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Exhibit 2.2
November 28, 2000
Xxxxxxxxx Industries, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
Reference is made to that certain Asset Purchase Agreement (the
"Agreement") dated September 20, 2000 among Xxxxxxxxx Industries, Inc.
("Xxxxxxxxx"), Aviation Sales Company ("AVS") and Aviation Sales Distribution
Services Company (the "Company"). Capitalized terms used herein but not
otherwise defined herein shall have the meanings given to them in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the undersigned agree that the Agreement is hereby
amended as follows:
1. The term "Equipment Lease" means that certain Equipment Lease
Agreement between the Company and Xxxxxxxxx in the form of
EXHIBIT P attached hereto.
2. The term "Excluded Assets" is hereby amended to include the
Pearland Facility and the Equipment (as such term is defined
in the Equipment Lease as hereinafter defined).
3. The term "Pearland Lease" means that certain Lease between the
Company and Xxxxxxxxx in the form of EXHIBIT Q attached
hereto.
4. The term "Purchased Assets" is hereby amended to exclude the
Pearland Facility and the Equipment.
5. The term "Real Estate Transaction Documents" is hereby amended
to delete therefrom the reference to the Pearland Real Estate
Purchase Agreement.
6. The term "Transaction Documents" is hereby amended to include
the Pearland Lease and the Equipment Lease.
7. Section 2.10 of the Agreement is hereby amended to add the
following sentence at the end thereof:
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"The Closing shall be deemed to have occurred at 12:01 a.m.,
Fort Lauderdale, Florida time on the day that the Estimated
Cash Purchase Price is paid."
8. The penultimate line of Section 6.8(a) of the Agreement is
hereby amended to add the following after the phrase "prior
six months":
"or any person who does not accept or is not offered
employment pursuant to Section 6.10(a) or"
9. Section 6.10(a) of the Agreement is hereby amended and
restated in its entirety to read as follows:
(a) OFFERS OF EMPLOYMENT. At Closing, the Company shall
terminate the employment of all employees set forth on
SCHEDULE 6.10 ("Schedule 6.10 Employees"), which constitute
all of the employees of the Company employed in the Business
(except for those employees being retained pursuant to the
Transition Services Agreement). Xxxxxxxxx shall offer
employment, commencing on the Closing Date, to all Schedule
6.10 Employees (other than those set forth on SCHEDULE 6.10-1
hereto (the "Unselected Employees")) on such terms and
conditions as may be determined by Xxxxxxxxx. At Closing, AVS
shall release all Schedule 6.10 Employees that accept
employment with Xxxxxxxxx from any and all agreements or
arrangements which may restrict such Persons from accepting
the offer of employment with Xxxxxxxxx or from working for
Xxxxxxxxx. Xxxxxxxxx (a) shall be responsible for complying
with the provisions of the Worker Adjustment and Retraining
Notification Act ("Warn Act") with respect to the termination
of the employment of all Schedule 6.10 Employees, including
without limitation, the payment of any amounts required to be
paid to such employees thereunder, (b) shall bear the cost and
expense of the termination of the employment of any Schedule
6.10 Employees who accept employment with Xxxxxxxxx whose
employment is thereafter terminated by Xxxxxxxxx and (c) shall
reimburse AVS for the amount of severance paid to Unselected
Employees up to the amounts identified for each such
Unselected Employee on SCHEDULE 6.10-1 hereto that has
executed a release agreement in form satisfactory to
Xxxxxxxxx. All employees hired by Xxxxxxxxx hereunder who
remain employed by Xxxxxxxxx as regular full-time employees
through the first day of the first month following the Closing
Date shall be eligible to participate in the health plans of
Xxxxxxxxx effective on the first day of the first month
following the Closing Date. All of such employees' periods of
service with the Company shall be counted in determining their
entitlement to benefits with Xxxxxxxxx other than for purposes
of vesting in company contributions under Xxxxxxxxx'x 401(k)
plan.
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10. Section 6.10(b) and 6.10(c) of the Agreement are hereby
amended and restated in their entirety to read as follows:
"6.10 (b). 401(k) AND REQUEST FOR PRIVATE LETTER RULING.
Following the Closing Date, AVS intends to submit a private
letter ruling request to the Internal Revenue Service to
request a ruling that the AVS 401(k) Plan may treat the
termination of employment of all Schedule 6.10 Employees who
are terminated by AVS as a result of the transactions
contemplated pursuant to this Agreement as a "separation from
service" such that the AVS 401(k) Plan may distribute all
account balances to such Schedule 6.10 Employees. If AVS is
able to obtain such a ruling, it will complete the
distribution of such accounts as soon as reasonably possible
thereafter. If the Internal Revenue Service issues a ruling
that the termination of employment pursuant to the transaction
contemplated by this Agreement does not constitute a
"separation from service" so that distributions may not be
made from the AVS 401(k) Plan, then Xxxxxxxxx agrees to
consolidate the account balances in the AVS 401(k) Plan of the
Schedule 6.10 Employees that it employs at that time with and
into a defined contribution retirement plan (the "Xxxxxxxxx
Plan") maintained by Xxxxxxxxx. In such event, however, AVS
agrees to indemnify and hold Xxxxxxxxx harmless from any and
all debts, claims, expenses, fees, costs, taxes, penalties and
other liabilities, including attorneys' fees and costs, which
Xxxxxxxxx is required to incur as a result of such plan
consolidation provided such amount relates to the operation
and administration of the AVS 401(k) Plan up through the date
that the account balances for the Schedule 6.10 Employees are
transferred to the Xxxxxxxxx Plan."
11. Section 6.17(a) of the Agreement is hereby amended by deleting
such section in its entirety and substituting the following
therefor:
a. PEARLAND FACILITY/EQUIPMENT. The Company shall at
Closing lease to Xxxxxxxxx the Equipment pursuant to
the Equipment Lease and lease to Xxxxxxxxx the
Pearland Facility pursuant to the Pearland Lease. At
Closing, the Company and Xxxxxxxxx shall terminate
the Pearland Real Estate Purchase Agreement, without
penalty, pursuant to a termination agreement in the
form reasonably acceptable to Xxxxxxxxx and the
Company.
12. The phrase "and/or shall fail to" shall be inserted
immediately prior to the phrase "to pay the cash amount" in
the seventh sentence of Section 6.18(c) of the Agreement.
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13. Article VII of the Agreement is hereby amended by adding the
following at the end thereof:
7.17 LC FACILITY. Xxxxx Ventures, L.P., LJH Corporation,
Xxxxxx Xxxxxx, Xxx Xxxxxxx or their designees shall
have entered into a credit enhancement facility with
Xxxxxxxxx pursuant to which such persons shall make
available to the lenders under the Xxxxxxxxx Credit
Facility $8,000,000 in direct pay letters of credit
as a credit enhancement to the Xxxxxxxxx Credit
Facility containing the terms summarized on EXHIBIT R
attached hereto and such other terms as Xxxxxxxxx and
the lenders under the Xxxxxxxxx Credit Facility may
require.
7.18 SPECIAL CONSIGNED INVENTORY. The Company shall have
executed and delivered to Xxxxxxxxx the Special
Consigned Inventory Consignment Agreement (as defined
in the Inventory Purchase Agreement) and agreed to
deliver to Xxxxxxxxx the Special Consigned Inventory
(as defined in the Inventory Purchase Agreement)
pursuant thereto.
14. Schedule 2.3 of the Agreement is hereby amended by adding
thereto the agreements identified on Supplemental Schedule 2.3
hereto.
15. Schedule 2.3 of the Agreement is hereby amended to delete
therefrom the agreements identified on Supplemental Schedule
2.3(A) hereto.
16. Schedule 3.4 of the Agreement is hereby amended to delete
therefrom the agreements identified on Supplemental Schedule
3.4 hereto.
17. Schedule 4.14(d) of the Agreement is hereby amended to delete
therefrom the reference to the automobile identified on
Supplemental Schedule 4.14(d) hereto.
18. Schedule 6.10 of the Agreement is hereby amended to add and
delete therefrom the references to the individuals as set
forth on Supplemental Schedule 6.10 hereto.
Except as otherwise expressly set forth herein, the Asset Purchase
Agreement continues to remain in full force and effect. Please confirm your
acknowledgment, agreement and acceptance of the foregoing by signing where
indicated below.
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AVIATION SALES COMPANY
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Chairman and
Chief Executive Officer
AVIATION SALES DISTRIBUTION SERVICES COMPANY
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, President
Acknowledged, Agreed and Accepted:
XXXXXXXXX INDUSTRIES, INC.
By: /s/ Zivi X. Xxxxxx
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Zivi X. Xxxxxx
President and Chief Executive Officer
