EXHIBIT 2.3
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "First
Amendment"), dated as of February 26, 2004, is entered into by and between
Digital Data Networks, Inc., a Washington corporation ("Seller"), and InTransit
Media, Inc., a Texas corporation ("Buyer").
WHEREAS, Buyer and Seller entered into that certain Asset Purchase
Agreement dated January 30, 2004 (the "Agreement");
WHEREAS, Buyer and Seller have agreed to the terms of this First
Amendment in order to clarify and amend certain terms of the Agreement, as set
forth herein.
NOW THEREFORE, the parties hereto agree as follows:
1. Section 2.1(c) of the Agreement is hereby deleted and replaced
in its entirety with the following:
"(c) Seller shall have received or obtained all third party,
board of director and shareholder consents and approvals that are
necessary for the consummation of the transactions contemplated hereby,
or that are required in order to prevent a breach of or default under,
a termination or modification of, or acceleration of the terms of, any
Assumed Contract, in each case on terms reasonably satisfactory to
Buyer; provided, however, that Buyer hereby agrees and acknowledges
that Seller shall not be required to obtain the consent or approval of
(i) Dallas Area Rapid Transit ("DART"), in connection with (A) Contract
No. C-95000208, as amended, between Seller and DART (the "DART
Contract"), (B) that certain Promissory Note dated October 29, 1997, in
the original principal amount of $144,660.00, issued to DART by Seller
(the "DART Note"), or (C) that certain Security Agreement dated
December 9, 1997, between Seller and DART, entered into in connection
with the DART Note (the "DART Security Agreement") (collectively, the
DART Contract, the DART Note, and the DART Security Agreement shall be
referred to herein as the "DART Agreements"), or (ii) Maple Country
Ltd., a Texas limited partnership ("Landlord"), in connection with that
certain Lease Agreement dated as of November 19, 1993, between a
predecessor-in-interest to Landlord and Seller, as amended (the "Office
Lease")."
2. Section 2.1(d) of the Agreement is hereby deleted and replaced
in its entirety with the following:
"(d) Buyer and Seller shall have received or obtained all
governmental and regulatory consents and approvals that are necessary
for the consummation of the transactions contemplated hereby, in each
case on terms reasonably satisfactory to Buyer; provided, however that
Buyer hereby agrees and acknowledges that, to the extent that DART
might be construed to be a governmental entity, Seller shall not be
required to obtain the consent or approval of DART in connection with
any of the DART Agreements."
3. Section 3.3 of the Agreement is hereby deleted and replaced in
its entirety with the following:
"3.3 Binding Obligation. This Agreement is the valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms (except to the extent that enforceability may be limited
by bankruptcy or insolvency laws or other laws generally relating
to creditors' rights, or by general equitable principles), and the
transfer and sale to Buyer of the Purchased Assets contemplated herein
will not conflict with or violate the terms of any agreement to which
Seller is a party, other than the DART Agreements and the Office
Lease."
4. Section 3.4 of the Agreement is hereby deleted and replaced in
its entirety with the following:
"3.4 Title to Purchased Assets; No Liens. Seller has good and
marketable title to, and the transfer and sale to Buyer contemplated
herein will vest Buyer with good and marketable title to, the Purchased
Assets, free and clear of all Liens, except for (a) Liens for real
estate taxes, assessments and other governmental levies, fees or
charges imposed which are not yet due and payable as of the Closing
Date, or which are due and payable but not yet delinquent or the amount
or validity of which is being contested by Seller in good faith by
appropriate proceedings, (b) mechanics and similar statutory Liens for
labor, materials or supplies provided or incurred in the ordinary
course of business for amounts which are not delinquent, (c) zoning,
building and other land use laws imposed by any governmental authority
which are not violated by the current use or the operation of the
Purchased Assets, (d) Liens for any financing secured by any Purchased
Assets, which Liens will be released on the Closing Date, (e)
easements, covenants, conditions, restrictions and other similar
matters of record affecting title which would not materially impair the
continued use or operation by Buyer of the Purchased Assets, and (f)
that certain equipment named in the DART Note that has been pledged as
collateral for said note under the DART Security Agreement (the "DART
Collateral") (the items in clauses (a) through (f) above being
collectively referred to herein as the "Permitted Liens")."
5. The following covenant is hereby inserted as Section 6.4 of
the Agreement:
"6.4 DART Agreements. In the event that the consummation of
the transactions contemplated by this Agreement cause a default under
the DART Agreements, then Buyer shall take all action necessary to
remedy such default to the full satisfaction of DART, including, but
not limited to, transferring the DART Collateral to DART pursuant to
the DART Agreements, or, at the election of DART, paying the DART Note
in full upon the acceleration thereof pursuant to the DART Agreements.
Furthermore, if an event of default occurs under the DART Note for any
reason, and DART commences an action against Seller to recover the DART
Collateral, Buyer shall transfer the DART Collateral back to Seller
(or, upon Seller's written consent, directly to DART) in order to allow
Seller to deliver the DART Collateral to DART."
6. Except as expressly amended hereby, the Agreement remains in
full force and effect. Capitalized terms that are not defined herein shall have
the same meaning assigned to them in the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed and delivered as of the date first above written.
This First Amendment to Agreement may be executed in one or more
identical counterparts, including by facsimile signature, each of which shall be
deemed to be an original and all of which together shall be deemed to be one
instrument.
SELLER:
DIGITAL DATA NETWORKS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
President
BUYER:
INTRANSIT MEDIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
President
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