AMENDMENT NO. 2
TO
REORGANIZATION AND ASSET
ACQUISITION AGREEMENT
This Amendment is made as of October 8, 1996 by and among Xxxxxxx
Corporation, a Delaware corporation ("Xxxxxxx"), Xxxxxxx Cable Systems, Inc.,
a Delaware corporation and a wholly-owned subsidiary of Xxxxxxx
("Purchaser"), Web Wire Products, Inc., a Florida corporation ("Seller") and
Xxxxxx Xxxxxxxxxx and Xxxxx X. Xxxxx, the sole shareholders of Seller (the
"Shareholders").
WITNESSETH:
WHEREAS, Xxxxxxx, Purchaser, Seller and Shareholders are parties to that
certain Reorganization and Asset Acquisition Agreement dated as of September
20, 1996, as amended by Amendment No. 1 thereto (collectively, the
"Acquisition Agreement") and desire to further amend the same as herein
provided.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings assigned to them in the Acquisition
Agreement.
2. AMENDMENT. In lieu of taking a physical inventory and preparing a
balance sheet as of the Closing Date pursuant to Sections 2.4 and 2.5 of the
Acquisition Agreement, the parties agree that the Payment Date Balance Sheet
and the Net Asset Amount as reflected on the Payment Date Balance Sheet, as
adjusted for the "net change in cash" between July 31, 1996 and the Closing
Date, shall constitute the Closing Balance Sheet. "Net change in cash" means
the net change in Seller's cash during the applicable period, which shall be
comprised of the net changes in Seller's cash accounts, Seller's debt balance
with Republic and the adjustments to Seller's income tax assets and
liabilities resulting from cash tax payments by or refunds to Seller. At
Closing, the Stock Consideration shall be adjusted based upon the Net Asset
Amount as of August 31, 1996 which the parties have agreed shall equal the
Net Asset Amount as reflected on the Payment Date Balance Sheet (i.e., as of
July 31, 1996) as adjusted for the "net change in cash" between July 31, 1996
and August 31, 1996 (which determination is set forth on Worksheet A attached
hereto). Attached hereto also is Worksheet B which shall be prepared in a
manner consistent with Worksheet A and shall be used to calculate the "net
change in cash" between August 31, 1996 and the Closing Date and the final
adjustment to the Stock Consideration. Seller shall deliver Worksheet B to
Purchaser within fifteen (15) days after the Closing. Worksheet B shall be
compiled by Seller's independent public accountant and shall be certified by
Seller and Shareholders. Upon request by Purchaser, Seller shall make
available to Purchaser the work papers used in determining the "net change in
cash" between August 31,
1996 and the Closing Date and final adjustment to the Stock Consideration and
such other documents as Purchaser may reasonably request. Within fifteen (15)
days after the delivery of Worksheet B to Purchaser, Purchaser shall deliver
to Seller a written statement describing its objections, if any, to Seller's
determination of the "net change in cash" between August 31, 1996 and the
Closing Date and the final adjustment to the Stock Consideration. If
Purchaser does not raise any such objections within such fifteen (15) day
period, Seller's determination of the "net change in cash" between August 31,
1996 and the Closing Date and the final adjustment to the Stock Consideration
shall become final and binding on the parties. If Purchaser does raise any
objection, Purchaser and Seller shall attempt in good faith to negotiate a
resolution to the dispute as promptly as possible. If Purchaser and Seller
have not been able to agree upon a resolution of the dispute within seven (7)
days after Purchaser shall have delivered its objections to Seller, any
remaining disputes shall be resolved by an accounting firm selected and paid
for in the same manner as provided for in Section 2.4 of the Acquisition
Agreement. The final adjustment to the Stock Consideration shall be made
in accordance with Section 2.3(b) of the Acquisition Agreement within three
(3) business days after the final determination of the "net change in cash"
between August 31, 1996 and the Closing Date and the final adjustment to the
Stock Consideration. To the extent the provisions of Section 2 of this
Amendment conflict with the provisions of Sections 2.3(b), 2.4 or 2.5 of the
Acquisition Agreement, the provisions of this Section 2 shall prevail;
provided, however, that nothing contained in this Section 2 shall in any
manner affect the obligations of Seller and Shareholders or the rights of
Purchaser under Article 3 or any other provision of the Acquisition Agreement.
3. EFFECT OF AMENDMENT. Except as specifically amended hereby, the
Acquisition Agreement shall remain unamended and in full force and effect. All
references in the Acquisition Agreement to "this Agreement" or terms such as
"herein", "hereof" or similar terms shall mean the Acquisition Agreement as
amended by this Amendment.
4. BINDING EFFECT. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns.
5. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
6. GOVERNING LAW. The internal law, not the law of conflicts, of the
State of Illinois shall govern all questions concerning the construction,
validity and interpretation of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first written above.
SELLER:
WEB WIRE PRODUCTS, INC.
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: President
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SHAREHOLDERS:
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
PURCHASER:
XXXXXXX CABLE SYSTEMS, INC.
By:/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Vice President
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ACKNOWLEDGED AND ACCEPTED AS OF THE DATE FIRST-ABOVE WRITTEN
XXXXXXX CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: President and Chief Operating Officer
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