EXHIBIT 10.1
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
This SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment"), dated as
of November 13, 2015 (the "Effective Date"), is by and among Fox Factory, Inc.,
a California corporation ("Fox"), RFE Holding (Canada) Corp., a corporation
organized under the laws of British Columbia ("CA Buyer"), RFE Holding (US)
Corp., a Delaware corporation ("US Buyer"), Fox Factory IP Holding Corp., an
exempted company incorporated under the laws of the Cayman Islands ("KY Buyer"
and together with the Fox, CA Buyer and US Buyer, each individually a "Buyer"
and collectively the "Buyers"), 1021039 B.C. Ltd., a corporation amalgamated
under the laws of British Columbia ("CA Seller"), and Easton Cycling (USA),
Inc., a Delaware corporation ("US Seller" and together with CA Seller, each
individually a "Seller" and collectively the "Sellers"). Each of Buyers and
Sellers are sometimes individually referred to herein as a "Party" and
collectively as the "Parties".
W I T N E S S E T H :
WHEREAS, the Parties are party to that certain Asset Purchase Agreement dated as
of December 5, 2014, as amended by that certain letter agreement dated March 10,
2015 (the "Purchase Agreement");
WHEREAS, the Parties acknowledge and agree that the 2015 earn-out amount has
been earned and is equal to $9,000,000 and the 2016 earn-out amount is hereby
deemed to have been earned, subject to certain forfeiture restrictions contained
herein, and is equal to $10,500,000; and
WHEREAS, in accordance with Section 12.13 of the Purchase Agreement, the Parties
have determined to amend the Purchase Agreement as set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1.
Definitions. Certain capitalized words and phrases used herein and not
otherwise defined have the meanings set forth or referenced in the Purchase
Agreement.
2.
Amendments.
(a)
Section 1.2 of the Purchase Agreement is hereby amended by deleting the
following rows:
"2015 Earn-Out"
2.10(a)
"2015 Actual EBITDA"
2.10(a)
"2015 EBITDA Maximum"
2.10(d)
"2015 EBITDA Minimum"
2.10(b)
"2015 EBITDA Threshold"
2.10(c)
"2016 Earn-Out"
2.10(a)
"2016 Actual EBITDA"
2.10(a)
"2016 EBITDA Maximum"
2.10(d)
"2016 EBITDA Minimum"
2.10(b)
"2016 EBITDA Threshold"
2.10(c)
"Amount in Controversy"
2.10(j)
"Arbitration Panel"
2.10(j)(ii)
"Audited EBITDA Statement"
2.10(h)
"Breach Acceleration Payment"
7.13(e)
"Earn-Out Period"
7.13(b)
"EBITDA Statement"
2.10(h)
"Electing Party's Earn-Out Statement"
2.10(j)
"Installment Sale Payment"
2.10(n)(i)
(b)Section 1.2 of the Purchase Agreement is hereby further amended by inserting
the following rows in their appropriate alphabetical order:
"2015 Max Earn-Out Amount"
2.10(a)
"2016 Max Earn-Out Amount"
2.10(a)
(c)Section 2.3 of the Purchase Agreement is hereby amended by deleting the
phrase "if earned" and replacing such phrase with "if payable."
(d)
Section 2.10 of the Purchase Agreement is hereby amended and restated in
its entirety to read as follows:
"2.10
Earn-Out.
(a)
Subject to Section 7.13, Article 8 and the terms and conditions set forth
in this Section