Asset Purchase Agreement (Amendment No. 3) - e-centives Inc. and Inktomi Corp.
AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT (this
"AMENDMENT") is made and entered into as of this 28th day of March, 2001, by and
among e-centives, Inc., a Delaware corporation (the "BUYER") and Inktomi
Corporation, a Delaware corporation (the "SELLER").
A. Pursuant to that certain Asset Purchase Agreement dated
January 18, 2001 between the Buyer and the Seller (the "PURCHASE AGREEMENT"),
the Seller is selling to the Buyer and the Buyer is purchasing from the Seller
certain assets, and the Buyer is assuming from the Seller certain liabilities
relating to the Commerce Product Business unit of the Seller.
B. Pursuant to the Purchase Agreement, the Seller is required to
deliver the consent to assignment of the Key Contracts (as defined in the
Purchase Agreement) and certain other agreements. The Seller has been unable to
secure the assignment of the following four (4) Key Contracts: (i) the Inktomi
Destination Site Agreement between the Seller and CTC Bulldog, Inc. (nka "iWon")
dated June 18, 1999, as amended by Amendment One, dated as of April 21, 2000 and
by Amendment Two dated as of November 6, 2000 (the "iWon Agreement"), (ii) the
Inktomi Destination Site Agreement between the Seller and First USA Bank dated
June 18, 1999 (the "FirstUSA Agreement"), (iii) the Inktomi Destination Site
Agreement between the Seller and MBNA America Bank, N.A. dated October 13, 2000
(the "MBNA Agreement"), and (iv) the Inktomi Destination Site Agreement between
the Seller and MobilCom CityLINE GmbH (nka freenet.de AG) dated June 9, 2000
(the "Freenet Agreement", and together with the FirstUSA Agreement and the MBNA
Agreement, the "Special Agreements").
C. The Seller and the Buyer now wish to amend the Purchase
Agreement with respect to such Key Contracts.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined
herein shall have the same meanings attributed thereto in the Purchase
2. BASE PRICE RE-ADJUSTMENTS.
(a) iWon Agreement. The Seller has notified the Buyer that
consent to assignment of the iWon Agreement cannot be obtained. Accordingly,
pursuant to Annex B of the Purchase Agreement, on the Closing Date, the Base
Price to be paid by the Buyer to the Seller shall be reduced by two (2)
percentage points, or 442,450 Buyer Shares.
(b) Special Agreements.
(i) The Seller has notified the Buyer that the
Seller has been unable to obtain the consent to assignment for the Special
Agreements. The Base Price shall be reduced by, and the Buyer shall hold back
from delivery to the Seller on the Closing Date, one (1) percentage point of the
Base Price, or 221,225 Buyer Shares, for each of the first two (2) Special
Agreements that are not assigned to the Buyer at the Closing. The Base Price
shall be reduced by an additional one and one half (1.5) percentage points, or
331,838 Buyer Shares, for the third Special Agreement that is not assigned to
the Buyer at the Closing. If within thirty (30) days after the Closing Date (the
"EXTENSION PERIOD") the Seller obtains and delivers to the Buyer the required
consent to the assignment of any of the Special Agreements, then the Base Price
shall be increased for each such Special Agreement for which consent to
assignment has been so obtained (the "RECAPTURED SHARES") in the following
manner: one and one half (1.5) percentage points, or 331,838 Buyer Shares, for
the first such consent to assignment delivered by the Seller to the Buyer, and
one (1) percentage point, or 221,225 Buyer Shares, for each of the remaining two
(2) Special Agreements for which consent to assignment has been delivered by the
Seller to the Buyer. In any such case, the Buyer shall take all actions
necessary to issue and deliver the Recaptured Shares promptly after the delivery
of the relevant consent, subject to all the terms and conditions of the Purchase
Agreement and the Ancillary Agreements, in the same manner as if such shares had
been originally issued as part of the Purchase Price on the Closing Date.
(ii) The Buyer agrees that it shall continue to
perform and satisfy the obligations under, and in accordance with the terms of,
each of the Special Agreements during the term of the Extension Period (so long
as each such agreement is not terminated). The rights and obligations of the
parties with respect to each of the Special Agreements shall be governed by
Section 6(g) of the Purchase Agreement.
(c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. The
foregoing Base Price re-adjustments contemplated by this Section 2 shall be
proportionately adjusted for stock splits, stock dividends, stock combinations,
recapitalizations, reorganizations, reclassifications and the like.
(a) The Seller hereby represents and warrants to the Buyer
(i) The Seller has full power and authority to
enter into and fulfill the terms of this Amendment, which is the binding
obligation of the Seller and enforceable in accordance with its terms.
(ii) The Seller will comply in all material
respects with all laws and regulations applicable to the performance of the
(b) The Buyer hereby represents and warrants to the
(i) The Buyer has full power and authority to enter
into and fulfill the terms of this Amendment, which is the binding obligation of
the Buyer and enforceable in accordance with its terms.
(ii) The Buyer will comply in all material respects
with all laws and regulations applicable to the performance of the terms
4. EFFECT OF THE AMENDMENT. All references to the Purchase
Agreement or any related document shall mean the Purchase Agreement as amended
by this Amendment. Except as specifically amended above, the Purchase Agreement
shall remain in full force and effect in the original form agreed
by the Parties, as amended by Amendment No. 2 to Asset Purchase Agreement, dated
March 23, 2001, and is hereby ratified and confirmed.
5. DESCRIPTIVE HEADINGS. The descriptive headings of this
Amendment are inserted for convenience only and do not constitute a part of this
6. GOVERNING LAW. This Amendment shall be governed by and
construed and enforced in accordance with the domestic laws of the State of
California without giving effect to any conflict of law provision.
7. COUNTERPARTS. This Amendment may be executed and delivered in
counterparts, each of which shall constitute an original, and all of which
together shall constitute one Amendment. A facsimile, telecopy or other
reproduction of this Amendment may be executed by either Party, and an executed
copy of this Amendment may be delivered by either Party by facsimile or similar
instantaneous electronic transmission device pursuant to which the signature of
or on behalf of such Party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes.
Counterpart Signature Page
AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
The parties have caused this Amendment No. 3 to Asset Purchase Agreement
to be executed by their duly authorized officers as of the day and year first
By: /s/ Jerry Kennelly
Executive Vice President and
Chief Financial Officer
By: /s/ Kamran Amjadi
Chairman and Chief Executive Officer