Exhibit 10.3(f)


 


AMENDMENT NO.
1 TO ASSET PURCHASE AND SALE AGREEMENT, dated as of October 29, 2003 (this “Amendment
No. 1”), among Expanets, Inc. (the “Company”), NorthWestern
Corporation (the “Parent”), NorthWestern Growth Corporation (“NGC”),
NorthWestern Capital Corporation (“NCC,” and collectively with the
Parent and NGC, each a “Shareholder,” and collectively, the “Shareholders”)
and Avaya Inc. (the “Purchaser”).


 


RECITALS


 


A.  The Company, the Shareholders and the
Purchaser are parties to an Asset Purchase and Sale Agreement, dated as of
October 29, 2003 (the “Purchase Agreement”), pursuant to which the
Company agreed, and the Shareholders agreed to cause the Company and its
Subsidiaries to, sell to the Purchaser, and the Purchaser agreed to purchase from
the Company and all of its Subsidiaries, the Purchased Assets.  Capitalized terms used but not defined
herein shall have the meanings given to them in the Purchase Agreement.


 


B.  The Company, the Shareholders and the
Purchaser now desire to further amend the Purchase Agreement on the terms and
subject to the conditions set forth in this Amendment No. 1.


 


C.  The Company, the Shareholders and the
Purchaser are permitted to amend the Purchase Agreement pursuant to the terms
of Section 12.03 thereof.


 


AGREEMENT


 


In
consideration of the mutual covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto do
hereby agree as follows:


 


1.  Amendments to Purchase Agreement.


 


(a)  Article I.  The parties hereto hereby agree that the definition of “Cash
Amount” set forth in Article I of the Purchase Agreement is amended and
restated in its entirety to read as follows:


 


““Cash Amount” means an amount equal to $152,000,000.00, minus
the aggregate dollar amount of the Additional Assumed Liabilities, if any.”


 


The parties
hereto hereby agree that the definition of “Cash Proceeds” set forth in
Article I of the Purchase Agreement is amended and restated in its
entirety to read as follows:


 


““Cash Proceeds” means an aggregate amount equal to the sum of
(a) the Cash Purchase Price, plus (b) [Intentionally Omitted], plus (c) the
aggregate amount of Non-Compete Payments made by the Purchaser to the Company
pursuant to Section 9.03(e) of this Agreement (including for this purpose any
Non-Compete Payments that would have been paid by the Purchaser to the Company
under Section 9.03 (e) of this Agreement but are set-off against by the
Purchaser pursuant to Section 11.06 of this Agreement).”


 

















 


The parties
hereto hereby agree that the definition of “Fundamental Representations” set
forth in Article I of the Purchase Agreement, and all references thereto
in any Sale Document, are deleted in their entirety.


 


The parties
hereto hereby agree that the definition of “Fundamental Representation
Indemnification” set forth in Article I of the Purchase Agreement, and all
references thereto in any Sale Document, are deleted in their entirety.


 


The parties
hereto hereby agree that the definition of “Purchase Price” set forth in
Article I of the Purchase Agreement is amended and restated in its
entirety to read as follows:


 


““Purchase Price” means the sum of (a) the Cash Purchase Price,
plus (b) [Intentionally Omitted], plus (c) the sum of all of the Non-Compete
Payments.”


 


The parties
hereto hereby agree that the definition of “Purchaser Note” set forth in
Article I of the Purchase Agreement, and all references thereto in any
Sale Document, including, but not limited to, in the list of Exhibits to the
Purchase Agreement, are deleted in their entirety.


 


The parties
hereto hereby agree that the definition of “Sale Documents” set forth in
Article I of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


““Sale Documents” means this Agreement, the Transitional Services Agreement, each other document, agreement and
instrument to be executed and delivered by any of the Shareholders, the
Company, any of the Company’s Subsidiaries or the Purchaser pursuant to Article
IV of this Agreement, and all other documents and instruments by which
the Purchased Assets are transferred by the Shareholders, the Company or any of
the Company’s Subsidiaries to the Purchaser and the Confidentiality Agreement and the Escrow Agreement.”


 


The parties
hereto hereby agree that the definition of “Target Date” set forth in Article I
of the Purchase Agreement is amended and restated in its entirety to read as
follows:


 


““Target Date” means the earlier of November 28, 2003 and the day that
is five Business Days after the date that the Purchaser receives early
termination of the applicable waiting period under the HSR Act.”


 


The parties
hereto hereby agree that the definition of “Threshold Amount” set forth in
Article I of the Purchase Agreement, and all references thereto in any
Sale Document, are deleted in their entirety.


 


(b)  Section 2.04(a).  The parties hereto hereby agree that clause
(ix) of the definition of “Excluded Liabilities” contained in Section 2.04(a)
of the Purchase Agreement is amended and restated in its entirety to read as
follows:


 


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“(ix)  any Liability (A) of the
Company or any of its Subsidiaries which was incurred in violation of any
covenant, agreement or condition contained in the Sale Documents, or (B) for
breach or violation of any Law on or prior to the Effective Time”


 


(c)  Section 3.01.  The parties hereto hereby agree that Section
3.01 of the Purchase Agreement is amended and restated in its entirety to read
as follows:


 


“Section
3.01.  Consideration.  Upon the terms and subject to the conditions
set forth in this Agreement, at the Closing, as payment in full of the Purchase
Price for the purchase of the Purchased Assets, which Purchase Price shall be
subject to adjustment after the Closing Date as provided in this Article III,
the Purchaser will:


 


(a)  pay, or cause to be paid,
to the Company, by wire transfer of immediately available funds, an amount in
cash equal to the unpaid portion of the Initial Cash Payment Amount;


 


(b)  [Intentionally Omitted]


 


(c)  pay, or cause to be paid,
to the Escrow Agent, by wire transfer of immediately available funds, an amount
in cash equal to the Escrow Amount; and


 


(d)  assume the Assumed
Liabilities.


 


The parties acknowledge that on
or prior to the date hereof, the Purchaser has paid to the Company a portion of
the Initial Cash Payment Amount in the amount of $4,000,000.


 


(d)  Section 4.02(d).  The parties hereto hereby agree that Section
4.02(d) of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


“(d)  Consideration.  The Company shall have received the Initial
Cash Payment Amount by wire transfer of immediately available funds  in accordance with the provisions of
Section 3.01 hereof.  The Purchaser shall have delivered the Escrow
Amount to the Escrow Agent by wire transfer of immediately available funds in
accordance with the provisions of Section 3.01 hereof.”


 


(e)  Section 4.03(a)(i).  The parties hereto hereby agree that Section
4.03(a)(i) of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


“(i)  All of the representations and warranties of
the Company and the Shareholders set forth in the Sale Documents shall be true
and correct in all respects, except for such failure to be true and correct
which would, individually or in the aggregate, not have a Material Adverse
Effect, in each case, on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date.”


 


(f)  Section 4.03(b).  The parties hereto hereby agree that Section
4.03(b) of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


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“(b)  Company Required
Consents.  The Purchaser shall have
received copies of all of the (i) Company Required Consents and (ii) the
Required Permits, except for such Company Required Consents and Required
Permits the failure of which to obtain, individually or in the aggregate, would
not have a Material Adverse Effect, and all such Company Required Consents and
Required Permits shall be in form and substance reasonably satisfactory to the
Purchaser and shall be in full force and effect as of the Closing Date.  All of the Required Leases shall have been
assigned to the Purchaser.  In addition, the applicable waiting period
required under the HSR Act and all similar Laws with respect to the
Transactions shall have expired or have been terminated early; provided,
however, that if the applicable waiting period necessary to comply with
the HSR Act and all similar Laws with respect to the Transactions exceeds 30
days from the date of this Agreement, the Company shall have the right to
terminate this Agreement.”


 


(g)  Section 4.03(i).  The parties hereto hereby agree that Section
4.03(i) of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


“(i) 
[Intentionally Omitted]”


 


(h)  Section 4.03(m).  The parties hereto hereby agree that Section
4.03(m) of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


“(m)  Material
Adverse Effect.  Since September 30,
2003, no fact, circumstance, event or change shall have occurred, or be
reasonably likely to occur, which has had, or could reasonably be expected to
have, a Material Adverse Effect.”


 


(i)  Section 8.06(a).  The parties hereto hereby agree that Section
8.06(a) of the Purchase Agreement is amended and restated in its entirety to
read as follows:


 


“(a)  Agreement.  The Shareholders, the Company and the
Purchaser accept the form, terms and provisions of the Assumption Agreement,
the Escrow Agreement, the Transitional Services Agreement, the Bills of Sale,
the Assignment and Assumption Agreement, the Intellectual Property Assignment
Agreement, the legal opinions and the Deeds as previously agreed.”


 


(j)  Section 9.03(e)(ii).  The parties hereto hereby agree that Section
9.03(e)(ii) of the Purchase Agreement is amended and restated in its entirety
to read as follows:


 


“(ii) 
If for any reason, the Purchaser is required to set-off, refund,
reimburse or disgorge to Avaya any payment for which the Purchaser has made a
Non-Compete Payment, the Shareholders and the Company shall immediately refund
to the Purchaser the Non-Compete Payment made in respect of such set-off,
refunded, reimbursed or disgorged payment. 
Alternatively, the Purchaser shall have the right to set off such
Non-Compete Payment against any other Non-Compete Payment that may be due
hereunder, or against any other payment that may be due under any of the Sale
Documents.”


 


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(k)  Section 10.03(c). The parties hereby
agree that Section 10.03(c) of the Purchase Agreement is amended and restated
in its entirety to read as follows:


 


“(c)  [Intentionally Omitted]”


 


(l)  Section 11.01(a). The parties hereby
agree that Section 11.01(a) of the Purchase Agreement is amended and restated
in its entirety to read as follows:


 


“(a)  Indemnification by the
Shareholders and the Company.  Each
of the Shareholders and the Company, jointly and severally, will indemnify and
defend the Purchaser Indemnified Persons against and hold each Purchaser
Indemnified Person harmless from any and all Losses that the Purchaser
Indemnified Persons may incur,  suffer, sustain or become subject to
arising out of, relating to, based upon, in connection with or due to:


 


(i)  [Intentionally Omitted]


 


(ii)  the nonfulfillment or
breach of any covenant, undertaking, agreement or other obligation (other than
the covenants and agreements set forth in Section 10.03(b) which are covered
separately in clause (iv) below) of the Shareholders or the Company contained
in any Sale Document or in any
certificate delivered thereunder;


 


(iii) 
(A) [Intentionally Omitted], (B) any of the information, facts, events,
circumstances, issues or other matters set forth on Schedule 5.20 of
this Agreement, whether
or not referred to as presenting an actual, alleged or contingent liability or
violation of Environmental Law, or (C) any Recognized Environmental Condition
identified in any Environmental Site Assessment conducted by the Purchaser;


 


(iv) 
(A) [Intentionally Omitted], (B) any nonfulfillment of any covenant,
undertaking, agreement or other obligation of the Shareholders or the
Company contained in Section 10.03(b), or (C) any Taxes related to (I) the operation of the Business by the Company and
its Subsidiaries prior to the Closing, (II) the ownership by the Company and
its Subsidiaries of the Assets prior to the Closing, or (III) any distributions,
dividends or other payments from the Company or any of its Subsidiaries to any
Shareholder, or (IV) the transfer of the Purchased Assets to the Purchaser;


 


(v) 
the Excluded Assets;


 


(vi) 
the Excluded Liabilities, except for the Liabilities referred to in
Section 2.04(a)(ix) which are covered by clause (ii) above, including, without
limitation, the Company’s or any Shareholder’s failure to pay or discharge the
Excluded Liabilities as and when they become due, and including any claim,
Action, allegation or threat by any third party that, if upheld or granted,
would


 


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result in any Purchaser Indemnified Person
having any Liability in respect of any Excluded Liability; and


 


(vii)  the Transfer or Transfers
by the Company or any of its Subsidiaries prior to the Effective Time, of any
businesses, operations, assets or properties, including, without limitation,
Liabilities related to representations, warranties, covenants, agreements and
indemnities given by the Shareholders, the Company or any of their Subsidiaries
in connection with any such Transfer, or any broker’s, finder’s or similar fees
payable in connection with any such Transfers.”


 


(m)  Section 11.01(b)(i). The parties
hereby agree that Section 11.01(b)(i) of the Purchase Agreement is amended and
restated in its entirety to read as follows:


 


“(i)  [Intentionally Omitted]”


 


(n)  Section 11.03. The parties hereby
agree that Section 11.03 of the Purchase Agreement is amended and restated in
its entirety to read as follows:


 


“Section
11.03.  Survival of Indemnification.  Notwithstanding anything contained herein to
the contrary, the representations and warranties of the Shareholders, the
Company, the Purchaser or any of their respective Subsidiaries contained in the
Sale Documents or in any document delivered pursuant thereto shall not survive
the Closing.  The covenants and
agreements of the parties contained in the Sale Documents or in any document delivered pursuant thereto
and the rights to indemnification under this Agreement with respect thereto
will survive the Closing Date and any
investigation at any time made by or on behalf of the Purchaser or any other
party; provided, however, that the indemnification under Section
11.01(a) and (b) shall expire on the date which is 18 months after the Closing
Date, unless prior to such date, an Indemnification Notice has been
given; provided; however, that:


 


(a)  Fundamental Indemnification.  The (i) [Intentionally Omitted] and (ii) the
rights to indemnification under Section 11.01(a)(ii), (v), (vi) and (vii), will
survive the Closing for a period ending on the fifth anniversary of the Closing
Date, and will be effective with respect to any claim made thereunder, notice
of which has been given within such period; and


 


(b)  Tax Indemnification.  The covenants and agreements set forth in
Section 10.03(b) and the Tax Indemnification will survive the Closing for a
period ending six months after the termination of the statute of limitations
(or any extension thereof) on any Law applicable to the matters covered
therein, and will be effective with respect to claims made thereunder, notice
of which has been given within such period.”


 


(o)  Section 11.04(a). The parties hereby
agree that the heading of Section 11.04 of the Purchase Agreement is amended
and restated in its entirety to read as follows:


 


“Section
11.04.  Limitation on Liability;
Release of Company.”


 


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The parties
hereby agree that Section 11.04(a) of the Purchase Agreement is amended and
restated in its entirety to read as follows:


 


“(a)  [Intentionally Omitted]”


 


(p)  Section 11.06. The parties hereby
agree that Section 11.06 of the Purchase Agreement is amended and restated in
its entirety to read as follows:


 


“Section 11.06.  Set-Off.  Each of the parties hereto expressly
acknowledges and agrees that in the event that a Purchaser Indemnified Person
is entitled to indemnification under Section 11.01(a), the Purchaser will be
entitled to set-off the amount of such Losses incurred by such Purchaser
Indemnified Person against and retain such amount from any obligations or
payments due to any Shareholder or the Company under any Sale Document.”


 


(q)  Section 11.07(c). The parties hereby
agree that Section 11.07(c) of the Purchase Agreement is amended and restated
in its entirety to read as follows:


 


“(c)  Escrow Amount.  (i) 
The term “Escrow Amount” means an amount in cash equal to the sum
of (A) $976,000.00 (the “General Escrow Amount”), plus (B) the Specified
Liability Escrow Amount (as defined below).”


 


(r)  Table of Contents.  The parties hereto hereby agree that words
“Exhibits,” “Exhibit 3.01” and “Form of Purchaser Note” are hereby deleted
from the Table of Contents of the Purchase Agreement.


 


2.  Ratification and Confirmation of the
Purchase Agreement; No Other Changes. 
Except as modified by this Amendment No. 1, the Purchase Agreement is
hereby ratified and confirmed in all respects. 
Nothing herein shall be held to alter, vary or otherwise affect the
terms, conditions and provisions of the Purchase Agreement, other than as
contemplated herein.


 


3.  Effectiveness.  Notwithstanding the date on which the
parties actually execute and deliver this Amendment No. 1, the parties hereto
agree that this Amendment No. 1 shall be effective as of immediately prior to
the close of business on October 29, 2003.


 


4.  Governing Law.  This Amendment No. 1 shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed entirely within that state,
without reference to conflicts of laws provisions.


 


5.  Counterparts.  This Amendment No. 1 may be executed
simultaneously in one or more counterparts, and by different parties hereto in
separate counterparts, each of which when executed will be deemed an original,
but all of which taken together will constitute one and the same instrument.


 


6.  Severability.  If any term or other provision of this
Amendment No. 1 is invalid, illegal or incapable of being enforced by any rule
of Law, or public policy, all other conditions and provisions of this Amendment
No. 1 will nevertheless remain in full force and effect.  Upon


 


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such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto will negotiate in good faith to modify this Amendment No. 1 so
as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.


 


7.  Notices.  All notices, requests, demands and other communications to any
party given under this Amendment No. 1 shall be in writing and delivered
personally by telecopier (with confirmation received) to the parties at the
telecopy number specified for such parties in the Agreement (or at such other
telecopy number as may be specified by a party in writing given at least five
Business Days prior thereto).  All
notices, requests, demands and other communications will be deemed delivered
when actually received.


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Amendment No. 1 as of the date
first written above.


 


	
   

  	
  EXPANETS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  GROWTH CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  AVAYA INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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