1
EXHIBIT 2.b
AMENDMENT NO. 1 TO ACQUISITION AGREEMENT
AMENDMENT NO. 1 (the "Amendment") dated as of January 3, 1997
among MascoTech, Inc., a Delaware corporation ("MascoTech"), MSX
International, Inc., a Michigan corporation and a wholly-owned subsidiary of
MascoTech (MSX and MascoTech, each a "Seller" and collectively, the
"Sellers"), and MSX International, Inc., a Delaware corporation (the
"Purchaser").
W I T N E S S E T H :
WHEREAS, the Sellers and Purchaser have heretofore entered into an
Acquisition Agreement dated as of November 12, 1996 (the "Acquisition
Agreement"); and
WHEREAS, the parties hereto desire to amend the Acquisition
Agreement to provide for certain changes in consideration and other amendments
as described herein.
NOW, THEREFORE, in consideration of the premises and of the
respective agreements contained herein, the parties agree to amend the
Acquisition Agreement as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Acquisition Agreement shall have the meaning assigned to such term in the
Acquisition Agreement. Each reference to "hereof", "hereunder", "herein" and
"hereby" and each other similar reference and each reference to "this
Agreement" and each other similar reference contained in the Acquisition
Agreement shall from and after the date hereof refer to the Acquisition
Agreement as amended hereby.
SECTION 2. Amendment of Section 2.01. (a) The first two
sentences of Section 2.01(a) of the Acquisition Agreement is amended by
deleting it and replacing it in its entirety with the following:
(a) MSX Assets Transferred. On the terms and subject to the
conditions set forth in this Agreement, at the Closing MSX shall sell,
transfer, convey, assign and deliver to Purchaser or one or more of its
Subsidiaries, and Purchaser shall purchase from MSX, either directly or
indirectly through one or more Subsidiaries of Purchaser, all of MSX's right,
title and interest in, to and under all MSX Assets, free and clear of all
Liens other than Permitted Liens, for the consideration specified in Section
3.01. The parties hereto agree and acknowledge that one or more Subsidiaries
of Purchaser may purchase all or a portion of the MSX Assets, including,
without limitation, pursuant to the Business Services Acquisition Agreement
and the Engineering Services Acquisition Agreement, and any such sale,
transfer, conveyance,
-1-
2
assignment and delivery of MSX Assets shall be deemed to be pursuant to this
Agreement and part of the MSX Assets transferred hereunder. The term "MSX
Assets" means, collectively, all the business, properties, assets and rights
of MSX of whatever kind or nature, real or personal, tangible or intangible,
other than the APX Assets and the Excluded Assets, owned by MSX on the Closing
Date and used in the Business including, without limitation:
(b) Section 2.01(b) of the Acquisition Agreement is amended by
deleting it and replacing it in its entirety with the following:
(b) APX Assets Transferred. On the terms and subject to the
conditions set forth in this Agreement, at the Closing MSX shall sell,
transfer, convey, assign and deliver to Purchaser or one or more of its
Subsidiaries, and Purchaser shall purchase from MSX, either directly or
indirectly through one or more Subsidiaries of Purchaser, all of MSX's right,
title and interest in, to and under all APX Assets, free and clear of all
Liens, other than Permitted Liens and Pre-Existing APX Liens, for the
consideration specified in Section 3.01. The parties hereto agree and
acknowledge that one or more Subsidiaries of Purchaser may purchase all or a
portion of the APX Assets, including, without limitation, pursuant to the
Business Services Acquisition Agreement and the Engineering Services
Acquisition Agreement and any such sale, transfer, conveyance, assignment and
delivery of APX Assets shall be deemed to be pursuant to this Agreement and
part of the APX Assets transferred hereunder. The term "APX Assets" means,
collectively, (i) all the business, properties, assets and rights of whatever
kind or nature, real or personal, tangible or intangible used in the APX
Business prior to the Effective Date and sold, transferred, assigned, conveyed
and delivered to MSX on the Effective Date pursuant to and in accordance with
the APX Purchase Agreement, together with all properties, assets and rights of
whatever kind or nature, real or personal, tangible or intangible, including,
without limitation, cash and cash equivalents acquired by MSX after the
Effective Date with respect to the APX Continuing Business, other than
Conveyed Assets (the "Transferred APX Assets"), and (ii) all rights of MSX
created by or arising under or in connection with the APX Purchase Agreement,
or otherwise relating to the Transferred APX Assets and/or the APX Continuing
Business. The Sellers shall confirm the sale of the MSX Assets and the APX
Assets (collectively, the "Assets") by the execution and delivery to Purchaser
or one or more of its Subsidiaries, on the Closing Date, of the Assignment and
Assumption Agreement in the Form of Exhibit 2.02 hereto.
SECTION 3. Amendment of Section 2.02. Section 2.02(a) of the
Acquisition Agreement is amended by deleting it and replacing it in its
entirety with the following:
(a) Assumed Liabilities. In connection with the sale, transfer,
conveyance, assignment and delivery of Assets pursuant to this Agreement, on
the terms and subject to the conditions set forth in this Agreement, and
except as otherwise provided in Section 2.02(b), at the Closing Purchaser
shall assume and agree to pay, perform and discharge when due (i) all
obligations, duties and liabilities of MSX of whatever kind or nature (other
than Liabilities which arise as a result of a violation of the covenants of
the Sellers under this Agreement except to the extent of the benefits derived
by the Purchaser with respect thereto), and (ii) those obligations,
- 2 -
3
duties and liabilities of the Sellers of whatever kind or nature relating to
the APX Assets or arising in connection with the operation of the APX
Business, which were assumed by the Sellers in accordance with the terms of
the APX Purchase Agreement or which arise (without violation of the covenants
of the Sellers under this Agreement except to the extent of the benefits
derived by the Purchaser with respect thereto) in connection with events
occurring with respect to the APX Assets or the APX Continuing Business after
the Effective Date, as the same shall exist on the Closing Date (the "Assumed
Liabilities"). The parties hereto agree and acknowledge that any Assumed
Liabilities which each of Business Services and Engineering Services assumes
or agrees to pay, perform and discharge when due pursuant to each of the
Business Services Acquisition Agreement and the Engineering Services
Acquisition Agreement, respectively, shall be deemed to be part of the Assumed
Liabilities transferred hereunder. The Purchaser hereby guarantees the due
and punctual payment of, and the due and punctual performance of all
covenants, agreements and obligations with respect to the Assumed Liabilities
by each of Holdings, Business Services, Engineering Services or USA. Each of
Purchaser, Holdings, Business Services and Engineering Services, as
appropriate, shall confirm such assumption by the execution and delivery to
the Sellers, on the Closing Date, of the Assignment and Assumption Agreement
in the form of Exhibit 2.02.
SECTION 4. Amendment of Section 3.01. Section 3.01(a) of the
Acquisition Agreement is amended by deleting it and replacing it in its
entirety with the following:
(a) Purchase Price. The "Purchase Price" shall consist of (i)
$144,628,080 in cash, less the amount of Effective Date Assumed Indebtedness
and (ii) the assumption by Purchaser of the Assumed Liabilities. The cash
portion of the Purchase Price shall be paid by wire transfer of immediately
available funds to MascoTech (for MascoTech's own account or, as appropriate,
for the account of MSX). The parties hereto acknowledge and agree that any
amounts payable to MSX at the Closing pursuant to either of the Business
Services Acquisition Agreement or the Engineering Services Acquisition
Agreement shall be deemed to be part of the Purchase Price and shall
constitute partial payment thereof pursuant to this Section 3.01(a). The
Purchase Price shall be subject to certain adjustment described in Section
3.01(b).
SECTION 5. Amendment to Section 3.02. Section 3.02 of the
Acquisition Agreement is amended by deleting it and replacing it in its
entirety with the following:
3.02 Allocation of Purchase Price.
(a) The parties hereto acknowledge and agree that the purchase
and sale of the of the Assets, the APX-Brazil Stock and the Limited Stock is
an "applicable asset acquisition" within the meaning of Section 1060(c) of the
Code. Purchaser shall in good faith prepare a schedule (the "Allocation
Schedule"), and deliver it to the Sellers promptly following the Closing,
setting forth the allocation of the consideration to be paid by Purchaser (and
any of its Subsidiaries pursuant to either the Business Services Acquisition
Agreement or the Engineering Services Acquisition Agreement) for the Assets
among the Assets, including the covenant of the
- 3 -
4
Sellers set forth in Section 8.07 of this Agreement, which shall be prepared
in accordance with the methodology contained in Section 1060 of the Code.
Such Allocation Schedule shall reflect an allocation of a portion of the
Purchase Price (including for this purpose the Assumed Liabilities) between
the APX Assets and the APX-Brazil Stock and the MSX Assets and the Limited
Stock, such amount being allocated to the MSX Assets and the Limited Stock to
be allocated one-third to the Limited Stock and two-thirds among the MSX
Assets as set forth in the Allocation Schedule. In connection with the
preparation of the Allocation Schedule, the parties shall cooperate with each
other and provide such information as any of them shall reasonably request.
(b) The parties agree to modify the Allocation Schedule to
reflect modifications in any information used in its preparation. Each party
hereto agrees, on behalf of itself and its Subsidiaries, to be bound by the
allocations set forth in the Allocation Schedule, to complete jointly and to
file separately Form 8594 with its federal income tax return consistent with
such allocation for the tax year in which the Closing Date occurs, to file, or
cause to be filed, all other Tax Returns in a manner consistent with such
allocation, and not to take any actions inconsistent therewith.
SECTION 6. Amendment of Section 8.14. Section 8.14 of the
Acquisition Agreement is amended by deleting it and replacing it in its
entirety with the following:
8.14 Audited Financial Statements. The Sellers shall use
commercially reasonable efforts to cause to be delivered to Purchaser
condensed combined balance sheets and related combined statements of income
and cash flows showing the combined financial condition of the Business (the
"Financial Statements") as of the close of the fiscal years 1994, 1995 and
1996, all audited by Coopers & Xxxxxxx or other independent public accountants
of recognized national standing acceptable to Purchaser and accompanied by an
opinion of such accountants (which shall not be qualified in any material
respect) to the effect that such Financial Statements fairly present in all
material respects the financial condition and results of operations of the
Business on a combined basis in accordance with GAAP consistently applied.
Sellers shall deliver the Financial Statements to Purchaser no later than (i)
January 31, 1997, in the case of the Financial Statements for the fiscal years
ended December 31, 1994 and 1995, and (ii) February 28, 1997, in the case of
the Financial Statements for the fiscal year ended December 31, 1996.
SECTION 7. Amendment of Section 10.11. Section 10.11 of the
Acquisition Agreement is amended by deleting it and replacing it in its
entirety with the following:
10.11 Financing. Each of MascoTech, the Institutional Stockholder
and Purchaser shall have entered into the Bridge Credit Agreement
substantially in the form attached hereto as Exhibit 10.08(A). MascoTech and
Purchaser shall have entered into the Purchaser Note Agreement and Purchaser
shall have executed, and delivered to MascoTech, the Purchaser Note. In
connection with the execution and delivery of the Bridge Credit Agreement, the
Purchaser Note Agreement and the Subscription Agreements, Purchaser shall have
received
- 4 -
5
proceeds in an aggregate amount as is necessary to pay the Purchase Price
hereunder, together with all fees and expenses related to the transactions
contemplated hereunder and under the Operative Agreements.
SECTION 8. Amendment of Section 17.01. Section 17.01 of the
Acquisition Agreement is amended by adding the following defined terms to be
inserted in alphabetical order within such Section:
"Business Services" means MSX International Business Services,
Inc., a Delaware corporation, and wholly-owned Subsidiary of Holdings.
"Business Services Acquisition Agreement" means the Acquisition
Agreement dated as of January __, 1997 by and between Business Services and
MSX.
"Engineering Services" means MSX International Engineering
Services, Inc., a Delaware corporation, and wholly-owned Subsidiary of
Holdings.
"Engineering Services Acquisition Agreement" means the Acquisition
Agreement dated as of January __, 1997 by and between Engineering Services and
MSX.
"Holdings" means MSX International (Holdings), Inc., a Delaware
corporation, and wholly-owned Subsidiary of Purchaser.
"Purchaser Note" means the Senior Subordinated Debenture due 2006
of Purchaser in the aggregate principal amount of $30 million having the terms
set forth in the Purchaser Note Agreement and, in the form attached as Exhibit
3.01(a) (A) hereto.
"Purchaser Note Agreement" means the Subordinated Note Purchase
Agreement between Purchaser and MascoTech dated the Closing Date in the form
attached as Exhibit 3.01(a) (B) hereto.
"USA" means MSX International (USA), Inc., a Delaware corporation,
and wholly-owned Subsidiary of Holdings.
SECTION 9. Amendment of Section 18. Section 18 of the
Acquisition Agreement is amended as follows:
(a) Section 18.01 is amending by deleting the addresses for
notices to Purchaser and replacing them in their entirety with the following:
If to Purchaser:
MSX International, Inc.
- 5 -
6
000 Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx
Facsimile No.: 000 000-0000
Attn.: President
with a copy to:
MSX International, Inc.
000 Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx
Facsimile No.: 000 000-0000
Attn.: General Counsel
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: 000 000-0000
Attn.: Xxxxxx X. Xxxxxx, Esq.
(b) By deleting Section 18.09 and replacing it in its entirety
with the following:
18.09 No Assignment; Binding Effect. Neither this Agreement nor
any right, interest or obligation hereunder may be assigned by any party
hereto without the prior written consent of each other party hereto and any
attempt to do so will be void, except (a) for assignments and transfers by
operation of Law and (b) that Purchaser may assign any or all of its rights,
interests and obligations hereunder (including without limitation its rights
under Article XV) to (i) any wholly-owned Subsidiary of Purchaser, including,
without, limitation, each of Holdings, Business Services, Engineering Services
and USA, each of which may acquire certain of the Assets, the Limited Stock
and the APX-Brazil Stock to be transferred hereunder, (ii) any post-Closing
purchaser of the Business or the APX Continuing Business or a substantial part
of the Assets of Purchaser or (iii) any financial institution providing
purchase money or other financing to Purchaser from time to time as collateral
security for such financing, but no such assignment referred to in clause (i)
or (ii) above shall relieve the assigning party of its obligations hereunder.
Subject to the preceding sentence, this Agreement is binding upon, inures to
the benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
(c) By adding a new Section 18.22 to read in its entirety as
follows:
18.22 Conflicts. Notwithstanding anything to the contrary
contained therein, each of the Business Services Acquisition Agreement and the
Engineering Services Acquisition
- 6 -
7
Agreement shall be subject to, and any conflicts or inconsistencies between
either of such Agreements and this Agreement, shall be determined by reference
to, the terms and conditions contained in this Agreement.
SECTION 10. Counterparts, Effectiveness. This Amendment may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same
instrument. This Amendment shall become effective as of the date hereof.
SECTION 11. Rights Otherwise Unaffected. This Amendment is
limited to the matters expressly set forth herein. Except to the extent
specifically amended hereby, all terms of the Acquisition Agreement shall
remain in full force and effect.
SECTION 12. Governing Law. This Amendment shall be governed by
and construed in accordance with the Laws of the State of New York without
giving effect to any conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of New York.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by a duly authorized officer of each party as of the date first
above written.
MASCOTECH, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President, Controller and Treasurer
MSX INTERNATIONAL, INC.,
a Michigan corporation
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO.1]
8
MSX INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: President
[SIGNATURE PAGE TO AMENDMENT NO.1]
-8-
