EXHIBIT 2.2
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AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment dated as of February 7, 2002 (the "Amendment") to the
Asset Purchase Agreement dated January 17, 2002 (the "Agreement"), is by and
between Direct Focus, Inc., a Washington corporation (the "Buyer"), and
StairMaster Sports/Medical Products, Inc., dba StairMaster Health & Fitness
Products, a Delaware corporation (the "Seller"). Capitalized terms used herein
without definition shall have the meaning given to such terms in the Agreement.
RECITALS
WHEREAS, the parties hereto entered into the Agreement for the sale
of substantially all of the assets of the Seller; and
WHEREAS, the parties hereto desire to amend the Agreement as set
forth below.
NOW, THEREFORE, the parties agree as follows:
1. Exhibits X-0, X-0, X-0 and page 106 of Exhibit C to the Agreement
are hereby replaced in their entirety by new exhibits attached hereto as
Attachment 1.
2. The parties acknowledge and agree that Seller has filed motions
for the assignment and assumption of the pre-petition contracts and leases
identified on Exhibits A-2 and A-3 (as replaced by this Amendment.) However,
notwithstanding anything to the contrary contained in Section 8.4.2 or elsewhere
in the Purchase Agreement, with the exception of (i) the lease with Dell
Financial Services for Speedracer 4.4.16 Ext CD-RW MS WIN server tower; (ii) the
lease with Hewlett-Packard for computer server, LAN adaptor, terminal, modular
power dist.; and (iii) the contract with Xxxxx Specialties, Inc. to use the
Stairmaster name for limited purposes; the parties acknowledge and agree that
Seller will not have obtained an order of the Bankruptcy Court approving the
assignment and assumption of the contracts identified on Exhibits A-2 and A-3
prior to closing, and such an order shall not be a condition to closing. Seller
shall use commercially reasonable efforts to obtain an order of the Bankruptcy
Court approving Seller's assignment and assumption of such contracts and setting
Cure Amounts, if any, payable to the other parties to such lease and contracts,
as soon as reasonably practical.
3. On the Closing Date, all of Seller's right, title and interest in
and to the capital stock or other equity holdings in StairMaster Health &
Fitness Products (UK) Ltd. and StairMaster Sports/Medical Products GmbH shall be
transferred to Stairmaster Health & Fitness Products, Inc., a Washington
corporation and wholly-owned subsidiary of the Buyer, on the same terms and
conditions as set forth in the Agreement, and in consideration for such
transfer, the Purchase Price shall be increased by $1,000 to $25,001,000.
Section 1.2 of the Agreement is hereby amended and restated to read in its
entirety as follows:
"1.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary in this
Agreement, the Property shall not include (a) those items excluded pursuant to
the provisions of Section 1.1 above; (b) all of Seller's cash and cash
equivalents including all Receivable proceeds received through midnight on the
Closing Date; (c) Inventory transferred or used by Seller in the ordinary course
of the Business prior to the Closing Date; (d) any lease, rental agreement,
contract, agreement, license or similar arrangement ("Contracts") terminated or
expired prior to the Closing Date in accordance with its terms or in the
ordinary course of the Business; (e) Seller's equity holdings in StairMaster
Switzerland LLC, including any accounts receivable owed to Seller by StairMaster
Switzerland LLC as of the Closing Date, if any; (f) all receivables and
inventory of StairMaster Switzerland LLC, if any; (g) all preference or
avoidance claims and actions of the Seller, including, without limitation, any
such claims and actions arising under Sections 544, 547, 548, 549, and 550 of
the United States Bankruptcy Code; (h) the Seller's rights under this Agreement
and all cash and non-cash consideration payable or deliverable to the Seller
pursuant to the terms and provisions hereof; and (i) insurance proceeds, claims
and causes of action with respect to or arising in connection with any Contract
which is not assigned to Buyer at the Closing, or any item of tangible or
intangible property not acquired by Buyer at the Closing."
4. Seller agrees to use commercially reasonable efforts to obtain an
order of the Bankruptcy Court approving Buyer's assignment and assumption of the
contracts identified in Attachment 2 hereto as soon as practical following the
Closing, subject to Buyer's approval and subject to Buyer's payment of all Cure
Amounts, if any, payable to the other parties to such contracts.
5. Except as expressly modified herein, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect.
6. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument. The parties agree that a signature of
this Amendment obtained by facsimile machine will be binding as an original.
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IN WITNESS WHEREOF, the parties have signed this Amendment to the Agreement as
of the date written above.
STAIRMASTER SPORTS/MEDICAL PRODUCTS, INC.
By: /s/
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Name: Xxxxxxx X. Xxxxx
Title: President and CEO
DIRECT FOCUS, INC.
By: /s/
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Name: Xxx Xxxx
Title: Chief Financial Officer
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