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EXHIBIT 2.2
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
This Amendment No. 1 to that Asset Purchase Agreement, dated as of August
8, 1997 (the "Purchase Agreement"), by and among XxXxxxx-Xxxxxxxx Company, LLC,
a Delaware limited liability company (the "Purchaser"), XxXxxxx-Xxxxxxxx
Company, Inc., a California corporation (the "Seller"), and Acorn Products,
Inc., a Delaware corporation ("Acorn"), is entered into between Purchaser,
Seller and Acorn as of August 20, 1997. Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Purchase
Agreement.
WHEREAS, Seller, Acorn and Purchaser previously entered into the Purchase
Agreement, providing for the purchase and sale of substantially all of the
assets of, and the assumption of substantially all of the related liabilities
of, the Seller; and
WHEREAS, Seller, Acorn and Purchaser desire to amend certain provisions of
the Purchase Agreement pursuant to Section 10.7 thereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment No. 1, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows;
1. Amendment of Section 1.3(c). Paragraph (c) of Section 1.3 of the
Purchase Agreement is amended by adding the following sentence at the conclusion
thereof:
"The account payable in the amount of $159,250 with respect to the
Seller's trade-show booth shall be excluded from the determination of Net
Working Capital."
2. Addition of Section 2A.8. Article IIA of the Purchase Agreement is
amended by adding the following Section 2A.8:
"(i) The balance sheets of each of the Business and Acorn as of July
29, 1994, July 28, 1995 and August 2, 1996 and the related statements of
operations for the fiscal years then-ended (a) were prepared from the Books
and Records of Seller and its Subsidiaries or Acorn and its subsidiaries,
as appropriate, in accordance with GAAP, (b) fairly present, in all
material respects (with materiality determined with reference to Acorn and
its subsidiaries, taken as a whole), the financial condition and results of
operations of the Business or Acorn and its subsidiaries, as appropriate,
as of the respective dates thereof and for the respective periods covered
thereby and (c) were compiled from Books and Records regularly maintained
by management and used to prepare the financial statements of Seller and
its Subsidiaries or Acorn and its subsidiaries, as appropriate, in
accordance with the principles stated therein.
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(ii) The statement of operations of the Business for the eleven months
ended July 4, 1997 (a) were prepared from the Books and Records of Seller
and its Subsidiaries in accordance with GAAP, (b) fairly present, in all
material respects (with materiality determined with reference to Acorn and
its subsidiaries, taken as a whole), the financial condition and results of
operations of the Business for the period covered thereby and (c) were
compiled from Books and Records regularly maintained by management and used
to prepare the financial statements of Seller and its Subsidiaries in
accordance with the principles stated therein."
3. Deletion of Section 5.11, Section 6.7 and Exhibit I. Section 5.11,
Section 6.7 and Exhibit I of the Purchase Agreement are deleted in their
entirety and the Consulting and Support Services Agreement referenced therein
shall be null and void and of no legal effect.
4. Effect of this Amendment. All references to the Purchase Agreement in
the Purchase Agreement and each of the other agreements, instruments and
certificates to be delivered by the parties at the Closing shall be deemed to
include the Purchase Agreement and this Amendment No. 1 to the Purchase
Agreement.
5. Agreement. Except as expressly amended, modified or waived hereby, all
terms and provisions of the Purchase Agreement shall continue in full force and
effect in accordance with the provisions thereof.
6. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment No.1 has been duly executed and
delivered by the duly authorized officer of each party as of the date first
above written.
"Purchaser"
XxXxxxx-Xxxxxxxx Company, LLC
By: /s/ Xx Xxxxxxx
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Name: Xx Xxxxxxx
Title: Chairman
"Seller"
XxXxxxx-Xxxxxxxx Company, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
"Acorn"
Acorn Products, Inc.
By: /s/ J. Xxxxxxxx Xxxxxxx
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Name: J. Xxxxxxxx Xxxxxxx
Title: Vice President
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