibit 1.
6. Waiver of Certain Conditions to the Company’s and the Purchaser’s Obligations to Close.
Effective as of the date hereof, the Company and the Purchaser hereby
waive those conditions precedent to their obligation to close as set forth in Section 6.3 of
the Purchase Agreement, that have not been met by the Seller as of the date hereof.
7. Representations. Each of (i) the Company and the Purchaser, on the one hand, and (ii) the
Seller on the other hand, hereby represent and warrant to the other(s) as follows:
(a) Such party has full power and authority to enter into and perform this Amendment.
(b) The execution and delivery of this Amendment has been duly authorized by all necessary
organizational action on its part. This Amendment has been duly executed and delivered by such
party and constitutes a legally valid and binding obligation of such party, enforceable against
such party in accordance with its terms, except as limited by bankruptcy and laws effecting the
enforcement of creditors’ rights generally or equitable principles.
8. Continuing Effect. Other than as set forth in this Amendment, all of the terms and
conditions of the Purchase Agreement shall continue in full force and effect.
9. Assignment. Neither this Amendment nor any rights or obligations hereunder may be assigned
by any party hereto without the prior written consent of the other parties hereto, which consent
may not be unreasonably withheld; provided, that notwithstanding the foregoing, no consent of the
Seller shall be required with respect to any assignment by the Company or the Purchaser to any
lender as part of a collateral assignment. Any attempted or purported assignment by any party to
this Amendment in violation of this Section 9 shall be null and void.
10. Choice of Law. This Amendment shall be governed by and construed in accordance with the
laws of the Delaware, without regard to the choice of law rules utilized in that jurisdiction.
11. Counterparts. This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature Page Follows]
In witness whereof, the parties to this Amendment have caused this Amendment to Asset
Purchase Agreement and Disclosure Schedule to be executed and delivered as of the date first
written above.
| BroadSoft, Inc. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Chief Financial Officer | ||||
| BroadSoft M6, LLC |
||||
| By: | BroadSoft, Inc., its manager | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Chief Financial Officer | ||||
| GENBAND Inc. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Xxxxxx Xxxxxx | ||||
| Executive Vice President, General Counsel and Secretary | ||||
[Signature page to Amendment to Asset Purchase Agreement and Disclosure Schedule]
EXHIBIT 1
Intentionally omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant will furnish
supplementally a copy of any omitted information to the Securities and Exchange Commission upon
request.
