Exhibit 10.1
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Second Amendment"),
dated as of May 31, 2007, by and between OLIVOTTO GLASS TECHNOLOGIES S.P.A.,
an Italian corporation ("Buyer"), and XXXXX SYSTEMS, INC., a South Dakota
corporation ("Seller").
W I T N E S S E T H:
WHEREAS, the Buyer and the Seller entered into that certain Asset Purchase
Agreement dated as of May 17, 2007, as amended by First Amendment to Asset
Purchase Agreement dated May 22, 2007 (as so amended, the "Agreement"), and
desire to enter into this Second Amendment in order to make additional
amendments to the Agreement;
WHEREAS, pursuant to Section 11.3 of the Agreement, Buyer has assigned and
delegated, and Xxxxx Technologies LLC, a Delaware limited liability company
wholly owned by Buyer ("Assignee"), has accepted and assumed, Buyer's rights and
obligations under the Agreement, including without limitation the payment of the
Closing Payment;
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I.
AMENDMENTS
1.1 Capitalized terms used in the Second Amendment but not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Agreement.
1.2 For the purpose of calculating the Purchase Price and the Closing
Payment, items of Inventory first received by Seller on or after May 31, 2007
("Transition Inventory") shall be valued at 100% of Book Value only if (i) such
Transition Inventory relates to open purchase orders existing on the date hereof
listed on Schedule 1.2 annexed hereto as approved by Buyer or (ii) such
Transition Inventory relates to new customer orders received subsequent to May
31, 2007 approved by Buyer in writing. In all other cases, such Transition
Inventory shall be valued in accordance with Schedule 3.4(a) (as amended by this
Second Amendment) for purposes of calculating the Purchase Price and the Closing
Payment.
1.3 Effective as of the date hereof Section 9.1(e) of the Agreement is
amended and restated to read in full as follows:
"(e) by either Buyer or Seller if the Closing has not occurred
(other than through the failure of any party seeking to terminate
this Agreement to comply in all material respects with its
obligations under this Agreement) on or before June 18, 2007;"
1.4 Effective as of the date hereof Section 7.1(b) of the Agreement is
amended and restated to read in full as follows:
"(b) Executed counterparts of Assignments and Assumptions of the
Permits, the Personal Property Leases and the Contracts which
include the written consents of all parties (including the consent
of Emhart Glass S.A. but excluding that of The Eldrid Company, Inc.)
necessary in order to duly transfer all of Seller's rights
thereunder to Buyer, in the form of Exhibit C hereto (the
"Assignments and Assumptions")."
1.5 The last paragraph of Section 1.1 is hereby amended and restated in
its entirety as follows:
Notwithstanding the foregoing, there shall be excluded from the
Property the following assets and properties of Seller related to or
used in connection with the Business: (i) all cash and cash
equivalents; (ii) all tax refunds of any kind paid or payable to
Seller; (iii) all assets listed on Schedule 1.1(l), (iv) all
accounts receivable from Hind Glass, Bouteillerie and PT Kedaung,
the gearless tablewear shear, the show machine and that certain used
machine presently in India which Buyer has received in partial
payment from Advanced Lamp Component & Tablewares (the "Used
Machine"); (v) the real property of Seller identified on Schedule
1.1(m) (the "Real Property"); (vi) all corporate minute books, stock
records, tax returns, checkbooks, books of original entry and bank
statements and supporting materials of Seller for all periods, all
of which shall be subject to Buyer's right to inspect and copy;
(vii) all insurance policies; (viii) all claims, causes of and
choses in action of any sort that Seller may have, including,
without limitation, under any of Seller's insurance policies,
against any of the officers, directors and/or shareholders of Seller
and/or the parents, spouses and lineal descendants of any such
persons; (ix) rights of set-off, counterclaim and/or recoupment
respecting any liabilities or obligations of Seller not included
within the Assumed Liabilities (as hereinafter defined); and (x) the
Closing Payment (as hereinafter defined); and (xi) all rights in and
to the name "Xxxxx" for all uses other than in connection with the
products manufactured in the Business on the Closing Date.
1.6 Section 3.6 is hereby amended and restated in its entirety as
follows:
"SECTION 3.6 CONSIGNMENT OF CERTAIN ITEMS.
(a) For a period of eighteen (18) months following the Closing
Date the gearless tablewear shear and the show machine (the
"Consigned Items") shall be held on consignment by Buyer. If Buyer
receives any offers to purchase any of the Consigned Items from a
third party during such eighteen-month period Buyer shall promptly
notify Seller and if Seller accepts such offered terms the proceeds
of such sale shall be shared equally between Seller and Buyer. If
the Consigned Items have not been so sold by the end of such
eighteen-month period Buyer shall deliver possession of the
Consigned Items to Seller.
(b) For a period of twenty-four (24) months following the
Closing Date the Used Machine shall be held on consignment by Buyer.
If Buyer receives any offers to purchase the Used Machine from a
third party during such twenty-four month period Buyer shall
promptly notify Seller and if Seller accepts such offered terms the
proceeds of such sale shall be delivered promptly to Seller in such
form as they were received including any necessary endorsements. If
the Used Machine has not been so sold by the end of such twenty-four
month period Buyer shall deliver possession of the Used Machine to
Seller.
1.7 The Agreement is hereby amended by adding the following new Section
6.13:
"SECTION 6.13 COLLECTION OF RECEIVABLES. If after the Closing
Date, Seller receives any payments with respect to Receivables,
Seller agrees to promptly deliver such payments to the Buyer in the
form received, including any necessary endorsements, and in any
event within five Business Days to a bank account designated by
Buyer by June 22, 2007. Seller agrees to provide Buyer with updates
on Tuesday evening of each week regarding Seller's receipt, if any,
of payments on the Receivables."
1.8 Schedule 3.4(a) is amended and restated to read in full as annexed
hereto.
ARTICLE II.
MISCELLANEOUS
2.1 COUNTERPARTS. This Second Amendment may be executed by one or more of
the parties to this Second Amendment in any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
2.2 GOVERNING LAW. This Second Amendment and the rights and obligations
of the parties under this Second Amendment shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York without
regard to choice of law provisions.
2.3 ENTIRE AGREEMENT. This Second Amendment, together with the Agreement
and the other documents and agreements reverenced therein to be executed by the
parties concurrently with the Agreement or at the Closing thereunder,
constitutes the entire agreement of the parties with respect to the subject
matter hereof, and supersedes any prior agreements or understandings, whether
written or oral with respect to such subject matter.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Second Amendment as of
the date first written above.
BUYER:
OLIVOTTO GLASS TECHNOLOGIES S.P.A.
By: /s/ Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: President
SELLER:
XXXXX SYSTEMS, INC.
By: /s/ Xxxxxxxx Xxxxx
----------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman of the Board of Directors
ASSIGNEE:
XXXXX TECHNOLOGIES LLC
By: /s/ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: President
