FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this
“Amendment”) is dated as of December 30, 2008, by and between Jaco Electronics,
Inc., a New York corporation (“Seller”), and WPG
Americas, Inc., a California corporation (“Purchaser”).
WHEREAS,
Seller and Purchaser are parties to that certain Asset Purchase Agreement, dated
as of November 7, 2008 (the “Original
Agreement”).
NOW,
THEREFORE, in consideration of the premises contained herein and other good and
valuable consideration, the parties hereto irrevocably and mutually agree as
follows:
Capitalized
terms used herein without definition shall have the meanings given to such terms
in the Original Agreement.
The
definition of “Closing Date” in the Original Agreement is hereby amended to read
in its entirety as follows:
“‘Closing
Date’ means the third Business Day following the date on which the conditions
specified in Section 7 are satisfied (subject to waiver of such conditions as
provided in Section 7) and on which the Closing takes place, but in no event
later than January 5, 2009, time being of the essence.”
The
definition of “Escrow Agent” in the Original Agreement is hereby amended to read
in its entirety as follows:
“‘Escrow
Agent’ means Business & Escrow Service Center Inc.”
The
definition of “Escrow Agreement” in the Original Agreement is hereby amended to
read in its entirety as follows:
“‘Escrow
Agreement’ means the Escrow Agreement among Purchaser, Seller and Escrow Agent,
to be dated on or about February 17, 2009 and substantially in the form attached
as Exhibit A
hereto.”
Section
2(b) of the Original Agreement is hereby amended to read in its entirety as
follows:
“At the
Closing, the Purchaser shall pay to the Seller, or such other Persons as the
Seller shall direct in writing, an amount equal to Closing Purchase Price in
cash or by wire transfer of immediately available funds to such account(s)
as Seller shall so indicate. On or before February 17, 2009, the
Seller shall pay to the Escrow Agent the Escrow Amount to be held by the Escrow
Agent subject to the terms and conditions of the Escrow Agreement.”
A new
Section 6(l) shall be added to the Original Agreement as follows:
“Notwithstanding anything
herein to the contrary, the Escrow Agreement shall be executed and delivered on
or about February 17, 2009 and the Escrow Amount shall be deposited with the
Escrow Agent at that time.”
Section
7(c)(iii) of the Original Agreement is hereby amended to read in its entirety as
follows:
“The
Purchaser shall have paid to the Seller the Closing Purchase Price as
contemplated by Section 2(b) hereof.”
Section
11(a)(iii) of the Original Agreement is hereby amended to read in its entirety
as follows:
“by January
5, 2009, if the transactions herein contemplated have not closed by said
date.”
Purchaser
hereby waives the condition set forth in Section 7(b)(iii)(B) of the Original
Agreement.
Purchaser
hereby agrees that the term Material Adverse Effect shall not include any change
in the assets, operations, properties, results of operations or financial
condition of the Business occurring after December 1, 2008; provided, that from
and after the date hereof until the Closing Date Seller shall operate the
Business in the Ordinary Course of Business and in any event the net book value
of the Inventories of the Acquired Assets shall not exceed $21,000,000. In the
event that the net book value of the Inventories herein shall exceed $21,000,000
such change shall only be acceptable to the parties subject to mutual
agreement.
Purchaser
hereby confirms that notwithstanding anything to the contrary in the Original
Agreement, the term of the Sublease for the Hauppauge Office shall be for one
(1) year and shall thereafter be extended for successive one (1) year periods
cancellable by either party during any such extended period upon giving not less
than 120 days written notice thereof.
This
Amendment and the Original Agreement set forth the entire agreement of the
parties hereto with respect to the subject matter hereof.
Except as
otherwise provided herein, all terms and conditions of the Original Agreement shall remain in full force and effect.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first set forth above.
JACO
ELECTRONICS, INC.
By: /s/ Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title:
President
WPG
AMERICAS, INC.
By: /s/ KY
Chai
Name: KY
Chai
Title:
President
[Signature
Page to First Amendment to Asset Purchase Agreement]
