EXHIBIT 2.b
AMENDMENT TO ASSET PURCHASE AGREEMENT
AMENDMENT (this "Amendment"), dated as of March 17, 1997, to the
Asset Purchase Agreement (the "Agreement"), dated February 10, 1997, among
SUNBEAM PRODUCTS, INC., a Delaware corporation ("Sunbeam Products"), SUNBEAM
FURNITURE COMPANY, a Delaware corporation ("Sunbeam Furniture"), OP II, INC., a
Florida corporation ("Sunbeam OP"; and, together with Sunbeam Products and
Sunbeam Furniture, the "Sunbeam Transferors"), and SUNLITE CASUAL FURNITURE,
INC. (as assignee of Jacuzzi Outdoor Products, Inc.), a Delaware corporation
(the "Buyer"), and joined in by Sunbeam Corporation, a Delaware corporation and
the indirect parent corporation of the Sunbeam Transferors and U.S.
Industries, Inc., a Delaware corporation and the indirect parent corporation of
Buyer.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to amend the Agreement; and
WHEREAS, Section 19 of the Agreement permits amendments to the
Agreement by written instrument signed by the parties to such amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I.
AMENDMENTS TO THE AGREEMENT
1.1. PURCHASE AND SALE OF ASSETS. (a) Section 1.B of the
Agreement is hereby amended by (i) inserting the clause "(except for the
Murfreesboro Assets, as defined in the Manufacturing Services Agreement (as
defined in Section 7.A), subject, however, to the rights to purchase the
Murfreesboro Assets pursuant to the Manufacturing Services Agreement)" after
"Business", (ii) deleting the words "Murfreesboro, Tennessee and", (iii)
changing the word "facilities" on the eighth line to "facility" therein and (iv)
adding the words "provided to Buyer within five business days after the Closing
Date" and after the words "Closing Date".
(b) Section 1.C of the Agreement is hereby amended by deleting
the words "Paragould, Arkansas and" from such Section.
(c) Section 1.D of the Agreement is hereby amended by (i)
inserting the clause "(except such inventory located at the
Murfreesboro facility, subject, however, to the rights granted pursuant to the
Manufacturing Services Agreement)" after "Business" and (ii) adding the words
"and provided to Buyer within five business days after the Closing Date" after
the words "Closing Date".
(d) Section 1.M(10) of the Agreement is hereby amended by
replacing subsection 1.M(10)(d) therein with the following: "(d) rights to
purchase Equipment and Inventory included in the Murfreesboro Assets pursuant to
the Manufacturing Services Agreement".
1.2. ASSUMED LIABILITIES. (a) Section 3.B is hereby amended
by inserting the clause "(except such purchase orders relating to Equipment
located at the Murfreesboro facility)" after "in the ordinary course of
business" therein.
(b) Section 3.C of the Agreement is hereby amended by inserting
the clause "(except such purchase orders relating to raw materials and supplies
to be delivered to the Murfreesboro facility)" after "Business" and after "in
accordance with past practices" therein.
(c) Sections 3.B and 3.C of the Agreement are amended by adding
the words "and provided to Buyer within five business days after the Closing
Date" (i) at the end of Section 3.B and (ii) after the words "Closing Date" in
the fifth line of Section 3.C.
1.3. CLOSING. Section 4.A of the Agreement is hereby amended by
substituting "March 17, 1997" in place of "March 3, 1997."
1.4. PURCHASE PRICE. The first sentence in Section 4.B(2) of the
Agreement is hereby amended by (i) substituting "$31" in place of "$21" (ii)
deleting clause (b) in its entirety, (iii) renumbering clauses (c) and (d)
therein as (b) and (c).
1.5. ESTIMATED PURCHASE PRICE. (a) Section 4.C of the Agreement
is hereby amended by deleting it in its entirety and replacing it with the
following:
"On and at the Closing, in consideration for the sale,
conveyance, transfer, assignment and delivery to Buyer of the
Assets, subject to the assumption of the Assumed Liabilities,
Buyer shall pay $62,137,000 (the "ESTIMATED PURCHASE PRICE",
which has been calculated based on ANNEX A hereto) in the manner
set forth below:
(i) If Sellers have satisfied the closing condition set forth
in Section 7.D(10) hereof, Buyer shall
2
pay to the Sunbeam Transferors, as directed, an amount
equal to $62,137,000 by wire transfer of immediately
available funds to an account designated in writing by the
Sunbeam Transferors no less than two business days prior
to the Closing; or
(ii) If Buyer has waived the closing condition set forth in
Section 7.D(10), Buyer shall pay: (a) to the Sunbeam
Transferors, as directed, an amount equal to $42,137,000
by wire transfer of immediately available funds to an
account designated in writing by the Sunbeam Transferors
no less than two business days prior to the Closing and
(b) to the Escrow Agent (as defined in Section 8.A(9)), an
amount equal to $20,000,000 (the "Escrow Amount") by wire
transfer of immediately available funds to an account
designated in writing by the Escrow Agent."
(b) Section 4.E(1) of the Agreement is hereby amended by (i)
substituting "thirty (30)" in place of "fifteen (15)" and (ii) deleting the
parenthetical in the last sentence thereof and replacing it with "(which has
occurred prior to the Closing Date)".
1.6. FINANCIAL INFORMATION. Section 5.F of the Agreement is
hereby amended by inserting "(1)" before "Sellers have furnished" at the
beginning therein and by adding the following subsection (2) at the end thereof:
(2) Sellers have furnished to Buyer Statements of Operations
for the Business (including separate Statements of
Operations relating to the Sunbeam Furniture Business and
the Samsonite Business) for the two months ended March 2,
1997, as set forth on SCHEDULE 5.F(3). Such Statements of
Operations were derived from Sellers' books and records
and are true and correct in all material respects as to
the matters presented therein. Such Statements of
Operations have been prepared on a basis which is
consistent with the past practices of Sellers.
1.7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. Section
7.D of the Agreement is hereby amended by (a) adding the following language to
the end of the first sentence thereof:
"PROVIDED, that Buyer agrees that it shall waive the closing
condition set forth in Section 7.D(10) if Sellers fail to deliver
the documents referenced in
3
Section 8.A(9)(i) through (iv) despite the exercise of best
efforts by Sellers; and
(b) deleting subsection (10) in its entirety and replacing it
with the following:
(10) Sellers shall have provided to Buyer evidence of the
defeasance of all obligations relating to the City of
Paragould, Arkansas ARKLA Industries Project, Series
1979 Industrial Revenue Bonds (the "PARAGOULD IRBS"). The
City of Paragould shall have delivered to Buyer a warranty
deed sufficient to deliver marketable title to the
Paragould, Arkansas facility formerly subject to lease in
connection with the Paragould IRBs.
1.8. DOCUMENT DELIVERIES. Section 8.A of the Agreement is
hereby amended by (a) amending subsection (5) thereto to add the following
language at the end thereof: "at an annual rental rate of $512,500" and (b)
adding the following subsections thereto immediately following subsection (8)
and prior to subsection (9), which is renumbered (11):
(9) Copies of the following items relating to the Paragould
IRBs: (i) documents evidencing the defeasance of the
Paragould IRBs, (ii) the redemption notice to be sent to
holders of the Paragould IRBs, (iii) a warranty deed to
accomplish the transfer of the Paragould facility formerly
subject to lease to Buyer signed by the City of Paragould,
(iv) such other documents as Buyer may reasonably
request in order to accomplish the delivery of the
Paragould facility to Buyer free and clear of all Liens;
PROVIDED, if Sellers despite the exercise of their best
efforts are unable to deliver the documents referenced in
clauses (i) through (iv) above by the close of business on
the Closing Date, then in lieu of the foregoing Sellers
shall instead deliver at the Closing copies of the
following items relating to the Paragould IRBs: (i) an
escrow agreement (the "Escrow Agreement") in form
mutually agreeable to Sellers, Buyer and Friday, Xxxxxxxx
& Xxxxx (the "Escrow Agent") providing for the payment of
the Escrow Amount to Sellers upon (x) the defeasance of
the Paragould IRBs and (y) the transfer to Buyer of all
real property in Paragould, Arkansas currently leased and
owned by Sunbeam Products (it being understood that title
to the owned parcel shall not be transferred to Buyer
until such time as title to the leased parcel may be
transferred), (ii) a sublease in form mutually agreeable
to
4
Sunbeam Products and Buyer of the parcel at the Paragould
Facility currently leased by Sunbeam Products and a lease
in form mutually agreeable to Sunbeam Products and Buyer
of the parcel at the Paragould facility currently owned by
Sunbeam Products, each for a term equal to the term of the
Escrow Agreement with an alternative term of six months,
with an option to renew at Buyer's sole discretion for an
additional term of one year if Sunbeam Products fails to
deliver good marketable title by March 31, 1997 and (iii)
forms of all documents and certificates necessary to
accomplish the defeasance of the Paragould IRBs and
delivery of title after the Closing Date.
(10) Copies of an irrevocable redemption notice given by
Sunbeam Products in relation to the Xxxxxxx IRBs; and
1.9. INDEMNIFICATION. Section 11.A(1) of the Agreement is
hereby amended by adding the following subsection (i) thereto:
(i) Any matter or thing or action or failure to act by Sunbeam
Products, Arkla Industries, Arkla, Arkla Products, Preway,
Alibert, Inc., any guarantor of the Paragould IRBs, any
transferee of any of the foregoing, or any other person or
entity, whether in suit or not, arising out of, under, or
in connection in any way with the Paragould IRBs or the
Xxxxxxx IRBS, or any of the documents, instruments or
agreements executed in connection therewith (collectively,
the "BOND DOCUMENTS") whenever arising or accruing or
resulting in any way from any action or failure to act by
Sunbeam Products, Arkla Industries, Arkla, Arkla Products,
Preway, Alibert, Inc., any guarantor of the Paragould
IRBs, any transferee of any of the foregoing, or any other
person or entity, including, without limitation, any and
all losses, claims, demands, damages, liabilities or
expenses whatsoever caused by any breach or alleged breach
by Sunbeam Products, Arkla Industries, Arkla, Arkla
Products, Preway, Alibert, Inc., any guarantor of the
Paragould IRBs, or any such person or entity or any
agent thereof under any of the respective Bond Documents
or resulting from any claim against any Indemnified Party
by the bond trustee under the indenture relating to the
Paragould IRBs or the Xxxxxxx IRBs, the holders of any
Paragould IRBs or Xxxxxxx IRBs, or any other party to or
beneficiary of any of the other Bond Documents with
respect thereto.
5
1.10. LIMITATIONS ON INDEMNITY. Section 11.D(2) of the Agreement
is hereby amended by inserting "5.F(2)," before "5.H" therein and by adding the
following clause at the end thereof:
or for any liabilities arising out of the matters referenced on
SCHEDULE 11.D(2).
1.11. FURTHER ASSURANCES. Section 23 of the Agreement is hereby
amended by inserting the following sentence after the first sentence therein:
Sellers shall cooperate with, and use their commercially
reasonable efforts to assist, Buyers in obtaining substitute
hazardous waste generator E.P.A. identification numbers, solid
waste registration numbers and other permits and licenses listed
on Schedule 1.M(13).
1.12. POST-CLOSING MATTERS. Section 27 of the Agreement is
hereby amended by adding the following Sections M and N at the end thereof:
M. REDEMPTION OF THE XXXXXXX IRBS. On the Closing Date, Sunbeam
Products shall deliver irrevocable notice to the bond trustee for the Xxxxxxx
IRBs exercising its right to call the Xxxxxxx IRBs for redemption on the
earliest practicable date for which notice can be given in accordance with the
terms of the indenture, which in any event shall not be more than 15 business
days after the Closing Date. Sunbeam Products shall take all necessary action to
insure that the Xxxxxxx IRBs are redeemed, in whole, within 15 business days
after the Closing Date.
N. JOINT USE OF SPACE IN THE XXXXXXXXX CENTER. Seller has leased
or entered into a license agreement for space at the XxXxxxxxx Place in Chicago,
Illinois for the 1997 National Hardware Show (running from August 10, 1997 to
August 13, 1997). Subject to Seller obtaining any necessary consents, Sellers
and Purchasers agree that they will share the space on the third floor so leased
on an equal square footage basis for the 1997 show. Sellers and Purchasers
further agree that the respective portions of the space will be separated by a
ten foot aisle taken equally from each party's space. Purchasers agree to
reimburse Sellers for Sellers actual cost on a per foot basis, to lease or
license the space in amount proportionate to the space used by Purchaser plus
one-half of the aisle. Each party shall be responsible for the cost of its
respective display at the show.
6
ARTICLE II.
MISCELLANEOUS
2.1. INTENT OF THE PARTIES WITH RESPECT TO CERTAIN MATTERS.
(a) Sellers and Buyer agree that it is their intent
(notwithstanding any failure to amend any provisions of the Agreement herein to
express such intent) that the Paragould IRBs are not included in the Assets, and
the obligations of Sellers under the Paragould IRBs are not included in the
Assumed Liabilities, and any provision in the Agreement that is not so amended
herein shall be deemed amended to express such intent.
(b) Sellers and Buyer agree that it is their intent
(notwithstanding any failure to amend any provisions of the Agreement herein to
express such intent) that the Murfreesboro Assets (as defined in the
Manufacturing Services Agreement) are not included in the Assets, and shall not
be purchased and sold under the Agreement on the Closing Date; that the
Murfreesboro Assets shall instead be purchased and sold at the times and for the
consideration described in the Manufacturing Services Agreement; and that any
provision in the Agreement that is not so amended herein shall be deemed amended
to express such intent.
2.2. DEFINITIONS. Capitalized terms used in this Amendment and
not defined herein shall have the meanings ascribed thereto in the Agreement.
2.3. EFFECT OF AMENDMENT; RESTATEMENT. Except as amended by this
Amendment, the Agreement shall be unamended and remain in full force and effect.
The Agreement, as amended by this Amendment, is hereinafter referred to as the
"Agreement", and the parties hereto hereby agree that the Agreement may be
restated to reflect the amendments provided for in this Amendment.
2.4. GOVERNING LAW. This amendment shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
2.5. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be an original and all of which shall together
constitute one and the same instrument.
(SIGNATURES BEGIN ON NEXT PAGE)
7
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of the date first
written above.
SUNBEAM PRODUCTS, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
SUNBEAM FURNITURE COMPANY
By: /s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
OP II, INC.
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SUNLITE CASUAL FURNITURE, INC.
By: /s/ XXXX X. XXXXXXXXX
-----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Agreed and Acknowledged
SUNBEAM CORPORATION
By: /S/ XXXXX X. XXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
U.S. INDUSTRIES, INC.
By: /s/ XXXX X. XXXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
8
ANNEX A
SUNBEAM FURNITURE
PURCHASE PRICE ADJUSTMENT WORKSHEET
The Outdoor, Samsonite, and Consolidated information is derived from Schedule
5.F(1), "Statements of Assets and Liabilities", as provided in the executed
purchase agreement dated February 10, 1997, as amended as of March 17, 1997.
This statement is adjusted to exclude inventory and fixed asset values
associated with the Murfreesboro facility not being immediately transferred to
the purchasers, and the additional discount.
NOTE THAT PURCHASER REALIZES THE BENEFIT OF THE EXCESS AND OBSOLETE RESERVE AT
MURFREESBORO AT TIME OF SALE.
$Thousands
------------------------------------------------------------------------------------------------------------------------------------
Amended
Purchase Less: Less:
Less: Agreement Murfreesboro Additional Revised
Outdoor Samsonite Consolidated Discount Total Inventory/FA Discount Total
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Cash 2 2 4
Inventory:
Raw Materials 8,621 4,924 13,545 (3,739)
Work in Process 5,989 3,596 9,585 (2,719)
Finished Goods 30,266 1,806 32,072 (1,706)
Other (a) 562 - 562 -
Seasonal Variance 7,282 - 7,282 -
Excess and Obsolete (7,300) (1,068) (8,368) -
Shrink/BTP (500) (145) (645) -
Standards Revaluation (3,042) 55 (2,987) (55)
Net Inventory 41,878 9,168 51,046 (8,219)
Prepaid Expenses
Rents 213 118 331
Deposits 15 - 15
Other (b) 47 97 144
Net PP&E 51,070 2,870 53,940 (2,529)
Total Assets 93,225 12,255 105,480 (10,748)
Accrued Payroll
& Vacation 1,209 386 1,595
IRB (c) - - -
Total Liabilities 1,209 386 1,595
Net Amount $ 92,016 $11,869 $103,885 $ (21,000) $ 82,885 $(10,748) $ (10,000) $62,137
------------------------------------------------------------------------------------------------------------------------------------
(a) Includes raw materials in transit ($559K) and repack parts ($3K)
(b) Includes prepaid royalty, holiday, and other
(c) To be paid by Sunbeam outside of closing
9
