EXHIBIT 2.3
SECOND AMENDMENT TO RECAPITALIZATION AGREEMENT
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THIS SECOND AMENDMENT (this "Amendment") to the Recapitalization
Agreement dated as of March 11, 1998 (the "Recapitalization Agreement") is made
this 14th day of May 1998 by and among:
THE DERBY CYCLE CORPORATION (d.b.a. Raleigh USA Bicycle Company) a
corporation organized and existing under the laws of Delaware, having its
principal office at 00000 00xx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxx 00000 (the
"Company");
DERBY INTERNATIONAL CORPORATION S.A., a corporation (societe anonyme)
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organized and existing under the laws of the Grand Duchy of Luxembourg, having
its registered office at 0 Xxxxxxxxx xx xx Xxxxx, X-0000 Xxxxxxxxxx, Grand Duchy
of Luxembourg ("Derby International") and DERBY FINANCE S.a.r.l., a corporation
(societe a responsibilite limitee) organized and existing under the laws of the
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Grand Duchy of Luxembourg, having its registered office at 0 Xxxxxxxxx xx xx
Xxxxx, X-0000 Xxxxxxxxxx, Grand Duchy of Luxembourg ("DFS") (Derby International
and DFS being referred to together as the "Sellers");
DC CYCLE, L.L.C., a limited liability company organized and existing
under the laws of Delaware, having its registered office at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx ("LLC") and PERSEUS CYCLE, L.L.C., a limited liability
company organized and existing under the laws of Delaware, having its principal
office at Xxxxx 000, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 ("Perseus" and,
together with LLC, the "Buyer"); and
XXXX X. FINDEN-CROFTS, A. XXXXXX XXXXXXXXX, XXXXX X. XXXXX and XXXXXX
EQUITY PARTNERS, III (together, the "Other Parties"), who are also parties to
the Recapitalization Agreement for limited purposes (together, the Sellers, the
Buyer and the Other Parties are referred to herein as the "Parties").
WHEREAS, the Parties to this Amendment are also all of the parties to
the Recapitalization Agreement; and
WHEREAS, the Parties desire to amend the Recapitalization Agreement as
set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
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1. The "WHEREAS" clauses of the Recapitalization Agreement are hereby
amended by deleting all of such clauses in their entirety and replacing them
with the following text:
"WHEREAS, at or before the Closing (as defined below), Derby
International has agreed to cause to be effected the restructuring
(the "Restructuring") of the Company and the other Subsidiaries (as
defined below) outlined in the Transaction Outline, as defined below;
and
WHEREAS, as a result of the Restructuring, at the Closing, DFS
will own twenty-one thousand seven hundred (21,700) shares of the
Company's Class A Common Stock; and
WHEREAS, Derby International will retain shares of exchangeable
preferred stock of Raleigh Industries of Canada Limited (the "Retained
Shares") which are exchangeable for (a) such number of shares of the
Company's Class A Common Stock as, when taken together with the shares
of Class A Common Stock held by DFS at the time of the Closing, shall
equal thirty thousand (30,000) shares of Class A Common Stock, and (b)
all of the authorized shares of the Company's Class B Common Stock
(the "Sellers' Class B Common") in accordance with the Exchange
Agreements (as defined below);
WHEREAS, at the Closing, the Company shall issue to Perseus ten
thousand (10,000) shares of the Company's Class A Common Stock (the
"Perseus Common Shares"), and to LLC twelve thousand five hundred
(12,500) shares of the Company's Class A Common Stock ("LLC Common
Shares" and, together with the Perseus Common Shares, the "Buyer
Common Shares") and twenty-five thousand (25,000) shares of the
Company's Preferred Stock, Series A (the "Preferred Shares" and,
together with the Buyer Common Shares, the "Buyer Shares"), in
exchange for sixty million United States dollars ($60,000,000) cash
(the "Stock Purchase"); and
WHEREAS, the Buyer has proposed, and the Company, Derby
International and DFS have agreed, that, at the Closing, the Company
will: (i) enter into a senior credit facility with Chase Manhattan
Bank or one of its subsidiaries (as lender and as agent), comprised of
a revolving credit facility in the aggregate principal amount of up to
two hundred twenty-five million German deutschemarks (DM225,00,000)
(the "Senior Credit Facility"); (ii) issue
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bonds in an aggregate principal amount of up to one hundred million
United States dollars ($1000,000,000) and one hundred ten million
Deutschemarks (DM110,000,000) pursuant to an offering under Rule 144A
and Regulation S of the Securities Act of 1933, as amended (the "Bond
Financing") (subparagraphs (i) and (ii) are collectively referred to
as the "Debt Financing," which will provide for available credit at
the Closing having a value of at least two hundred seventy million
United States dollars ($270,000,000)); and (iii) issue and sell to DFS
(the "DFS Stock Purchase") in exchange for three million United States
dollars ($3,000,000) three thousand (3,000) shares of the Company's
Preferred Stock, Series B (the "Sellers' Series B Preferred"), (the
Sellers' Class B Common, together with the Sellers' Series B
Preferred, are referred to as the "DFS Shares").
WHEREAS, at the Closing, the Company shall pay in full the
aggregate amount of one hundred sixty-seven million seven hundred
seventy-five thousand United States dollars ($167,775,000) to DFS in
accordance with the Transaction Outline (the "DFS Payment") less the
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amount of twenty-three million three hundred thousand United States
dollars ($23,300,000);
WHEREAS, the Restructuring, the Stock Purchase, the DFS Stock
Purchase, the Debt Financing and the DFS Payment are referred to
herein collectively as the "Recapitalization" and the transactions
required to accomplish the Recapitalization are referred to as the
"Recapitalization Transactions"; and
WHEREAS, it is intended that the Recapitalization be recorded as
a recapitalization for United States accounting reporting purposes;"
2. Section 1.22 of the Recapitalization Agreement is hereby amended by
substituting the words "May 15, 1998" for the words "April 16, 1998" and
deleting the remainder of that Section.
3. Section 1.37B of the Recapitalization Agreement is hereby amended by
replacing it in its entirety with the following text:
"1.37B "Exchange Agreements" shall have the meaning ascribed to
it in Section 3.2(b)(viii)."
All references to the "Exchange Agreement" in the Recapitalization Agreement are
hereby replaced with the words "Exchange Agreements."
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4. Section 1.75B of the Recapitalization Agreement is hereby amended by
replacing it in its entirety with the following text:
"1.75B "Exchangeable Shares" shall have the meaning ascribed to the
Exchangeable Shares of Raleigh Industries of Canada Limited contained in
the Exchange Agreements and the Articles of Incorporation of Raleigh
Industries of Canada Limited."
All references to the "Senior RIC Shares" in the Recapitalization Agreement are
hereby replaced with the words "Exchangeable Shares."
5. Section 2.2 of the Recapitalization Agreement is hereby amended by
inserting the following text before the words "through the Closing Date" in the
last sentence of that sub-paragraph (b): "to April 14, 1998, and at a rate per
annum equal to LIBOR from and including April 14, 1998".
6. Section 3.1 (i) and (ii) of the Recapitalization Agreement are hereby
amended by deleting them in their entirety and replacing them with the following
text: "(i) May 14, 1998 (the "Closing Date"), and (ii) the Cut-Off Date.
7. Section 3.2(c)(i) and Section 3.5 of the Recapitalization Agreement is
hereby amended by deleting the words "eight million five hundred thousand United
States dollars ($8,500,000);" and replacing such amount with "twenty-three
million three hundred thousand United States dollars ($23,300,000)."
8. Section 3.2(b)(viii) of the Recapitalization Agreement is hereby amended by
deleting such sub-section in its entirety and replacing it with the following
text:
"(viii) execute and deliver a put and call agreement, execute and
deliver a support agreement and execute and deliver a DCC share option
agreement in substantially the forms attached hereto as Exhibit
3.2(b)(viii) and made a part hereof (the "Exchange Agreements");
9. Sections 4.7 and 5.5 of the Recapitalization Agreement are hereby amended
by deleting the text thereof and replacing such text with the following:
"[intentionally left blank]"
10. Section 8 of the Recapitalization Agreement is hereby amended by adding a
new section 8.13 as follows:
"8.13 Excluded Assets. The parties acknowledge that certain assets
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described in Exhibit 8.10 at present owned by one of more of
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the South African Subsidiaries are intended to be transferred or
donated to the Sellers or one or more of the Sellers' affiliates
before the Closing (the "South African Assets"). If and to the extent
that any of such assets are not transferred to the Sellers or one or
more of the Sellers' affiliates before the Closing, the Company will
cause the Subsidiaries, and the Buyer shall use all commercially
reasonably efforts to cause the Company and the Subsidiaries, to
ensure that: (a) the South African Assets are duly transferred or
donated to the Sellers or their affiliates as soon as possible after
the Closing; (b) the South African Assets shall be transferred free
and clear of any Lien of any kind created by the Buyer, the Company or
the Subsidiaries on or after May 11, 1998; and (c) the transfer of the
South African Assets shall not; (i) conflict with any court or
administrative order or process or conflict with, result in a breach
or violation or default or loss of any benefit under, or accelerate
the performance required by, any agreement or commitment to which the
Sellers, the Company or any Subsidiary is a party or by which any of
them (or any of their respective properties or assets) is bound or
affected entered into or with an effective date on or after May 11,
1998; (ii) conflict with or result in any violation or loss of benefit
under any provision of the certificate of incorporation, bylaws or any
other organizational or governing document of the Company or any of
the Subsidiaries; (iii) result in the creation of, or give any party
the right to create, any material lien, charge, encumbrance or other
security interest upon the property and assets of the Company or any
Subsidiary; (iv) require any action by or in respect of, or filing
with, any governmental body, agency or official as a result of actions
taken or made by the Buyer, the Company or the Subsidiaries on or
after May 11, 1998; and (v)contravene, or constitute a default under,
any provision of applicable law, rule or regulation or any agreement,
judgement, injunction, order, decree or other instrument binding upon
it, other than such results which would have occurred if the Excluded
Assets had been transferred before May 11, 1998. Notwithstanding
anything to the contrary contained in this Section 8.13, the Company
shall not be deemed to be in breach of the provisions of clauses (b)
and (c) of this Section if and to the extent that such failure to
comply results solely and directly from the transfer of the assets
required under the clause (a) of this Section and any claim by the
Sellers pursuant to clauses (b) and (c) would itself by an Indemnified
Liability under Section 9.1(a)(iii)(D) of this Agreement."
11. Section 9.1 of the Recapitalization Agreement is hereby amended by
deleting it in its entirety and replacing it with the following text;
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"9.1. Obligation To Indemnify. (a) Subject to the provisions of
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Sections 9.2 and 9.3 and the procedures set forth in Section 11, the
Sellers jointly and severally agree to hold harmless and indemnify, if
prior to the Closing, Perseus and LLC, their respective directors,
officers, members and Affiliates, or, if on or after the Closing, the
Subsidiaries and their Affiliates (collectively, the "Buyer
Indemnified Parties") with respect to any liabilities, losses,
damages, or costs (including reasonable legal fees and court costs) of
any kind, which shall be suffered or incurred as a result of:
(i) any circumstances or state of facts constituting a breach
of any representation or warranty made by the Sellers in this
Agreement;
(ii) the breach of any covenants of the Sellers contained in
this Agreement;
(iii) any Indemnified Liability, which means:
(A) all amounts payable in respect of the "Make-Whole
Amount" or "Modified Make-Whole Amount" as such terms are defined in
the Note Purchase Agreement dated as of September 1, 1993 among Derby
Holding B.V. ("DHBV"), Derby International and the purchasers named
therein (the "Note Purchase Agreement") with respect to the purchase
and sale of three series of Senior Notes of DHBV (the "Senior Notes"),
less any profits realized under the interest rate swaps (the interest
rate component and not the foreign exchange component) under the ISDA
Master Agreement, dated September 15, 1994, between DHBV and Bankers
Trust International plc;
(B) all amounts accrued, paid or payable as interest in
respect of the Senior Notes from November 11, 1997 through January 31,
1998, plus fifty percent (50%) of amounts paid or payable in respect
of accrued interest on the Senior Notes from February 1, 1998 through
March 29, 1998, plus one hundred percent (100%) of amounts paid or
payable in respect of accrued interest on the Senior Notes from and
including March 30, 1998 to April 14, 1998, plus fifty percent (50%)
of amounts paid or payable in respect of accrued interest on the
Senior Notes from and including April 14, 1998 to the Closing Date;
(C) any interest accrued and payable after the Closing Date
until the date of prepayment (or amounts payable in
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lieu of interest payable to enable prepayment on or about the Closing
Date) in the event that the holders of the Senior Notes do not agree
to the repayment of the Senior Notes on the Closing Date, provided,
however, that the Parties shall use all commercially reasonable
efforts to obtain the consent of the holders of the Senior Notes to
ensure the prepayment of the Senior Notes on or as soon as possible
after the Closing Date;
(D) any liabilities or obligations, whether accrued,
absolute or contingent, whether known or unknown, whether due or to
become due, which: (1) are unrelated to the Business; (ii) arise out
of assets disposed of by the Business prior to the Closing; (iii)
arise out of any of the Excluded Assets transferred to the Sellers or
their Affiliates (other than the Subsidiaries); or (iv) arise from the
transfer of such Excluded Assets to the Sellers or their Affiliates
other than the Subsidiaries), except to the extent that such
liabilities result from actions taken, or agreements entered into, by
the Buyer, the Company or its subsidiaries on or after May 11, 1998
(excluding those actions taken solely to comply with the provisions of
Section 8.13(a) hereof);
(E) any liability or obligation owed with respect to
intercompany payables or other liabilities owed to the Sellers or any
Affiliate of the Sellers (other than the Subsidiaries) and not
assigned or transferred to the Company or one of the Subsidiaries;
(F) all taxes, fees, expenses and other costs to the
Sellers and the Subsidiaries other than those for which the Sellers
are indemnified under Sections10A, 10B and 10C (except Section
10C(d)(i), for which the Sellers are not indemnified) of this
Agreement arising from;
(1) the transfers of capital stock of the Subsidiaries
and assets directly from Derby International to DFS;
(2) the transfers by DFS of capital stock of:
(a) Derby Holding Limited to Sturmey-Xxxxxx Limited ("XXX"), and
(b) Derby Holding B.V., Releigh Industries of Canada Limited
("RIC") and XXX to the Company;
(3) the transfer of assets by Derby International or
DFS which directly results in the issuance of securities of the
Company or RIC to Derby International or DFS;
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(4) the payment of cash to Derby International, DFS or Centum as
part of the DFS Payment (or, in the event that notes are issued in
lieu of any cash payment, the issuance and repayment of such notes,
provided that no additional taxes, fees, expenses or other costs are
incurred as a result of such issuance or the repayment thereof); or
(5) the issuance and exchange of the Exchangeable Shares (as
defined in the Exchange Agreements), but excluding any taxes, fees,
expenses or other costs arising from the issuance to the Company or
any other party other than the Sellers and their Affiliates of any
other class of securities of RIC after the Closing Date or from any
action taken or made after the Closing Date in connection with the
acquisition or disposition of any assets of RIC;
(G) any liabilities, costs or expenses arising from or relating
to any default under the Senior Notes caused by the payment of a dividend
in December 1997, provided, however, that such indemnification shall not
apply if the Senior Notes are repaid on the Closing Date; and
(H) all costs, Taxes, fees and other expenses incurred by the
Subsidiaries in connection with the establishment and financing of DFS and
all outstanding amounts borrowed from any Subsidiary by Derby
International, DFS or any Seller Affiliate in connection therewith.
(iv) any Special Environmental Liability, which means all costs,
liabilities or obligations arising from or relating to soil or groundwater
contamination on, or migrating from, any Real Estate prior to the Closing
Date, whether or not such contamination would constitute a breach of the
Sellers' representations and warranties made in Section 6.7 hereof, but
only if the cost of remediation of such contamination of any particular
site exceeds one million United States dollars ($1,000,000) per year for at
least five (5) consecutive years; or
(v) without giving effect to the disclosure of such liabilities on
the exhibits attached hereto, any Special Tax Liabilities or Special
Product Liabilities where:
(A) "Special Tax Liabilities" means any Netherlands tax
liability, including penalties and interest, resulting from the
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disallowance of interest deduction on loans owed to the Company and
deducted by extending the fiscal year of certain Dutch Subsidiaries in
1996 and 1997; and
(B) "Special Product Liabilities" means damages, losses,
costs or expenses of the Company (including reasonable attorneys'
fees) arising from product liability claims based on products sold
prior to the Closing by the Company which exceed in the aggregate four
hundred thousand United States dollars ($400,000).
(b) Except in the case of the Indemnified Liabilities, all
liability of the Sellers shall be reduced by and to the extent of any
provisions made on the books and records of the Subsidiaries and
reflected on the Financial Statements or any unaudited financial
statements delivered prior to the date hereof with respect to
the obligations or liabilities upon which a claim for indemnification
is based.
(c) Notwithstanding anything in this Section 9.1 to the
contrary, except as specifically provided in Section 15.6, the Sellers
shall have no liability to the Buyers for Transaction Expenses.
12. Sections 9.3 (e) and (f) of the Recapitalization Agreement are hereby
amended by deleting each such sub-section in its entirety and replacing it with
the following text:
"(e) The limitations set forth in Sections 9.3(a), (b) and
(c) shall not apply to any claim for indemnification:
(i) pursuant to Section 9.1(a)(ii);
(ii) pursuant to Section 9.1(a)(iii);
(iii) as a result of a knowing or international breach
or fraud on the part of either Seller; or
(iv) as a result of the breach of any representation
or warranty set forth in Section 6.1(b), Section 6.13(b) or Section
6.14 (with respect only to the principal amount of Indebtedness for
borrowed money;
provided, however, that the Indemnification Notice with respect to the
foregoing subclauses (i) and (iv) must be submitted on or before
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the thirtieth day after the sixth anniversary of the Closing Date and
the Indemnification Notice with respect to the foregoing subclause
(ii) in respect of covenants which are required to be performed on or
prior to the Closing Date must be submitted on or before the thirtieth
day after the fifth anniversary of the Closing Date (except for claims
relating to breaches of covenants set forth in Section 8.3, the
Indemnification Notice for which claims must be submitted on or before
the thirtieth day after the third anniversary of the Closing Date).
The limitation set forth in Section 9.3(d) shall not apply to any
claim for indemnification: (1) as a result of or pursuant to clauses
(F) and (H) of Section 9.1(a) above; (2) as a result of intentional
fraud on the part of either Seller; or (3) as a result of the breach
of any representation or warranty set forth in Section 6.1(b).
Notwithstanding anything to the contrary in this section 9, the
covenants set forth in Sections 8.2 (Management Responsibility), 8.4
(Consents and Approvals), 8.6 (Fulfillment of Conditions), 8.7
(Indebtedness), 8.8 (Exclusivity), 8.9 (GAAP Financial Statements) and
16.3 (Hedging) shall not survive the Closing.
(f) Notwithstanding anything to the contrary herein,
Sellers shall have no indemnification liability under this Section 9
arising from a "Triggered Tax Liability." A "Triggered Tax Liability"
is: (i) any liability for income or other taxes under Netherlands law
due to a reopening or reinvestigation of prior taxable periods, but
only to the extent that any additional tax liabilities (including
interest and penalties) for prior periods arises from the
reorganization or recapitalization in order to accommodate the
placement of debt in such Subsidiaries and (ii) any liability for any
steps taken or omitted to be taken by the Company or any Subsidiary
after the Closing that causes the representation of the Sellers
contained in Section 6.4(p) above to be untrue."
13. Section 10C of the Recapitalization Agreement is hereby amended by
deleting clause (d)(i) and replacing it with the following language: "actions
required to be taken in connection with the Transaction Outline other than (i)
those liabilities, costs or expenses in respect of which the Sellers have agreed
to indemnify the Buyer under clause (F) of Section 9.1(a)(iii), and (ii) legal
fees and related expenses as provided in Section 15.6".
14. Section 15.6(ii) of the Recapitalization Agreement is hereby amended
by deleting the words "seventy-five thousand dollars ($75,000)" and replacing
them with the words "one hundred and fifty thousand dollars ($150,000)".
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15. Section 16.4 of the Recapitalization Agreement is hereby amended by
adding the following at the end of the last sentence of such section:
"provided, however, that upon an Approved Sale, payment of the
Additional Payment, or a portion thereof, may be deferred if and to
the extent that such payment itself would cause a default under the
Financing Documents; and further provided that to the extent the
Company is required to defer the payment of any portion of the
Additional Payment in accordance with the foregoing clause, the
Additional Payment (or the unpaid portion thereof) shall accrue
interest from the Additional Payment Date until paid at an annual
rate equal to nine and three-quarters percent (9.75%); and further
provided that Perseus, LLC, the Company and the relevant Subsidiaries
shall use all commercially reasonable efforts to negotiate with the
banks parties to the Financing Documents (or the documentation
evidencing any subsequent or replacement financing) to exempt the
payment of twelve percent (12%) of the Additional Payment to DFS under
the Financial Documents."
16. Section 16.9 is hereby amended by deleting such section in its
entirety and replacing it with the following text:
"Payment Obligations. Each of LLC and Perseus, in its capacity as
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a shareholder of the Company, shall use all reasonable efforts
(including, without limitation, by giving instructions to members of
the Company's board of directors nominated by it pursuant to the
Shareholders' Agreement) to cause the Company and its subsidiaries on
or after the Closing Date to honor all payment and other obligations
of the Company and such subsidiaries with respect to which any one or
more of the Sellers or their Affiliates (other than the Subsidiaries)
have given guarantees, suretyships, security or similar undertakings
which have not been discharged at the Closing; provided, however, that
the obligations of LLC and Perseus under this Section 16.9 shall not
be deemed to require LLC or Perseus to provide additional capital to
meet such obligations or to make any direct payment of such
obligations."
17. Section 18.1 of the Recapitalization Agreement is hereby amended by
deleting the text of sub-sections (f) and (g) and replacing such text with the
following text: "[intentionally left blank]".
18. Amendments. This Amendment may not be waived, changed, modified or
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discharged unless by agreement in writing signed by all Parties to this
Amendment.
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19. Counterparts. This Amendment may be executed in any number of counterparts,
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all of which shall constitute one agreement, and each such counterpart shall be
deemed to have been made, executed and delivered on the date set out at the head
of this Amendment, without regard to the date when any of such counterparts may
actually have been made, executed or delivered.
20. Headings. The descriptive headings contained in this Amendment are for
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reference purposes only and shall not affect the meaning or interpretation of
this Amendment.
21. GOVERNING LAW AND JURISDICTION
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ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OR THE STATE OF NEW YORK OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO ANY MATTER ARISING UNDER OR IN CONNECTION WITH THIS AMENDMENT OR
THE SUBJECT MATTER HEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH PARTY HERETO HEREBY ACCEPTS
FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HERETO HEREBY WAIVES, AND
AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING PROVIDED
FOR IN THIS SECTION 17 THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT
OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT
THIS AMENDMENT MAY NOT BE ENFORCED IN OR BY SAID COURTS OR THAT ITS PROPERTY IS
EXEMPT OR IMMUNE FROM EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT
IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER OR (PROVIDED THAT PROCESS SHALL BE SERVED IN ANY MANNER REFERRED TO IN
THE FOLLOWING SENTENCE) THAT SERVICE OR
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PROCESS UPON SUCH PARTY IS INEFFECTIVE, EACH OF THE PARTIES HERETO AGREES THAT
SERVICE OF PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE MADE UPON IT IN
ANY MANNER PERMITTED BY THE LAWS OF THE STATE OF NEW YORK OR THE FEDERAL LAWS OF
THE UNITED STATES OR AS FOLLOWS: (A) BY PERSONAL SERVICE OR BY CERTIFIED OR
REGISTERED MAIL TO THE PARTY'S DESIGNATED AGENT FOR SUCH SERVICE IN SUCH STATE,
OR (B) BY CERTIFIED OR REGISTERED MAIL TO THE PARTY FOR WHICH INTENDED AT ITS
ADDRESS SET FORTH HEREIN, SERVICE OF PROCESS IN ANY MANNER REFERRED TO IN THE
PRECEDING SENTENCE SHALL BE DEEMED, IN EVERY RESPECT, EFFECTIVE SERVICE OF
PROCESS UPON SUCH PARTY.
21. SEVERABILITY
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If any provision of this Amendment is held to be invalid or
unenforceable by any judgement of a tribunal of competent jurisdiction, the
remainder of the provisions of this Amendment shall not be affected by such
judgement, and the understanding of the parties embodied in this Amendment shall
be carried out as nearly as possible according to their original terms and
intent.
IN WITNESS WHEREOF, the Parties have executed or caused their duly
authorized representatives to execute this amendment as of the date set out on
the first page hereof.
DERBY INTERNATIONAL DERBY FINANCE S.a.r.l.
CORPORATION S.A.
By: /s/ Xxxx X. Finden-Crofts By: /s/ Xxxx X. Xxxxx-Xxxxxx
------------------------------- -------------------------------
By: /s/ A. Xxxxxx Xxxxxxxxx By: /s/ A. Xxxxxx Xxxxxxxxx
------------------------------- -------------------------------
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DC CYCLE, L.L.C. PERSEUS CYCLE, L.L.C.
By: ______________________________ By: ______________________________
THE DERBY CYCLE CORPORATION XXXXXX EQUITY PARTNERS, III
By: /s/ Xxxx X. Finden-Crofts By: ______________________________
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/s/ A. Xxxxxx Xxxxxxxxx /s/ Xxxx X. Finden-Crofts
---------------------------------- ----------------------------------
A. XXXXXX XXXXXXXXX XXXX X. FINDEN-CROFTS
__________________________________
XXXXX X. XXXXX
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DC CYCLE, L.L.C. PERSEUS CYCLE, L.L.C.
By: _______________________________ By: /s/ [SIGNATURE ILLEGIBLE] ^^
---------------------------------
THE DERBY CYCLE CORPORATION XXXXXX EQUITY PARTNERS, III
By: _______________________________ By: ________________________________
___________________________________ ____________________________________
A. XXXXXX XXXXXXXXX XXXX X. FINDEN-CROFTS
/s/ Xxxxx X. Xxxxx
-----------------------------------
XXXXX X. XXXXX
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DC CYCLE, L.L.C. PERSEUS CYCLE, L.L.C.
By: /s/ [SIGNATURE ILLEGIBLE]^^ By: _______________________________
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THE DERBY CYCLE CORPORATION XXXXXX EQUITY INVESTORS III, L.P.
By: _______________________________ By: /s/ [SIGNATURE ILLEGIBLE]^^
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A. XXXXXX XXXXXXXXX XXXX X. FINDEN-CROFTS
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XXXXX X. XXXXX
