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Exhibit 2.6
1 ST
AMENDMENT AND
WAIVER TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT AND WAIVER TO
ASSET PURCHASE AGREEMENT (this “ Amendment ”),
dated as of the 1 st day of March 2005 is entered into by and
among MC24, LLC, a Delaware limited liability company (“the
“ Purchaser ”), Merisel, Inc,. a Delaware
corporation (the “ Acquiror Parent ”), and Comp
24, LLC, a Delaware limited liability company (the “
Seller ”) and the direct and indirect members of the
Seller set forth on the signature pages attached hereto (each a
“ Shareholder ” and collectively, the “
Shareholders ”) Capitalized terms used but not defined
in this Amendment have the meaning given such terms in the
Agreement (defined below).
BACKGROUND
The Purchaser, Acquiror
Parent, Seller and Shareholders have entered into an Asset Purchase
Agreement dated December 24, 2004 (the “ Agreement
”). The parties to the Agreement now desire to amend the
Agreement as set forth in this Amendment. In consideration of the
mutual covenants and agreements set forth below, the parties to the
Agreement agree as follows:
1. The definition of
“Holdback Amount” in Article 1 of the Agreement is
hereby amended in its entirety as follows:
““ Holdback
Amount ” shall mean $1,633,424 under this
Agreement.”
2. Section 2.5(c) is hereby
amended in its entirety as follows:
“Purchaser shall
deposit the Holdback Amount in escrow pursuant to an escrow
agreement in form and substance reasonably satisfactory to
Purchaser and Seller (the “Escrow Agreement”) and
providing for the release of $539,030 upon completion of the
purchase price adjustment provided in Section 2.6 and $1,094,394
upon the earlier of May 15, 2006 and the completion of the 2005
fiscal year audit of the Purchaser, subject to holdback for claims
pursuant to Sections 2.6 and 9.2 of this Agreement. The Holdback
Amount and any amounts placed in escrow under Section 9.4 are a
non-exclusive source of payment for claims
hereunder.”
3. The first sentence in
Section 2.6(a) of the Agreement is hereby amended in its entirety
as follows:
“The amount of the
“Estimated Cash Purchase Price” shall be Ten Million
Eight Hundred Eighty Nine Thousand Four Hundred Ninety Three
Dollars ($10,889,493) as adjusted pursuant to this Section
2.6.
4. Section 2.6(e) of the
Agreement is hereby deleted in its entirety.
5. The following sentences
are hereby added to Section 7.13 of the Agreement:
“The guarantee
obligations of Acquiror Parent under this Section 7.13 are
irrevocable, unconditional and absolute and shall continue in
effect notwithstanding any extension or modification of the terms
of this Agreement or any other act or event that might otherwise
operate as a legal or equitable discharge of the Acquiror Parent as
a guarantor under this Section
1
7.13. The Acquiror Parent hereby waives
all special suretyship defenses and protest, notice of protest,
demand for performance, diligence, notice of any other action at
any time taken or omitted by the Seller and, generally, all demands
and notices of every kind in connection with this Section 7.13 and
which the Acquiror Parent may otherwise assert against the
Seller.”
6. Section 9.2 of the
Agreement is hereby amended by adding the following sentence as a
new last sentence of that section:
“Notwithstanding the
foregoing, in the event of a breach of a Noncompetition Agreement
by any Shareholder, any recovery of damages shall be limited to
that breaching Shareholder or, with respect to a claim against the
Holdback Amount or the offset rights under Section 9.4, that
breaching Shareholder’s pro rata allocable share of such
amounts (which shall be equal to his proportional percentage equity
interest in Seller as of the Closing, as set forth on Schedule
4.2)
7. Section 9.4 of the
Agreement is hereby amended as follows in its entirety:
“Subject to the last
sentence of Section 9.2, If any Purchaser Indemnitee has any claim
for a Loss against any Seller or any Shareholder hereunder or under
any Related Document (other than an Employment Agreement), whether
for indemnification, breach of agreement or otherwise, Purchaser
may withhold from any payment due hereunder, including under
Sections 2.6, or 2.7, until a final, non-appealable determination
of such pending claim (a “Final Order”), the total
amount of the claim made in good faith less any Holdback Amount in
escrow that is not subject to a notice of claim or loss . Any
amounts withheld hereunder shall be placed in escrow, either
pursuant to the Escrow Agreement or another mutually acceptable
escrow arrangement, and after such Final Order, such Purchaser
Indemnitee may claim the determined amount from the escrow. Any
amounts not subject to such escrow or which is not payable to
Purchaser Indemnitee pursuant to a Final Order shall be paid
forthwith to Sellers as and when due.”
8. Notwithstanding any
provision of the Agreement to the contrary, the parties agree as
follows with respect to employee matters:
(a) All Assumed Benefit Plans
and their associated insurance policies and administrative services
agreements shall be assumed by Acquiror Parent and not the
Purchaser. The definition of Assumed Benefit Plan is amended to
exclude the Comp 24, LLC P
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