EXHIBIT 10.25
AMENDMENT TO ASSET PURCHASE AGREEMENT
AND TERMINATION OF DEPOSIT ESCROW AGREEMENT
This Amendment to Asset Purchase Agreement and Termination of
Deposit Escrow Agreement dated as of November 29, 2000 (this "AGREEMENT") is
made by and among:
(i) InterActive8, Inc., a New York corporation (the "PURCHASER");
(ii) Luminant Worldwide Corporation, a Delaware corporation
("LUMINANT");
(iii) New York Consulting Partners, LLC, a limited liability company
organized under the New York Limited Liability Company Law
(the "SELLER"); and
(iv) Elizabeth Haas-Edersheim (as a Member and in her capacity as the
Members' Representative), the Elizabeth A. H. Edersheim Year 2000
Family Trust, Robert Allen, Gary Badrick, Joan Wilson and Frank
Seldin (each a "MEMBER" and collectively, the "MEMBERS").
WHEREAS, the parties hereto are parties to an Asset Purchase
Agreement dated as of May 31, 2000 (the "ASSET PURCHASE AGREEMENT") and a
Deposit Escrow Agreement dated as of June 22, 2000 (the "ESCROW AGREEMENT").
WHEREAS, in connection with the transactions consummated pursuant to
the Asset Purchase Agreement: (a) the Seller and the Members agreed that they
would not sell, transfer or otherwise dispose of any Shares for a period of
six months following the Closing Date (subject to several exceptions), and
(b) the Seller placed the Escrowed Shares into escrow pursuant to the terms
of the Asset Purchase Agreement and the Escrow Agreement.
WHEREAS, the parties hereto have agreed to, among other things: (a)
amend the Asset Purchase Agreement to delete the restriction in the Asset
Purchase Agreement referenced in clause (a) of the immediately preceding
"Whereas" clause, and (b) to release the Escrowed Shares being held in escrow
pursuant to Section 2.08 of the Asset Purchase Agreement and terminate the
Escrow Agreement relating thereto.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. DEFINITIONS. All capitalized terms used in this
Agreement but not otherwise defined herein or cross-referenced to another
agreement, shall have the meanings set forth in the Asset Purchase Agreement.
Amendment to Asset Purchase Agreement
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Section 2. AMENDMENTS TO ASSET PURCHASE AGREEMENT. Pursuant to
Section 11.06 of the Asset Purchase Agreement, the parties hereto hereby
agree that the Asset Purchase Agreement shall be amended as of the date of
this Agreement as follows:
(a) Section 5.07 of the Asset Purchase Agreement is hereby amended
as follows:
(i) The third sentence of Section 5.07 of the Asset Purchase
Agreement is hereby deleted in its entirety and, in its
place, shall be added the following language:
"In connection with any sale by the Seller or a Member
pursuant to clause (B) of the preceding sentence, the
Seller or such Member shall furnish to Luminant an opinion
of counsel reasonably satisfactory to Luminant to the
effect that such exemption from registration is available
in connection with such sale, except that no opinion shall
be required to be furnished to Luminant in connection with
transfers of Shares (x) by the Seller to any Member, (y)
pursuant to the Collar, or (z) pursuant to Rules 144, 144A
or 145 promulgated under the Securities Act. Notwithstanding
anything herein to the contrary, if a broker or dealer or
Luminant's transfer agent shall require an opinion of
counsel relating to the availability of the safe harbor
under Rule 145 or Rule 144, Seller shall cause its counsel
to furnish such opinion to the broker or dealer and/or
Luminant's transfer agent, as the case may be, or to
counsel for Luminant to be relied upon by such counsel in
rendering such opinion to the broker or dealer and/or
Luminant's transfer agent, as the case may be, and in such
event Luminant shall assist Seller to ascertain or confirm
factual matters relating to Luminant reasonably required
to obtain such an opinion."
(ii) The requirement that any Share certificates bear the
following legends is hereby deleted in its entirety:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE ESCROW AGREEMENT DATED AS OF JUNE 22, 2000
(THE "ESCROW AGREEMENT"), BY AND AMONG THE ISSUER, NEW
YORK CONSULTING PARTNERS, LLC, AMERICAN STOCK TRANSFER &
TRUST COMPANY AS ESCROW AGENT, AND ELIZABETH
HAAS-EDERSHEIM AS MEMBERS' REPRESENTATIVE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CONTRACTUAL RESTRICTIONS ON TRANSFER PURSUANT
TO THAT CERTAIN ASSET PURCHASE AGREEMENT DATED AS OF MAY
31, 2000 (THE "ASSET PURCHASE AGREEMENT"), BY AND AMONG
THE ISSUER AND NEW YORK CONSULTING PARTNERS, LLC AND THE
OTHER SIGNATORIES THERETO. YOU MAY OBTAIN A COPY OF THE
ASSET PURCHASE AGREEMENT BY CONTACTING THE SECRETARY OF
THE ISSUER."
Amendment to Asset Purchase Agreement
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(b) Section 8.06 of the Asset Purchase Agreement is hereby amended
by deleting such section in its entirety. As a result of such deletion, such
Section 8.06 shall no longer have any force or effect whatsoever, and the
Seller and the Members shall be released and irrevocably discharged from any
and all obligations of any kind whatsoever pursuant to such Section 8.06.
Section 3. RELEASE OF ESCROWED SHARES.
(a) The Purchaser, Luminant, the Seller and the Members'
Representative on behalf of all of the Members, shall promptly send to the
Escrow Agent (such term, as used in this Agreement, shall have the meaning
set forth in the Escrow Agreement) joint written instructions executed by
each of them authorizing the Escrow Agent to release from escrow and deliver
to the Seller the Escrowed Funds (together with any stock powers signed by
the Seller with respect to the Escrowed Shares).
(b) Pursuant to Section 6.1(ii) of the Escrow Agreement, the
Purchaser and Luminant, on the one hand, and the Seller and the Members'
Representative on behalf of all Members, on the other hand, hereby terminate
the Escrow Agreement as of the date hereof and, in connection therewith,
except as expressly provided herein, such parties declare and acknowledge
that the terms, provisions, covenants and agreements set forth in the Escrow
Agreement are terminated as of the date hereof and are no longer of any force
or effect, and the Seller and the Members are hereby released and irrevocably
discharged from its and their obligations pursuant to the Escrow Agreement,
except that the rights and obligations under the Escrow Agreement pursuant to
(i) Section 4.2 thereof relating to "COMPENSATION", (ii) Article V relating
to "LIABILITIES AND INDEMNIFICATION OF ESCROW AGENT," and (iii) Section 7.9
relating to "MEMBERS' REPRESENTATIVE," shall survive the termination thereof
in accordance with their respective terms or as necessary to complete the
actions contemplated by this Agreement.
(c) The parties hereto acknowledge and agree that: (i) any and all
rights that the Purchaser and Luminant had, or may have had, in respect of
the Escrowed Shares and the deposit thereof into escrow pursuant to Sections
2.06(h), 2.08 and 7.11 of the Asset Purchase Agreement shall terminate as of
the date hereof and be of no further force or effect whatsoever, and (ii) the
Seller and the Members are hereby released and irrevocably discharged from
its and their obligations relating to the deposit of the Escrowed Shares in
escrow pursuant to Section 2.08 and the use of the Escrowed Shares for the
purposes contemplated by Section 2.06(h), 2.08 and 7.11 of the Asset Purchase
Agreement.
Section 4. REPLACEMENT SHARE CERTIFICATES. Within five (5)
business days following the date that the Seller and the Members, on the one
hand, and the Escrow Agent, on the other hand, shall deliver to Luminant or
its transfer agent the certificates representing the Shares that have been
issued by Luminant pursuant to the Asset Purchase Agreement (including the
Escrowed Shares);, Luminant shall deliver those certificates to its transfer
agent and shall cause its transfer agent to promptly (and, in any event,
within five (5) business days after the date that the transfer agent receives
such certificates and all additional information, including opinions of
counsel, it shall require) issue replacement certificates therefore in form
and substance substantially equivalent to the certificates tendered for
replacement, provided, that, such replacement certificates and the
certificates issued in respect of the Escrowed Shares shall not bear the
legends waived pursuant to Section 2(a) of this Agreement.
Section 5. NO OTHER CHANGES. Except as set forth in this
Agreement, the Asset Purchase Agreement shall not be amended by this
Agreement in any way and shall remain in full force and effect and binding
upon the parties thereto.
Amendment to Asset Purchase Agreement
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Section 6. FURTHER ASSURANCES. The parties hereto covenant and
agree that each of them shall take, or cause to be taken, all such other
actions, and shall execute such other instruments, agreements or documents,
as may be necessary, proper or desirable to more fully effectuate the
provisions of this Agreement.
Section 7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to principles of conflicts or choice of laws, or any other law that
would make the laws of any jurisdiction other than the State of New York
applicable hereto.
Section 8. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
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Amendment to Asset Purchase Agreement
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its respective officer thereunto duly
authorized, all as of the day and year first above written.
INTERACTIVE8, INC.
By: /s/ THOMAS G. BEVIVINO
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Name: Thomas G. Bevivino
Title: Chief Financial Officer
LUMINANT WORLDWIDE CORPORATION
By: /s/ THOMAS G. BEVIVINO
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Name: Thomas G. Bevivino
Title: Chief Financial Officer
NEW YORK CONSULTING PARTNERS, LLC
By:
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Name:
Title:
/s/ Elizabeth Haas-Edersheim
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ELIZABETH HAAS-EDERSHEIM
/s/ Robert Allen
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ROBERT ALLEN
/s/ Gary Badrick
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GARY BADRICK
/s/ Joan Wilson
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JOAN WILSON
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FRANK SELDIN
ELIZABETH A. H. EDERSHEIM YEAR 2000 FAMILY TRUST
By: /s/ Elizabeth Haas-Edersheim
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Name: Elizabeth Haas-Edersheim
Title:
Amendment to Asset Purchase Agreement
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