EXHIBIT 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "Amendment") is made
as of November 14, 2003, by and among WinCup Holdings, Inc., a Delaware
corporation ("Buyer"); Polar Plastics Inc, a Delaware corporation, and Polar
Plastics (NC) Inc, a North Carolina corporation (each individually a "Seller"
and collectively, "Sellers").
RECITALS:
WHEREAS, Buyer and Sellers are parties to that certain Asset Purchase
Agreement dated November 11, 2003 (the "Agreement") pursuant to which Buyer
agreed to acquire from Sellers substantially all of the Assets (as defined in
the Agreement) of Sellers; and
WHEREAS, Buyer and Sellers desire to amend the Agreement as more fully set
forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants contained in this Amendment, and for their mutual
reliance and intending to be legally bound, the parties hereto agree as follows:
1. Defined Terms. Except to the extent specifically indicated to the
contrary in this Amendment, capitalized terms used in this Amendment shall have
the meanings given to them in the Agreement.
2. Amendments.
(a) Section 2.2(b)(i) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"(i) (THREE MILLION EIGHT HUNDRED TWENTY TWO THOUSAND SIX HUNDRED EIGHTY
FIVE U.S. dollars (U.S. $3,822,685) shall be paid to Sellers by wire
transfer (the "Cash Payment"); provided, however, the Cash Payment shall be
increased or decreased, as appropriate, to take into account any increase or
decrease in the amount of the Assumed Liabilities set forth in Section
2.3(a)(i), (ii) and (iii) below;"
(b) Section 2.2(b)(ii) of the Agreement is hereby amended and restated in
its entirety to read as follows:
"(ii) THREE MILLION U.S. dollars (U.S. $3,000,000) shall be retained by
Buyer to be paid in accordance with Section 2.7(b) below;"
(c) Section 2.6(b)(i) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"THREE MILLION EIGHT HUNDRED TWENTY TWO THOUSAND SIX HUNDRED EIGHTY FIVE
U.S. dollars (U.S. $3,822,685) (to be adjusted in the event Sellers'
obligations under the Assumed Liabilities set forth in Sections 2.3(a)(i)
through (iii) above are greater or lesser than the amounts set forth
therein) by wire transfer to an account specified by Sellers in a writing
delivered to Buyer at least three(3) business days prior to the Closing
Date;"
(d) The first sentence of Section 2.7(b) of the Agreement is hereby amended
and restated in its entirety to read as follows:
"Sellers and Buyer have agreed that THREE MILLION U.S. dollars (U.S.
$3,000,000) of the Purchase Price shall be held back by Buyer at Closing
(the "Working Capital Holdback"), to be payable as follows:"
3. Effect on Agreement; General Provisions. Except as set forth in this
Amendment, the terms and provisions of the Agreement are hereby ratified and
declared to be in full force and effect. This Amendment shall be governed by
the provisions of the Agreement, as amended by this Amendment, which provisions
are incorporated herein by reference. This Amendment shall become effective
upon its execution, which may occur in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Other than the reference to the Agreement contained in the
first recital of this Amendment, each reference to the Agreement and any
agreement contemplated thereby or executed in connection therewith, whether or
not accompanied by reference to this Amendment, shall be deemed a reference to
the Agreement as amended by this Amendment.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their authorized officers as of the day and year first above written.
WINCUP HOLDINGS, INC.
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Sr. V.P. Finance CFO
POLAR PLASTICS INC
By: /S/ XXXX XXXXX
-----------------------------
Name: Xxxx Xxxxx
Title: CEO
POLAR PLASTICS (NC) INC
By: /S/ XXXX XXXXX
-----------------------------
Name: Xxxx Xxxxx
Title: CEO
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