{"id":43278,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/asset-purchase-agreement-amendment-no-3-e-centives-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"asset-purchase-agreement-amendment-no-3-e-centives-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/asset-purchase-agreement-amendment-no-3-e-centives-inc-and.html","title":{"rendered":"Asset Purchase Agreement (Amendment No. 3) &#8211; e-centives Inc. and Inktomi Corp."},"content":{"rendered":"<pre>\n                   AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT\n\n\n               This AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT (this\n\"AMENDMENT\") is made and entered into as of this 28th day of March, 2001, by and\namong e-centives, Inc., a Delaware corporation (the \"BUYER\") and Inktomi\nCorporation, a Delaware corporation (the \"SELLER\").\n\n                                   WITNESSETH:\n\n               A. Pursuant to that certain Asset Purchase Agreement dated\nJanuary 18, 2001 between the Buyer and the Seller (the \"PURCHASE AGREEMENT\"),\nthe Seller is selling to the Buyer and the Buyer is purchasing from the Seller\ncertain assets, and the Buyer is assuming from the Seller certain liabilities\nrelating to the Commerce Product Business unit of the Seller.\n\n               B. Pursuant to the Purchase Agreement, the Seller is required to\ndeliver the consent to assignment of the Key Contracts (as defined in the\nPurchase Agreement) and certain other agreements. The Seller has been unable to\nsecure the assignment of the following four (4) Key Contracts: (i) the Inktomi\nDestination Site Agreement between the Seller and CTC Bulldog, Inc. (nka \"iWon\")\ndated June 18, 1999, as amended by Amendment One, dated as of April 21, 2000 and\nby Amendment Two dated as of November 6, 2000 (the \"iWon Agreement\"), (ii) the\nInktomi Destination Site Agreement between the Seller and First USA Bank dated\nJune 18, 1999 (the \"FirstUSA Agreement\"), (iii) the Inktomi Destination Site\nAgreement between the Seller and MBNA America Bank, N.A. dated October 13, 2000\n(the \"MBNA Agreement\"), and (iv) the Inktomi Destination Site Agreement between\nthe Seller and MobilCom CityLINE GmbH (nka freenet.de AG) dated June 9, 2000\n(the \"Freenet Agreement\", and together with the FirstUSA Agreement and the MBNA\nAgreement, the \"Special Agreements\").\n\n               C. The Seller and the Buyer now wish to amend the Purchase\nAgreement with respect to such Key Contracts.\n\n\n                                    Agreement\n\n               NOW, THEREFORE, the parties agree as follows:\n\n                  1.  DEFINITIONS.  Capitalized terms used but not defined\n    herein shall have the same meanings attributed thereto in the Purchase\n    Agreement.\n\n                  2.  BASE PRICE RE-ADJUSTMENTS.\n\n                      (a) iWon Agreement. The Seller has notified the Buyer that\nconsent to assignment of the iWon Agreement cannot be obtained. Accordingly,\npursuant to Annex B of the Purchase Agreement, on the Closing Date, the Base\nPrice to be paid by the Buyer to the Seller shall be reduced by two (2)\npercentage points, or 442,450 Buyer Shares.\n\n                      (b) Special Agreements.\n\n                                       56\n   2\n\n                             (i) The Seller has notified the Buyer that the\nSeller has been unable to obtain the consent to assignment for the Special\nAgreements. The Base Price shall be reduced by, and the Buyer shall hold back\nfrom delivery to the Seller on the Closing Date, one (1) percentage point of the\nBase Price, or 221,225 Buyer Shares, for each of the first two (2) Special\nAgreements that are not assigned to the Buyer at the Closing. The Base Price\nshall be reduced by an additional one and one half (1.5) percentage points, or\n331,838 Buyer Shares, for the third Special Agreement that is not assigned to\nthe Buyer at the Closing. If within thirty (30) days after the Closing Date (the\n\"EXTENSION PERIOD\") the Seller obtains and delivers to the Buyer the required\nconsent to the assignment of any of the Special Agreements, then the Base Price\nshall be increased for each such Special Agreement for which consent to\nassignment has been so obtained (the \"RECAPTURED SHARES\") in the following\nmanner: one and one half (1.5) percentage points, or 331,838 Buyer Shares, for\nthe first such consent to assignment delivered by the Seller to the Buyer, and\none (1) percentage point, or 221,225 Buyer Shares, for each of the remaining two\n(2) Special Agreements for which consent to assignment has been delivered by the\nSeller to the Buyer. In any such case, the Buyer shall take all actions\nnecessary to issue and deliver the Recaptured Shares promptly after the delivery\nof the relevant consent, subject to all the terms and conditions of the Purchase\nAgreement and the Ancillary Agreements, in the same manner as if such shares had\nbeen originally issued as part of the Purchase Price on the Closing Date.\n\n                             (ii) The Buyer agrees that it shall continue to\nperform and satisfy the obligations under, and in accordance with the terms of,\neach of the Special Agreements during the term of the Extension Period (so long\nas each such agreement is not terminated). The rights and obligations of the\nparties with respect to each of the Special Agreements shall be governed by\nSection 6(g) of the Purchase Agreement.\n\n                      (c) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. The\nforegoing Base Price re-adjustments contemplated by this Section 2 shall be\nproportionately adjusted for stock splits, stock dividends, stock combinations,\nrecapitalizations, reorganizations, reclassifications and the like.\n\n               3. WARRANTIES.\n\n                      (a) The Seller hereby represents and warrants to the Buyer\nthat:\n\n                             (i) The Seller has full power and authority to\nenter into and fulfill the terms of this Amendment, which is the binding\nobligation of the Seller and enforceable in accordance with its terms.\n\n                             (ii) The Seller will comply in all material\nrespects with all laws and regulations applicable to the performance of the\nterms hereunder.\n\n                      (b) The Buyer hereby represents and warrants to the\nSeller that:\n\n                             (i) The Buyer has full power and authority to enter\ninto and fulfill the terms of this Amendment, which is the binding obligation of\nthe Buyer and enforceable in accordance with its terms.\n\n                             (ii) The Buyer will comply in all material respects\nwith all laws and regulations applicable to the performance of the terms\nhereunder.\n\n               4. EFFECT OF THE AMENDMENT. All references to the Purchase\nAgreement or any related document shall mean the Purchase Agreement as amended\nby this Amendment. Except as specifically amended above, the Purchase Agreement\nshall remain in full force and effect in the original form agreed\n\n                                       57\n   3\n\nby the Parties, as amended by Amendment No. 2 to Asset Purchase Agreement, dated\nMarch 23, 2001, and is hereby ratified and confirmed.\n\n               5. DESCRIPTIVE HEADINGS. The descriptive headings of this\nAmendment are inserted for convenience only and do not constitute a part of this\nAmendment.\n\n               6. GOVERNING LAW. This Amendment shall be governed by and\nconstrued and enforced in accordance with the domestic laws of the State of\nCalifornia without giving effect to any conflict of law provision.\n\n               7. COUNTERPARTS. This Amendment may be executed and delivered in\ncounterparts, each of which shall constitute an original, and all of which\ntogether shall constitute one Amendment. A facsimile, telecopy or other\nreproduction of this Amendment may be executed by either Party, and an executed\ncopy of this Amendment may be delivered by either Party by facsimile or similar\ninstantaneous electronic transmission device pursuant to which the signature of\nor on behalf of such Party can be seen, and such execution and delivery shall be\nconsidered valid, binding and effective for all purposes.\n\n                                       58\n   4\n\n                           Counterpart Signature Page\n                   AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT\n\n\n        The parties have caused this Amendment No. 3 to Asset Purchase Agreement\nto be executed by their duly authorized officers as of the day and year first\nwritten above.\n\n\n\n\n                                        INKTOMI CORPORATION\n\n\n                                        By:  \/s\/ Jerry Kennelly\n                                           -------------------------------------\n                                        Jerry Kennelly\n                                        Executive Vice President and\n                                        Chief Financial Officer\n\n\n\n\n                                        E-CENTIVES, INC.\n\n\n                                        By:  \/s\/ Kamran Amjadi\n                                           -------------------------------------\n                                        Kamran Amjadi\n                                        Chairman and Chief Executive Officer\n\n                                       59\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7859],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9623,9622],"class_list":["post-43278","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-inktomi-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43278","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43278"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43278"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43278"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43278"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}