EXHIBIT 10.11
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") dated as of
November 17, 2000, is between SIMTEK CORPORATION, a Colorado corporation
("Simtek"), and WEBGEAR, INC., a California corporation ("WebGear").
Recitals
WHEREAS, Simtek and WebGear entered into that certain Asset Purchase
Agreement, dated September 29, 2000 (the "Agreement"), with respect to the
acquisition of certain assets by Simtek from WebGear.
WHEREAS, the parties desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the covenants, promises, and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
Agreement
1. Definitions. All capitalized terms not defined herein shall have the
meanings ascribed to such terms in the Agreement.
2. Amendment of Section 2.1. Section 2.1 of the Agreement is hereby
amended by striking out such Section 2.1 and inserting in lieu thereof the
following:
2.1 Aggregate Purchase Consideration. The total consideration to be paid
by Simtek to WebGear in connection with the purchase of the Acquired
Assets, the noncompete provision contained in Article VII and the
consummation of the other transactions contemplated by this Agreement (the
"Aggregate Purchase Consideration") shall be (i) 3,400,000 shares of the
common stock, $0.01 par value per share, of Simtek (the "Simtek Shares"),
and (ii) 1,875,000 shares of the common stock, no par value per share, of
WebGear (the "WebGear Shares"). 2,900,000 of the Simtek Shares shall be
delivered by Simtek on or as soon as practicable after November 17, 2000.
500,000 of the Simtek Shares shall be held in escrow by Simtek and
released in accordance with the terms of the Non-Recurring Product Access
Agreement attached to the Agreement as Exhibit 2.1 (the "NRPA Agreement").
3. Amendment of Section 5.2. Section 5.2 of the Agreement is hereby
amended by striking out such Section 5.2 and inserting in lieu thereof the
following:
5.2 Simtek Deliveries. At Closing or as soon as practicable on or after
November 17, 2000, Simtek shall deliver to WebGear:
(a) stock certificates representing the WebGear Shares, and
(b) an executed copy of the NRPA Agreement.
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Simtek shall deliver to WebGear on or as soon as practicable after
November 17, 2000:
(c) stock certificates representing 2,900,000 of the Simtek
Shares, duly issued to WebGear.
5. Amendment of Article VI. Article VI of the Agreement is hereby amended
by striking out such Article VI and inserting in lieu thereof the following:
ARTICLE VI
REGISTRATION; ESCROW; COVENANTS
6.1 Registration. Simtek shall use its best efforts to effect the
registration under the Securities Act on a Form SB-2 , or any other
appropriate form under the Securities Act of 1933, as amended (the
"Securities Act") (the "Registration Statement") of the resale by WebGear
of 2,900,000 of the Simtek Shares on the terms and conditions set forth in
the attached Exhibit 6.1. In the event that Simtek has not effected such
registration within 90 days hereof, WebGear shall have the right to
require Simtek to immediately effect such a registration.
6.2 Escrow. Upon receipt of the Simtek Shares, WebGear shall deliver to
Simtek certificates representing 500,000 Simtek Shares (the "Escrow
Shares") issued to WebGear in negotiable form, duly endorsed in blank, and
with separate notarized stock transfer powers attached thereto and signed
in blank. Simtek shall hold the Escrow Shares in escrow in accordance with
the NRPA Agreement.
6.3 Covenants. WebGear shall indemnify, protect, defend and hold harmless
Simtek, its employees, shareholders, officers, directors, and agents
(collectively the "Indemnified Parties") from and against all liabilities,
damages, claims, costs (including without limitation attorneys' fees and
court costs) or expenses which are made, filed, brought, imposed or
assessed against any Indemnified Party as a result of or arising from
WebGear's breach of the Agreement (or any amendment, including the
Amendment, thereto) or based upon or arising from any alleged tortuous
interference with business relations or any similar claim, suit or action
involving any of the agreements to which WebGear is or was a party.
6. Exhibits. Exhibit 6.1 to the Agreement is hereby amended by striking
the number "2,000,000" in such Exhibit 6.1 and replacing in lieu thereof the
number "2,900,000."
7. Miscellaneous. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to the other parties hereto, it being
understood that all parties hereto need not sign the same counterpart. This
Amendment shall be governed by and construed in accordance with the laws of the
State of Colorado (without regard to the principles of conflicts of law
thereof). Each party hereto has consulted with attorneys and other advisors to
the extent such party deemed necessary and appropriate, and its authorized
officers have carefully reviewed the Agreement and this Amendment. Each party
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cooperated in the drafting of the Agreement and this Amendment. Accordingly, any
rule of law or legal decision that would require interpretation of any
ambiguities in the Agreement and this Amendment against the party that drafted
it is of no application and is hereby expressly waived. The provisions of the
Agreement and this Amendment shall be interpreted in a reasonable manner to
effect the intentions of the parties as set forth therein and herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the date first written above.
Simtek:
SIMTEK CORPORATION, a Colorado corporation,
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: President
WebGear:
WEBGEAR, INC., a California corporation,
By: /s/ Xxxxxx X. Wagen
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Name: Xxxxxx X. Wagen
Title: Chairman and Chief Executive
Officer
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