AMENDMENT TO ASSET PURCHASE
AGREEMENT
This Amendment
to Asset Purchase Agreement (this “Amendment”)
dated as of April 4, 2007, by and among Smith Micro Software,
Inc., a Delaware corporation (“Purchaser”), IS
Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Purchaser (“Acquisition Sub” and together
with Purchaser the “Purchasing Parties”), Insignia
Solutions plc, a company incorporated under the laws of England and
Wales (company no. 1961960) (“Seller”) and the
subsidiaries of Seller as set forth on the signature page hereto
(such subsidiaries and Seller collective referred to herein as the
“Selling Parties”), is entered into by and among the
undersigned with reference to the following facts:
WHEREAS ,
the Purchasing Parties and the Selling Parties are parties to that
certain Asset Purchase Agreement dated as of February 11, 2007
(the “Agreement”);
WHEREAS ,
pursuant to Section 13.4 of the Agreement the parties desire
to enter into this Amendment in order to amend the Agreement as set
forth herein.
NOW,
THEREFORE , the parties agree as follows.
1.
Amendment of Section 1.3 of the Agreement .
Section 1.3 of the Agreement is hereby amended and restated in
its entirety as follows:
“1.3
Assumed Liabilities . Subject to the terms and conditions of
this Agreement, at the Closing, the Selling Parties shall assign,
and the Purchasing Parties shall assume only the Assumed
Liabilities. Thereafter, the Purchasing Parties shall pay and
discharge all such Assumed Liabilities as and when such Assumed
Liabilities become due and owing. For the purposes of this
Agreement, the “ Assumed Liabilities ” shall
mean (i) the value of accrued vacation time that is credited
to Employees who are hired by any of the Purchasing Parties at
Closing and that is not paid by the Selling Parties, (ii) any
other accrued employee liabilities agreed upon in writing by the
Purchasing Parties, and (iii) obligations arising from and
after the Closing pursuant to the Seller Contracts (for purposes of
this Agreement, (i) and (ii) are collectively referred to
herein as the “ Employee Liabilities ”).
Notwithstanding the foregoing, the Purchasing Parties shall not,
without the prior written consent of Purchaser, assume liability or
payment obligations for any Taxes (other than employment-related
Taxes, but excluding any interest, fines, penalties or additions
thereon) or all or any portion of the Liability described in
Section 1.4(p). If the Selling Parties shall be required to
pay any amounts included in Assumed Liabilities, then the
Purchasing Parties shall reimburse the Selling Parties thereofor,
subject to potential offset for any amounts owing to the Purchasing
Parties by the Selling Parties.”
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