EXHIBIT 2.2
SECOND AMENDMENT TO LIMITED LIABILITY COMPANY INTEREST PURCHASE AND
CONTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO LIMITED LIABILITY COMPANY INTEREST PURCHASE
AND CONTRIBUTION AGREEMENT ("Amendment") is made and entered into as of the
____ day of February, 2000, by and among Allied Products Corporation, a
Delaware corporation ("Allied"), Xxxx Hog Investors, L.L.C., a Delaware
limited liability company ("Crown"), and Xxxx Hog, L.L.C., a Delaware limited
liability company (the "Company"). Unless otherwise defined herein,
capitalized terms used herein shall have the same meanings assigned to them
in the Limited Liability Company Interest Purchase and Contribution Agreement
dated as of October 21, 1999 (the "Agreement") between Allied, Crown and the
Company.
WITNESSETH:
WHEREAS, Allied, Crown and the Company entered into the Agreement,
which provides for (i) Allied selling, contributing, transferring and
assigning to the Company the Purchased Assets subject solely to the Assumed
Liabilities; (ii) Allied selling to Crown eighty and one-tenth percent
(80.10%) of the limited liability company interests in the Company; and (iii)
Crown and Allied entering into a limited liability company agreement;
WHEREAS, pursuant to a Loan Agreement dated December 16, 1999 Xxxxx
Crown and Company (Not Incorporated),an affiliate of Crown, ("HCC") made a
$5,000,000 loan ("Loan") to Allied to provide working capital for the Xxxx
Hog and Great Bend divisions of Allied until the closing under the Agreement.
The Loan is evidenced by a promissory note and secured by a mortgage and
security agreement on certain of Allied's property in Selma, Alabama (the
loan agreement, promissory note, mortgage, security agreement and any other
documents evidencing such loan and the security therefore herein called the
"Loan Documents");
WHEREAS, as a condition of the Loan, Crown, the Company and Allied
amended the Agreement pursuant to a First Amendment To Limited Liability
Company Interest Purchase And Contribution Agreement ("First Amendment")
which amendment granted Crown the option to terminate the Agreement if (i)
all amounts owed to HCC under the Loan and Loan Documents, including
interest, principal and penalties, have not been paid to HCC on or before
February 15, 2000; (ii) the Closing has not occurred on or before February
15, 2000 or (ii) if Allied is in default under the Loan Documents. The First
Amendment also amended and restated in their entirety Schedule 1.5(a)-3 and
Exhibit 5.3 of the Agreement (the Agreement as amended by the First Amendment
herein called the "Amended Agreement"); and
WHEREAS, Allied, Crown and the Company desire to amend the Amended
Agreement to defer certain dates contained in the First Amendment and to
clarify certain provisions of Exhibit 5.3.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, Allied, Crown and the Company do hereby agree as follows:
1. SECTION 1.5. The reference to "One Hundred Twenty Million
Eighty-Six Thousand Forty One Dollars ($120,086,041)" in Section 1.5(a) and
Section 1.5(c) is hereby deleted and replaced with "One Hundred Twelve
Million Seventy-Six Thousand and Forty One Dollars ($112,076,041).
2. SECTION 10.1(d). The date of February 15, 2000 referred to
Section 10.1(d) of the Amended Agreement is hereby deleted in its entirety
and replaced with the date of March 6, 2000.
3. SECTION 10.1(e). The date of February 29, 2000 referred to
Section 10.1(e) of the Amended Agreement is hereby deleted in its entirety
and replaced with the date of March 31, 2000.
4. SECTION 10.1(g). Section 10.1(g) of the Amended Agreement is
amended in its entirety to read as follows:
(g) By Crown, if Allied defaults in any manner under
the Loan Documents or if all amounts payable to HCC under the Loan
Documents have not been paid on or before March 6, 2000."
5. EXHIBIT 5.3. Section 7.1(c) of Exhibit 5.3, the Limited
Liability Company Agreement, of the Amended Agreement is hereby amended in
its entirety to read as follows:
(c) Crown and the Company shall have thirty (30) days after
receipt of the Allied Sale Notice ("Election Period") either (i) to
notify Allied in writing that they will purchase the Allied Interest on
the terms proposed by Allied as described in SECTION 7.1(b) ("Purchase
Notice") or (ii) if neither the Company or Crown desire to purchase the
Allied Interest on the terms proposed by Allied, to notify Allied in
writing ("Appraisal Notice") of the election to initiate the Appraisal
Process. If either Crown or the Company give Allied an Appraisal
Notice, then Crown and the Company shall have twenty (20) days after
receipt of the written notice ("Appraisal Period") of the Appraised
Value to notify Allied in writing ("Appraised Value Purchase Notice")
that they will purchase the Allied Interest at the Appraised Value. If
neither the Company or Crown sends to Allied a Purchase Notice or
Appraisal Notice within the Election Period or if the Company or Crown
sends an Appraisal Notice within the Election Period but do not send an
Appraised Value Purchase Notice within the Appraisal Period, then
Allied shall have the option, which it may exercise by sending written
notice to the Manager, Crown and the Company, within thirty (30) days
after the Election Period or the Appraisal Period, whichever is
applicable, (the "Sale Transaction Notice"), to require that the
Manager sell all of the assets of the Company. In lieu of selling all
of the assets of the Company, the Manager may, in its discretion,
require that the Members sell all of their Membership Interests or
cause the Company to enter into another transaction which effectively
constitutes a sale of the Company, in which event the provisions of
SECTION 7.3 (d) AND (e) shall apply to such sale (the "Sale
Transaction"). The Manager shall have the sole discretion to negotiate
the
2
terms and conditions of any Arms Length Sale Transaction. If within
one hundred eighty (180) days after Allied sends the Sales Transaction
Notice to the Manager, the Manager has not made reasonable efforts to
effectuate an Arms Length Sale Transaction, Allied shall have the right
to engage an investment banking firm and/or otherwise pursue an Arms
Length Sale Transaction. The Manager will be deemed to be making
reasonable efforts to effectuate an Arms Length Sale Transaction, if it
has engaged an investment banking firm which is making reasonable
efforts to effectuate an Arms Length Sale Transaction. An Arms Length
Sale Transaction is a Sale Transaction in which all Members are treated
equally with respect to their Membership Interests, in proportion to
their Percentage Interests, and the purchaser is not an Affiliate of
Crown or the Allied Owners. The transactional costs related to a Arms
Length Sale Transaction shall be paid, at the option of the Manager, by
the Company or the Members based on their respective Percentage
Interests at the date of the Allied Sale Notice. If Allied does not
issue the Sale Transaction Notice in accordance with this SECTION
7.1(c), then Allied may not issue an Allied Sale Notice to Crown
pursuant to SECTION 7.1(b) for 1 year after the Election Period.
6. Section 7.1(f) of Exhibit 5.3 of the Amended Agreement is
amended by changing the reference to Section 7.1(b)(i) to Section 7.1(b).
7. Section 7.3 (d) of Exhibit 5.3 of the Amended Agreement is
amended in its entirety to read as follows:
(d) In the event Crown has exercised the Drag-Along Option or Allied
has exercised the Tag-Along Option or in the case of a Sale
Transaction, the Allied Owners shall receive the same total
consideration, on a pro rata basis according to their respective
Percentage Interests, as the Crown Owners receive pursuant to the
Proposed Sale or the Sale Transaction.
8. Section 8.1(c) of Exhibit 5.3 of the Amended Agreement is
amended in its entirety to read as follows:
(a) "Appraisal Process" refers to the situation where the
Company, Allied, Crown or the Declining Member, as the case may be, (i)
within sixty (60) days of the Manager's request for Optional Capital
more than twenty-four (24) months after the date hereof, (ii) within
thirty (30) days of Crown's election to initiate the Appraisal Process
pursuant to SECTION 7.1(b) or (iii) within sixty (60) days of Crown's
election to initiate the Appraisal Process pursuant to SECTION 7.4(b),
either agree or fail to agree on the Fair Market Value of the Company
(the applicable sixty (60) day period or thirty (30) day period herein
called the "Negotiation Period"). In the event of such a failure to
reach agreement within such Appraisal Period, Crown and Allied shall
provide the other with a final good faith proposed Fair Market Value of
the Company (the "Crown Final Proposal" and the "Allied Final
Proposal"), in writing, within ten (10) business days after the
expiration of such Negotiation Period. Crown and Allied shall then
choose an investment banking firm or accounting firm (the "Appraiser")
to determine the Fair Market Value of the Company within thirty (30)
days of the engagement of such firm; provided, however,
3
that the Fair Market Value of the Company must either: (i) equal the
Crown Final Proposal or the Allied Final Proposal, or (ii) fall
somewhere between the Crown Final Proposal and the Allied Final
Proposal.
(i) The value of the Company determined by the
Appraisal Process (the "Appraised Value") shall be final and
binding upon the parties. Any determination of the Appraised
Value of the Company pursuant to an Appraisal Process shall
also be binding upon the Company and all of the Members with
respect to any future determination of the Fair Market Value
of the Company or Appraised Value (for the twenty-four (24)
month period following the valuation date of the Appraisal
Process), except that the Appraised Value shall be increased
by (i) the cumulative amount of all Optional Contributions
after the date the Appraised Value was determined, and shall
be reduced by (ii) Cumulative Distributions after the date the
Appraised Value was determined, and shall be further increased
or reduced by (iii) the Net Cumulative Earnings or Deficit,
respectively. Provided, however, that Allied, on behalf of the
Allied Owners, or Crown, on behalf of the Crown Owners, may
choose not to be bound by an Appraised Value which is more
than 3 months old and related to a different matter (e.g. a
prior Optional Capital call), and instead elect to have a new
Appraisal Process, as long as the Member electing to begin the
new Appraisal Process, and its Affiliates that are Members,
bears the entire cost of such Appraisal Process and notifies
the other Member and the Manager as follows:
(A) if the Appraised Value is to be used in
connection with the Manager's request for Optional
Capital more than twenty four (24) months after the
date hereof, within 5 days after receipt of the
Manager's request, and
(B) if the Appraised Value is to be used in
connection with Crown's election to initiate the
Appraisal Process pursuant to SECTION 7.1(b) or
SECTION 7.4(b), within 5 days after delivery of
delivery of Crown's notice.
(ii) If Crown and Allied are unable to agree on the
Appraiser within fifteen (15) days after the Negotiation
Period, Crown and Allied each shall choose an investment
banking firm or accounting firm, and direct such firms to
choose, within fifteen (15) days, the Appraiser who shall
perform the Appraisal Process.
(iii) The cost of the Appraiser shall be split evenly
between Crown and Allied.
9. RATIFICATION. Except as set forth in this Amendment, all of the
terms, covenants, and conditions of the Agreement as amended and all the rights
and obligations of Allied, Crown and the Company thereunder, shall remain in
full force and effect, and are not otherwise altered, amended, revised, or
changed.
4
10. COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be an original and all of which counterparts taken
together shall constitute one and the same agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
ALLIED: CROWN:
ALLIED PRODUCTS CORPORATION, XXXX HOG INVESTORS, L.L.C., a
a Delaware corporation Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx By: Xxxxx Crown and Company (Not
---------------------- Incorporated), an Illinois limited
Its: President partnership, its manager
By: /s/ Xxxxxxx X. Crown
--------------------
a General Partner
COMPANY:
XXXX HOG, L.L.C., a Delaware limited
liability company
By: Allied Products Corporation
Its: Manager
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Its: President
6
