AMENDMENT NO. 3 TO THE ASSET PURCHASE AGREEMENT
Exhibit
2.4
AMENDMENT
NO. 3 TO THE ASSET PURCHASE AGREEMENT
AMENDMENT NO. 3, dated June 24, 2009
(this “Amendment”) to
the ASSET PURCHASE AGREEMENT (as amended, the “Purchase Agreement”), dated as
of May 29, 2009, as amended by Amendment No. 1 to the Purchase Agreement, dated
June 11, 2009 and as amended by Amendment No. 2 to the Purchase Agreement, dated
June 12, 2009, in each case, by and among Xxxxxx International, Inc, a Maryland
corporation (“Xxxxxx”),
the Sellers set forth on the signature page thereto (collectively with Xxxxxx,
the “Sellers”) and
Xxxxxx America LLC, a Delaware limited liability company (“Buyer”).
RECITALS
WHEREAS, capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Purchase Agreement; and
WHEREAS, the parties to the Purchase
Agreement have determined that it is advisable to further amend the Purchase
Agreement; and
WHEREAS, Section 13.4 of the
Purchase Agreement provides that the Purchase Agreement may be amended by
execution of a written instrument executed by the parties thereto;
and
WHEREAS, pursuant to Section 1.3.3 of the
Purchase Agreement, Buyer may designate in writing any Executory Contract as a
Contract to be assumed by it pursuant to the Purchase Agreement (the “Assumed Contracts”);
and
WHEREAS, Sellers have previously
prepared a schedule that was filed with the Bankruptcy Court on June 12, 2009,
and is attached hereto as Annex A (the “Original Cure Cost Schedule”),
setting forth the monetary amounts that must be paid and nonmonetary obligations
that otherwise must be satisfied, including pursuant to Section 365(b)(1)(A) and
(B) of the Bankruptcy Code, in order for Buyer to assume Sellers’ Executory
Contracts pursuant to the Purchase Agreement (“Undisputed Cure Costs”); and
WHEREAS, pursuant to Section 1.3.3 of the
Purchase Agreement, Buyer has agreed to pay at Closing any Undisputed Cure Costs
associated with the assumption of any Assumed Contracts and has agreed to escrow
or otherwise secure payment of any Disputed Cure Costs associated with such
Assumed Contracts; and
WHEREAS, notwithstanding anything
contained in the Original Cure Cost Schedule to the contrary, Sellers have
represented to Buyer that there exists no Undisputed Cure Cost or Disputed Cure
Cost (together, “Cure
Costs”) associated with the employee benefit plans of Sellers set forth
on the schedule attached hereto as Annex B (the “Schedule of Benefit Plans”);
and
WHEREAS,
Section 5.1.6 of the Disclosure Letter contains, among other things, a listing
of domain names of Sellers used in the conduct of the Business and includes in
such listing of domain names the domain name “xxxxxxx.xxx” (the “Dormaid Domain Name”);
and
WHEREAS,
Sellers have represented to Buyer, and Buyer hereby acknowledges, that Sellers
included the Dormaid Domain Name in Section 5.1.6 of the Disclosure Letter in
error and, notwithstanding the inclusion of the Dormaid Domain Name in Section
5.1.6 of the Disclosure Letter, Sellers desire not to transfer to Buyer at
Closing Sellers’ right, title and interest in and to the Dormaid Domain Name
pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the
foregoing premises, and the agreements, covenants, representations and
warranties contained in the Purchase Agreement and herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged and accepted, the parties, intending to be legally bound, hereby
agree as follows:
1.
Notwithstanding anything
contained in Section
1.3.3 of the Purchase Agreement to the contrary, Sellers hereby, assume
responsibility for and agree to pay at Closing, any Cure Costs associated with
any of the employee benefit plans of Sellers listed on the Schedule of Benefit
Plans attached hereto as Annex B.
2.
Notwithstanding anything
contained in Section 5.1.6 of the Disclosure Letter to the contrary, Sellers and
Buyer hereby agree that Section 5.1.6 of the Disclosure Letter shall be amended
to eliminate the Dormaid Domain Name from such Section and accordingly, Sellers
shall from and after the Closing, retain all right, title and interest in and to
the Dormaid Domain Name.
3.
Except as specifically
amended hereby, the terms and provisions of the Purchase Agreement shall
continue and remain in full force and effect and the valid and binding
obligation of the parties thereto in accordance with its terms. All
references in the Purchase Agreement (and in any other agreements, documents and
instruments entered into in connection therewith) to the “Purchase Agreement”
shall be deemed for all purposes to refer to the Purchase Agreement, as amended
by this Amendment.
4.
This Amendment may be
signed in counterparts. The parties further agree that this Amendment may
be executed by the exchange of facsimile signature pages provided that by doing
so the parties agree to undertake to provide original signatures as soon
thereafter as reasonable in the circumstances.
5.
This Amendment shall be
governed by and construed in accordance with the laws of the State of Delaware
without regard to any conflicts of laws principles.
[SIGNATURE
PAGE FOLLOWS]
2
IN WITNESS WHEREOF, Buyer and
Sellers have executed this Amendment as of the day and year first above
written.
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BUYER:
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XXXXXX AMERICA
LLC
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By:
/s/ D. Xxxxxxx
Xxxxxxxx
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Name:
D. Xxxxxxx
Xxxxxxxx
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Title:
President
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SELLERS:
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XXXXXX INTERNATIONAL,
INC.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX SERVICES INTERNATIONAL,
INC.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX SERVICE GROUP,
INC.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX OF NEW JERSEY REALTY
CORP.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX TELECOM,
INC.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX UTILITY SERVICE,
INC.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX SERVICES,
INC.
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX RESOURCES,
LLC
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By:
/s/ Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx
Xxxxxxxx
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Title:
President
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Annex
A
[CURE
SCHEDULE]
A-1
