FIRST AMENDMENT TO ASSET PURCHASE
AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
(this “Amendment”) is executed effective as of June 19,
2009, by and among INX Inc., a Delaware corporation (“
Buyer ”), NetTeks Technology Consultants, Inc., a
Massachusetts corporation (“ Seller ”), and
Ethan F. Simmons, Matthew J. Field and Michael P. DiCenzo, each
individuals (together, the “ Shareholders ” and
each, individually, a “ Shareholder
”).
W I T N E S S E T
H
Reference is made to that certain Asset Purchase
Agreement, dated November 14, 2008, among the Buyer, the Seller and
the Shareholders, together with all exhibits, schedules and annexes
thereto (the “ Asset Purchase Agreement
”);
The Seller has
sold to the Buyer the Purchased Assets previously owned by the
Seller and the Buyer has paid the Seller the Cash Consideration and
the Stock Consideration;
The Buyer, the Seller and the Shareholders seek
to amend Section 1.7 of the Asset Purchase Agreement effective as
of June 12, 2009, in order to modify the terms upon which Seller
shall be entitled to Additional Purchase Consideration.
AGREEMENT
NOW, THEREFORE,
for and in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the
Buyer, the Seller and the Shareholders do hereby agree that the
Asset Purchase Agreement is modified and amended as
follows:
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SECTION
1.7 . Section 1.7 of
the Asset Purchase Agreement is hereby amended by deleting Section
1.7 in its entirety and replacing it with the following new Section
1.7.
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“1.7
Additional Purchase Consideration As
additional consideration for the Purchase, the Buyer will pay
additional purchase consideration to the Seller following the
Closing Date based on and contingent upon certain post-Closing
financial performance beginning on the first day of the first full
calendar year after the Closing (the “ Additional Purchase
Consideration ”) as set forth in this section
1.7.
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Seller
NetTeks Business Operations Performance . Buyer will pay Seller a variable
contingent payment based on and contingent upon the financial
performance of the Buyer’s business unit that is comprised,
after the Closing Date, solely of the Buyer’s business
activities performed by its employees out of its current locations
in Massachusetts and Connecticut (the “ NetTeks Business
Operations” ) which operations shall include the
Buyer’s business operations located in the greater
Boston-metro area immediately prior to the Closing
Date. As used in this Agreement, this component of the
Additional Purchase Consideration shall be referred to as the
“ NetTeks Business Operations Earn out
”. For purposes of this Agreement, the term
“ NetTeks Business Operations Operating Income
Contribution ” means the Operating Income (as defined by
GAAP as applied by Buyer in operating its business) contribution
attributable to the NetTeks Business Operations before any
allocation of the Buyer’s corporate-level operations and
administrative expenses, all as determined by the Buyer using its
normal accounting methodologies and processes, and in accordance
with Generally Accepted Accounting Principles (“ GAAP
”); provided, however, that certain costs are excluded from
the earn out calculation as detailed below. During the period from
the date of this amendment through August 31, 2009, any severance
payments resulting from employee terminations in the NetTeks
Business Operations during such periods. The remaining rent expense
related to the downtown Boston office once the space is vacated
will be excluded for purposes of calculating Business Operations
Operating Income Contribution for the remaining earn out period.
Amortization of intangible assets
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