AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
AMENDMENT
NO. 1
TO
This
Amendment No. 1 to the Asset Purchase Agreement (this “Amendment”), is made
as of December 23, 2008, by and among Avid Technology, Inc., a Delaware
corporation (the “Parent”), Pinnacle
Systems, Inc., a California corporation and a wholly owned subsidiary of the
Parent (“Pinnacle”), Avid
Technology GmbH, a limited liability company organized under the laws of
Germany, Avid Development GmbH, a limited liability company organized under the
laws of Germany, Avid Technology International BV (each a “Seller” and
collectively with Parent and Pinnacle, the “Sellers”), and PCTV
Corp., a Delaware corporation (the “Buyer”). The
Sellers and the Buyer are sometimes referred to collectively as the “Parties.” Capitalized
terms used and not otherwise defined herein shall have the respecting meanings
assigned to such terms in the Agreement (as defined below).
RECITALS
A. The
Sellers and the Buyer have entered into that certain Asset Purchase Agreement,
dated October 25, 2008 (the “Agreement”).
B. The
Parties desire to amend the Agreement in accordance with the terms of this
Amendment.
C. Section 12.7 of the
Agreement provides in relevant part that the Parties may mutually amend or waive
any provision of the Agreement and no amendment or waiver of any provision of
the Agreement shall be valid unless the same shall be in writing and signed by
the Party to be charged therewith.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Buyer and the Sellers hereby agree as follows:
1. Amendment.
(a) Section 1.2(a) of the
Agreement is hereby amended and restated as follows:
“(a) Purchase
Price. The purchase price payable by Buyer to the Sellers for
the Acquired Assets shall be Two Million Five Hundred Thousand ($2,500,000) in
cash and Two Million Five Hundred Thousand ($2,500,000) payable in
accordance with the Note.”
(b) Section 1.3(b)(xiii)
of the Agreement is hereby amended and restated as follows:
“(xiii) the
Buyer shall pay to the Sellers Two Million Five Hundred Thousand ($2,500,000) of
the Purchase Price in cash by wire transfer of immediately available funds into
an account designated by the Sellers in writing not less than two (2) Business
Days before the Closing Date and execute and deliver the Note.”
(c) Section 1.3(b) of the
Agreement is hereby amended by adding the following:
“(xvi) the
Buyer shall execute and deliver the Note in substantially the form attached
hereto as Exhibit
F.”
(d) Section 3.1 of the
Agreement is hereby amended by adding the following:
“Each of the
Applicable Subsidiaries is an entity duly organized, validly existing and in
good standing under the laws of their respective jurisdiction of
organization.”
(e) Section 3.2 of the
Agreement is hereby amended by adding the following:
“Each of the Applicable Subsidiaries
has all requisite corporate power and authority to execute and deliver the
Ancillary Agreements to which it will be a party and to perform its obligations
thereunder. The execution and delivery by each Applicable Subsidiary
of such Ancillary Agreements and the consummation by each Applicable Subsidiary
of the transactions contemplated thereby have been validly authorized by all
necessary corporate action on the part of each such Applicable
Subsidiary. Such Ancillary Agreements will be validly executed and
delivered by each applicable Applicable Subsidiary and, assuming each such
Ancillary Agreement constitutes the valid and binding obligation of the Sellers,
constitutes or will constitute a valid and binding obligation of each Applicable
Subsidiary, enforceable against each such Applicable Subsidiary in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws relating to or affecting the rights of creditors generally and by equitable
principles, including those limiting the availability of specific performance,
injunctive relief and other equitable remedies and those providing for equitable
defenses.
(f) Section 3.6 of the
Agreement is hereby amended and restated as follows:
“Subsidiary. Each
of Buyer, PCTV Systems S.a.r.l., Hauppauge Computer Works Inc., Hauppauge
Digital Europe S.a.r.l. and PCTV Systems GmbH is a direct or indirect
wholly-owned Subsidiary of Hauppauge Digital, Inc.
(g) Article
III of the Agreement is amended to add the following:
“3.8 Employees. Upon
consummation of the Transfer, the Business Employees shall be employed by PCTV
Systems GmbH.
(h) Section 5.2 of the
Agreement is hereby amended by adding the following:
“(m) the Buyer shall
have executed and delivered the Note, in substantially the form of Exhibit F, and such
Note shall be in full force and effect.
(i) The
definition of “Ancillary Agreements”
is hereby amended and restated as follows:
“Ancillary Agreements”
shall mean the agreements and instruments referred to in clauses (iii), (vii),
(viii), (ix), (x), (xi) and (xvi) of Section
1.3(b).
(j) Article XI of the
Agreement is hereby amended by adding the following:
“Applicable
Subsidiaries” shall mean PCTV Systems S.a.r.l., Hauppauge Computer Works
Inc. and Hauppauge Digital Europe S.a.r.l., collectively.
“Note” shall mean the
Secured Promissory Note, dated December 19, 2008, between Buyer and
Parent.
2. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
3. Effective Date of
Amendment. This Amendment shall become effective immediately
upon the execution hereby by the Buyer and the Sellers.
4. Effectiveness of
Agreement. Except as expressly amended hereby, all terms,
conditions and provisions of the Agreement shall remain in full force and effect
in accordance with their respective terms.
[Remainder
of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Seller
and the Buyer have caused this Amendment to be executed as of the date first
written above by their respective officers thereunto duly
authorized.
THE
SELLERS:
Avid
Technology, Inc.
/s/
Xxx Xxxxxx
Xxx
Xxxxxx
Executive
Vice President, Chief
Administrative
Officer and Chief Financial
Officer
Pinnacle
Systems, Inc.
/s/
Xxx Xxxxxx
Xxx
Xxxxxx
President
Avid
Technology International BV
/s/
Xxxx Xxxxx
Xxxx
Xxxxx
Director
Avid
Development GmbH
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
Managing
Director
Avid
Technology GmbH
/s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
Procura
|
|
THE
BUYER:
PCTV
Corp.
/s/
Xxx Xxxxxxx
Xxx
Xxxxxxx
Chief
Executive Officer
|
[Signature
Page to Amendment No. 1 to Asset Purchase
Agreement]