Exhibit 2.2
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT ("AMENDMENT") is
made this 29th day of January, 2006, by and between Sato International Pte.
Ltd., an entity organized under the laws of the Republic of Singapore (the
"BUYER"), and Checkpoint Systems, Inc., a Pennsylvania corporation (the
"SELLER").
This Amendment sets forth the agreed upon amendments and
modifications to the Asset Purchase Agreement dated December 22, 2005 by and
between the Seller and the Buyer ("ASSET PURCHASE AGREEMENT").
A. AMENDMENTS. The Asset Purchase Agreement is hereby amended as follows:
1. The second and last sentence of the definition of "Acquired
Business" is hereby amended and restated in its entirety to read as follows:
"ACQUIRED BUSINESS" - means the design, manufacture and/or sales of:
(i) with respect to North America, laser solutions/printers, thermal
solutions/printers and horticultural identification labeling
solutions/printers, (ii) the United States of America, Central America
(through distribution channels) and South America (through distribution
channels), hand-held labeling solutions and the "Turn-O-Matic" ticket
dispensing systems, (iii) with respect to Europe, laser
solutions/printers, thermal barcode printers and associated thermal
hardware (including track and trace devices) and consumables (including
stock/customized labels, tags and tickets for retail, manufacturing,
logistics, industrial and horticultural applications), and (iv) with
respect to the Asia Pacific region, thermal solutions/printers, custom
labels to the courier industry, prime labels to the foodservice
industry, white labels, and other specialized thermal barcode printing
applications; provided, however, that the Acquired Business shall not
include: (i) any labels or labels solutions that incorporate EAS, EM,
and RF technology and Service Bureau Products and (ii) the business of
Checkpoint Systems Hong Kong and its subsidiaries."
2. The definition of "Transferable Employees" is deleted and
the references in Section 3.16(a) and 10.1(b)(iv) to "Transferable Employees" is
deemed to mean "Transferred Employees."
3. The third sentence of Section 2.3(b) is hereby amended and
restated in its entirety to read as follows:
"Not later than 5:00 p.m. eastern United States standard time on the
day immediately preceding the Closing Date, the Seller shall deliver to
Buyer an internally prepared, un-audited, balance sheet as of the
Closing Date and a statement of estimated Net Operating Assets as of
December 25, 2005 ("STATEMENT OF ESTIMATED NET OPERATING ASSETS"),
prepared in a manner consistent with the Most Recent Balance Sheet and
also made a part of Schedule 2.3(b)."
4. The first sentence of Section 2.3(e) is hereby amended and
restated in its entirety to read as follows:
"As promptly as possible following the close of business on the Closing
Date, but in no event later than forty-five (45) days after the Closing
Date, the Seller shall prepare, at the expense of Seller, a final
statement of Net Operating Assets as of the Closing Date ("FINAL
STATEMENT OF NET OPERATING ASSETS"). For purposes of the Final
Statement of Net Operating Assets, the parties agree that the
5. The first sentence of Section 2.7 is hereby amended and
restated in its entirety to read as follows:
"The purchase and sale provided for in this Agreement (the "CLOSING")
will take place at the offices of Seller's counsel at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 a.m. (local time) on January
29, 2005, unless Buyer and Seller otherwise agree."
6. Pursuant to Section 10.1(a)(iii) of the Asset Purchase
Agreement, Schedule 10.1(a)(i) to the Asset Purchase Agreement is hereby amended
and restated and replaced in its entirety by EXHIBIT A attached hereto and made
a part hereof.
7. Pursuant to Section 10.1(a)(iii) of the Asset Purchase
Agreement, Schedule 10.1(a)(2) to the Asset Purchase Agreement is hereby amended
and restated and replaced in its entirety by EXHIBIT B attached hereto and made
a part hereof.
8. The first line of Section 10.1(a)(v) should be revised to
read as follows: "Except AS OTHERWISE PROVIDED IN SECTION 10.1(A)(vi), BELOW,
AND for wages, payroll taxes and vacation . . . ."
9. A new Section 10.1(a)(vi) should be added to read as
follows:
"(vi) Effective as of the Closing Date, Seller and Buyer shall take
such steps as may be necessary to cause the account balances of
Transferred Employees under the Checkpoint Systems, Inc. 401(k) Savings
Plan (the "PLAN") who become employed by Buyer in connection with the
transactions contemplated by this Agreement to be spun-off to a
separate defined contribution plan maintained by Sato Labeling
Solutions America, Inc. (the "SATO 401(K) PLAN"), the terms and
features of which in all material respects shall be substantially
identical to the terms of the Plan. The actual transfer of assets
allocated to such spun-off account balances shall occur as soon as
practicable following the Closing Date. The Transferred Employees whose
account balances are spun-off shall be eligible to participate in the
Sato 401(k) Plan immediately following the Closing Date."
B. The parties hereto further agree as follows:
1. Checkpoint shall, in a reasonably prompt manner, remove the name
"Checkpoint" and associated logos from all HLS and Turn-O-Matic hardware and
packaging.
2. Attached hereto as EXHIBIT C are the following updated Schedules to
the Asset Purchase Agreement :
Schedule 2.1.1(a)
Schedule 2.1.1(d)
Schedule 2.1.1(f)
Schedule 2.1.1(g)
3. Checkpoint shall give Sato a credit of EU60,000 as of Closing on the
Final Statement of Net Operating Assets and in consideration thereof, Sato shall
assume all responsibility and shall indemnify Checkpoint against any liability
resulting from claims by IG Metall attributable to the agreements between IG
Metall and Checkpoint.
4. Sato agrees to indemnify Checkpoint from and against any liability
resulting from any claims arising under or in connection with that certain
assigned Lease dated November 22, 2002 between ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
Checkpoint for the premises located at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ which are attributable to any period arising on or after the
Closing Date.
5. Checkpoint agrees to indemnify Sato from and against any liability
resulting from an employee related claim where the claim arises from
Checkpoint's actions or omissions in the Acquired Business prior to Closing or
if such claim is attributable to any statutory end-of-service allowance, paid
vacation allowance or similar benefit due such employee which relates to the
period in which such person was a Checkpoint employee.
6. With respect to the calculation of the pension obligation on the
Final Statement of Net Operating Assets with respect to the Transferred
Employees located in Germany, the parties have agreed to use a discount rate of
4.125% and all other actuarial assumptions shall remain the same. To the extent
a discount rate assumption is required in any other jurisdiction to compute
Checkpoint's accrued pension liability in a manner similar to Germany and the
parties cannot agree on the discount rate, the parties shall rely upon the
▇▇▇▇▇▇ Year End Report and agree to use the mid-point 2005 Year-end discount
rate in such report.
7. The indemnities set forth in paragraphs 3 through 5 above shall not
be subject to any Threshold or other limitations set out in the Asset Purchase
Agreement.
8. The parties acknowledge and agree that with respect to the leased
computers used by the Transferred Employees in Spain, the lessor of such
computers has refused assignment of the computer leases to Sato and, therefore,
the parties have agreed that Checkpoint will: (i) purchase such computers, (ii)
transfer them to Sato as part of the updated schedules to the Asset Purchase
Agreement and (iii) include the buy-out amount for the computers on the Final
Statement of Net Operating Assets as an asset.
9. Sato agrees to grant Checkpoint a non-exclusive, fully paid-up,
royalty free, world-wide, nontransferable, irrevocable, non-terminable right and
license in connection with enforcement rights in the intellectual property set
forth on SCHEDULE D and SCHEDULE E, each attached hereto.
C. Effect of Amendment. Except as set forth in this Amendment, the
Asset Purchase Agreement and all terms and conditions thereof shall remain
unaltered and in full force and effect and are hereby ratified and confirmed in
all respects, as hereinabove amended. Any reference in the Asset Purchase
Agreement or in any instrument, document or consideration executed or delivered
pursuant to the Asset Purchase Agreement to "this Agreement", "hereof",
"hereto", and "hereunder" and similar references thereto shall be deemed and
construed to be a reference to the Asset Purchase Agreement, as amended by this
Amendment.
D. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Asset
Purchase Agreement.
E. Governing Law/Counterparts. This Agreement will be governed by and
construed under the laws of the State of Delaware without regard to
conflicts-of-laws principles that would require the application of any other
law. This Amendment may be executed in any number of counterparts, each of which
will be deemed to be an original and all of which, when taken together, will be
deemed to constitute but one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to Asset
Purchase Agreement as of the day and year first above written.
Sato International Pte. Ltd.
By:______________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Checkpoint Systems, Inc.
By:_________________________________
Name: ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
Title: Senior Vice President
SCHEDULE A
TRADEMARKS
TRADEMARK REG. DATE REG. NO.
TURN-O-MATIC 8-Sep-64 US 776,575
TURN-O-MATIC Logo 31-Jan-89 US 1,522,396
Turn-O-Matic TICKET Logo 15-Jun-93 US 1,777,495
Turn-O-Matic TICKET Logo 24-Aug-93 US 1,789,247
PRIMARK 10-Oct-72 US 944,599
SCHEDULE E
PATENTS
U.S. PATENT TITLE INVENTORS ISSUE DATE U.S. PATENT NO.
Labeling device ▇▇▇▇▇▇, ▇▇▇▇▇▇ 9-Feb-88 US 4,724,034
Setting mechanism for endless band printing device ▇▇▇▇, ▇▇▇▇▇▇▇▇ 17-May-88 US 4,744,295
Setting mechanism for selective printing member ▇▇▇▇, ▇▇▇▇▇▇▇▇ et al. 7-Mar-89 US 4,809,603
Hand Held Portable Labeling Device ▇▇▇▇▇▇, ▇▇▇▇▇▇ 02-Nov-93 US 5,258,090
Hand-Held Label Printer With Currency Conversion ▇▇▇▇▇, ▇▇▇▇ 28-APR-99 US 09/299,919
Labeller ▇▇▇▇▇▇, ▇▇▇▇▇▇ 29-May-01 US 6,237,664
Labelling Apparatus ▇▇▇▇▇▇, ▇▇▇▇▇▇ 15-Jan-91 US 4,985,110
Portable Hand-Held Labelling And Marking Device And
Printing Mechanism Therefore ▇▇▇▇, ▇▇▇▇▇▇▇▇ 17-Jun-97 US 5,639,340
Printer With Type-Bearing Printing Bands ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 22-Feb-05 US 6,857,360
Ticket Dispenser ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 26-Sep-95 US 5,453,311