AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement (the "Amendment"), dated as
of April 6, 2000, is entered into by and among Amherst Computer Products
Southwest, LP, a Texas limited partnership ("Amherst Southwest"), Amherst
Technologies, L.L.C., a Nevada limited liability company ("AmTech"), and Allstar
Systems, Inc., a Delaware corporation ("Allstar").
BACKGROUND:
A. Amherst Southwest, AmTech and Allstar have heretofore entered into
that certain Asset Purchase Agreement, dated as of March 16, 2000 (the "Asset
Purchase Agreement"). All capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Asset Purchase Agreement.
B. The parties desire to make certain amendments to the Asset Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, Amherst Southwest, AmTech and Allstar agree as follows.
AGREEMENTS
1. Status of the Asset Purchase Agreement. Except as specifically set
forth herein, the Asset Purchase Agreement shall remain in full force and effect
and shall not be waived, modified, superseded or otherwise affected by this
Amendment. This Amendment is not to be construed as a release, waiver or
modification of the terms, conditions, representations, warranties, covenants,
rights or remedies set forth in the Asset Purchase Agreement, except as
specifically set forth herein.
2. Amendments to the Asset Purchase Agreement.
(i) The following provision shall be added as Section 2.14 of the
agreement:
"2.14 Pre-Closing Escrow; Expense Reimbursement.
(a) On or before April 10, 2000, Amherst Southwest
shall wire transfer $500,000 into an escrow account with the
Escrow Agent to be established by the parties, such funds
(together with interest or income earned thereon) to be
applied against the Purchase Price upon Closing; provided
however, if the Closing of the transactions contemplated by
the Asset Purchase Agreement does not occur by June 30, 2000,
then the parties shall cause the $500,000 escrow amount
(together with interest or income earned thereon) to be paid
on or before July 5, 2000, as follows:
(1) If the Closing does not occur
solely because of the breach by Allstar of its
representations or obligations in, or a failure of
the conditions under, the following sections of the
Agreement, the funds in
escrow shall be paid to Amherst Southwest: Sections
4.1, 4.2, 4.4, 4.8, 6.3, 7.1(f), 7.1(k), 7.1(l),
7.1(m), and 9.1(a).
(2) If the Closing does not occur
solely because of the failure of the condition of
Section 7.1(d) of the Agreement, the funds in escrow
shall be split evenly between and paid to Amherst
Southwest and Allstar.
(3) If the Closing does not occur
for any reason other than one which expressly
entitles Amherst Southwest to receive all or a
portion of the escrow funds under paragraphs 1 or 2
above, the escrow funds shall be paid to Allstar. The
form of Escrow Agreement shall be in substantially
the form of Exhibit A and attached to the Asset
Purchase Agreement as Exhibit G.
(b) On or before April 10, 2000, Amherst Southwest
agrees to pay to Allstar by wire transfer the sum of $250,000
in addition to the Purchase Price as a non-accountable expense
reimbursement."
(ii) Section 9.2 of the Agreement is hereby deleted
in its entirety and replaced with the following:
"9.2 Termination Fee. In the event that this
Agreement is terminated by Amherst Southwest pursuant
to Section 9.1(b)(3) or by Allstar pursuant to
Section 9.1(c)(3), Allstar shall within 2 Business
Days after such termination pay or cause to be paid
to Amherst Southwest, as compensation for lost
opportunities and reimbursement of out-of-pocket
expenses: (i) Five Hundred Thousand Dollars
($500,000), (ii) the amount of the escrow funds
(together with interest or income earned thereon)
under that certain Escrow Agreement dated as of April
6, 2000 among Allstar, Amherst Southwest and the
Escrow Agent thereunder, (iii) the amount of $250,000
previously paid by Amherst Southwest to Allstar
pursuant to Section 2.14(b), as a non-accountable
expense reimbursement, and Allstar shall assume and
Amherst Southwest shall assign to Allstar all rights
and obligations of Amherst Southwest under (1) the
Lease between Amherst Southwest and Weingarten Realty
Advisors for the premises located at 11727 W. Sam
Houston Parkway South, Suite D, Houston, Texas 77031,
and (2) Section 3 of the Voting Agreement, as
amended. AmTech and Amherst Southwest agree that upon
such payments to Amherst Southwest and the assumption
of such obligations by Allstar, Allstar shall have no
further liability to either of them arising under
this Agreement."
3. Effectiveness of this Amendment. The effectiveness of this Amendment
is contingent upon the execution of Amendment No. 1 to the Voting and Support
Agreement dated as of April 6, 2000 by and among Amherst Southwest and James H.
Long (the "Voting Agreement Amendment").
4. Representations and Warranties of Entities. Each of Amherst Southwest,
AmTech and Allstar represents and warrants that its execution, delivery and
performance of this Amendment has been duly authorized by all necessary
corporate and partnership action and that this Amendment is a legal, valid and
binding obligation of the parties in accordance with its terms. Allstar further
represents and warrants that its board of directors has approved the Voting and
Support Agreement dated as of March 16, 2000 between Amherst Southwest, and
James H. Long, and the Voting Agreement Amendment, in a manner sufficient to
make the restrictions contained in Section 203 of the Delaware General
Corporation Law inapplicable to the transactions contemplated by the Asset
Purchase Agreement, as amended.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
AMHERST COMPUTER PRODUCTS SOUTHWEST, LP
By: /s/ Gerald Birin
Title: CFO
ALLSTAR SYSTEMS, INC.
By: /s/ James H. Long
Title: James H. Long,
Chief Executive Officer
AMHERST TECHNOLOGIES, L.L.C.
By: /s/ Gerald Birin
Title: CFO