EXHIBIT 2.2
AMENDMENT XX. 0
XXXXXXXXX Xx. 0 dated as of December 6, 1999 (this "Amendment") by and
between Wilmar Industries, Inc., a New Jersey corporation ("Buyer"), and The
Xxxxx-Xxxxxxx-Xxxxx Corporation, a Delaware corporation ("Seller"), to that
certain Stock Purchase Agreement dated as of November 15, 1999 (the "Purchase
Agreement") by and among Buyer and Seller and to the Disclosure Schedules to the
Purchase Agreement. Capitalized terms used herein and in the Schedules hereto
and not otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement.
W I T N E S S E T H
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WHEREAS, the parties hereto desire to amend the Disclosure Schedules
and the Purchase Agreement as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I.
AMENDMENT
1.1 The parties hereto acknowledge and agree that Schedule 7.12 of
the Disclosure Schedules to the Purchase Agreement is hereby deleted in its
entirety and a new Schedule 7.12 set forth as Schedule A attached hereto shall
be substituted in lieu thereof.
1.2 The parties hereto acknowledge and agree that Schedule 5.1(b) of
the Disclosure Schedules to the Purchase Agreement is hereby amended by deleting
the reference to "Mississippi" under the subheading "I. Trayco of S.C., Inc., a
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Delaware corporation."
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1.3 The parties hereto acknowledge and agree that the reference in
the first sentence of Section 5.3 of the Purchase Agreement to "1,000 shares" is
hereby deleted and replaced with a reference to "2,000 shares."
1.4 The parties hereto acknowledge and agree that the Effective Time
of the purchase and sale of the Shares shall be 12:01 A.M. on November 27, 1999.
The purchase and sale of the Shares shall be deemed to have occurred as of the
Effective Time, and the business and affairs of the Company shall be deemed to
have been operated for the account of Buyer after the Effective Time.
1.5 The parties hereto acknowledge and agree that the Base Purchase
Price payable by Buyer to Seller at the Closing shall be $85,000,000 plus
interest at the rate of 8.5% per annum per day for each day after the Effective
Time (but including November 27, 1999) to and including the Closing Date.
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1.6 The parties hereto acknowledge and agree that all references to
"Closing Date", "Closing" and/or "date hereof" set forth in (i) Sections 1.3(e),
5.21, 5.22, 5.23, 5.28, 7.13, 7.15, 9.1(c), 9.1(e), 9.1(f) and 9.1(h) of the
Purchase Agreement and (ii) the definitions of Former Employees and Seller Tax
Period in Annex A to the Purchase Agreement are hereby deleted and replaced with
references to "Effective Time."
1.7 The parties hereto acknowledge and agree that the references to
"Effective Time" set forth in Section 1.4 of the Purchase Agreement are hereby
replaced with references to "Closing Date."
1.8 The parties hereto acknowledge and agree that the phrase "or
which was outstanding as of the Closing Date" set forth in Section 7.12 of the
Purchase Agreement is hereby deleted and replaced with a reference to "or which
was outstanding as of the Effective Time."
1.9 The parties hereto acknowledge and agree that the reference to
"Closing Date" the second time it appears in the first sentence of Section
1.3(a) of the Purchase Agreement is hereby replaced with a reference to
"Effective Time."
1.10 The parties acknowledge and agree that the Closing and the
Closing Date referred to in Section 2.1 of the Purchase Agreement shall take
place on and shall be, as the case may be, the date of this Amendment.
1.11 The parties hereto acknowledge and agree that Section 3 of the
Purchase Agreement is amended to add thereto the following:
"3.10 Insurance Side Letter. Seller shall deliver to
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Buyer the letter in the form of Schedule C attached to
Amendment No. 1 hereto, which letter shall be addressed to
Buyer's insurance agent."
1.12 Notwithstanding anything to the contrary contained in the
Disclosure Schedules or the Purchase Agreement, the parties hereto acknowledge
and agree that the provisions and procedures set forth on Schedule B to this
Amendment shall augment, amend and supersede, as applicable, any contrary or
conflicting provisions or procedures set forth in the Disclosure Schedules or in
the Purchase Agreement. It is the intention and agreement of the parties hereto
that the provisions and procedures set forth in such Schedule B shall control
over any contrary or conflicting provisions set forth in the Disclosure
Schedules or in the Purchase Agreement.
ARTICLE II.
MISCELLANEOUS
2.1 Invalidity, Etc. If any provision of this Amendment, or the
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application of any such provision to any person or circumstance, shall be held
invalid by a court of competent
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jurisdiction, the remainder of this Amendment, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid, shall not be affected thereby.
2.2 Governing Law. This Amendment shall be interpreted, construed,
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and enforced under and according to the laws of the State of New Jersey.
2.3 Counterparts. This Amendment may be executed in counterparts,
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each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
2.4 Ratification. Except as amended hereby, the Disclosure Schedules
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to the Purchase Agreement and the Purchase Agreement are hereby ratified and
confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
BUYER:
WILMAR INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
SELLER:
THE XXXXX-XXXXXXX-XXXXX
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
List of Schedules
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Schedule A Amendment to Schedule 7.12 of the Disclosure Schedule
Schedule B Certain Closing Balance Sheet Provisions and Procedures
Schedule C Insurance Side Letter
The aforementioned is a list of all omitted schedules. The Company agrees to
furnish supplementally a copy of any omitted schedule to the Securities and
Exchange Commission upon request.