EXHIBIT 2(b)
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment") is made
and entered into as of October 1, 2005, by and between LESCO, Inc., an Ohio
corporation ("Seller"), and Turf Care Supply Corp., a Delaware corporation
("Buyer").
RECITALS
A. Seller and Buyer are parties to that certain Asset Purchase Agreement
dated as of July 26, 2005 (the "APA").
B. Buyer and Seller now desire to amend or modify certain provisions of the
APA in certain respects on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals and of the respective
covenants, agreements, representations and warranties herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. Capitalized Terms. All capitalized terms used herein and not defined
herein shall have the meanings ascribed to such terms in the APA.
2. Amendments to APA. The APA is hereby modified as follows:
(a) Amendment to Section 1.1. The first sentence of Section 1.1 of the
APA is hereby modified by inserting the phrase "other than Permitted
Liens," after the phrase "free and clear of all Liens,".
(b) Amendment of Section 1.4. Section 1.4 of the APA is hereby amended
and restated in its entirety to read as follows:
Section 1.4 Assumption of Certain Obligations. Subject to the
provisions of this Agreement, from and after the Closing Date, Buyer
shall, by the Assignment and Assumption Agreement, assume only (i) the
liabilities and obligations relating to occurrences arising after the
Closing under the leases for Leased Real Property, Personal Property
Leases, Contracts and Permits forming part of the Purchased Assets,
(ii) all obligations (including under the Employee Benefit Plan
described as "Health Plan Upper Ohio Valley/Rx" on Schedule 3.2(i)
hereto) to Transferred Employees that relate to occurrences after the
Closing Date; and (iii) all accrued vacation, sick pay, paid time off
and bonuses owing from Seller to the Transferred Employees
(collectively, the "Assumed Liabilities").
(c) Amendment of Section 2.1. Section 2.1 of the APA is hereby amended
and restated in its entirety to read as follows:
Section 2.1. Consideration. Upon the terms and subject to the
conditions contained in this Agreement, in consideration for the
Purchased Assets, the Assumed Liabilities and the other covenants and
agreements of Seller hereunder, and in full payment therefor, Buyer
shall pay to Seller the amount of $34,182,542.75 (i.e., the value of
the Inventory as of the Closing Date, as determined in accordance with
U.S. generally accepted accounting principles applied consistently
with Seller's prior practice ("GAAP")) (the "Purchase Price"). Buyer
shall pay the Purchase Price by:
(i) paying to Seller at Closing the amount of $15,000,000 by
wire transfer of immediately available funds; and
(ii) paying to Seller the remaining $19,182,542.75 in twelve
(12) equal weekly installments of $1,598,545.23, commencing on
October 14, 2005. There will be no finance charge during this
payment period.
(d) Amendment of Section 4.1. Section 4.1 of the APA is hereby amended
and restated in its entirety to read as follows:
4.1 Closing. The closing of the transactions contemplated hereby
(the "Closing") will be deemed to be effective as of 12:01 A.M.,
Eastern Time, on October 1, 2005 (the "Closing Date") (even if the
deliveries to be made by Buyer and Seller, respectively, pursuant to
this Article IV occur after such date and time). The Closing shall
occur at the offices of Baker & Hostetler LLP, 1900 East 9th Street,
Suite 3200, Cleveland, Ohio 44114, or such other place or by such
other manner as the parties may agree.
(e) Replacement of Disclosure Schedules. The following Disclosure
Schedules to the APA are replaced in full by the complimentary Disclosure
Schedules attached hereto as Attachment A and made a part hereof:
Schedule 1.1(e) - Permits
Schedule 1.1(f) - Personal Property Leases
Schedule 1.1(g) - Contracts
Schedule 1.2 - Non-Assignability of Assets
Schedule 3.2(e) - Condition and Sufficiency of and Title to
Purchased Assets
Schedule 3.2(i) - Employee Benefits Plans
Schedule 3.2(l) - Insurance Policies
Schedule 3.2(n) - Proprietary Rights
Schedule 3.2(r) - Employment Matters
(f) Modifications to Disclosure Schedules. The following Disclosure
Schedules to the APA are modified by the additional Disclosure Schedules
attached hereto as Attachment B and made a part hereof:
Schedule 5.1 - Employees
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(g) New Exhibits and Disclosure Schedules. The following Exhibits and
Disclosure Schedules to the APA attached hereto as Attachment C are new and
are and made a part hereof:
Exhibit F - Seller Customer List
Schedule 1.1(b) - Equipment
Schedule 1.1(c) - Personal Property
Schedule 1.1(d) - Inventory
3. Effect of Amendment. Except as expressly amended hereby, the APA shall
be and remain in full force and effect. The amendments contained herein are
specific and limited to the matters expressly stated herein and shall not
constitute a modification, acceptance or waiver of any other provision of or
default under the APA or any other document or instrument entered into in
connection therewith or a future modification, acceptance or waiver of the
provisions set forth therein. On and after the date of this Amendment, each
reference in the APA to "this Agreement," "hereunder," "hereof" or words of like
import referring to the APA, and in the any other documents to the "Purchase
Agreement," "thereof" or words of like import referring to the APA, shall mean
and refer to the APA as amended hereby.
4. Governing Law. This Amendment is governed in all respects, including as
to its validity, interpretation and effect, by the internal laws of the State of
Ohio without regard to the principles of conflicts of laws thereof.
5. Counterparts. This Agreement may be executed simultaneously in multiple
counterparts (including by facsimile), each of which will be deemed an original,
but all of which taken together constitute one and the same instrument. This
Agreement will become binding when one or more counterparts have been executed
and delivered by each of the parties hereto.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
BUYER:
Turf Care Supply Corp.
By: /s/ Mary Ann Sigler
------------------------------------
Title: Vice President
SELLER:
LESCO, Inc.
By: /s/ Jeffrey L. Rutherford
------------------------------------
Title: Chief Financial Officer,
Treasurer and Secretary
[Signature page to First Amendment to Asset Purchase Agreement]
ATTACHMENT A
REPLACED DISCLOSURE SCHEDULES
See attached.
ATTACHMENT B
MODIFIED DISCLOSURE SCHEDULES
See attached.
ATTACHMENT C
NEW DISCLOSURE SCHEDULES
See attached.