Exhibit 2.2
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FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment")
is made as of the 10th day of April, 2002, by and among CINTAS CORPORATION,
a corporation organized under the laws of the State of Washington
("Purchaser"), XXXXXXXX CORPORATION, a Missouri corporation ("Parent") and
XXXXXXXX INTERNATIONAL, LTD., a corporation organized under the laws of
Ontario and wholly-owned subsidiary of Parent ("Subsidiary"). Parent and
Subsidiary are sometimes referred to individually as a "Seller" and
collectively as "Sellers."
RECITALS:
A. The parties to this Amendment have entered into an Asset
Purchase Agreement, dated as of April 10, 2001 (the "Agreement"), pursuant
to which Purchaser has agreed to acquire certain assets and assume certain
liabilities of Sellers, and capitalized terms used in this Amendment without
definition have the respective meanings ascribed to them in the Agreement.
B. The Purchaser and Sellers have reached an understanding
regarding the modification of the Agreement to the extent necessary to
holdback a certain amount from the Purchase Price and to reflect additional
understandings among the parties.
AGREEMENT:
IN CONSIDERATION OF the premises, the covenants and agreements in
the Agreement and this Amendment, and other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, the parties
hereto agree as follows:
1. Holdback Amount. A new subsection (i) of Section 1.3 of
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the Agreement is hereby added to read as follows:
(i) Holdback. An amount of the Purchase Price shall be held back by
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Purchaser from the Closing Payments and shall not be paid to
Sellers at Closing. Such amount (the "Holdback Amount") shall be
equal to five percent (5%) of the sum of (i) the value of Stock
Inventory as set forth on Schedule 1.3(a)(iii) at Closing, and (ii)
the value of the Custom Inventory as set forth on Schedule
1.3(a)(iv) at Closing. The parties shall conduct a physical
inventory, to be taken jointly by Sellers and Purchaser, within ten
(10) business days after the Closing Date ("Post-Closing
Inventory"). Immediately upon the finalization of the definitive
report on the Post-Closing Inventory, the Purchaser will pay to the
Seller the entire portion of the Holdback Amount to the extent that
the Stock Inventory and the Custom Inventory as set forth on
Schedule 1.1(b) at Closing ("Scheduled Closing Inventory") is the
same as the Stock Inventory and the Custom Inventory as determined
by the Post-Closing Inventory. To the extent that items in the
Scheduled Closing Inventory are not reflected in the Post-Closing
Inventory (except to
the extent that such items are not reflected in the Post-Closing
Inventory due to the sale of such items by Purchaser in the period
between the Closing and the date of the Post-Closing Inventory),
the Purchaser may deduct the value of such missing items (as such
value is reflected in Schedule 1.1(b)) from the Holdback Amount and
pay to Sellers the balance of the Holdback Amount.
2. Miscellaneous. Except to the extent modified by this
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Amendment, the Agreement remains in force and effect. This Amendment may be
executed in multiple counterparts, with signatures by facsimile to be
binding, each of such counterparts constituting an original, and all of
which counterparts taken together shall constitute one instrument. This
Agreement shall be construed, interpreted, governed and enforced in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Asset Purchase Agreement to be executed by their duly
authorized representatives on the day and year first above written.
CINTAS CORPORATION
By:
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Its:
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XXXXXXXX CORPORATION
By:
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Its:
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XXXXXXXX INTERNATIONAL, LTD.
By:
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Its:
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