Exhibit 2.2
AMENDMENT NO. 1
to
ASSET PURCHASE AGREEMENT
Dated as of May 5, 1998
among
ANACOMP, INC.,
FIRST FINANCIAL MANAGEMENT CORPORATION
and
FIRST DATA CORPORATION
AMENDMENT NO. 1 TO ASSET
PURCHASE AGREEMENT
THIS AMENDMENT NO. 1, dated as of June __, 1998 (this "Amendment"), to
Asset Purchase Agreement dated as of May 5, 1998 among Anacomp, Inc. ("Buyer"),
First Financial Management Corporation ("FFMC") and First Data Corporation
("FDC" and, together with FFMC, "Sellers").
W I T N E S E T H:
WHEREAS, Buyer and Sellers have agreed that, notwithstanding the
provisions of the Asset Purchase Agreement, the calculation of Closing Net
Working Capital in the middle of a month is impractical; and
WHEREAS, in order to determine Closing Net Working Capital at the end
of a month and to set forth certain other mutual agreements with respect to the
Asset Purchase Agreement, the parties desire to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. In this Amendment, unless the context shall
otherwise require, a term defined in the Asset Purchase Agreement has the same
meaning when used in this Amendment and a term defined anywhere in this
Amendment has the same meaning throughout.
In addition, Section 1.1 of the Asset Purchase Agreement shall be
amended by deleting the definition of "Closing Net Working Capital" set forth
therein in its entirety and substituting in lieu thereof:
"Closing Net Working Capital" means the Net Working Capital of the
Division as of the close of business on May 31, 1998, as determined in
accordance with Section 3.2.
1.2. Interpretation. Each definition in this Amendment includes the
singular and the plural, and reference to the neuter gender includes the
masculine and feminine where appropriate. References to any statute or
regulation means such statute or regulation as amended at the time and include
any successor legislation or regulations. The heading to the
Articles and Sections are for convenience of reference and shall not affect the
meaning or interpretation of this Amendment. Except as otherwise stated,
reference to Articles, Sections, Exhibits and Schedules mean the Articles,
Sections and Schedules of this Amendment.
ARTICLE II
PURCHASE AND SALE
2.1. Purchased Assets.
(a) Section 2.1(a) of the Asset Purchase Agreement shall be deleted
in its entirety and the following shall be substituted in lieu thereof:
"(a) All of the assets reflected on the Interim Balance Sheet,
except for cash generated by the Division prior to June 1, 1998 and
for those assets disposed of or converted into cash after the Interim
Balance Sheet Date in the ordinary course of Business and in
accordance with this Agreement;"
(b) A new clause (q) shall be added to Section 2.1 of the Asset
Purchase Agreement to read as follows:
"(q) All cash, bank deposits, and cash equivalents in the
accounts set forth in Schedule 2.1 hereto."
2.2. Excluded Assets. Section 2.2(a) of the Asset Purchase Agreement
shallb e deleted in its entirety and the following shall be substituted in liew
thereof:
"(a) All cash, bank deposits and cash equivalents generated by
the Division prior to June 1, 1998;"
2.3. Assumed Liabilities. Section 2.3(a) of the Asset Purchase
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
"(a) All liabilities reflectd in the calculation of Closing Net
Working Capital and all liabilities of the type reflected in such
calculation which have accrued on or after June 1, 1998;"
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2.4. Adjustment Procedure. Section 3.2(c)(i) of the Asset Purchase
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
"(i) Within sixty (60) calendar days after the Closing Date,
Seller shall cause the Atlanta office of Ernst & Young LLP, on their
behalf, to prepare and deliver to Buyer an unaudited consolidated
balance sheet of the Division, dated as of May 31, 1998 (the "Closing
Balance Sheet"), which shall include a calculation of the Closing Net
Working Capital and shall certify that the Closing Balance Sheet has
been prepared in accordance with the Agreed Accounting Principles and
otherwise on a basis consistent with the Working Capital Model."
2.5. Liability for Taxes. Clause (I) of Section 8.2.1(a) shall be
deleted in its entirety and the following shall be substituted in lieu
thereof:
"(I) any Tax liability or reserve taken into account in the
calculation of the Closing Net Working Capital as provided in
Section 3.2 and any Tax liability or reserve of the type reflected
in such calculation which has been incurred on or after June 1,
calculation as of the Closing Date),"
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
3.2. Entire Agreement. With respect to the subject matter hereof,
this Amendment shall supersede anything to the contrary contained in the Asset
Purchase Agreement.
3.3. Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or
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unenforceable in any respect, such provision shall be ineffective to the extent,
but only to the extent, of such invalidity, illegality or unenforceability
without invalidating the remainder of such invalid, illegal or unenforceable
provision or provisions or any other provisions hereof, unless such a
construction would be unreasonable.
3.4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS)OF THE STATE OF NEW YORK.
3.5. Waiver. Any term or provision of this Amendment may be waived,
or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Amendment if, as to any party,
it is authorized in writing by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Amendment shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Amendment or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of any
breach of this Amendment shall be held to constitute a waiver of any other or
subsequent breach.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first above written.
ANACOMP, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
FIRST FINANCIAL MANAGEMENT
CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
FIRST DATA CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
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SCHEDULE 2.1
1. NationsBank
Lockbox Account #3750218110
Concentration/Disbursing Account #3750218165
Payroll Disbursing Account #0101156298
General Disbursing Account #000-00-00000
2. Bank of America
Lockbox Account #1233711225
