Exhibit 2.2
EXECUTION
AMENDMENT AND WAIVER TO ASSET
PURCHASE AGREEMENT
THIS AMENDMENT AND WAIVER TO ASSET
PURCHASE AGREEMENT (this “ Amendment ”), dated
as of August 8, 2005 is entered into by and among MCRU, LLC, a
Delaware limited liability company (“the “
Purchaser ”), Merisel, Inc,. a Delaware corporation
(the “ Acquiror Parent ”), Crush Creative, Inc.,
a California corporation (the “ Seller ”) and
Guy Claudy in his capacity as the Shareholders Representative.
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, shareholders of Seller set forth on signature pages thereto
(collectively, the “ Shareholders ”) and the
Shareholders Representative have entered into an Asset Purchase
Agreement dated July 6, 2005 (the “ Agreement
”). The parties to the Agreement now desire to amend the
Agreement as set forth in this Amendment. As permitted by Section
11.13 of the Agreement, the Shareholders Representative is hereby
acting as the Shareholders’ agent, attorney-in-fact and
authorized representative in connection with this Amendment. In
consideration of the mutual covenants and agreements set forth
below, the parties to the Agreement agree as follows:
1. Pursuant to adjustments
contemplated by Section 2.6(e) of the Agreement, Section 2.6(a) of
the Agreement is hereby amended in its entirely as
follows:
“The amount of the “
Estimated Cash Purchase Price ” shall be Six Million
Dollars Nine Hundred Thirty-Seven Thousand and Five Hundred Dollars
($6,937,500), as adjusted pursuant to this Section
2.6.”
2. As of the Closing Date, Purchaser
and Seller agree that there will be no additional adjustments to
the Estimated Cash Purchase Price arising out of the determination
of Minimum Adjusted EBITDA, Minimum Net Working Capital or Minimum
Tangible Net Worth completed prior to the Closing pursuant to
Sections 2.6(e) or 6.2(p) of the Agreement. Following the Closing,
however, the Estimated Cash Purchase Price and the final Purchase
Price will be adjusted, if necessary, in accordance with any other
applicable provisions of the Agreement.
3. Purchaser and Seller hereby
waive, as a condition to the obligation of Purchaser and Seller,
respectively, to consummate the transactions contemplated by the
Agreement, the satisfaction at or prior to the Closing of the
closing condition set forth in Sections 6.2(e)(iii) and 6.3(c)(v)
with respect to the failure of Purchaser to enter into a Transfer
Pricing Agreement among Purchaser, Color Edge LLC, Color Edge
Visual LLC, and Comp 24 LLC, incorporating the terms set forth on
Exhibit G to the Agreement. The parties agree that the transfer
pricing terms set forth in Exhibit G to the Agreement will serve in
place of a formal Transfer Pricing Agreement.
4. Section 6
