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Exhibit 2.1
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FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
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THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment") is dated
as of February 9, 1999, and is among CertainTeed Corporation, a corporation
organized and existing under the laws of Delaware with offices at 000 Xxxx
Xxxxxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxxxxxx, 00000 (the "Buyer"), and ABTco,
Inc., a corporation organized and existing under the laws of Delaware with
offices at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 (the "Seller"), and ABT
Building Products Corporation, a corporation organized and existing under the
laws of Delaware with offices at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 (the
"Stockholder").
RECITALS
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A. The parties hereto have entered into that certain Asset Purchase
Agreement dated as of December 21, 1998 (the "Purchase Agreement", to which
reference is made for the definitions of all capitalized terms used but not
otherwise defined herein), pursuant to which the Seller has agreed to sell, and
the Buyer has agreed to purchase, certain assets of Seller comprising the
Business.
B. The parties to the Purchase Agreement desire to amend the Purchase
Agreement on the terms and conditions contained herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Purchase Agreement. With effect from the date hereof:
(a) Section 4.2.11 of the Purchase Agreement is deleted in its
entirety, and replaced with the following:
4.2.11. Collection of Receivables.
A. Seller's Receivables. After the Closing Date, Seller shall collect
Seller's accounts receivable relating to the Business ("Seller Business
Receivables") in a manner consistent with the policies and practices used by
Seller in the collection of its own accounts receivable and in compliance with
all applicable Laws. For the
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purposes of this Section 4.2.11, the combination of the Seller Business
Receivables plus all other receivables of Seller shall collectively be referred
to as "Seller Receivables".
B. Buyer's Receivables. After the Closing Date, Seller shall render to
Buyer certain services in connection with Buyer's accounts receivable relating
to the Business ("Buyer Receivables") according to the procedures and other
provisions set forth in the Technology Transfer and Services Agreement dated as
of the date hereof.
C. Attribution of Receivables. If any party hereto receives a payment
from a third party that belongs to any other party to this Agreement, other than
receipt by Seller of Buyer Receivables pursuant to the Technology Transfer and
Services Agreement, then the recipient shall promptly forward the payment (or
the equivalent amount, if already deposited, together with a copy of the front
of the payment check received) to such other party. For the purpose of
attributing payments received by Seller to outstanding receivables the following
procedure shall be observed:
(i) If, on the date a payment is received from an account
debtor there are no Buyer Receivables but there are Seller Receivables from such
account debtor, the payment shall be attributed to the Seller Receivables.
(ii) If, on the date a payment is received from an account
debtor there are no Seller Receivables but there are Buyer Receivables from such
account debtor, the payment shall be attributed to the Buyer Receivables.
(iii) If, on the date a payment is received from an account
debtor there are both Buyer Receivables and Seller Receivables from such account
debtor, the payment shall be attributed first to a particular invoice or
receivable requested or identified by the account debtor, second to a particular
invoice or receivable to which such payment may logically be attributed (e.g. an
invoice or receivable in a matching amount), and third to the oldest
non-disputed invoice of the account debtor. For the purposes of this Section
4.2.11, an invoice or receivable shall be considered disputed if the account
debtor has disputed in writing the invoice or receivable for any reason.
(b) The following additional Section 4.2.14 shall be added to
the Purchase Agreement:
4.2.14 Real Estate Taxes. Seller shall pay when due all1999 real estate
Taxes and personal property Taxes on the Real Property and the Acquired Assets,
including, without limitation, taxes due to the municipality of Roaring River,
North Carolina and Xxxxxx County North Carolina. If the amount of the 1999 real
estate Taxes and personal property Taxes on the Real Property are in excess of
the 1998 real estate
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Taxes and personal property Taxes on the Real Property, Buyer shall pay to
Seller the pro rata portion of such increase. Upon Buyer's request, Seller shall
provide Buyer with written evidence of such payment.
(c) Section 4.3.3 of the Purchase Agreement is deleted in its
entirety, and replaced with the following:
4.3.3. Wage Subsidy. On or before the ninetieth (90th) day after the Closing
Date, Seller shall pay to Buyer the sum of Ninety Thousand Dollars ($90,000), to
be applied by Buyer against the then current and future wage and benefit costs
for the Transferred Business Employees.
(d) Section 6.1 of the Purchase Agreement is deleted in its
entirety, and replaced with the following:
6.1. COMPLETION OF PHYSICAL INVENTORY. Not more than seven (7) days prior to
the Closing Date, Buyer and Seller shall jointly conduct a physical count of the
Inventory located on the Real Property which amount shall be adjusted after the
Closing Date to reflect actual sales, production of finished goods, purchase of
raw materials and other transactions prior to the Effective Time using standard
accounting cutoff procedures ("Physical Inventory on Real Property"). Not more
than forty five (45) days after the Closing Date, Buyer and Seller shall jointly
conduct a physical count of the Inventory located at the locations listed on
Schedule 3.1.3.F, which amount shall be adjusted for each location to reflect
sales activity, damage and shrinkage between the Effective Time and the date
such physical count is conducted. ("Physical Inventory at Consignment
Locations"). The sum of the Physical Inventory on Real Property and the Physical
Inventory at Consignment Locations shall be deemed the physical inventory as of
the Closing Date ("Physical Inventory").
(e) Section 6.5 of the Purchase Agreement is deleted in its
entirety, and replaced with the following:
6.5. PURCHASE PRICE ADJUSTMENT. If the Final Purchase Price calculated using
the results of the Physical Inventory is greater than the Estimated Purchase
Price, then Buyer shall pay the difference between such amounts to Seller. If
the Final Purchase Price is less than the Estimated Purchase Price, then Seller
shall pay the difference between such amounts to Buyer. Such payment shall be
made by wire transfer in immediately available funds to an account designated by
the recipient. The payment of the Purchase Price Adjustment shall be made within
ten (10) days following the final determination of the Physical Inventory. In
order to determine the Physical Inventory, within sixty (60) days following the
Closing Date, Seller shall cause the Physical Inventory to be calculated and
such calculation shall be delivered to Buyer. Within ten (10) days of Buyer's
receipt of Seller's calculation of Physical Inventory, Buyer shall, in writing,
either (i) advise Seller that Buyer agrees with
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Seller's calculation of the Physical Inventory; or (ii) advise Seller, in
reasonable detail, of the nature and extent of any disagreement with Seller's
calculation of the Physical Inventory. If, after good faith negotiations, Buyer
and Seller are unable to resolve any such disagreement within ten (10) days
after Buyer's notice to Seller, the parties shall submit the determination of
any disputed items to a national certified public accounting firm reasonably
acceptable to both parties (the "Accounting Arbitrator"). The Accounting
Arbitrator shall determine which of the positions asserted, either that asserted
by Buyer or that asserted by Seller is correct. The Accounting Arbitrator's
decision on the disputed items shall be final and binding on the parties and
shall not be appealable to any court. Each party shall bear the fees and
expenses of its own representatives in connection with the determination of the
Physical Inventory, and shall share equally the fees and expense of the
Accounting Arbitrator.
(f) Schedule 4.2.7 shall be deleted in its entirety and
replace with the new Schedule 4.2.7 attached hereto as Exhibit A.
2. No Other Modifications. Except as modified by the terms of this
Amendment, all provisions of the Purchase Agreement shall remain unchanged and
are in full force and effect and shall continue to be binding on the parties
hereto. From the date hereof, the Purchase Agreement and this Amendment shall be
read as one document.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
by the terms hereof, have hereunto set their hands, as of the date first above
written.
CERTAINTEED CORPORATION
By: /s/
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Xxxxxxxx X. Xxxxxxx, Executive Vice President -
Exterior Building Products
ABTco, INC.
By: /s/
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Xxxxxx X. X'Xxxxx, Vice President and
Chief Financial Officer
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ABT BUILDING PRODUCTS CORPORATION
By: /s/
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Xxxxxx X. X'Xxxxx, Vice President and
Chief Financial Officer
