FIRST AMENDMENT TO PURCHASE AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this “First Amendment”) is entered into as of the
28th day of February, 2007, by and among ADVENT OXEA CAYMAN LTD., a Cayman Island limited liability
company formerly known as Advent Oxo (Cayman) Limited (“Parent Buyer”), OXEA CORPORATION, a
Delaware corporation formerly known as Oxo Titan US Corporation (“U.S. Buyer”),
DRACHENFELSSEE 520. V V GMBH, a German limited liability company to be renamed “Oxea Holding GmbH”
(“German Holdco”), DRACHENFELSSEE 521. V V GMBH, a German limited liability company to be
renamed “Oxea Deutschland GmbH” (“German Buyer”), CELANESE LTD., a Texas limited
partnership (“Celanese Ltd.”), TICONA POLYMERS INC., a Delaware corporation
(“Ticona,” and together with Celanese Ltd., “U.S. Seller”), and CELANESE CHEMICALS
EUROPE GMBH, a German limited liability company (“German Seller”). U.S. Seller and German
Seller are collectively referred to herein as “Sellers” and individually as a
“Seller.” Parent Buyer, U.S. Buyer, German Holdco and German Buyer are collectively
referred to herein as “Buyer”. Buyer, U.S. Seller and German Seller are collectively
referred to herein as the “Parties” and individually as a “Party.”
WHEREAS, each Party is a party to that certain Purchase Agreement dated as of December 12,
2006 (“Purchase Agreement”); and
WHEREAS, the Parties desire to amend the Purchase Agreement in accordance with Section 11(i)
thereof as set forth in this First Amendment.
NOW, THEREFORE, in consideration of the premises and mutual promises herein made, the Parties
agree as follows:
1. Capitalized Terms. Unless otherwise defined in this First Amendment, all
capitalized terms used herein shall have the meanings ascribed to such terms in the Purchase
Agreement.
2. Additional Definitions. The following definitions shall be added to Section 1 of
the Purchase Agreement:
“‘Xxxxxx Assets’ means the Purchased Assets that are located at or relate solely to
the Facility in Xxxxxx, Texas and set forth on Attachment A to the First Amendment.”
“‘Eoxo Factoring Arrangement’ means the Agreement dated February 22, 2007 among Eoxo
(as seller), Compass ABSproM Limited (“Compass”) (as buyer) and WestLB (“West”) (as
Administrator), and all agreements related thereto, namely the Framework Agreement among Eoxo (as
seller) Compass (as buyer) and West (as Administrator) dated October 6, 2005, supplemented by
agreement dated March 7, 2006 and the Pledge Agreement between Eoxo (as pledgor), Compass (as
pledgee) and West (as collateral agent).
“‘Japanese Assets’ means the Purchased Assets that are located in or relate solely to
operations of the Business in Japan and set forth on Attachment B to the First Amendment.”
“‘Oxea Xxxxxx’ means Oxea Xxxxxx, LLC, a Delaware limited liability company and
wholly-owned Subsidiary of U.S. Buyer.”
“‘Oxea Japan’ means Oxea Japan KK, a Japanese business corporation and wholly-owned
Subsidiary of German Buyer.”
“‘Oxea UK’ means Oxea UK Ltd., a United Kingdom limited company and an indirect
wholly-owned Subsidiary of Parent Buyer.”
“‘UK Assets’ means the Purchased Assets that are located in or relate solely to
operations of the Business in the United Kingdom and set forth on Attachment C to the First
Amendment.”
3. Amendment of Definitions.
(a) The definition of “Buyer” hereby is amended to mean collectively Parent Buyer, U.S. Buyer,
German Holdco, German Buyer, Oxea Xxxxxx, Oxea Japan and Oxea UK.
(b) The definitions of “Estimated Working Capital” and “Estimated Working Capital Adjustment
hereby are deleted from Section 1 of the Purchase Agreement and from Exhibit A to the Purchase
Agreement.
(c) The definition of “Final Specified Deductions” is hereby deleted in its entirety and
replaced with the following: “Final Specified Deductions” means the sum of the actual
amount of the aggregate pension provisions line item, total ATZ provisions line item, total jubilee
provisions line item, total other personnel-related provisions (Xxxxxxxx) line item, Estech remnant
costs (Oberhausen) line item and real estate transfer tax (Infraserv) line item on Schedule
2(d)(ii), as determined pursuant to the process set forth in Section 2(d).”
(d) The definition of “Seller Personal Property” is hereby deleted in its entirety and
replaced with the following: “Seller Personal Property” means (1) all tangible personal
property owned by Sellers (including all machinery and equipment, mobile or otherwise, vehicles,
tools, furniture, furnishings and Inventory) located on the Seller Sites as of the date of this
Agreement, except in each case, for the Excluded Assets, and including, but not limited to, the
tangible personal property related to the portion of the Business located in the United States that
is listed in Schedule 1(g)-1 and the tangible personal property related to the portion of
the Business located in Germany that is listed in Schedule 1(g)-2, and (2) the following
Rhodium: (i) all Rhodium leased for use in the Business, (ii) exclusive of the Rhodium described
in clause (iv) below, 100% of the recycled (or “recovered”) owned Rhodium allocated on the books
and records of Sellers or their Affiliates to Bay City (with the current unrefined amount of such
Rhodium (other than the Rhodium described in clause (iv) below) set forth on Schedule 1(j)
hereto), (iii) 100% of the “virgin” owned Rhodium allocated on the books and records of Sellers or
their Affiliates to Bay City, which “virgin” Rhodium shall be at least the amount set forth on
Schedule 1(k) hereto; (iv) fifty-seven percent (57%) of the recycled (or “recovered”) owned
Rhodium allocated on the books and records of the Sellers or their Affiliates to Bay City and
currently located at Umicore Precious Metals for recycling (with the current unrefined amount of
such Rhodium set forth on Schedule 1(l) hereto), and (v) all owned Rhodium owned by the
Sellers for use in the Business and not allocated to Bay City.”
(e) The definition of “Ancillary Agreements” is amended to add the following agreement as
subsection (n):
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“(n) Software License Agreement dated as of the Closing Date among Celanese
Ltd., U.S. Buyer and German Buyer.”
4. ATZ Obligations. A new Section 2(a)(viii) shall be added to the Purchase Agreement
and shall read as follows:
“ATZ Obligations. Any cash deposits to secure ATZ obligations
(which deposits shall be netted against the liabilities set forth on
Schedule 2(d)(ii) for purposes of calculating the Final Purchase
Price). Buyer hereby covenants to comply with, and to indemnify Sellers for
all Liabilities (if any) that may arise following Closing under Section 8a
of the German Act on Partial Retirement with respect to securing the ATZ
obligations and for a period of one year following the Closing for any
Liabilities of Sellers following Closing with respect to such ATZ
obligations.”
5. Eoxo Factoring Arrangement. The Parties hereby agree that the Eoxo Factoring
Arrangement shall remain in place after the Closing. Therefore, the following amendments shall be
made to the Purchase Agreement:
(a) Section 2(c)(i)(L) shall be deleted in its entirety and replaced with the following:
“(L) All obligations and Liabilities of Eoxo under the Eoxo Factoring
Arrangement arising following the Closing; it being understood that all
amounts outstanding thereunder immediately prior to Closing shall be repaid
by Eoxo prior to Closing.”
(b) The introductory paragraph of Section 2(c)(ii) to the Purchase Agreement shall be deleted
in its entirety and replaced with the following:
“Excluded Liabilities. Except for the Assumed Liabilities, Buyer
shall not assume or become liable for any Liabilities (1) of Parent or its
Subsidiaries (other than the Companies) or Sellers or (2) of the Companies
for indebtedness for borrowed money (including amounts outstanding
immediately prior to Closing under the Eoxo Factoring Arrangement) or leases
required to be capitalized in accordance with historical accounting methods
(collectively, the “Excluded Liabilities”). Excluded Liabilities
include, but are not limited to any and all Liabilities arising out of,
related to, or attributable to:”
6. Working Capital.
(a) Sections 2(d)(i) and 2(d)(ii) hereby are revised to read in their entirety as follows:
“(i) Prior to Closing, Buyer and Sellers shall conduct a physical inventory
of the Facilities for the purpose of determining the Inventory to be
included in the calculation of Working Capital. At least three Business
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Days prior to the Closing Date, Sellers shall deliver to Buyer a certificate
executed by Sellers (the “Initial Closing Date Statement”), setting
forth Sellers’ calculation of the Closing Payment (as defined below). The
Initial Closing Date Statement shall be prepared in accordance with Sellers’
historical accounting methods (as defined in Exhibit A), policies, practices
and procedures, with consistent classifications, judgments, thresholds and
estimation methodology reflected or assumed therein.
(ii) At the Closing, Buyer shall pay to or for the account of Sellers (as
directed by Sellers) (A) the sum of Four Hundred Eighty Million Euro
(€480,000,000) (the “Base Amount”), minus (B) the total
of the amounts outstanding as of the close of business on the day
immediately preceding the Closing Date for the items listed on Schedule
2(d)(ii) in cash, payable by wire transfer of immediately available
funds in accordance with the written instructions of Sellers provided by
Sellers to Buyer (the “Closing Payment”). The Closing Payment shall
constitute the “Estimated Purchase Price.”
(iii) As soon as reasonably practicable, but not later than 90 calendar days
after the Closing Date, Buyer shall (A) prepare a statement of the
calculation of the Baseline Working Capital, the Working Capital as of the
close of business on the Closing Date, the Final Working Capital Adjustment
and the Final Specified Deductions (the “Closing Date Statement”),
and (B) deliver to Sellers the Closing Date Statement. The calculation of
the items set forth in the Closing Date Statement shall be prepared in
accordance with Sellers’ historical accounting methods, policies, practices
and procedures, with consistent classifications, judgments, thresholds and
estimation methodology, as were used in the preparation of the items set
forth in the Initial Closing Date Statement.”
(b) A new Section 5(m) shall be added to the Purchase Agreement as follows:
“Virgin Rhodium Payable. The Sellers shall pay when due under the
applicable purchase order the account payable for the 285 xxxx ounces of
“virgin” Rhodium on order and allocated to Bay City as set forth in
Schedule 1(k).”
7. 2006 and 2007 Accruals for Working Capital Purposes. The Parties have agreed that
all Employee bonus accruals in relation to 2006 and all prior years (other than bonus payments of
Employees of Eoxo accrued in relation to the year 2006), customer rebate accruals in relation to
2006 and all prior years, and agents’ commission accruals in relation to 2006 and all prior years
are to be paid directly to the appropriate parties by Sellers. Accordingly, the following
amendments to the Purchase Agreement shall be made:
(a) Exhibit A to the Purchase Agreement shall be amended so that Section B(9)(c) is
deleted in its entirety and replaced with the following:
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“Accrued Liabilities for Baseline Working Capital purposes shall equal the
average month-end value determined with respect to the six full months most
recently completed prior to the signing of the Agreement. For the avoidance
of doubt, items included in Accrued Liabilities for Baseline Working Capital
purposes shall be consistent with those presented in the VDD Report, but
specifically excluding (i) all captions deducted from net debt, (ii) items
Sellers are obligated to satisfy under the terms of this Agreement, (iii)
goods received, but not invoiced of the German Seller, (iv) goods received,
but not invoiced of the U.S. Seller, (v) all Employee bonus payments accrued
in relation to the years 2006 and prior (other than bonus payments of
Employees of Eoxo accrued in relation to the year 2006), (vi) customer
rebate accruals in relation to the years 2006 and prior, and (vii) agents’
commission accruals in relation to years 2006 and prior.”
(b) Schedule 6(b) to the Purchase Agreement shall be amended to add the following new
section at the end of the schedule:
“4. Employee Bonus Payments – 2006 and Prior
With regards to both the U.S. Transferred Employees and the German
Transferring Employees, Sellers agree to pay directly to such employees all
bonuses accrued for 2006 and years prior when such bonuses are due; provide,
however, that Eoxo shall pay when due all bonus payments of Employees of
Eoxo accrued in relation to the year 2006.”
(c) For clarity, any accrued Liabilities for Employee bonuses in relation to the year 2007,
customer rebates in relation to the year 2007 and agents’ commissions in relation to the year 2007
will be assumed by Buyer. Such Liabilities will be excluded from the Baseline Working Capital and
included in the Final Working Capital.
8. Intercompany Receivables and Payables. The Parties have reached an agreement
regarding the treatment of certain intercompany accounts receivable and accounts payable for
purposes of the Working Capital Adjustment. The Parties agree as follows:
(a) All accounts receivable owed to Eoxo as of the Closing Date in respect of sales by Eoxo to
Sellers or their Affiliates shall be included in Baseline Working Capital and Final Working
Capital, will not be terminated at Closing and shall be retained by Eoxo following the Closing.
(b) All accounts receivable of Sellers or their Affiliates relating to payables of Eoxo as of
the Closing Date in respect of the purchase by Eoxo of syngas and propylene from Sellers or their
Affiliates shall be transferred as a “Purchased Asset” to German Buyer, it being understood that
the amount of the payables owing by Eoxo to Sellers or their Affiliates relating to propylene and
syngas are already included in the payables constituting “Excluded Accounts Payable”. Such
payables of Eoxo and the corresponding receivable of Sellers or their Affiliates shall not be
included in Baseline Working Capital or in Final Working Capital.
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(c) All accounts payable owed by Eoxo to Sellers or their Affiliates as of the Closing Date in
respect of the purchase of acetic acid from Sellers or their Affiliates and the provision of site
services (including amounts in relation to Oberhausen capital projects to the extent (1) invoices
have been received by Eoxo prior to 28 February 2007, (2) the items are not Seller obligations
under the terms of this Agreement, and (3) they are not items deducted as net debt under the terms
of this Agreement) by Sellers or their Affiliates shall be included in Baseline Working Capital and
in Final Working Capital, and such accounts payable shall remain obligations of Eoxo following the
Closing. All other accounts payable owed by Eoxo to Sellers or their Affiliates shall either be
terminated at Closing or transferred to Sellers and considered “Excluded Liabilities”.
(d) All accounts receivable owed to Sellers or their Affiliates as of the Closing Date in
respect of the sale of site services (as described above) and acetic acid to Eoxo shall not be
included in Baseline Working Capital or in Final Working Capital, but such accounts receivable
shall remain assets of Sellers or their Affiliates, as applicable, following the Closing.
9. Closing. Section 2(f) of the Purchase Agreement shall be deleted in its entirety
and replaced with the following:
“(f) Closing. The closing of the transactions contemplated by this
Agreement (the “Closing”) shall take place at locations mutually
satisfactory to the Parties on February 28, 2007 (the “Closing
Date”). The effective time of the Closing shall be deemed to be 12:00
PM, Central European Time, on the Closing Date; provided that all financial
calculations, true-ups and pro-rations, and the determination of Cash, to be
made under this Agreement, shall be made as if the Sellers owned the
Purchased Assets and Assumed Liabilities prior to the close of business on
the Closing Date and the Buyer owned the Purchased Assets (and assumed the
Assumed Liabilities) on and after the close of business on the Closing Date.
Notwithstanding the foregoing, there shall be no Liabilities of the type
referenced in Section 2(c)(ii)(C) as of the effective time. Any Cash of the
Business received after the effective time and prior to the close of the
Business on the Closing Date shall be trued up as part of the process in
Section 2(d).”
10. Purchase Price Allocation. The reference to “90 days” in the second sentence of
Section 2(e) shall be changed to “120 days”. In addition, a new sentence shall be added as the
penultimate sentence of Section 2(e) of the Purchase Agreement as follows:
“The Final Allocation Statement shall include an allocation of Purchase
Price for the Purchased Assets allocated to Oxea Xxxxxx, Oxea Japan and Oxea
UK.”
11. Assignment. Pursuant to Section 11(d) of the Purchase Agreement, Buyer has
assigned certain of its rights and obligations under the Purchase Agreement to certain of its
Affiliates, as described in more detail below, and each assignment pursuant to the form of
Assignment and Assumption Agreement attached hereto as Attachment D. Buyer will retain all
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of its rights and obligations under the Purchase Agreement which are not specifically
discussed below, and Buyer shall remain responsible for performing any assigned obligation in the
event the assignee fails to perform such obligation.
(a) U.S. Buyer has assigned its rights and obligations under the Purchase Agreement related to
the Xxxxxx Assets to Oxea Xxxxxx, and Oxea Xxxxxx has agreed to assume all the rights and
obligations related to the Xxxxxx Assets under the Purchase Agreement. The Xxxxxx Assets shall be
transferred directly to Oxea Xxxxxx at the Closing under the Purchase Agreement.
(b) German Buyer and U.S. Buyer have assigned their rights and obligations under the Purchase
Agreement related to the Japanese Assets to Oxea Japan, and Oxea Japan has agreed to assume all the
rights and obligations related to the Japanese Assets under the Purchase Agreement. The Japanese
Assets shall be transferred directly to Oxea Japan at the Closing under the Purchase Agreement.
(c) German Buyer has assigned its rights and obligations under the Purchase Agreement related
to the UK Assets to Oxea UK, and Oxea UK has agreed to assume all the rights and obligations
related to the UK Assets under the Purchase Agreement. The UK Assets shall be transferred directly
to Oxea UK at the Closing under the Purchase Agreement.
12. Allocation of Assets. As a result of the assignments specified in Section 10
above, the last paragraph of Section 2(a) of the Purchase Agreement shall be deleted in its
entirety and replaced with the following paragraph:
“The Purchased Assets will be acquired by Buyer as follows: (A) German
Holdco shall acquire the Entire Eoxo Interest, (B) Oxea Xxxxxx shall acquire
the Xxxxxx Assets, (C) U.S. Buyer shall acquire all Purchased Assets located
in the United States, other than those covered by (B) above, (D) Oxea UK
shall acquire the UK Assets, (E) Oxea Japan shall acquire the Japanese
Assets and (F) German Buyer shall acquire all Ancillary Shares and all other
Purchased Assets. Parent Buyer may modify such allocation by notifying
Sellers prior to Closing. All assets of Sellers not expressly included in
the Purchased Assets shall remain the property of Sellers from and after the
Closing.”
13. EPDC. Given that the shareholders of European Pipeline decided in the general
shareholders meeting dated 15 February 2007 to stop the building of the pipeline project as
originally envisaged, the Parties agree that the European Pipeline Interest and all related items
should be retained by Sellers and not transferred to Buyer. The Parties agree that the exclusion
of the European Pipeline Interest from the transactions contemplated by the Purchase Agreement and
the decision to stop the building of the pipeline project shall not result in any amendment of the
Purchase Price and will not entitle or give rise to any Claim by Buyer for damages against or
compensation from Sellers. Therefore, the following amendments are made:
(a) The final whereas clause of the preface to the Purchase Agreement shall be deleted in its
entirety and replaced with the following:
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“WHEREAS, subject to the terms and provisions hereof, Sellers desire to
sell, assign, transfer, convey and deliver to Buyer (or procure the sale,
assignment, transfer, conveyance and delivery to Buyer), and Buyer desires
to purchase and acquire from Sellers, the Entire Eoxo Interest, the
Infraserv Oberhausen Interest, the Titan GmbH Share, the Xxx-Xxxxxxxxxx GmbH
Share and the Studiengesellschaft mbH Share.”
(b) The definition of “Acquired Share Interests” in Section 1 of the Purchase Agreement shall
be deleted in its entirety and replaced with the following:
“Acquired Share Interests” means the Entire Eoxo Interest, the
Infraserv Oberhausen Interest and the Titan GmbH Share.”
(c) Section 2(a)(ix)(D) shall be deleted from the Purchase Agreement in its entirety and the
word “and” shall be inserted before Section 2(a)(ix)(C).
(d) A new Section 2(b)(viii) shall be added to the Purchase Agreement and shall read:
“(viii) European Pipeline. The European Pipeline Interest and all
agreements listed in Schedule 2(b)(viii).”
(e) A new Section 2(c)(ii)(L) shall be added to the Purchase Agreement and shall read:
“Any Liabilities relating to the European Pipeline Interest, including, but
not limited to, obligations of German Seller under the shareholders
agreement, indemnification agreement, subordination deed and related
agreements entered into by German Seller with respect to European Pipeline
(including the obligation to provide letters of credit and comfort), as more
particularly described on Schedule 2(b)(viii).”
(f) The clause “and will execute a transfer deed in accordance with Dutch law with respect to
the European Pipeline Interest” hereby is deleted from Section 2(g)(vii).
(g) The clause “the European Pipeline Interest or” hereby is deleted from Section 3(d)(i)(K).
(h) Part I Number 8 of Schedule 1(f) to the Purchase Agreement and Part II Number 7 of
Schedule 3(d) to the Purchase Agreement hereby are deleted from their respective schedules.
A new Schedule 2(b)(viii) to the Purchase Agreement entitled “Schedule 2(b)(viii) –
Contracts Related to European Pipeline Interest” in the form attached hereto as Attachment
E hereby is added to the Purchase Agreement.
(i) The reference to “European Pipeline in Section 2(e) hereby is deleted and Schedule
2(e) to the Purchase Agreement (Purchase Price Allocation) shall be deleted in its entirety and
replaced with Attachment F hereto which shall become the new “Schedule 2(e)”.
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(j) Section 3(n)(iv) hereby is deleted in its entirety.
(k) The references to “European Pipeline” in Section 6(i) hereby are deleted.
(l) Schedule 6(m) to the Purchase Agreement (Seller Guarantees) shall be deleted in
its entirety and replaced with Attachment G hereto which shall become the new “Schedule
6(m)”.
(m) Section 4 of Schedule 2(c)(ii) of the Purchase Agreement hereby is amended to read
in its entirety as follows:
“4. The Contracts listed on Schedule 2(b)(viii).”
14. Eoxo Product Contamination. The Parties agree that Sellers claim certain damages
to their products caused by Eoxo in February 2007 (the “Eoxo Product Contamination”) The
Parties share the belief that such damages are covered by one or more policies of insurance. The
Parties understand that Sellers will make a claim relating to the Eoxo Product Contamination to
Sellers’ insurers. In the event any claim is made against Eoxo relating to or arising out of the
Eoxo Product Contamination, Buyer shall cause Eoxo to use its commercially reasonable efforts to
obtain those coverage benefits available or that should be available for the Eoxo Product
Contamination from its insurance carriers under all applicable policies of insurance. Such efforts
shall include, but are not limited to, satisfaction of any notice provisions and/or policy
conditions. Sellers shall indemnify and hold Eoxo harmless from and against any and all
Liabilities incurred by Eoxo after the Closing arising out of or related to the Eoxo Product
Contamination, but only to the extent that such Liabilities are not reimbursed or otherwise
satisfied by Eoxo’s insurance carriers; provided, however, by way of clarification,
Sellers shall not be required to indemnify Eoxo in respect of any increase in insurance premiums
resulting from the Eoxo Product Contamination. By such agreement, the parties in no way intend to
create either “other insurance” or indemnity rights to which Eoxo’s insurance carriers may
subrogate.
15. Gasometer. Section 2(h)(ii) to the Purchase Agreement shall be deleted in its
entirety and replaced with the following paragraph:
“Buyer and Sellers had previously agreed that Sellers would, at Sellers’
sole expense, repair the gasometer at Oberhausen to the extent of the
required repairs described in the Project Titan Business Review dated
September 29, 2006 prepared by Ernst & Young (the “Vendor Due Diligence
Report”) and use its commercially reasonable best efforts to cause such
repairs to be completed by the Closing. Buyer and Sellers acknowledge that
such repairs will not be completed as of the Closing. Buyer and Sellers
agree that (i) Buyer shall accept the gasometer in its as-is condition at
the Closing, (ii) Sellers shall have no obligation to make any repairs to
the gasometer, and (iii) the Estimated Purchase Price and the Final Purchase
Price shall be reduced by One Million Three Hundred Thousand Euro
(€1,300,000).”
16. H600 Demolition. The Parties hereby agree that Buyer shall be solely responsible
for the costs associated with the demolition of building H600 located at the facility in
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Oberhausen, Germany (it being acknowledged that Buyer may take all actions necessary to
demolish such building), provided, however, that the Estimated Purchase Price and the Final
Purchase Price shall be reduced by One Hundred Fifty Thousand Euro
(€150,000).
17. Multisol. Reference to the following agreement shall be removed from Part II
Number 1 of Schedule 2(b) to the Purchase Agreement and shall instead be included on Part I
Number 1 of Schedule 1(f) to the Purchase Agreement:
Authorized Dealer Agreement by and between Celanese Chemicals Europe GmbH
and Multisol Ltd. dated February 28, 2002.
18. Bay City Asset Listing. Schedule 1(g)-1 hereby is amended to reflect the
changes in the Bay City asset listing set forth in Attachment H hereto.
19. Xxxxxx Asset Listing. Schedule 1(g)-1 hereby is amended to delete the
Xxxxxx asset listing in its entirety and to replace it with the asset listing set forth in
Attachment I hereto.
20. German Asset Listing. Schedule 1(g)-2 hereby is amended to reflect the changes in
the German asset listing set forth in Attachment J hereto.
21. Contract Listing. Schedule 3(d) hereby is amended to reflect the changes
in the Material Contract listing set forth in Attachment K hereto.
22. Transferred Intellectual Property.
(a) Schedule 3(l)(i) hereby is amended to reflect the changes in the Transferred
Intellectual Property set forth in Attachment L hereto.
(b) In addition, a new Section 6(p) is added to the Purchase Agreement as follows:
“(p) SOX Policy. Sellers hereby agree to make available to Buyer
and its Affiliates for Buyer’s and its Affiliates non-exclusive,
non-transferable and non-sublicensable use copies of Sellers’ Xxxxxxxx-Xxxxx
Act compliance policy. Buyer (on behalf of itself and its Affiliates)
hereby acknowledges and agrees that such policy is being made available on
an AS-IS and WHERE-IS basis without representation or warranty of any kind,
and Buyer and its Affiliates shall indemnify and hold Sellers and Sellers’
Affiliates harmless from any and all Liabilities of any nature that may
arise from Buyer’s or its Affiliates’ use thereof.”
23. Section 2(a)(v) Confirmation. The provisions of Section 2(a)(v) of the Purchase
Agreement shall apply to any Contract included in the Purchased Assets that is not assignable
without the consent of the other party or parties thereto and as to which such consent has not been
obtained as of the date hereof.
24. Assets in Mexico. Neither the Purchased Assets located in Mexico nor any
Employees based in Mexico shall be transferred by Sellers to Buyer at the Closing, but shall be
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transferred to U.S. Buyer as soon as reasonably practicable following the Buyer’s creation of
a “Permanent Establishment” in Mexico. From and after the Closing until the creation of a
Permanent Establishment, (i) such Employees shall remain employees of Sellers but shall be seconded
to Buyer on a full-time basis pursuant to a secondment agreement reasonably acceptable to Buyer and
Sellers to be entered into promptly following the Closing. Such secondment agreement shall be on
the same terms as the secondment agreement applicable to the U.K. Employees described in section 29
and shall provide that such Employees shall provide services to Buyer on the economic terms
provided in the Transition Services Agreement dated as of the Closing Date among certain of the
Parties (the “Transition Services Agreement”), and (ii) Sellers and Buyer shall make
arrangements to allow, to the fullest extent possible, the U.S. Buyer to continue to supply and
sell products of the Business to Sellers’ Affiliate in Mexico for sales within Mexico in accordance
with past practice of the Business as if such Purchased Assets relating to Mexico had been
transferred as of the Closing. U.S. Buyer will determine the amount of products of the Business to
be imported into Mexico. From and after the Closing, Buyer shall use its commercially reasonable
efforts to create a “Permanent Establishment” in Mexico as soon as reasonably practicable. When
such Employees are hired by Buyer, Buyer shall provide such Employees with base salary and wages
that are the same as, and other compensation and benefits that are substantially comparable, in the
aggregate, to such other compensation and benefits provided to such Employees by Sellers on the
Closing Date.
25. Assets in Spain. Neither the Purchased Assets located in Spain nor any Employees
based in Spain shall be transferred by Sellers to Buyer at the Closing, but shall be transferred to
German Buyer as soon as reasonably practicable following the Buyer’s creation of a “Permanent
Establishment” in Spain. From and after the Closing until the creation of a Permanent
Establishment, (i) such Employees shall remain employees of Sellers but shall be seconded to Buyer
on a full-time basis pursuant to a secondment agreement reasonably acceptable to Buyer and Sellers
to be entered into promptly following the Closing. Such secondment agreement shall be on the same
terms as the secondment agreement applicable to the U.K. Employees described in section 29 and
shall provide that such Employees shall provide services to Buyer on the economic terms applicable
to the Mexican Employees as provided in the Transition Services Agreement, and (ii) Sellers and
Buyer shall make arrangements to allow, to the fullest extent possible, the German Buyer to
continue to supply and sell products of the Business to Sellers’ Affiliate in Spain for sales
within Spain in accordance with past practice of the Business as if such Purchased Assets relating
to Spain had been transferred as of the Closing. From and after the Closing, Buyer shall use its
commercially reasonable efforts to create a “Permanent Establishment” in Spain as soon as
reasonably practicable. When such Employees are hired by Buyer, Buyer shall provide such Employees
with base salary and wages that are the same as, and other compensation and benefits that are
substantially comparable, in the aggregate, to such other compensation and benefits provided to
such Employees by Sellers on the Closing Date.
26. Ancillary Shares. The Ancillary Shares shall not be transferred by Sellers to
Buyer at the Closing (and the Assumed Liabilities associated therewith shall not be assumed by
Buyer at the Closing), but shall be transferred to Buyer (and such Assumed Liabilities shall be
assumed by Buyer) as soon as reasonably practicable following the receipt of the shareholder
approvals required for such transfer. From and after the Closing, Sellers shall use their
11
commercially reasonable efforts to obtain such shareholder approvals as soon as reasonably
practicable.
27. Umicore Guaranty. The Parties acknowledge that the guarantee between Celanese
Holdings LLC and Umicore Precious Metals NJ LLC (“Umicore”) dated November 11, 2005 expired by its
terms in November 2006, and accordingly (i) is no longer a “Seller Guarantee”, and (ii) no
counter-guarantee in favor of any Seller or any Affiliate thereof, including Celanese Holdings,
LLC, will be delivered by Buyer at Closing. Buyer agrees to indemnify and hold Sellers and their
respective Affiliates, including Celanese Holdings LLC, harmless against any and all Liabilities
arising out of any claims against Sellers and their respective Affiliates, including Celanese
Holdings LLC, by Umicore relating to Buyer’s purchase or lease of precious metals from Umicore
following Closing.
28. Turkey. The Parties hereby waive as a condition to Closing the approval of the
Turkish Competition Authority to the transactions contemplated hereby.
29. UK Pensions. The parties agree that the Transfer of Undertakings (Protection of
Employment) Regulations 2006 shall not have the effect of transferring Xxxxxx Xxxxx Xxxxxx, Xxxxxxx
Xxxxxx and Xxxxxxx Xxxx (the “UK Employees”) to the Buyer as at Closing. The Sellers and the Buyer
agree to use their reasonable endeavours to procure that:
(a) the UK Employees shall remain employed by Celanese Chemicals UK Ltd for a period not to
exceed 60 days after Closing and the parties shall use their commercially reasonable endeavours to
make such period as short as possible (such period to be referred to in this clause as the
“Transitional Period”);
(b) during the Transitional Period the UK Employees shall be seconded to Oxea UK;
(c) the terms of such secondment to be acceptable to both the Sellers and the Buyer and set
out in an agreement between them within 7 days of Closing, to include the following terms:
(i) that the Buyer shall promptly (and at the latest within 30 days) pay any invoice issued by
the Seller in relation to any expenses arising out of or in connection with the employment of the
UK Employees for the Transitional Period including any costs relating to salary, fringe rate for
benefits, tax, national insurance or value added tax arising on the secondment;
(ii) that at any time the Buyer shall not make use of and shall direct the UK Employees not to
share any confidential information with it that the UK Employees gained during their employment
with Celanese Chemicals UK Ltd or any predecessor employer except to the extent that and in the
proportion that it relates to the oxeo derivatives business;
(iii) that the Buyer shall fully indemnify the Sellers and Celanese Chemicals UK Ltd against
any liability that may arise out of or in connection with actions taken by the UK Employees as a
result of instructions given to them directly or indirectly by the Buyer;
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(iv) that the Buyer shall not require any of the UK Employees or the Sellers as secondor to
take any action or make any omission that is contrary to any law; and
(d) during the Transitional Period each UK Employee shall remain on the same employment terms
and conditions as applied immediately before Closing and shall remain as an active member of the
same pension scheme as each was a member on the same terms as applied immediately prior to Closing.
(e) The Sellers and the Buyer agree that:
(i) the UK Employees shall be offered employment by Oxea UK with effect from the end of the
Transitional Period on at least the same base salary and substantially the same other terms and
conditions (except in relation to pensions) as applied to them immediately prior to Closing; and
(ii) the UK Employees shall cease to be active members of the Ticona UK Pension Scheme with
effect from the end of the Transitional Period and shall become deferred pensioners in such scheme.
(f) The Buyer agrees that with effect from the end of the Transitional Period it will offer to
contribute to personal pension arrangements nominated by the UK Employees or such other pension
arrangement as is agreed between the UK Employees and Oxea UK at such rates as agreed with the UK
Employees provided that the value of the overall employment package offered to the UK Employees
(including any pension contributions) with effect from the end of the Transitional Period shall be
substantially similar in the aggregate to the value of the employment package applicable to the UK
Employees immediately prior to Closing.
(g) It is the intention of the Sellers and the Buyer that the UK Employees will transfer to
Oxea UK at the end of the Transitional Period. If any UK Employee does not agree to transfer their
employment to Oxea UK with effect from the end of the Transitional Period or resign as a result of
the transfer then all liabilities in connection with the relevant UK Employee shall rest with
Celanese Chemicals UK Ltd and the Seller shall indemnify the Buyer accordingly.
(h) The parties acknowledge that the indemnification provisions of the Purchase Agreement
apply to any liability relating to the UK Employees. References to the Closing Date in
indemnification provision section 8(b) of the Purchase Agreement dated December 12 2006 shall be
deemed to be the date the Transitional Period ends in so far as it relates to the UK Employees.
30. CELFLUID. Schedule 2(b) to the Purchase Agreement hereby is amended to
add Sellers’ “CELFLUID” trademark and its registrations thereto as Excluded Assets.
31. Lease Drawings. The real property drawings attached to the Real Property Leases
included in the Ancillary Agreements executed at the Closing shall supersede and replace any
corresponding drawings included in the Exhibits and Schedules to the Purchase Agreement.
32. Collection of Receivables. With respect to accounts receivable arising out of
Contracts that relate to both the Purchased Assets and the Excluded Assets, to the extent that
13
such Contracts are retained by Sellers, Sellers shall use commercially reasonable efforts to
collect any amounts owing to Buyer, consistent with Celanese’s historical collection practices, and
Sellers shall reasonably promptly notify Buyer of any customer complaints received by Sellers with
respect thereto, and to the extent such Contracts are assigned to Buyer, Buyer shall use
commercially reasonable efforts to collect any amounts owing to Sellers, consistent with Celanese’s
historical collection practices, and Buyer shall reasonably promptly notify Sellers of any customer
complaints received by Buyer with respect thereto, in each case until such Contracts are split or
otherwise separated into distinct Contracts between the third party, on the one hand, and Buyer or
Seller, as applicable, on the other hand.
33. Purchase Agreement Definition. All references in the Purchase Agreement to “this
Agreement” and any other references of similar import shall hereafter refer to the Purchase
Agreement as amended by this First Amendment.
34. Counterparts. This First Amendment may be executed in one or more counterparts
(including by means of facsimile), each of which shall be deemed an original but all of which
together will constitute one and the same instrument. Delivery of an executed counterpart of a
signature page to this First Amendment by facsimile shall be effective as delivery of an originally
executed counterpart to this Agreement.
35. Effect of First Amendment. Except as set forth in this First Amendment, the terms
and provisions of the Purchase Agreement (a) are hereby ratified and confirmed, and (b) shall be
and remain in full force and effect.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date first above
written.
| ADVENT OXEA CAYMAN LTD., formerly | DRACHENFELSSEE 521. V V GMBH, to be | |||||||||
| known as Advent Oxo (Cayman)Limited | renamed “Oxea Deutschland GmbH” | |||||||||
By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Authorized Person |
By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Managing Director |
|||||||
| OXEA CORPORATION, formerly known as | OXEA XXXXXX, LLC | |||||||||
| Oxo Titan US Corporation | ||||||||||
By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Managing Director |
By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Authorized Person |
|||||||
| DRACHENFELSSEE 520. V V GMBH, to be | OXEA JAPAN KK | |||||||||
| renamed “Oxea Holding GmbH” | ||||||||||
By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Managing Director |
By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Authorized Person |
|||||||
| OXEA UK LTD. | ||||||||||
| By: Name: Title: |
/s/ Xxxxxxx Xxxxxx
Director |
|||||||||
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above
written.
| CELANESE LTD. | CELANESE CHEMICALS EUROPE | |||||||||
| By its General Partner, Celanese International | GMBH | |||||||||
| Corporation | ||||||||||
By: Name: Title: |
/s/ Xxxxxx X. Xxxx
Attorney In Fact |
By: Name: Title: |
/s/ Xxxxxx X. Xxxx
Attorney In Fact |
|||||||
| TICONA POLYMERS INC. | ||||||||||
By: Name: Title: |
/s/ Xxxx X. Xxxxx
Attorney In Fact |
|||||||||
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