EXHIBIT 2.2
AMENDMENT NO. 1
TO ASSET PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is
entered into effective as of November 26, 2003, by and among OrthoLogic Corp., a
Delaware corporation ("Seller"), and dj Orthopedics, LLC, a Delaware limited
liability company ("Buyer"). Capitalized terms used herein but not otherwise
defined shall have the meanings given them in the Purchase Agreement (as defined
below).
WHEREAS, Seller and Buyer have entered into that certain Asset Purchase
Agreement, dated as of October 8, 2003 (the "Purchase Agreement"), providing for
among other things, the Buyer's purchase and the Seller's sale of all of the
Purchased Assets; and
WHEREAS, the parties have agreed to make certain amendments to the
Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties do hereby mutually agree as follows:
1. Lease of Employees. Buyer and Seller hereby agree that Seller shall
lease the employees listed on Schedule 5.6 to the Purchase Agreement (other than
those employees who are on short term disability as noted on such Schedule 5.6)
(the "Leased Employees") to the Buyer from the period from the Closing Date to
December 2, 2003. During such period, Seller shall provide such employees with
the same compensation and benefits as Seller provided to the Leased Employees
prior to the Closing Date. Seller hereby agrees that the Leased Employees shall
perform services for the Buyer at Buyer's direction. As consideration for such
lease of employees, Buyer shall pay Seller $127,650.37 on the Closing Date by
wire transfer of immediately available funds.
2. Section 5.6(a) of the Agreement is hereby amended by deleting the
second sentence and replacing it in its entirety with the following:
"Seller shall give notice to each Transferred Employee that such Transferred
Employee's employment relationship with Seller will terminate on December 1,
2003."
3. Section 5.6(c) of the Agreement is hereby amended by deleting the first
sentence and replacing it with the following:
"Effective as of December 2, 2003, Buyer will take all such actions as are
required to cause each of the Transferred Employees to be provided with, as of
such date, benefits, programs, policies and arrangements maintained by Buyer for
similarly situated employees of Buyer and cash compensation, that is
substantially comparable in the aggregate to the cash compensation provided to
such employee as of the date of this Agreement."
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4. Schedule 2.1(c) to the Purchase Agreement is hereby amended by adding
to such schedule the supplement to Schedule 2.1(c) attached hereto as Exhibit A.
5. Section 3.3, 3.6, 3.17 and 5.6 of the Seller's Disclosure Schedule are
hereby amended by replacing such sections in their entirety with the Sections
3.3, 3.6, 3.17 and 5.6 attached hereto as Exhibit B.
6. During the period from the Closing Date to December 2, 2003, Buyer
shall ensure compliance with all applicable laws and regulations having to do
with management or employment of Leased Employees, including, without
limitation, hours of labor, working conditions, employment discrimination and
other employer-employee related subjects.
7. Buyer shall indemnify and hold harmless the Seller Indemnified Persons
pursuant to the procedures set forth in Article IX of the Agreement from and
against all Losses, directly or indirectly, as a result of, or based upon or
arising from any act or omission by Buyer or Buyer's agents or employees in
connection with the employment or management of the Leased Employees during the
period from the Closing Date to December 2, 2003, except to the extent such act
or omission was caused by or within the exclusive control of Seller.
8. Except as expressly set forth in this Amendment, the Purchase Agreement
shall remain in full force and effect and shall not be deemed to have been
modified or amended by this Amendment. Each of the parties understands and
agrees that by executing and delivering this Amendment the other parties do not
hereby waive any of their respective rights or remedies under the Purchase
Agreement.
9. This Amendment, together with the Purchase Agreement, constitutes the
entire understanding of the parties with respect to the subject matter hereof,
and any other prior or contemporaneous agreements, whether written or oral, with
respect thereto are expressly superseded hereby. This Amendment shall be
governed by the laws of the State of Delaware applicable to agreements entered
into and fully performed in such state.
10. This Amendment may be executed in two or more counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
constitute the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
ORTHOLOGIC CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President/CEO
DJ ORTHOPEDICS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
Name: /s/ Xxxxxx X. Xxxxxxx
Title:
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Exhibit A: Supplement to Schedule 2.1(c) to the Asset Purchase Agreement dated
October 8, 2003
Exhibit B: New Schedules 3.3, 3.6, 3.17 and 5.6 to the Asset Purchase Agreement
dated October 8, 2003
*OrthoLogic Corp. agrees to furnish supplementally a copy of these omitted
exhibits and the disclosure schedules relating to OrthoLogic Corp.'s exceptions
and disclosure pursuant to its representations and warranties under this
Amendment No. 1 to the Asset Purchase Agreement to the Securities and Exchange
Commission upon request.
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