EXHIBIT 2.2
FIRST AMENDMENT
FIRST AMENDMENT, dated as of March 13, 1998 (the "First Amendment"), to the
Recapitalization Agreement, dated as of October 14, 1997 (the "Recapitalization
Agreement"), by and among Xxxxxx, Inc., a New Jersey corporation ("Xxxxxx"),
Xxxxxx Decorative Products Holdings, Inc., a Delaware corporation and an
indirect wholly owned subsidiary of Xxxxxx ("BDPH"), and BDPI Holdings
Corporation, a Delaware corporation ("MergerCo"). Capitalized terms used and not
otherwise defined herein shall have the meaning ascribed to them in the
Recapitalization Agreement.
1. Amendments. Xxxxxx, BDPH and MergerCo hereby agree to amend the
Recapitalization Agreement as follows:
(a) By deleting Section 2.2(c)(ii) in its entirety and inserting in lieu
thereof the following Section 2.2(c)(ii):
(ii) Trademark Rights. All right, title and interest including, without
limitation, any causes of action in respect thereof in the Trademark
Rights (as defined in Section 6.10(b)) described or required by the
terms hereof to be described on Part I of Schedule 6.10(b) hereto and,
with the exception of those trademarks identified on Appendix A to the
Xxxxxx Home License Agreement (as defined in Section 8.6(c)), all
trademarks owned, used or held for use by BCL in each case principally
in connection with the Business.
(b) By deleting Section 2.2(c)(iii) in its entirety and inserting in lieu
thereof the following Section 2.2(c)(iii):
(iii) Copyrights. All right, title and interest including, without
limitation, any causes of action in respect thereof, in the Copyright
Rights (as defined in Section 6.10(c)) described or required by the
terms hereof to be described on Part I of Schedule 6.10(c) hereto and
all copyrights owned, used or held for use by BCL principally in
connection with the Business.
(c) By deleting Section 3.1 in its entirety and inserting in lieu thereof
the following Section 3.1:
Subject to the satisfaction or waiver of the conditions set forth in
this Agreement, at the Closing and as of the Closing Date and
immediately after the consummation of the Asset Transfer, MergerCo
shall be merged with and into BDPH in accordance with the DGCL. Upon
the Effective Time of the Merger (as defined below), the separate
existence of MergerCo shall cease, and BDPH shall continue as the
surviving corporation (the "Surviving Corporation"). After the
Closing, all
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references in this Agreement to "MergerCo" shall mean "BDPH", as
successor by merger.
(d) By deleting Section 3.4(a) in its entirety and inserting in lieu
thereof the following Section 3.4(a)
(a) At the Effective Time of the Merger, and without any further
action on the part of BDPH or MergerCo, the Certificate of
Incorporation of BDPH, as in effect immediately prior to the Effective
Time of the Merger, shall be the certificate of incorporation of the
Surviving Corporation following the Merger until thereafter further
amended as provided therein and under the DGCL.
(e) By deleting Section 8.6(a) in its entirety and inserting in lieu
thereof the following Section 8.6(a):
(a) Except as otherwise provided in the Xxxxxx Home License Agreement
(defined below), for a period of six (6) months after the Closing
Date, Xxxxxx hereby grants to BDPH a non-exclusive non-assignable,
royalty- free license to use the Xxxxxx(R)trademark (hereinafter in
this Section 8.6 the "Trademark") on notepaper, invoices, stationary,
labels and other Business documents in connection with such Business
on which the Trademark appears as of the Closing Date and shall
thereafter cease to use the same except as permitted by this Section
8.6. Notwithstanding the provisions of the immediately preceding
sentence, BDPH may for a period of thirty-three (33) months from the
Closing Date use the Trademark in the form and style in which the same
are used in the Business as of the Closing Date (whether alone or in
combination with other trademarks) on stocks of wallcoverings, pattern
books and promotional materials produced by such Business at any time
prior to the expiration of the aforesaid six (6) month period after
the Closing Date; provided that any such products manufactured by BDPH
are manufactured, in all material respects, at the quality standards
of Xxxxxx and consistent, in all material respects, with the quality
standards used prior to Closing. Any such Business materials bearing
the Trademark not used within the aforesaid six (6) or thirty-three
(33) month periods, as applicable, after the Closing Date may not
thereafter be used by BDPH and shall be destroyed at MergerCo's sole
expense unless otherwise agreed to by Xxxxxx in writing. Within the
later of (i) one (1) month after any extension granted by Xxxxxx
pursuant to the previous sentence or (ii) one (1) month following the
expiration of the aforesaid six (6) or thirty-
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three (33) month periods, as applicable, BDPH shall provide to Xxxxxx
evidence reasonably satisfactory to Xxxxxx that all such Business
materials have been used or destroyed. BDPH shall defend, indemnify
and hold Xxxxxx harmless from any product liability or similar claims
arising from Products manufactured and sold by BDPH using such
Trademark. On and after the Closing, BDPH shall not be authorized to
execute any purchase order bearing the Trademark and BDPH agrees
immediately after Closing to destroy any and all such purchase order
forms.
(f) By deleting the words "one year" where they appear in Section 8.6(c)
and inserting in lieu thereof the words "thirty-three (33) months."
(g) By replacing Schedule 6.10(a) to the Recapitalization Agreement with
the attached revised Schedule 6.10(a).
(h) By replacing Schedule 6.10(c) to the Recapitalization Agreement with
the attached revised Schedule 6.10(c).
2. General.
(a) Except as expressly amended hereby, the provisions of the
Recapitalization Agreement are and shall remain in full force and effect.
(b) This First Amendment may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to be duly
executed as of the date first above written.
XXXXXX, INC.
By: _________________________
Name:
Title:
BDPI HOLDINGS CORPORATION
By: _________________________
Name:
Title:
XXXXXX DECORATIVE PRODUCTS
HOLDINGS, INC.
By: _________________________
Name:
Title:
