Exhibit 2.2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First
Amendment"), dated as of September 30, 1998, by and between
Xxxxxxx Controls, Inc., a Wisconsin corporation, having a
principal place of business at 00000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("JCI"), Xxxxxx Universal, Inc., a
Michigan corporation having a principal place of business at
00000 Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000 ("Xxxxxx") (JCI and
Xxxxxx, together with certain of their foreign, wholly-owned
subsidiaries being hereinafter collectively referred to as
"Seller"), and Cincinnati Milacron Inc., a Delaware
corporation, having a principal place of business at 0000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000-0000 ("Purchaser")
WHEREAS, Seller and Purchaser entered into that certain
Purchase and Sale Agreement dated as of August 3, 1998 (the
"Agreement"); and
WHEREAS, Seller and Purchaser have agreed to amend
the Agreement on the terms and conditions set forth in this
First Amendment.
NOW THEREFORE, in consideration of the mutual promises
contained herein, Seller and Purchaser agree as follows:
1. Amendments. The Agreement is hereby amended as
follows:
1.1 Section 2.2 of the Agreement is
hereby amended by the addition thereto of the
following new subsection (j):
(j) any fines, penalties,
administrative costs, legal fees, social
security payments assessed against or
incurred by the Business relating to the
Business' noncompliance prior to the Closing
Date with Italian laws no. 462/1968, 345/1994
and 573/1993 (mandatory employment of
disabled people and other categories).
1.2 Section 3.1 of the Agreement
is hereby deleted and the following new
Section 3.1 is substituted therefor:
Purchase Price: The purchase price
payable by Purchaser to Seller for the
Purchased Assets (the "Purchased Price")
shall be One Hundred Ninety Million Dollars
($190,000,000) plus the Assumed Liabilities,
subject to adjustment as provided in Article
IV of this Agreement.
1.3 Subsection (a) of Section 8.15
of the Agreement is hereby deleted and the
following new subsection (a) is substituted
therefor:
(a) In relation to the Purchased
Subsidiaries and except as set forth on Schedule
8.15, (i) Seller or the Purchased Subsidiaries
have paid all Taxes (as hereinafter defined) for
which it or the Purchased Subsidiaries could be
held liable or required to pay through the date
hereof and will pay all Taxes required to be paid
by it or them for periods ending on or prior to
the Closing Date and Seller or the Purchased
Subsidiaries have filed or will, prior to the
Closing, file all returns, declarations of
estimated Tax, Tax reports, information returns
and statements required to be filed by it or them
prior to the Closing (other than those for which
extensions shall have been granted prior to
Closing) (collectively, "Returns"); (ii) the
Returns correctly reflected (and, as to any
Returns not filed as of the date hereof, will
correctly reflect) the facts regarding the income,
business, assets, operations, activities and
status of Seller and the Purchased Subsidiaries
and any other information required to be shown
therein; (iii) Seller or the Purchased
Subsidiaries have timely paid or, if not yet due,
made provisions on its books and records for all
Taxes relating to the operations of the Business
that it or they are required to have paid; and
(iv) Seller or the Purchased Subsidiaries have
adequately accrued on the Reference Statement of
Net Assets for any unpaid Taxes relating to any
period ending prior to the Closing Date or portion
of any period (prorated based on the ratio of
number of days in the preclosing period to the
number of days in the actual taxable period with
respect to which the Tax is assessed) that
includes, but does not end, on or before the
Closing Date.
1.4 The remaining provisions of Section
8.15, namely Section 8.15(b) through and
including 8.15(l) shall remain in full force
and effect.
1.5 Section 12.8(ii) is hereby deleted
and the following new Section 12.8(ii) is
substituted therefor:
(ii) any health, disability, life
insurance coverage and any medical and dental
benefits payable at any time to Active
Employees and their dependants, except for
claims for any such benefits or coverage
which are filed in the manner required by law
or by the relevant Benefit Plans, on account
of services provided to Active Employees and
their dependants prior to the Closing Date
which claims shall remain Seller's
responsibility.
1.6 Subsection (c) of Section 16.2 of
the Agreement is hereby deleted and the
following new subsection (c) is substituted
therefor:
(c) Purchaser shall be entitled to
indemnification under this Section 16.2 only
to the extent that each and any specific,
individual Loss exceeds U.S. $10,000 (the
"Deminimus Amount"), provided the aggregate
amount payable in respect of indemnification
under this Section 16.2 shall not exceed a
cap of U.S. $100,000,000. Seller
acknowledges and agrees that neither the
Deminimus Amount nor the cap shall apply in
respect of (i) the Surviving Representations
(except with respect to the representations
and warranties contained in Section 8.13
regarding Environmental Matters towards which
the Deminimus Amount and the cap shall apply)
(ii) Retained Liabilities, (iii) Pre-Closing
Taxes, and (iv) the Covenants contained in
Section 13.6.
1.7 Throughout the Agreement, each
and every reference to the term "Reference
Statement of Net Assets" shall be amended to
read "Amended Reference Statement of Net
Assets."
1.8 Throughout the Agreement, each
and every reference to the term "Financial
Statements" shall be amended to read "Amended
Financial Statements."
1.9 Throughout the Agreement, each
and every reference to "Schedule 8.4" shall
be amended to read "Amended Schedule 8.4".
1.10 Schedule 0.1 to the Agreement
is hereby deleted and replaced in its
entirety by the Amended Schedule 0.1 attached
hereto.
1.11 Schedule 8.2 to the
Agreement is hereby deleted and replaced in
its entirety by the Amended Schedule 8.2
attached hereto.
1.12 Schedule 8.4 to the Agreement
is hereby deleted and replaced in its
entirety by the Amended Schedule 8.4
attached hereto.
1.13 Schedule 8.7 to the Agreement
is hereby deleted and replaced in its
entirety by the Amended Schedule 8.7 attached
hereto.
1.14 Schedule 8.8 to the Agreement is
hereby deleted and replaced in its entirety
by the Amended Schedule 8.8 attached hereto.
1.15 Schedule 8.10(e) to the Agreement
is hereby deleted and replaced in its
entirety by the Amended Schedule 8.10(e)
attached hereto.
1.16 Schedule 8.16 to the Agreement
is hereby deleted and replaced in its
entirety by the Amended Schedule 8.16
attached hereto.
2. Acknowledgments.
A) The parties hereby acknowledge that
the amendment to Section 16.2(c) of the
Agreement contained in Paragraph 1.6 of this
First Amendment has been made on account of
the parties' agreement to apply the entire
Indemnification Deductable (as defined in the
Agreement) toward Purchaser's claim of Loss
in arriving at the Purchase Price reduction
set forth in Paragraph 1.2 hereof.
B) Seller acknowledges and
consents to Purchaser's assignment of its
rights under the Agreement to acquire the
Purchased Assets to its wholly-owned
subsidiary, Uniloy Milacron Inc. The parties
further acknowledge and agree that,
notwithstanding the foregoing assignment,
Purchaser shall continue to be bound by all
of its obligations, duties, representations
and warranties contained in the Agreement.
Purchaser acknowledges that all consents to
assignment of contracts obtained from third
parties in connection with this Agreement
were obtained in the name of Cincinnati
Milacron Inc.
C) The parties acknowledge and
agree that pursuant to Purchaser's request,
Seller has caused Xxxxxxx Controls
International B.V. to transfer its interest
in Indu Tecno spol s.r.o. to B&W
Kunstofmaschinenbau & Handelsgesellschaft
GmbH prior to the Closing.
D) The parties acknowledge that
the Amended Reference Statement of Net Assets
included in Amended Schedule 8.4 reflects an
increase in liabilities from those shown on
the Reference Statement of Net Assets in the
amount of $1.8 million as at June 30, 1998
(the "Liability Adjustment"). The parties
further acknowledge that they will, as soon
as practicable after the Closing Date (but in
no event later than October 15, 1998),
jointly review the documentation and entries
supporting the Liability Adjustment, and
either confirm that the amount of the
Liability Adjustment is accurate or agree
upon the required adjustment to the Liability
Adjustment. If the parties are unable to
agree upon the required adjustment to the
Liability Adjustment, the dispute shall be
resolved by the Firm (as defined in the
Agreement) in accordance with the procedures
contained in Section 4.2 of the Agreement.
The parties further acknowledge that the
Amended Reference Statement of Net Assets, as
same may be further modified by this review
process, shall form the basis for any
adjustment to the Purchase Price under
Article IV of the Agreement.
In the event that the parties
agree (or the Firm determines) that the
Liability Adjustment should be reduced,
Purchaser shall pay Seller an amount equal to
the product of such reduction multiplied by
9.33. In the event that the parties agree
(or the Firm determines) that the Liability
Adjustment should be increased, Seller shall
pay to Purchaser an amount equal to the
product of such increase multiplied by 9.33.
The amounts described in this Paragraph 2 (D)
shall be paid by Seller to Purchaser, or by
Purchaser to Seller, as the case may be, with
interest thereon from the Closing Date to the
date of such payment, calculated at a rate
equal to the "Prime Rate" quoted by the Chase
Manhattan Bank, N.A., New York, New York on
the Closing Date and such payment shall be
made by wire transfer to an account
designated by the payee-party within five (5)
business days of agreement by the parties (or
determination by the Firm) as to the required
adjustment to the Liability Adjustment.
E) The parties acknowledge that in
connection with delivery of the Amended
Schedule 8.4 as referenced in Paragraph 1.9
above, Seller is to deliver amended unaudited
statements of income and cash flow of the
Business for the nine (9) month period ending
June 30, 1998 prepared on the basis described
in the last sentence of Section 8.4(a) of the
Agreement, and further that Seller is not
making such delivery on the Closing Date.
Seller agrees to deliver to Purchaser such
statements within seven (7) calendar days
following the Closing Date, and that such
statements shall only reflect changes from
the original statements of income and cash
flow attached to the Agreement as original
Schedule 8.4 which correspond to (i) the
adjustments to Seller's Unentered Liabilities
Account, which gave rise tot he Liability
Adjustment, and (ii) the adjustments with
respect to revenue recognition for machine
lines (other than structural foam and wheel
machine lines), molds and parts made in
accordance with GAAP, as embodied in the
Amended Reference Statement of Net Assets.
Finally, Seller acknowledges that the one (1)
month survival period with respect to
representations and warranties contained in
Section 8.4 regarding the income and cash
flow statements as set forth in Section 16.1
shall be extended by the number of calendar
days between the Closing Date and the date of
delivery to purchaser of such amended
statements hereunder.
F) The parties further acknowledge
that in connection with the preparation of
the Closing Statement of Net Assets as set
forth in Section 4.1 of the Agreement, Seller
shall use its September 30, 1998 balance
sheet for the European operations of the
Business, notwithstanding any provision in
Seller's Accounting Principles to the
contrary.
G) In consideration of the
reduction to the Purchase Price set forth in
Paragraph 1.2 hereof, and the other covenants
and obligations of this First Amendment, the
receipt and adequacy of said consideration
being hereby acknowledged, Purchaser
acknowledges, without in any manner expanding
the scope of the following release, that the
Liability Adjustment set forth in Paragraph
2(D) above, when finally resolved as provided
therein constitutes a cure of any and all of
Seller's non-disclosures under Section 8.4 of
the Agreement which gave rise to the
Liability Adjustment. Further, the parties
hereby agree to mutually release and forever
discharge each other from all claims whether
sounding in tort, contract, fraud, statutory
or regulatory violation, or in any
combination of the foregoing theories or otherwise, that the
parties or their predecessors, owners,
administrators, successors or assigns ever
had or may have had, in any capacity, whether
known or unknown arising out of the
representations and warranties of Seller set
forth in Section 8.4 of the Agreement to the
extent and only to the extent such
representations and warranties relate to: (i)
the adjustments to Seller's "Unentered
Liabilities" Account which gave rise to the
Liability Adjustment and (ii) the adjustments
with respect to revenue recognition for
machine lines (other than structural foam and
wheel machine lines), molds and parts made in
accordance with GAAP and (iii) upon delivery
to Purchaser as provided in Paragraph 2(E)
above, any adjustment to the income
statement or statement of cash flow that
arise from the foregoing subparts (i) and
(ii), in each case as disclosed by Seller to
Purchaser and which formed the basis of the
Amended Reference Statement of Net Assets.
Nothing contained in the foregoing release in
any way impacts, limits, or modifies the
purchase price adjustment mechanism set forth
in Article IV of the Agreement.
3. Survival. Except as expressly set forth
herein, no change is made hereby to the terms and provisions
of the Agreement and the Agreement shall remain in full
force and effect.
4. Conflicts. Any conflict between the terms
and conditions of this First Amendment and the terms and
conditions of the Agreement shall be resolved in favor of
the terms and conditions of this First Amendment.
5. Entire Agreement. This First Amendment
contains the entire agreement of the parties hereto with
respect to the amendments to the Agreement and the
acknowledgments referenced above and shall be deemed to
supersede all prior agreements regarding such amendments and
acknowledgments, whether oral or written.
IN WITNESS WHEREOF, the parties hereto have entered
into this First Amendment as of the date first above
written.
XXXXXXX CONTROLS, INC. CINCINNATI MILACRON
INC.
on its own behalf and
on behalf of the
Other Sellers
By: By: ____________
Name: _ Name: ____________
Title:_______________________ Title: _____________
XXXXXX UNIVERSAL, INC.
By: ____________________________________
Name: _________________________________
Title: __________________________________
