EXHIBIT 2.2
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AMENDMENT NO. 1
TO
STOCK AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE STOCK AND ASSET PURCHASE AGREEMENT,
is entered into as of April 13, 2004 (this "Amendment"), by and
between XXXXXX RUBBERMAID INC., a Delaware corporation ("Seller") and
GLOBAL HOME PRODUCTS LLC, a Delaware limited liability company
("Purchaser"). Capitalized terms used in this Amendment and not
otherwise defined in this Amendment shall have the meanings given them
in the Purchase Agreement (defined below).
W I T N E S S E T H:
WHEREAS, Purchaser and Seller have entered into that certain
Stock and Asset Purchase Agreement, dated as of March 12, 2004 (the
"Purchase Agreement"), pursuant to which Purchaser will purchase the
Business from Seller on the terms and subject to the conditions set
forth therein.
WHEREAS, the parties hereto desire to amend the Purchase
Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set
forth in the Purchase Agreement and herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENT
1.1 AMENDMENT.
(a) Section 9.2(b) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Subject to the limitations set forth in SECTION
9.4(e) through (i), Seller will indemnify Purchaser Indemnified
Parties against, and hold them harmless from, any Damages arising
from:
(i) Any breach of any covenant by Seller set
forth in this Agreement (other than with respect to Taxes);
(ii) Any Excluded Liability;
(iii) Product liability claims relating to
products of the Business arising out of occurrences prior to the
Closing Date;
(iv) Any claims, including workers compensation
and similar claims, made by or with respect to current or former
employees of the Acquired Companies who are not Business Employees or
by Business Employees relating to occurrences prior to the Closing
Date;
(v) The assets, liabilities and Contracts
transferred, assumed or terminated pursuant to SECTION 6.2;
(vi) The failure to comply with any "bulk sales"
notice requirement in connection with the transactions contemplated
hereby;
(vii) The bankruptcy matters set forth on
SCHEDULE 9.2(b)(vii);
(viii) Any casualty or condemnation of any Owned
Real Property or Leased Real Property occurring after the date hereof
and prior to the Closing;
(ix) Any claims (other than Assumed Liabilities
and claims that are the subject of SECTION 9.2(b)(iii) or (iv))
arising out of occurrences prior to the Closing Date that are covered
by insurance of which Seller or any Seller Affiliate, including any
Acquired Company, is a beneficiary that was in effect with respect to
the Business prior to the Closing Date;
(x) The (A) lien currently recorded with the
Public Registry of Property of Durango, Durango, Mexico related to a
seizure of the business of Intercraft Xxxxxx, S. de X.X. de C.V. as a
going concern for an amount of MXP$109,086,930.83 as ordered by
Official Communication number 5831, in connection with the tax credits
H-87457, H-87459, H-87460 and H-87461 as requested by the Ministry of
Finance of Public Credit, or any failure to remove such lien, and (B)
pledge registered on May 14, 1993 of the equity interest of Intercraft
Xxxxxx, S. de X.X. de C.V. in favor of Comerica Bank-Illinois, or any
failure to remove such pledge;
(xi) Any claims or losses arising from the
failure to terminate on or prior to the Closing Date the UCC financing
statement filed by Mirado S.A. against Intercraft Company or its
subsidiaries in connection with the Receivables Purchase and Servicing
Agreement, dated as of September 18, 2001, between each subsidiary of
Newell named on the signature pages thereto, Xxxxxx Rubbermaid Inc.
and Mirado S.A.;
(xii) Any claims that sublicensing the Licensed
Trademarks (as defined in the Trademark License Agreement made as of
October 29, 1999 between Regal Xxxx, Inc. and Xxxxxx Operating Company
("Trademark License Agreement")) pursuant to the sublicense (the
"Sublicense Agreement") dated the date hereof between Purchaser and
Seller (A) conflicts with or violates the Trademark License Agreement,
(B) requires the consent or other approval of Regal Xxxx, Inc. or any
Affiliate thereof, (C) results in the termination of the Trademark
License Agreement or a default thereunder or (D) otherwise entitles
Regal Xxxx, Inc. or any Affiliate thereof to any fees, damages or
other relief;
(xiii) Any claims by customers of the Frame
Business, including by set-off or other reduction of amounts owed,
received by Purchaser or its Affiliates on or prior to the 90th day
after the date hereof for rebills, reductions, credits or other
chargebacks that arise out of or are related to such customers'
dissatisfaction with the service provided by the Frame Business prior
to the date hereof relating to the shipment of orders on time and
complete; provided that the maximum amount of Damages for which Seller
will be obligated to indemnify the Purchaser Indemnified Parties
pursuant to this Section 9.2(b)(xiii) will be $2,000,000; and provided
further that Seller will not be obligated to indemnify Purchaser with
respect to a claim pursuant to this Section 9.2(b)(xiii) if a
Purchaser Indemnified Party induced such claim to be brought by the
applicable customer;
(xiv) Any claims that use by Purchaser or any of
its Subsidiaries of the Licensed Trademarks in accordance with the
provisions of the Sublicense Agreement infringes or violates the
Licensed Trademarks; and
(xv) Any claims arising out of or relating to the
termination of the employment of (A) Xxxxxxx Xxxxxxx Xxxxxx under the
Contrato Individual De Trabajo Por Tiempo Indefinido dated April 1,
2003 by and between Prestservco, S. de X.X. de C.V. and Xxxxxxx
Xxxxxxx Xxxxxx, or (B) Xxxxxx X. Xxxxxxxxx Xxxxxxx under the Contrato
Individual De Trabajo Por Tiempo Indefinido dated May 19, 2003 by and
between Prestservco, S. de X.X. de C.V. and Xxxxxx X. Xxxxxxxxx
Xxxxxxx.
For purposes of determining whether claims are covered by insurance as
provided in SECTION 9.2(b)(ix), the decision as to coverage of the
insurance carrier (typically, The Traveler's Insurance Company) will
be conclusive; PROVIDED that (i) Seller will submit to the relevant
insurance carrier all such claims asserted by Purchaser for which
there is a reasonable basis for coverage, and (ii) after such efforts
to establish coverage as Seller elects to make, Seller will afford
Purchaser an opportunity to contest any denial of coverage directly
against the insurance carrier. As and when requested by Purchaser,
Seller will, at Purchaser's expense, execute and deliver, or cause to
be executed and delivered, all such documents and instruments and will
take, or cause to be taken, all such further or other actions, as
Seller may reasonably deem necessary or desirable to permit Purchaser
to so contest such denials."
(b) The definition of "Excluded Receivables" contained in Section
2.4(c) of the Purchase Agreement shall be amended and restated as
follows: ""Excluded Receivables" means all accounts and notes
receivable (including Chargeback Amounts and rebills with respect to
Historical Receivables), as of the Closing Date, related to the
Business, other than accounts and notes receivable of the
International Asset Sellers other than Xxxxxx Industries Canada Inc.;
and".
(c) Section 1.2(b)(iii) of the Purchase Agreement shall be amended
and restated as follows: "All accounts and notes receivable of the
Business, other than (A) intercompany accounts and notes receivable,
and (B) the accounts receivable of Xxxxxx Industries Canada Inc.;"
(d) Each of (i) Trademark License Agreement and the Intellectual
Property (as defined in the Trademark License Agreement) subject
thereto and (ii) License Agreement dated May 1, 1999 between The Coca-
Cola Company and Anchor Hocking Consumer Glass Division, as amended
pursuant to an addendum dated January 4, 2001, and extended pursuant
to the License Agreement effective January 1, 2003 between the Coca-
Cola Company and Calphalon Corporation amended June 24, 2003 (the
"Coke License Agreement") and the Intellectual Property (as defined in
the Coke License Agreement) subject thereto and the inventory
utilizing such Intellectual Property, will not be included in the
Purchased Assets and will not be assigned to Purchaser pursuant to the
Purchase Agreement. In addition, notwithstanding anything to the
contrary in the Purchase Agreement, (i) the inventory utilizing the
Intellectual Property (as defined in the Coke License Agreement) as of
December 31, 2003 and as of the Closing Date will not be included in
the Year-End Net Working Capital or in the Closing Net Working
Capital, respectively, and (ii) the restrictions contained in Section
6.11 of the Purchase Agreement will not apply to the distribution or
sale by Seller or its Affiliates of the inventory as of the Closing
Date utilizing the Intellectual Property (as defined in the Coke
License Agreement).
(e) The Coke License Agreement shall not be included on SCHEDULE
8.1(g) to the Purchase Agreement, and no consent shall be required
thereunder pursuant to Section 8.1(g) of the Purchase Agreement.
(f) The reference to "Acquired Assets" in Section 2.3(b)(iv)(x)(2) of
the Purchase Agreement shall be changed to "Purchased Assets".
(g) Section 6.11(c)(ii) of the Purchase Agreement shall be amended
and restated as follows: ""Competing Glass Business" means the design
or manufacture in North America, or the marketing, distribution or
sale directly into the North America market, of consumer and specialty
glass products that have been manufactured or sold by the Acquired
Companies or Asset Sellers within the 12-month period immediately
prior to the Closing and any other glass products similar in design or
function, including any Products (as defined in the Anchor/Newell
Supply Agreement to be entered into on the Closing Date between Newell
SAS and Anchor Hocking Operating Company LLC (the "Anchor/Newell
Supply Agreement"); PROVIDED, that "Competing Glass Business" will not
include (A) the existing activities described in SCHEDULE 6.11(c)
hereof or (B) the design, manufacture, marketing, distribution and
sale of any products that contain, use or include glass parts as
components of products that are not primarily made of glass (E.G., a
glass lid for a metal frying pan)."
(h) Section 7.1 of the Purchase Agreement shall be amended by adding
the following at the end thereof: "Without limiting the generality of
SECTION 6.3 hereof, following the Closing Seller shall supply to
Purchaser, upon Purchaser's reasonable request, information with
respect to the Business Employees as employees of Seller and its
Subsidiaries, such as payroll related benefit information (for
example, benefits eligibility and historical contribution amounts) and
claims history, to the extent permitted by applicable law."
(i) (1) For purposes of this clause (i):
(A) "Chargeback" shall mean the payment of less than the
full invoiced amount in respect of any Excluded Receivable or
Historical Receivable (whether or not attributable to a Customer
Program), other than as a result of a customer's inability to pay the
full amount of an Excluded Receivable (as a result of bankruptcy or
otherwise);
(B) "Chargeback Amount" shall mean the unpaid amount in
respect of (I.E., the amount withheld from the payment of the full
invoice amount of) an Excluded Receivable or Historical Receivable;
(C) "Historical Receivable" shall mean any account or note
receivable related to the Business with respect to which payment (A)
of less than the full invoiced amount has been made on or at any time
prior to the Closing Date and (B) is still owed with respect to the
unpaid portion thereof as of the Closing Date, other than any such
account or note receivable of the International Asset Sellers (other
than Xxxxxx Industries Canada Inc.);
(D) "Recent Historical Chargeback" shall mean any
Chargeback relating to a Historical Receivable, which Chargeback was
made or incurred within 30 days prior to the Closing Date; and
(E) "Aged Historical Chargeback" shall mean any Chargeback
relating to a Historical Receivable, which Chargeback was made or
incurred more than 30 days prior to the Closing Date.
(2) Notwithstanding anything to the contrary contained in
SECTION 2.4 of the Purchase Agreement, (A) the calculation and amount
of "Excluded Receivables net of reserves" for all purposes under
SECTION 2.4 of the Purchase Agreement shall not be reduced by any
Chargeback or rebill reserve relating to the Excluded Receivables or
Historical Receivables, and (B) Chargebacks and rebills and reserves
therefor relating to Excluded Receivables and Historical Receivables
shall not be included as current liabilities in any calculation or
determination of Net Working Capital.
(3) From the Closing Date through and including the 120th day
following the Closing Date, Seller shall (A) notify Purchaser of any
Chargeback relating to an Excluded Receivable within five Business
Days following the date on which a Chargeback relating to an Excluded
Receivable occurs (each such notified Chargeback is referred to herein
as a "Notified Chargeback"), and (B) provide such information in
Seller's possession relating to Historical Receivables, Recent
Historical Chargebacks and Aged Historical Chargebacks as Purchaser
may reasonably request. Purchaser shall review and investigate the
facts underlying (A) each such Notified Chargeback, promptly following
receipt of notice of each Notified Chargeback, and (B) each Recent
Historical Chargeback, promptly following the Closing Date, and shall
determine in good faith, in accordance with the following sentence,
whether such Notified Chargeback was appropriately claimed or asserted
against the related Excluded Receivable and whether such Recent
Historical Chargeback was appropriately claimed or asserted against
the related Historical Receivable. The review, investigation and
determination by Purchaser described in the foregoing sentence shall
be conducted and made, as applicable, on a basis consistent with the
manner in which such reviews, investigations and determinations were
conducted and made with respect to Chargebacks for accounts and notes
receivable of the Business prior to the Closing, with the exception
that the time periods for performing such reviews, investigations and
determinations may be expedited to comply with the time and delivery
requirements set forth in this Section 1.1(i). Any Notified
Chargeback and Recent Historical Chargeback that Purchaser promptly,
and in any event prior to the 120th day after the Closing Date, (A)
determines was not appropriately claimed or asserted against the
related Excluded Receivable or related Historical Receivable, as
applicable, in accordance with the foregoing two sentences, and
notifies Seller of such determination, and (B) provides Seller with
(1) a reasonable explanation as to why such Notified Chargeback or
Recent Historical Chargeback was not appropriately claimed or asserted
against the related Excluded Receivable or Historical Receivable, as
applicable, and (2) documentation reasonably acceptable to Seller
supporting such determination and explanation by Purchaser, shall be
referred to herein as a "Rebill". Each (A) other Notified Chargeback,
(B) Aged Historical Chargeback and (C) Recent Historical Chargeback
that is not a Rebill shall be referred to herein as a "Reimbursable
Chargeback".
(4) Purchaser shall promptly, and in any event within five
business days after Purchaser's determination of a Notified Chargeback
or Recent Historical Chargeback as a Rebill, rebill on behalf of
Seller and for Seller's account the applicable customer for such
Rebill, and notify Seller of such determination and Rebill. Any and
all payments made in respect of any Rebill, regardless of when paid,
shall be for Seller's account, and Purchaser shall remit promptly to
Seller any payment made to Purchaser in respect of any Rebill.
(5) Seller shall, within five days after the 120th day following
the Closing Date, notify Purchaser in writing of any Rebills that have
been rebilled by Purchaser pursuant to clause (4) above with respect
to which Seller has not received payment in full (and the amount of
such Rebills which have not been paid in full) on or prior to the
120th day following the Closing Date (the aggregate amount of such
Rebills that have not been paid to Seller as of the 120th day
following the Closing Date shall be referred to herein as the
"Undiscounted Rebill Amount").
(6) Purchaser shall, within ten days following the 120th day
following the Closing Date, pay to Seller, by wire transfer of
immediately available funds to an account specified by Seller, an
amount equal to the sum of (A) the aggregate amount of the Chargeback
Amounts for the Reimbursable Chargebacks and (B) 50% of the
Undiscounted Rebill Amount, provided that in no event shall Purchaser
be obligated to pay to Seller an amount pursuant to this Section
1.1(i)(6) in excess of the Final Other Adjustment Amount minus the
amount collected by Seller in respect of the Excluded Receivables
subsequent to the Closing Date.
(7) Seller shall cooperate with Purchaser in providing such
information and documents in Seller's possession as reasonably
requested by Purchaser after the Closing to timely conduct the reviews
and investigations, and to make the determinations, described in
Section 1.1(i)(3) above. Purchaser and Seller shall cooperate with
each other and provide the other party with such information and
access as reasonably requested by the other party after the Closing to
timely collect the Rebills for Seller's account, and Purchaser and
Seller shall use commercially reasonable efforts to collect such
Rebills for Seller's account prior to the 120th day after the Closing
Date.
(8) From and after the Closing Date, neither Purchaser nor
Seller shall induce or encourage any customer of the Business to fail
to pay any portion of any Excluded Receivable.
(j) Notwithstanding anything to the contrary contained in the
Purchase Agreement, the (i) Lease Agreement for 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxx 00000, dated May 23, 2002, as amended on
December 5, 2003, by and between Xxxxxx Rubbermaid Inc. for its
Intercraft Divisions and Xxxxxx Xxxx LLC, and (ii) Assignment of Lease
relating to the lease (as amended) described in clause (i), dated as
of the Closing Date, by and among NNN AmberOaks, LLC, a Texas limited
liability company, XXXXX-AmberOaks, LP, a Texas limited partnership,
NNN AmberOaks 1, LLC, NNN AmberOaks 2, LLC, NNN AmberOaks 3, LLC, each
one a Texas limited liability company (as Lessor), acting by and
through Triple Net Properties Realty, Inc. (as Agent for Lessor) as
successor in interest to Xxxxxx Xxxx, L.L.C., a Delaware limited
liability corporation and Xxxxxx Rubbermaid, Inc. (as Lessee/Assignor)
and Xxxxxx Operating Company LLC. (as Assignee), shall each be treated
under the Purchase Agreement as Assumed Liabilities and Business
Contracts with respect to the indemnification provisions in Section
9.3(b)(ii) and 9.3(b)(iii) of the Purchase Agreement.
ARTICLE II
GENERAL PROVISIONS
2.1 RATIFICATION; ENTIRE AGREEMENT.
This Amendment shall not affect any terms or provisions of the
Purchase Agreement other than those amended hereby and is only
intended to amend, alter or modify the Purchase Agreement as expressly
stated herein. Except as amended hereby, the Purchase Agreement
remains in effect, enforceable against each of the parties, and is
hereby ratified and acknowledged by each of the parties. The Purchase
Agreement (including the Schedules and Exhibits), as amended by this
Amendment, constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
2.2 COUNTERPARTS.
This Amendment may be executed in two or more counterparts
(including by means of telecopied signature pages), all of which shall
be considered one and the same agreement and shall become effective
when two or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
2.3 GOVERNING LAW.
This Amendment shall be governed and construed in accordance with
the laws of the State of New York, without regard to the laws that
might be applicable under conflicts of laws principles.
2.4 SEVERABILITY.
Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
enforceability shall not affect any other provision or any other
jurisdiction.
2.5 SUCCESSORS AND ASSIGNS.
This Amendment is binding upon and shall inure to the benefit of
each of the parties and their respective successors and assigns.
2.6 HEADINGS.
The headings, captions and arrangements used in this Amendment
are for convenience only and will not affect the interpretation of
this Amendment.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Amendment to
be signed by their respective officers thereunto duly authorized, all
as of date first written above.
GLOBAL HOME PRODUCTS LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
XXXXXX RUBBERMAID, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President -
General Counsel
