Exhibit 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (the "Amendment")
entered into on March 30, 2004, by, between and among May and Xxxxxxxx, LLC, a
Michigan limited liability company ("Buyer 1"), M&S Ohio Real Estate Holdings
LLC, a Michigan limited liability company and a wholly-owned subsidiary of Buyer
1 ("Buyer 2," and together with Buyer 1, the "Buyer"), Strydel, Inc., an Ohio
corporation (the "Seller"), and The Ohio Art Company, an Ohio corporation (the
"Seller's Stockholder"). Buyer, Seller and Seller's Stockholder are referred to
collectively herein as the "Parties."
The Parties executed an Asset Purchase Agreement dated November 29,
2004 (the "Agreement") that contemplates a transaction in which Buyer will
purchase all of the Acquired Assets (as defined in the Agreement) in return for
the consideration and on the terms set forth in the Agreement.
The Parties desire to amend the Agreement as set forth in this
Amendment.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
1. The definition of "Acquired Assets" set forth in the Agreement is hereby
amended by adding to clause (xiii) of said definition (identifying an excluded
asset from the definition of Acquired Assets), the following:
"and any and all assets of Seller listed on Schedule 1 to the
Amendment."
2. The first sentence of Section 2(d) of the Agreement is hereby amended and
restated in its entirety to read and provide as follows:
"(d) Purchase Price. Buyer agrees to pay to Seller at the
Closing in immediately available funds One Million Six Hundred Fifty
Thousand Three Hundred Forty-Five Dollars ($1,650,345.00) (the
"Purchase Price") plus the Inventory Amount and the Prepaid Tooling
Amount."
3. Section 2(e) of the Agreement is hereby amended and restated in its entirety
to read and provide as follows:
"(e) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of
Seller at Xxx Xxx Xxxxxx, Xxxxx, Xxxx 00000, commencing at 9:00 a.m.
local time on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions
with respect to actions the respective Parties will take at the Closing
itself) (the "Closing Date"); provided, however, that the Closing Date
shall be no later than April 4, 2005 unless the Parties mutually agree
in writing to extend the Closing Date. The effective time ("Effective
Time") shall be at 5:00 p.m. Eastern Standard Time on the Closing
Date."
4. Exhibit F to the Agreement is hereby amended and restated in its entirety to
read and provide as follows:
"EXHIBIT F
ASSET ALLOCATION SCHEDULE
DESCRIPTION OF ACQUIRED ASSET ASSIGNED VALUE
Real Property $1,450,000
Machinery and Equipment $ 200,345
Inventory Value of Inventory Amount as described in Section 2(d) of
the Purchase Agreement
Prepaid Tooling Value of the Prepaid Tooling Amount as described in Section
2(d) of the Purchase Agreement"
4. This Amendment amends the Agreement and all provisions of the Agreement not
expressly amended by this Amendment shall remain unchanged and in full force and
effect.
5. This Amendment may be executed in two or more counterpart, each of which
shall be deemed an original copy of this Amendment and all of which, when taken
together, will be deemed to constitute one and the same instrument. The exchange
of copies of this Amendment and of signature pages by facsimile transmission
shall constitute effective execution and delivery of this Amendment as to the
parties and may be used in lieu of the original Amendment for all purposes.
Signatures of the parties transmitted by facsimile shall be deemed to be their
original signatures for all purposes.
6. This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Ohio without giving effect to any choice or
conflict of law provision or rule (whether of the State of Ohio or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Ohio.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment on the date
first above written.
BUYER 1:
May and Xxxxxxxx, LLC
By: /s/ W. Xxxxxxx Xxxxxxxx
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Name: W. Xxxxxxx Xxxxxxxx
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Title: President
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BUYER 2:
M&S Ohio Real Estate Holdings, LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Manager
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SELLER:
Strydel, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Chairman
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SELLER'S STOCKHOLDER:
The Ohio Art Company
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Chairman
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