EXHIBIT
10.1
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.”
2.
Amendment of Section 2.1
of the A
