Exhibit 2.2
AMENDMENT TO ASSET PURCHASE AGREEMENT
Amendment dated as of August 1, 1997 to Asset Purchase Agreement dated as
of July 25, 1997 (the "Purchase Agreement") by and between Digital Video
Systems, Inc. ("DVS") and Arris Interactive L.L.C. ("Arris"). Capitalized terms
used in this Amendment and not otherwise defined shall have the respective
meanings given to such terms in the Purchase Agreement.
WHEREAS, DVS and Arris desire to amend the Purchase Agreement.
NOW THEREFORE, in consideration of the mutual promises of the parties
hereto, and of good and valuable consideration, the receipt of which is hereby
acknowledged, it is mutually agreed by and between the parties that the Purchase
Agreement shall be amended as follows:
1. Section 1.2(a) (i). Section 1.2(a)(i) shall be amended by deleting the
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existing Section 1.2(a)(i) in its entirety and substituting in lieu thereof the
following:
In consideration of the transfer by Arris of the DV Assets to DVS, DVS at
Closing shall issue to Arris 600,000 shares of Common Stock and shall pay to
Arris $1,500,000 by wire transfer or certified check, and DVS shall assume the
liabilities under Sections 1.4(c) and 1.5 hereof accrued through the Closing
Date; provided that notwithstanding any provision of the Purchase Agreement to
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the contrary, 300,000 shares of DVS's Common Stock to be issued to Arris in
connection with the Transaction shall be held in an escrow (pursuant to an
escrow agreement to be signed as soon as practicable following the Closing)
until such time as DVS receives a legal opinion reasonably satisfactory to DVS
and its counsel with respect to the following Patent Applications: (a) A-0158
("AD Insertion System") and (b) A-0174 ("System for Communicating Data Files
from a Server to a Plurality of Channel Interface Units"), each as identified on
Exhibit C to the Purchase Agreement; provided further that with respect to both
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of the above-listed Patent Applications, Arris shall conduct or cause to be
conducted a search of existing United States patents and publications, which
search shall include (A) conducting at least a validity search of both of the
below-listed Patent Applications, (B) reviewing the contents of the files in
Arris' possession relating to both of the below-listed Patent Applications and
(C) conducting a review to determine whether the inventions described in each of
the below-listed Patent Applications are patentable or whether making, using,
selling or offering to sell any of such inventions constitutes an infringement
of any United States patent; provided further that Arris shall provide DVS with
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a
legal opinion with respect to the validity and patentability of both of the
above-listed Patent Applications, which opinion sets forth the scope of the
above-described search; provided further that Arris shall use its reasonable
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best efforts to obtain such opinion in substantially the form attached hereto as
Exhibit A; provided further that such opinion shall be deemed reasonably
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satisfactory so long as it provides DVS and its counsel reasonable assurance
that neither of the above-listed Patent Applications constitutes an infringement
of a United States patent in a manner that results in a direct impact on DVS's
and ability to ship current products of the DV Business or products proposed in
the Business Plan; provided further that in the event such opinion is not
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received within 90 days following the Closing Date, the consideration to be paid
by DVS for the DV Assets shall be reduced by eliminating 300,000 shares of DVS's
Common Stock as part of the consideration for the DV Assets and such shares
shall be cancelled; provided further that if the above-described search
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indicates that either of the above-listed Patent Applications constitutes an
infringement of any United States patent in a manner that results in a direct
impact on DVS's ability to ship current products of the DV Business or products
proposed in the Business Plan, the consideration to be paid by DVS for the DV
Assets shall be reduced by eliminating 300,000 shares of DVS's Common Stock as
part of the consideration for the DV Assets and such shares shall be cancelled.
DIGITAL VIDEO SYSTEMS, INC. ARRIS INTERACTIVE L.L.C.
By: /s/ XXXXXX X. XXXXXXXXX By: /s/ XXXXXX XXXXXXXXX
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Title: President and COO Title: CEO and President
