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THIRD AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Third
Amendment") is made and entered into as of April 17, 2000, by and
between Infotainment Telepictures, Inc., a Nevada corporation ("Seller"), and
DigitalConvergence.:Com Inc., a Delaware corporation ("Buyer").
RECITALS:
A. Buyer and Seller are parties to that certain Asset Purchase Agreement
dated as of January 4, 1999, as amended (the "Purchase Agreement"),
pursuant to which Buyer purchased from Seller substantially all of
Seller's assets. Each capitalized term used herein, and not otherwise
defined herein, shall have the meaning set forth in the Purchase
Agreement.
B. Buyer and Seller have been named as defendants in a complaint styled
as Nissi Cosmetics, Inc. v. Infotainment Telepictures, L.L.C.,
etal, Case No. DV99-7425, filed in the District Court of Dallas
County, Texas (together with any other actions, suits, claims or
litigation arising out of the same transaction, occurrence or
subject matter as the above-described complaint, (the "Nissi Suit").
C. Seller acknowledges and agrees that any Losses asserted against,
resulting to, imposed upon or incurred or suffered by Buyer as a
result of or arising from the Nissi Suit are Losses for which Buyer
is entitled to indemnification under Section 4.1 of the Purchase
Agreement, and Buyer and Seller desire to amend Section 4.1 of the
Purchase Agreement to specifically address Seller's indemnification
obligations with respect to the Nissi Suit.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and covenants set forth herein, together with other good and
valuable consideration, the parties hereto covenant and agree as follows:
1. AMENDMENT. Section 4.1 of the Purchase Agreement is hereby
amended and restated to read in its entirety as follows:
(a) INDEMNIFICATION. Seller covenants and agrees to
indemnify and hold Buyer harmless from and against any and
all losses, liabilities, damages, demands, claims, suits,
actions, judgments or causes of action, assessments, costs
and expenses, including, without limitation, interest,
penalties, attorneys' fees, any and all expenses incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, in writing or any other claim, and
any and all amounts paid in
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settlement of any claim asserted in writing or litigation
(each a "Loss") asserted against, resulting to, imposed
upon, or incurred or suffered by Buyer, directly or indirectly,
as a result of or arising from (i) the operation of Seller
or Business prior to the Closing Date, other than as
otherwise contemplated herein, and (ii) the Nissi Suit.
To the extent Buyer suffers any Loss under this Section
4.1, or has identified a loss but has not quantified the
dollar value thereof, Buyer may withhold and off-set any
payments due to Seller under this Agreement or the
Promissory Note to compensate (to the extent of any such
payment due) Seller for any such Loss.
2. PURCHASE AGREEMENT OTHERWISE UNCHANGED. Except as herein
specifically amended or supplemented hereby, the Purchase Agreement shall
continue in full force and effect in accordance with its terms.
3. DUPLICATE ORIGINALS. All parties may sign any number of copies of
this Third Amendment. Each signed copy shall be an original, but all them
together shall represent the same agreement.
4. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
[SIGNATURE PAGE FOLLOWS]
2
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IN WITNESS WHEREOF, the parties have caused this Third Amendment to
be duly executed, all as of the date first written above.
SELLER:
INFOTAINMENT TELEPICTURES, INC.
By: /s/ J. Jovan Philyaw
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Name:
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Title: President
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BUYER:
DIGITALCONVERGENCE.:COM INC.
By: /s/ Patrick V. Stark
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Name:
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Title: Executive Vice President
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