Unassociated Document


    EXHIBIT
      10.1

     

    AMENDMENT
      TO asset
      purchase
      AGREEMENT

     

    This
      Amendment to Asset Purchase Agreement
      (this
“Amendment”) dated as of April 4, 2007, by and among Smith Micro
      Software, Inc., a Delaware corporation (“Purchaser”), IS Acquisition Sub, Inc.,
      a Delaware corporation and a wholly-owned subsidiary of Purchaser (“Acquisition
      Sub” and together with Purchaser the “Purchasing Parties”), Insignia Solutions
      plc, a company incorporated under the laws of England and Wales (company no.
      1961960) (“Seller”) and the subsidiaries of Seller as set forth on the signature
      page hereto (such subsidiaries and Seller collective referred to herein as
      the
“Selling Parties”), is entered into by and among the undersigned with reference
      to the following facts:

     

    WHEREAS,
      the
      Purchasing Parties and the Selling Parties are parties to that certain Asset
      Purchase Agreement dated as of February 11, 2007 (the “Agreement”);

     

    WHEREAS,
      pursuant to Section 13.4 of the Agreement the parties desire to enter into
      this
      Amendment in order to amend the Agreement as set forth herein.

     

    NOW,
      THEREFORE,
      the
      parties agree as follows.

     

    1.  Amendment
      of Section 1.3 of the Agreement.
      Section 1.3 of the Agreement is hereby amended and restated in its entirety
      as follows:

     

    “1.3 Assumed
      Liabilities.
      Subject
      to the terms and conditions of this Agreement, at the Closing, the Selling
      Parties shall assign, and the Purchasing Parties shall assume only the Assumed
      Liabilities. Thereafter, the Purchasing Parties shall pay and discharge all
      such
      Assumed Liabilities as and when such Assumed Liabilities become due and owing.
      For the purposes of this Agreement, the “Assumed
      Liabilities”
shall
      mean (i) the value of accrued vacation time that is credited to Employees who
      are hired by any of the Purchasing Parties at Closing and that is not paid
      by
      the Selling Parties, (ii) any other accrued employee liabilities agreed upon
      in
      writing by the Purchasing Parties, and (iii) obligations arising from and after
      the Closing pursuant to the Seller Contracts (for purposes of this Agreement,
      (i) and (ii) are collectively referred to herein as the “Employee
      Liabilities”).
      Notwithstanding the foregoing, the Purchasing Parties shall not, without the
      prior written consent of Purchaser, assume liability or payment obligations
      for
      any Taxes (other than employment-related Taxes, but excluding any interest,
      fines, penalties or additions thereon) or all or any portion of the Liability
      described in Section 1.4(p). If the Selling Parties shall be required to pay
      any
      amounts included in Assumed Liabilities, then the Purchasing Parties shall
      reimburse the Selling Parties thereofor, subject to potential offset for any
      amounts owing to the Purchasing Parties by the Selling Parties.”

     

    2.  Amendment
      of Section 2.1 of the Agreement.
      Section
      2.1 of the Agreement is hereby amended and restated in its entirety as
      follows:

     

    “2.1 Purchase
      Price
      As full
      consideration for the sale, assignment, transfer and delivery of the Purchased
      Assets by the Selling Parties to the Purchasing Parties, Purchaser shall deliver
      to Seller, acting on its own behalf and on behalf of the Selling Parties,
      aggregate consideration of Sixteen Million Dollars (US$16,000,000) plus the
      Post
      -Closing Payment (collectively the “Purchase
      Price”),
      payable in the following manner:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (a) Purchaser
      shall deliver to Seller for the account of the Selling Parties by wire transfer
      of immediately available funds, funds equal to Twelve Million Five Hundred
      Thousand Dollars (US$12,500,000);

     

    (b) Purchaser
      shall discharge and forgive the liabilities of Seller or its Subsidiaries to
      Purchaser pursuant to the Promissory Note initially delivered to Seller on
      December 22, 2006; 

     

    (c) One
      Million Five Hundred Thousand Dollars ($1,500,000) (the “Holdback
      Amount”)
      shall
      be payable by Purchaser subject to and in accordance with Section
      2.2;

     

    (d) Purchaser
      shall deliver to Seller for the account of the Selling Parties by wire transfer
      of immediately available funds, funds equal to the product of (a) Two Million
      Five Hundred Seventy-Five Thousand Dollars (US$2,575,000), minus (b) the dollar
      amount of the Employee Liabilities, within three (3) business days of the
      Employee Liabilities being defined (but in no event later than ten (10) business
      days after the Closing). The payment set forth in this Section 2.1(d) shall
      be
      referred to herein as the “Post-Closing
      Payment.”
      Notwithstanding the foregoing, Purchaser shall be entitled to withhold Five
      Hundred Thousand Dollars (US$500,000) of the Post-Closing Payment until the
      Selling Parties deliver to Purchaser Seller’s audited financial statements
      (including the opinion of Seller’s independent registered public accounting
      firm) as of and for the year ended December 31, 2006, at which time such amount
      shall be delivered to the Selling Parties.”

     

    3.  Amendment
      of Agreement to Add Insignia Asia Corporation as a
      Party.
      The
      Agreement is hereby amended to include Insignia Asia Corporation as a party
      to,
      and a Selling Party for all purposes under, the Agreement..

     

    4.  Amendment
      of Section 1.2 of the Agreement.
      Section
      1.2 of the Agreement is hereby amended to include the following Section
      1.2(g):

     

    “(g) All
      rights and obligations of Seller under the Stock Transfer Agreement dated March
      2007 by and among Insignia Solutions, Inc., Korean Digital Corporation and
      Jtek
      Corporation (the “Stock Transfer Agreement”).”

     

    5.  Amendment
      of Section 1.4 of the Agreement.
      Section
      1.4 of the Agreement is hereby amended to include the following Section
      1.4(r):

     

    “(r) Any
      Liability and obligation of Seller arising out of the Stock Transfer
      Agreement.”

     

    6.  Counterparts.
      This
      Amendment may be executed in counterparts with the same force and effect as
      if
      each of the signatories had executed the same instrument.

     

    7.  Definitions.
      Capitalized terms not otherwise defined herein shall have the respective
      meanings set forth in the Agreement.

     

    8.  Other.
      Except
      as provided herein, the Agreement shall continue in full force and effect in
      accordance with its terms.

     

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      of page intentionally left blank]

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
 

    IN
      WITNESS WHEREOF,
      the
      parties have executed this Amendment as of the day and year first above
      written.


    


    
      	
              “Purchaser”

              SMITH
                MICRO SOFTWARE INC.

              By:/s/
                William W. Smith, Jr.

              Name:
                William W. Smith, Jr.

              Title:
                President and Chief Executive Officer

            	
              “Seller”

              INSIGNIA
                SOLUTIONS PLC

              By:
                /s/
                Mark McMillan

              Name:
                Mark McMillan

              Title:
                Chief
                Executive Officer

            
	
               

              IS
                ACQUISITION SUB, INC.

              By:
                /s/
                William W. Smith, Jr.

              Name:
                William W. Smith, Jr.

              Title:
                President and Chief Executive Officer

            	
              INSIGNIA
                SOLUTIONS INC

              By:
                /s/
                Mark McMillan

              Name:
                Mark McMillan

              Title:
                Chief
                Executive Officer

            
	 	 
	 	
              INSIGNIA
                SOLUTIONS AB

              By:
                /s/
                Mark McMillan

              Name:
                Mark McMillan

              Title:
                Chief
                Executive Officer

            
	 	 
	 	
              INSIGNIA
                ASIA CORPORATION

              By:
                /s/
                Mark McMillan

              Name:
                Mark McMillan

              Title:
                Chief
                Executive Officer