EXHIBIT 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (the "Amendment") is
entered into as of December 23, 1998, by and between ZEVEX, Inc. a Delaware
corporation, ("Buyer") and Nutrition Medical, Inc., a Minnesota corporation
("Target").
The parties to this Amendment have previously entered into the Asset
Purchase Agreement, dated July 27, 1998, (the "Purchase Agreement").
The Parties now desire to amend the Purchase Agreement in certain respects
as provided in this Amendment.
Now, therefore, in consideration of the covenants made herein and the
Purchase Agreement, the Parties hereby agree as follows.
1. AMENDMENTS.
a. Section 2(a)(vii) is hereby amended to read in its entirety as
follows:
"(vii) agreements, contracts, purchase orders, sales
orders, indentures, mortgages, instruments, Security
Interests, guaranties, commitments, other similar
arrangements and rights thereunder (other than the Pump
Lease Agreements) as listed Schedule 2(a)(vii)(A), and Pump
Lease Agreements as described in Schedule 2(a)(vii)(B)
(collectively, the "Assumed Contracts");"
b. Section 2(e)(iii) is hereby amended to read in its entirety as
follows:
"(iii) an amount equal to the estimated actual cost of
the Parts Inventory on the Closing Date less seventy five
thousand dollars ($75,000) (the "Estimated Parts Inventory
Amount"), subject to adjustment as set forth in Section 2(g)
below)."
c. The fifth sentence of Section 2(f) is hereby amended to read in its
entirety as follows:
"The Parties further agree that the Buyer shall withhold an
additional One Hundred Thousand Dollars ($100,000) from the
cash portion of the Purchase Price to be delivered at the
Closing and that this amount, less deductions pursuant to
Section 6(i) or Section 8(b) will
be delivered to the Target on a deferred basis no later than 270 days
following Closing.
d. The third sentence of Section 2(g) is hereby amended to read in its
entirety as follows:
"Within thirty (30) days after the completion of such
inventory, the Target shall prepare and deliver to the Buyer
a statement (the "Inventory Statement"), which has been
reviewed and reported on by Buyer's independent auditors in
accordance with procedures to be established by Buyer and
the Target, without exception or qualification, setting
forth the actual cost of the Parts Inventory minus seventy
five thousand dollars ($75,000) (the "Final Parts Inventory
Amount").
2. MISCELLANEOUS. This Amendment to the Purchase Agreement is incorporated in
and supersedes the terms of the Purchase Agreement only with regard to the
sections specifically identified herein. All other terms and provisions in the
Purchase Agreement remain in full force and effect. The Purchase Agreement and
this Amendment contain the entire understanding between the parties related to
the subject matter hereof and thereof and supersede all prior oral or written
agreements or understandings with respect to the subject matter hereof and
thereof. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
ZEVEX, INC.,
a Delaware corporation
By /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Chief Financial Officer
NUTRITION MEDICAL, INC.,
a Minnesota corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
