Exhibit 2(d)
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement, dated as of February 27,
1998, is by and between Bacou USA Safety, Inc., a Delaware corporation (the
"Buyer") and Xxxxxx X. Xxxxxx & Associates, Inc., a California corporation
("Seller" or "Company"), d/b/a Xxxxxx Xxxxxx Industries. Except as otherwise
defined herein, capitalized terms used in the Asset Purchase Agreement (defined
below) shall have the same meaning herein as defined in the Asset Purchase
Agreement.
Recitals
Buyer and Seller are parties to that certain Asset Purchase Agreement,
dated as of December 31, 1997, pursuant to which the Buyer is purchasing from
the Seller the Assets and assuming the Assumed Liabilities (the "Asset Purchase
Agreement"); and
As contemplated by the Asset Purchase Agreement, Buyer or its Affiliates
are entering into Foreign Acquisition Agreements with respect to Xxxxxx Xxxxxx
(Europe) Limited and Xxxxxx Xxxxxx de Mexico S.A. de C.V.; and
The Closing of the transactions contemplated by the Asset Purchase
Agreement and the Collateral Agreements is occurring on the date hereof; and
Buyer and Seller desire to make certain modifications to the Asset
Purchase Agreement as hereinafter provided.
Agreements
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Section 2.2 of the Asset Purchase Agreement is hereby deleted in its
entirety and replaced with the following:
2.2 Purchase Price. On the terms and subject to the conditions set
forth in this Agreement and the Foreign Acquisition Agreements, the
Buyer agrees to pay or cause to be paid to Seller and to the
stockholders of the Foreign Subsidiaries an aggregate of U.S. One
Hundred Twenty-Five Million Nine Hundred Thirty-Eight Thousand Six
Hundred Nineteen and 61/100 Dollars ($125,938,619.61) (the "Purchase
Price") and to assume or cause one of the Buyer Parties to assume the
Assumed Liabilities as provided in Section 2.5. The following portions
of the Purchase Price shall be payable at the respective Closings, in
separate payments determined in accordance with Section 2.4, as
follows:
(a) By the wire transfer of U.S. One Hundred Twenty-Three Million
Nine Hundred Thirty-Eight Thousand Six Hundred Nineteen and 61/100
Dollars ($123,938,619.61) in immediately available funds to such bank
account or accounts as per written instructions of Seller and the
stockholders of the respective Foreign Subsidiaries, less:
(i) $10,973 (the U.S. Dollar equivalent of Mexican PS
94,111), being the estimated amount of accrued and unpaid income tax
liabilities of Xxxxxx Xxxxxx de Mexico S.A. de C.V. (the "Mexican
Subsidiary") with respect to the period from January 1, 1998 through
to the Closing Date;
(ii) $6,289 (the U.S. Dollar equivalent of Mexican Ps
53,924) being the amount of accrued and unpaid income taxes of the
Mexican Subsidiary reflected on its December 31, 1997 Balance Sheet;
(iii) $39,084.32 (the U.S. Dollar equivalent of 335,200 Ps)
being the amount of Mexican withholding tax to be paid by Buyer to
Mexican tax authorities (20% of Purchase Price of shares) of the
Mexican Subsidiary;
(iv) $39,084.32 being the purchase paid to Xxxxxx X. Xxxxxx
for his shares of Xxxxxx Xxxxxx de Mexico S.A. de C.V., after
deducting $9,771.08 for his portion of the Mexican withholding taxes;
(v) $439,297 being the U.S. Dollar equivalent of the
December 31, 1997 Net Worth of Xxxxxx Xxxxxx (Europe) Ltd. (the "UK
Subsidiary"), which amount shall be paid 95%, $417,332.15, to Xxxxxx
X. Xxxxxx, and 5% $21,964.85, to Xxxx Xxxx as the Selling Stockholders
of the UK Subsidiary;
(vi) $11,900 (the U.S. Dollar equivalent of (pound) 7,167),
being the estimated amount of accrued and unpaid income tax
liabilities of the UK Subsidiary with respect to the period from
January 1, 1998 through to the Closing Date; and
(vii) $70,860 (the U.S. Dollar equivalent of (pound) 43,000)
being the amount of accrued and unpaid income taxes of the UK
Subsidiary reflected on its December 31, 1997 Balance Sheet.
(b) By the wire transfer delivery of U.S. Two Million Dollars
($2,000,000) in immediately available funds to the Escrow Agent
pursuant to the Escrow Agreement which will be in effect for two
years. Interest on Escrow Funds not subject to claims shall be payable
to Seller periodically. At the end of the first year, $1,000,000 of
the funds held by Escrow Agent less the amount of claims, if any, made
by Buyer under Section 13.1 of this Agreement, shall be returned to
Seller in accordance with the Escrow Agreement.
2. Section 2.5(a) of the Asset Purchase Agreement is hereby amended by
adding the following additional sentence at the end of the paragraph:
Notwithstanding the foregoing, the Buyer Parties are not assuming
and the Assumed Liabilities shall not include, any liabilities or
obligations with respect to the California Statewide Communities
Development Authority Weekly Adjustable/Fixed Rate Industrial
Development Revenue Bonds, Series 1995B (Xxxxxx X. Xxxxxx &
Associates, Inc. Project) (the "Bonds"). In order to facilitate the
release of Liens held by Sanwa Bank California on its assets as
indirect security for the Bonds, Seller has entered into a Repayment
and Lien Release Agreement dated as of February 26, 1998 with Buyer
and said Bank, and, notwithstanding anything to the contrary contained
herein, said Agreement shall govern as to the payment and receipt of
all amounts described therein.
3. Clause (b) of Section 2.6 of the Asset Purchase Agreement (Excluded
Liabilities) is hereby deleted in its entirety and replaced with the following
new subsection:
(b) liabilities and obligations relating to or arising out of any
facts or circumstances of which any of the Sellers had Knowledge,
which should have been but were not disclosed in any applicable
provision of the Agreement, the Collateral Agreements or the
Schedules.
4. Clause (d) of Section 2.6 of the Asset Purchase Agreement is hereby
amended by inserting the following companies following the reference to "Xxxxxx
Xxxxxx GmbH": "Point Zero, Xxxxxx Xxxxxx, LLC, Xxxxxx Xxxxxx International,
Inc., Xxxxxx Xxxxxx Enterprises, Inc., dba Xxxxxx Xxxxxx Medical, Xxxxxx Xxxxxx
Enterprises S. de X.X. de C.v., Xxxxxx Xxxxxx Europe, Inc., Xxxxxx Xxxxxx
Atlantic, Inc."
5. The following new or amended Schedules, attached hereto as Exhibit A,
are hereby delivered in accordance with the Asset Purchase Agreement and shall
supersede the Schedules bearing the same number which were delivered and
approved at the time of the execution of the Asset Purchase Agreement:
Schedule 1.2 - Excluded Assets.
Schedule 2.6(c) - Excluded Liabilities.
Schedule 3.2 - Outstanding Stock.
Schedule 3.3 - Foreign Subsidiaries.
Schedule 3.6(b) - Interim Financial Statements.
Schedule 3.7 - Interim Changes.
Schedule 3.9(b) - Violations.
Schedule 3.10(a) - Intellectual Property Rights (Title).
Schedule 3.10(c) - Intellectual Property Rights (No Litigation).
Schedule 3.11(c) - Litigation.
Schedule 3.12(f) - Taxes (Litigation).
Schedule 3.14(a) - Contracts.
Schedule 3.15 - Benefit Plans.
Schedule 3.18(a) - Labor Relations.
Schedule 3.33(b) - Product Warranty Claims.
Schedule 3.36 - Officers, Directors and Key Employees.
Schedule 14(b) - Senior Management Employees.
6. It is acknowledged that Buyer has agreed with Seller to acquire all of
the outstanding shares of the Mexican and UK Subsidiaries and, therefore, to the
extent any Excluded Liabilities exist or are suffered or incurred in the future
by either of such Companies, Seller will fully protect and hold Buyer and such
companies harmless from and against all Losses relating to or arising with
respect to such Excluded Liabilities. Seller agrees that amounts payable to
Buyer or the UK and Mexican Subsidiaries pursuant to this paragraph 6 shall be
deemed to be Excluded Liabilities. Without limiting the foregoing, it is
expressly agreed that if any Income Taxes are assessed or become payable by the
Mexican or the UK Subsidiaries with respect to periods ending on or before the
Closing Date in excess of the amount deducted with respect thereto in Paragraph
3 above, such taxes shall be deemed Excluded Liabilities. Conversely, Buyer
agrees to promptly remit to Seller, by no later than January 1, 1999, the
amount, if any, by which the amounts deducted for accrued and unpaid income tax
liabilities in paragraph 3 above, exceed the actual amount of such liabilities.
Should Seller owe any unpaid income tax liabilities of which it is obligated to
pay, such sum shall be remitted from the Escrow Account to Buyer
contemporaneously with the final disbursement of funds from the Escrow Account.
7. Schedule 3.28 of the Asset Purchase Agreement is hereby deleted in its
entirety.
8. Except as modified by this Amendment, the Asset Purchase Agreement is
hereby ratified and confirmed to be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
BACOU USA SAFETY, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chairman, President and CEO
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
Title: Vice Chairman, Treasurer and
Secretary
XXXXXX X. XXXXXX & ASSOCIATES, INC.
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Executive Vice-President and CEO
