Exhibit 2.3
FIRST AMENDMENT dated as of the 30th day of December, 2005 (this "First
Amendment") between Checkpoint Systems, Inc., a Pennsylvania corporation
("Seller") and Sielox, LLC, a Delaware limited liability company (the
"Purchaser").
WHEREAS, Purchaser and Seller are parties to that certain Asset Purchase
Agreement dated as of November 4, 2005 (the "Asset Purchase Agreement"); and
WHEREAS, Purchaser and Seller desire to amend certain provisions of the
Asset Purchase Agreement in the manner provided herein.
NOW, THEREFORE, in for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Section 4.1 of the Asset Purchase Agreement shall be amended and restated as
follows:
Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be deemed effective on either of the
following dates, as determined by Purchaser in its sole discretion: (i) as
of the end of business on December 30, 2005, or (ii) the date on which the
wire transfer of the Purchase Price is made by Purchaser pursuant to
Section 3.1 of the Agreement (the "Closing Date").
2. Section 9.2(b) of the Asset Purchase Agreement shall be amended and restated
as follows:
Purchaser's Agreement to Indemnify. Subject to the terms and
conditions of this Article IX, Purchaser hereby agrees to indemnify,
defend and hold harmless Seller and its members, officers, directors,
employees, agents, Affiliates, successors and permitted assigns (the
"Seller Group"), after consummation of the Closing, from and against any
and all Damages incurred by any member of the Seller Group to the extent
arising from or attributable to (i) the breach of any representation or
warranty of Purchaser contained in this Agreement or any of the Other
Agreements, (ii) any breach of any covenant or agreement of Purchaser
contained in this Agreement or any of the Other Agreements, (iii) the
Assumed Liabilities or (iv) any liability directly caused by Purchaser's
decision to deem the Closing Date to be as of December 30, 2005, however,
only to the extent such liability would not have been incurred by a member
of the Seller Group if payment of the Purchase Price was made on December
30, 2005. Claims by any member of the Seller Group under this Section 9.2
(b) are referred to individually as a "Seller Claim" or collectively, as
"Seller Claims," and Seller Claims together with Purchaser Claims are
herein collectively referred to as "Claims" and each a "Claim."
3. Section 10.1(b) of the Asset Purchase Agreement shall be amended and restated
as follows:
(b) by the Seller, if Purchaser shall have materially breached or
failed in any respect to comply with any of its covenants, agreements or
obligations under this Agreement, or if any of the representations and
warranties of Purchaser contained in this Agreement shall have been
inaccurate in any material respect when made or become inaccurate in any
respect at any time prior to the Closing;
4. Section 10.1(c) of the Asset Purchase Agreement shall be amended and restated
as follows:
(c) by Purchaser, if Purchaser is unable to obtain the Auditor's
Opinion by January 5, 2006.
5. The first clause of Section 10.1(d) of the Asset Purchase Agreement shall be
amended and restated as follows:
(d) by the Seller or the Purchaser, if the Closing shall not have
occurred on or prior to January 5, 2006;
6. The following paragraph shall be inserted as Section 7.11 of the Asset
Purchase Agreement:
7.11 Escrow of Signature Pages.Seller and Purchaser shall deposit
their duly executed signature pages to each of the Other Agreements and
any other agreements contemplated by the Asset Purchase Agreement with
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP, legal counsel of Purchaser ("HF") on the date
hereof. HF hereby agrees to hold such signature pages in escrow until the
first to occur of: (a) such time that the Audit Opinion is delivered to
Purchaser and payment of the Purchase Price is made in accordance with
Section 3.1 of this Agreement or (b) the termination of this Agreement in
accordance with Section 10.1 of this Agreement. Upon receipt of the Audit
Opinion by Purchaser and the payment of the Purchase Price in accordance
with Section 3.1, HF shall release Purchaser's signature pages to Seller
and shall release Seller's signature pages to Purchaser. Upon termination
of this Agreement in accordance with Section 10.1 of this Agreement, HF
shall release Purchaser's signature pages to Purchaser and shall release
Seller's signature pages to Seller.
7. This First Amendment shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, permitted
successors and assigns and shall be governed by and interpreted in accordance
with the laws of the State of New Jersey, without giving effect to conflict of
laws principles thereof.
8. This First Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
9. Except as amended hereby, the Asset Purchase Agreement is hereby confirmed
and the terms and provisions thereof, unless modified herein, shall remain in
full force and effect.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first written above.
Checkpoint Systems, Inc.
By:___________________________
Name:
Title:
Sielox, LLC
By:___________________________
Name:
Title:
Solely with respect to the applicable
provisions of Paragraph 6 above:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
By:___________________________
Name:
Title:
