AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
R&B, INC. AND ALLPARTS, INC.
Dated as of August 19, 1998
This Amendment No. 1 (the "Amendment") to that certain Asset Purchase
Agreement, dated as of August 19, 1998 (the "Purchase Agreement"), by and
between R&B, Inc., a Pennsylvania corporation ("Purchaser"), and Allparts, Inc.,
a Missouri corporation ("Seller"), is executed as of October 15, 1998.
BACKGROUND
Seller and Purchaser desire to amend certain provisions of the Purchase
Agreement as a result of Purchaser's due diligence investigation, which the
parties now acknowledge is complete. Except as specifically provided in this
Amendment, the Purchase Agreement shall not be modified in any respect.
Capitalized terms used and not defined herein shall have the meanings given to
such terms in the Purchase Agreement.
AGREEMENTS
Incorporating the foregoing herein, in consideration of the mutual
agreements, covenants, representations and warranties contained herein, and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, and in reliance thereon, intending to be legally bound, the
parties hereby agree as follows:
1. Article I. Certain Definitions. The definition set forth below is hereby
amended and restated to reflect the parties agreement to revise the Closing Date
and shall read in its entirety as follows:
"1.12 `Closing Date' shall mean October 28, 1998."
2. Article III. Consideration and Terms. Article III is hereby amended and
restated to revise the Purchase Price and the adjustment to the Purchase Price
and shall read in its entirety as follows:
"ARTICLE III
CONSIDERATION AND TERMS
3.1 Consideration for Purchased Assets. The aggregate monetary
consideration to be paid by Purchaser to Seller for the Purchased Assets
shall consist of a cash payment in the amount of Ten Million One Hundred
Thousand Dollars ($10,100,000) plus or minus, as the case may be, the
amount by which the intercompany account of Seller, as of the close of
business on the day preceding the Closing Date, is more or less than
$667,000, respectively (the `Purchase Price'). Seller and Purchaser shall
mutually agree upon the amount of the intercompany account as of the close
of business on the day preceding the Closing Date.
3.2 Payment of Consideration. Subject to the terms and conditions of
this Agreement, at the Closing, Purchaser shall deliver to Seller the
Purchase Price by wire transfer of immediately available funds to a bank
account designated in writing by Seller.
3.3 Allocation of Purchase Price. The Parties agree that the Purchase
Price shall be allocated in accordance with Schedule 3.3, attached hereto.
Each Party agrees not to assert, in connection with any tax return, tax
audit or similar proceeding, any allocation of the Purchase Price that
differs from that agreed upon pursuant to this Section."
3. Article IV. Employee Matters. Section 4.1 is hereby amended and restated
to indicate that Purchaser shall offer employment to all Employees and shall
assume specific contracts with respect to certain employees.
"4.1 Offer of Employment. Purchaser shall offer employment on and as
of the Closing Date, on an at-will basis, to all Employees in substantially
similar jobs, at substantially the same base salaries or wages and benefits
as were paid or provided by Seller immediately prior to the Closing Date.
Purchaser shall be responsible for COBRA coverage for any employee to whom
Purchaser fails to extend an offer of employment and for any claims of
discrimination under Federal or state laws, if such claim for
discrimination is based on Purchaser's failure to extend an offer of
employment to the employee. In addition, Purchaser shall be responsible for
any claims for severance benefits under those certain Executive Severance
Agreements listed on Schedule 2.1.4 to this Agreement."
4. Article VI. Representations and Warranties of Seller. Section 6.3 is
hereby amended and restated to permit Seller to identify exceptions to this
representation and shall read in its entirety as follows:
"6.3 No Violation; Consents. Except as set forth in Schedule 6.3
hereto, the execution, delivery and performance by Seller of this Agreement
and the Ancillary Agreements to which Seller is a party, and the
consummation of the transactions contemplated hereby and thereby will not
(with or without the giving of notice or the lapse of time, or both) (i)
violate any provision of the charter of bylaws of Seller, (ii) violate, or
require any consent, authorization or approval of, or exemption by, or
filing under any provision of any law, statute, rule or regulation to which
Seller, the business or the Purchased Assets are subject, (iii) violate any
judgment, order, writ or decree of any court applicable to Seller, the
Business or the Purchased Assets, (iv) conflict with, result in a breach
of, constitute a default under, or accelerate or permit the acceleration of
the performance required by, or require any consent, authorization or
approval under any contract, agreement or instrument to which Seller is a
party or the Business and/or any of the Purchased Assets is bound or (v)
result in the creation or imposition of any Encumbrance upon the Business
and/or the Purchased Assets, which violation, conflict, breach, default,
acceleration or Encumbrance, or the failure to make or obtain such filing,
consent, authorization or approval, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the Purchased
Assets or the results of the Business or prevent or delay the consummation
of the transactions contemplated by this Agreement."
5. Article X. Conditions Precedent to Obligations or Purchaser. Section
10.10 is hereby amended and restated to reflect that Purchaser has completed and
is satisfied with its due diligence and shall read:
"10.10. Section intentionally left blank."
6. Article XIII. Termination. Section 13.1 is hereby amended and restated
to reflect the parties agreement with respect to the Closing Date and shall read
in its entirety as follows:
"13.1 Termination of Agreement. This Agreement may be terminated:
(i) by the mutual written consent of Seller and Purchaser;
(ii) by Seller or Purchaser if the Closing has not taken
place on or before October 28, 1998; provided, however, that no
Party then in breach of any representations and warranties or
covenants hereunder shall have the right to terminate;
(iii) by Purchaser, on the one hand, or Seller, on the other
hand if any representation or warranty of Seller or of Purchaser,
respectively, set forth in this Agreement which breach shall or
shall reasonably be expected to result in a material adverse
effect on the assets or business or Purchaser or Seller, as the
case may be, or the ability to consummate the transactions
contemplated hereby; and
(iv) by Purchaser if there has been a material adverse
change in the Business from the Balance Sheet Date."
7. Article XIV. Survival of Representations and Warranties;
Indemnification. A new Section 14.4 is hereby added to read as follows:
"14.4 Indemnification by Purchaser. Purchaser shall indemnify, defend
and hold harmless Seller from and against any and all damages, claims,
losses, obligations, liabilities, deficiencies, interest, costs and
expenses arising out of or related to any breach or violation of any of the
covenants of Purchaser in Article IV of this Agreement."
8. Article XV. Due Diligence Completion Certificate and Other Agreements.
Article XV is hereby amended and restated to reflect that Purchaser has
completed and is satisfied with its due diligence.
"ARTICLE XV
DUE DILIGENCE COMPLETION CERTIFICATE
AND OTHER AGREEMENTS
15.1 Due Diligence Completion Certificate. Purchaser hereby
acknowledges that it has completed and is satisfied with the results of its
due diligence review. This provision shall have the same effect as any Due
Diligence Certificate contemplated by the Purchase Agreement.
15.2 Business Opportunity Fee. Each of the parties hereto acknowledges
that the other party has expended significant time and expense, and has
foregone other business opportunities in connection with the transactions
contemplated hereunder. Therefore, if the Closing does not occur on or
before October 28, 1998 and if the Agreement has not been terminated as
permitted by Section 13.1 by October 28, 1998, each party hereunder is
obligated under this Agreement to consummate the transactions set forth
herein (each such party's respective conditions precedent having been
satisfied), the party that breaches this Agreement by not performing its
obligations to consummate the transactions contemplated hereunder shall pay
the other party $500,000 in immediately available funds on or before
October 30, 1998."
The Parties have caused this Amendment to be signed in their respective
names by an officer thereof duly authorized as of the date first above written.
R&B, INC. ALLPARTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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VP - General Counsel Vice President