SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
Exhibit
99.2
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this “Amendment”) is made
effective as of April 28, 2006 by and among Electrical Components International
Holdings Company, a Delaware corporation (“Purchaser”),
Viasystems Group, Inc., a Delaware corporation (“Parent”),
Wire
Harness Holding Company, Inc., a Delaware corporation (“Seller”),
and
Wire Harness Industries, Inc., a Delaware corporation and a direct wholly-owned
subsidiary of Seller (the “Company”).
WITNESSETH:
WHEREAS,
Purchaser, Parent, Seller and the Company are parties to that certain Stock
Purchase Agreement dated March 21, 2006, as amended by that certain First
Amendment to Stock Purchase Agreement dated as of April 4, 2006 (as so amended,
the “Agreement”);
and
WHEREAS,
the parties desire to further amend the Agreement in certain
respects.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
intending to be legally bound hereby, the parties hereby agree as
follows:
1. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.
2. Section
1.1 of the Agreement is hereby amended to delete the following:
“Target
Working Capital Amount”
means
Thirty One Million Dollars ($31,000,000).
3. Section
3.1 of the Agreement is hereby amended to read in its entirety as
follows:
3.1 Consideration.
(a) Preliminary
Purchase Price.
The
preliminary purchase price for the Shares and the covenant not to compete
contained in Section
8.18
(Non-Competition) shall be an amount of cash equal to Three Hundred Twenty
Million Dollars ($320,000,000) (the “Preliminary
Purchase Price”).
The
Preliminary Purchase Price shall be allocated in accordance with Section
8.13.
On the
Closing Date, Purchaser shall pay the Preliminary Purchase Price to Seller,
which shall be paid by wire transfer of immediately available United States
funds into an account or accounts designated by Seller not less than three
(3)
days prior to the Closing Date.
(b) Adjustment
of Preliminary Purchase Price.
The
Preliminary Purchase Price shall be subject to adjustment as provided in
this
Section
3.1(b).
(i) Estimates.
(A) Seller’s
reasonable good faith estimate of (1) the current assets of the Company and
the Subsidiaries, excluding cash and cash equivalents, minus
(2) the
current liabilities of the Company, in each
case, (x) calculated as of the Closing Date and after giving effect to the
Restructuring and reflecting an accrual for bonuses payable to Continuing
Employees for the allocable portion of 2006 fiscal year under Parent’s Annual
Incentive Compensation Plan and the Senior Executive MBO Plan and
(y)
prepared in accordance with the accounting principles and methodologies employed
by Seller in preparing the Balance Sheet and those set forth on Schedule
3.1(b)
consistently applied (such amount generally, “Working
Capital”),
is
$27,142,000; and
(B) Seller’s
reasonable good faith estimate of cash and cash equivalents of the Company
as of
the Closing Date arrived at in accordance with the principles specified in
clause (A) above is at least $2,858,000 (such amount generally, “Cash”).
(ii) Closing
Date Statement.
No
later than sixty (60) calendar days after the Closing Date, Purchaser shall
prepare and deliver to Seller a statement of the actual Working Capital as
of
the Closing Date and the actual Cash as of the Closing Date (such amounts,
being
the “Closing
Date Working Capital”
and
the
“Closing
Date Cash”,
respectively, and such statement, the “Closing
Date Statement”),
which
Closing Date Statement shall be prepared in accordance with the accounting
principles and methodologies employed by Seller in preparing the Balance
Sheet
and those set forth on Schedule
3.1(b)
consistently applied. The Closing Date Statement shall be signed by Purchaser’s
Chief Financial Officer and accompanied by reasonable supporting documentation.
Seller shall and shall cause its accountants to cooperate with Purchaser
and its
accountants to the extent required to enable Purchaser to prepare the Closing
Date Statement in accordance with this Agreement.
(iii) Disputes.
(A) Subject
to clause (B) of this Section
3.1(b)(iii),
the
Closing Date Statement delivered by Purchaser to Seller shall be deemed to
be
and shall be final, binding and conclusive on the parties hereto.
(B) Seller
may dispute any amounts reflected on the Closing Date Statement, but only
on the
basis that the amounts reflected on the Closing Date Statement were not arrived
at in accordance with the accounting principles and methodologies employed
by
Seller in preparing the Balance Sheet and those set forth on Schedule
3.1(b)
consistently applied; provided,
however,
that
Seller shall be deemed to have agreed to each item or amount set forth in
the
Closing Date Statement (and waived any right to dispute the same) unless
Seller
has notified Purchaser in writing of each disputed item, specifying the amount
thereof in dispute and setting forth, in reasonable detail, the basis for
such
dispute, within thirty (30) calendar days after Purchaser’s delivery of the
Closing Date Statement to Seller. In the event of such a dispute, Seller
and
Purchaser shall attempt to reconcile their differences, and any resolution
by
them as to any disputed amounts shall be final, binding and conclusive on
the
parties hereto; provided that, such
amounts
shall not be less than the amounts shown in
Purchaser’s calculation delivered pursuant to Section
3.1(b)(ii)
nor more
than the amounts shown in Seller’s calculation delivered pursuant to this
Section
3.1(b)(iii)(B).
If
Seller and Purchaser are unable to reach a resolution with such effect within
thirty (30) calendar days after receipt by Purchaser of Seller’s written notice
of dispute, Seller and Purchaser shall submit the items remaining in dispute
for
resolution to an independent accounting firm of international reputation
mutually acceptable to Purchaser and Seller (such other accounting firm being
referred to herein as the “Independent
Accounting Firm”),
which
shall, within forty five (45) calendar days after such submission, determine
and
report to Purchaser and Seller upon such remaining disputed items, and such
report shall be final, binding and conclusive on the parties hereto. The
fees
and disbursements of the Independent Accounting Firm shall be allocated between
Seller and Purchaser in the same proportion that the aggregate amount of
such
remaining disputed items so submitted to the Independent Accounting Firm
that is
unsuccessfully disputed by each such party (as finally determined by the
Independent Accounting Firm) bears to the total amount of such remaining
disputed items so submitted.
(C) In
acting
under this Agreement, Purchaser’s accountants, Seller’s accountants and the
Independent Accounting Firm shall be entitled to the privileges and immunities
of arbitrators.
(iv) Final
Closing Date Statement.
The
Closing Date Statement shall be deemed final for the purposes of this
Section
3.1(b)
upon the
earliest of (A) the failure of Seller to notify Purchaser of a dispute
within thirty (30) calendar days of Purchaser’s delivery of the Closing Date
Statement to Seller, (B) the resolution of all disputes, pursuant to
Section
3.1(b)(iii)(B),
by
Purchaser and Seller and (C) the resolution of all disputes, pursuant to
Section
3.1(b)(iii)(B),
by the
Independent Accounting Firm.
(v) Purchase
Price Adjustment.
Within
three (3) Business Days after the Closing Date Statement being deemed final,
the
Preliminary Purchase Price shall be increased or decreased, if at all, as
follows:
(A) (i)
if
the Closing Date Cash is less than $2,858,000, then the Preliminary Purchase
Price shall be decreased by an amount equal to the difference between $2,858,000
and Closing Date Cash; or (ii) if Closing Date Cash is greater than $2,858,000
then the Preliminary Purchase Price shall be increased by the difference
between
Closing Date Cash and $2,858,000; and
(B) (i)
if
the Closing Date Working Capital is less than $27,142,000, then the Preliminary
Purchase Price shall be decreased by the difference between $27,142,000 and
Closing Date Working Capital; (ii) if the Closing Date Working Capital is
greater than $27,142,000 but less than $31,000,000, then the Preliminary
Purchase Price shall be increased by the difference between such amounts,
but
not by an amount greater than $1,858,000; or (iii) if the Closing Date Working
Capital is greater than $31,000,000, then the Preliminary Purchase
Price
shall be increased by the sum of $1,858,000 and
the difference between Closing Date Working Capital and
$31,000,000.
(vi) Payment.
If the
net amount of the adjustments pursuant to clause (v) above results in an
increase in the Preliminary Purchase Price, then Purchaser shall, within
three
(3) Business Days after the Closing Date Statement being deemed final, pay
to
Seller the amount of such increase by wire transfer of immediately available
funds to the account specified by Seller. If the net amount of the adjustments
pursuant to clause (v) above results in a decrease in the Preliminary Purchase
Price, then Seller shall, within three (3) Business Days after the Closing
Date
Statement being deemed final, pay to Purchaser the amount of such decrease
by
wire transfer of immediately available funds to the account specified by
Purchaser. Any payment amount shall bear interest thereon from the Closing
Date
to the date of payment at the rate equal to one percent (1%) above the prime
rate of JPMorgan Chase Bank, N.A. on the Closing Date. The Preliminary Purchase
Price as so adjusted by this Section
3.1(b),
is
referred to herein as the “Purchase
Price.”
4. Section
4.2(a)(i) of the Agreement is hereby amended to delete “Estimated Purchase
Price” and replace it with “Preliminary Purchase Price”.
5. Section
4.2(b)(ii) of the Agreement is hereby amended to delete “Estimated Purchase
Price” and replace it with “Preliminary Purchase Price”.
6. To
the
extent that any of the provisions of this Amendment are inconsistent with the
provisions in the Agreement, the provisions of this Amendment shall control.
To
the extent not inconsistent with the provisions in this Amendment, the Agreement
remains unchanged, unaltered and in full force and effect and is hereby
reaffirmed in its entirety.
7. This
Amendment may be executed in one or more counterparts, each of which will be
deemed to be an original of this Amendment and all of which, when taken
together, will be deemed to constitute one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties have executed this Second Amendment to Stock
Purchase Agreement, effective as of the date first set forth above.
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ELECTRICAL
COMPONENTS INTERNATIONAL
HOLDINGS
COMPANY
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By:
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/s/ Xxxxx XxxXxx | |
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Name:
Xxxxx XxxXxx
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Title:
President and Chief Executive
Officer
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WIRE
HARNESS HOLDING COMPANY, INC.
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By:
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/s/ Xxxxxx X. Xxxxx | |
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Name:
Xxxxxx X. Xxxxx
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Title:
Secretary
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VIASYSTEMS
GROUP, INC.
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By:
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/s/ Xxxxxx X. Xxxxx | |
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Name:
Xxxxxx X. Xxxxx
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Title:
Secretary
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WIRE
HARNESS INDUSTRIES, INC.
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By:
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/s/ Xxxxxx X. Xxxxx | |
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Name:
Xxxxxx X. Xxxxx
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Title:
Secretary
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SIGNATURE
PAGE TO SECOND AMENDMENT TO STOCK PURCHASE
AGREEMENT
