Exhibit 2.1
AMENDMENT TO
STOCK AND ASSET PURCHASE AGREEMENT
This AMENDMENT TO STOCK AND ASSET PURCHASE AGREEMENT, dated as of
February 18, 2003 (this "Amendment"), by and between Xxxxxxxxx-Xxxx Company
Limited, a company organized under the laws of Bermuda ("IR"), on behalf of
itself and the other Sellers named in the Purchase Agreement (as defined below),
and The Timken Company, an Ohio corporation ("Timken"), on behalf of itself and
the other Buyers named in the Purchase Agreement.
RECITALS
A. The Sellers and the Buyers are parties to that certain Stock
and Asset Purchase Agreement, dated as of October 16, 2002 (as amended, modified
or supplemented from time to time, the "Purchase Agreement").
B. By various letters set forth in Appendix N hereto, each of IR
and Timken, on behalf of itself and the other Sellers and Buyers, respectively,
agreed to amend certain provisions of and Schedules to the Purchase Agreement.
C. Section 10.5 of the Purchase Agreement provides that the
Purchase Agreement may not be amended, modified or supplemented except upon the
execution and delivery of a written agreement executed by the parties thereto
and specifically referencing the Purchase Agreement.
D. The Sellers and the Buyers have agreed to further amend and
restate certain provisions of and Schedules to the Purchase Agreement, as
provided in this Amendment.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. Unless otherwise defined in this
Amendment, all capitalized terms used in this Amendment, including in the
introductory paragraph and the recitals hereto, have the respective meanings
given to such terms in the Purchase Agreement.
ARTICLE II
AMENDMENTS TO THE PURCHASE AGREEMENT
2.1 Definitions. Section 1.1 of the Purchase Agreement is hereby
amended as follows:
(a) the defined term "Closing Net Working Capital Statement" is
hereby amended by deleting the phrase "12:01 A.M. (local time) on the Closing
Date" and inserting in lieu thereof the phrase "the effective time of the
Closing as set forth in Section 2.4(a)";
(b) the following defined terms are inserted in their proper
alphabetical order:
(i) " 'IR Canada' shall mean Xxxxxxxxx-Xxxx Canada, Inc., a
company organized under the laws of Canada and an indirect, wholly
owned subsidiary of IR.";
(ii) " 'Xxxxxx Canada ULC' shall mean the Nova Scotia
unlimited liability company formed pursuant to the Restructuring to
receive the Separate Assets of IR Canada attributable to IR Canada's
Xxxxxx Division.";
(iii) " 'Specified Entities' shall mean, collectively,
Xxxxxxxxx-Xxxx South East Asia (Pte) Ltd., Xxxxxxxxx-Xxxx Company
(Chile) Y Cia Ltda., Xxxxxxxxx-Xxxx (China) Investment Co Ltd,
Xxxxxxxxx-Xxxx Korea Limited, Xxxxxxxxx-Xxxx (India) Limited, and
Xxxxxxxxx-Xxxx Japan Ltd., each an IR Affiliate."; and
(iv) " 'Torrington Canada ULC' shall mean the Nova Scotia
unlimited liability company formed pursuant to the Restructuring to
receive the Separate Assets of IR Canada other than the Separate
Assets attributable to IR Canada's Xxxxxx Division."; and
(c) the defined term "NSULC" is hereby deleted in its entirety.
2.2 Section 2.3(c). The reference to "NSULC" in Section 2.3(c) of
the Purchase Agreement is hereby deleted and the phrase "Xxxxxx Canada ULC,
Torrington Canada ULC," is inserted in lieu thereof.
2.3 Section 2.4(a). Section 2.4(a) of the Purchase Agreement is
hereby amended and restated to read as follows:
"2.4 The Closing. (a) Unless this Agreement shall have been
terminated pursuant to Article VIII, subject to the satisfaction or
waiver of the conditions set forth in Articles VI and VII, the
closing (the "Closing") of the transactions contemplated by this
Agreement shall take place at the offices of Xxxxx Day, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on February 18, 2003 at 10:00
a.m., New York City time, or at such other place and time as may be
agreed upon by the Sellers and the Buyers (the "Closing Date"). For
the avoidance of doubt, the representations and warranties of the
Sellers and the Buyers, respectively, shall be made again as of
February 18, 2003, in the manner set forth in Sections 6.1 and 7.1,
respectively, and the certificates to be delivered by the Sellers
and the Buyers pursuant to Sections 6.3 and 7.3, respectively, shall
each be dated February 18, 2003. For all other purposes of this
Agreement and notwithstanding anything to the contrary in any
agreement, document or other instrument of sale, conveyance,
transfer or assignment constituting a Transaction
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Agreement, the Closing shall be deemed to be effective as of 12:01
a.m. (local time) on February 16, 2003. In addition, notwithstanding
anything to the contrary in any agreement, document or other
instrument of sale, conveyance, transfer or assignment constituting
a Transaction Agreement, the relevant jurisdiction for the
resolution of disputes of each such agreement, document or other
instrument shall be as set forth in Section 10.16 of the Purchase
Agreement."
2.4 Section 2.6(a). The fourth sentence of Section 2.6(a) of the
Purchase Agreement is hereby amended by deleting the phrase "12:01 A.M. (local
time) on the Closing Date," and inserting in lieu thereof the phrase "the
effective time of the Closing as set forth in Section 2.4(a)."
2.5 Section 2.6(i). Each reference to "NSULC" in Section 2.6(i) of
the Purchase Agreement is hereby deleted and the phrase "Xxxxxx Canada ULC and
Torrington Canada ULC" is inserted in lieu thereof.
2.6 Sections 5.28, 5.29 and 5.30. New Sections 5.28, 5.29 and 5.30
are added at the end of Article V of the Purchase Agreement to read as follows:
"Section 5.28. Certain Asset and Employee Transfers.
"(a) Contemporaneous with the Closing and subject to the
terms and conditions set forth in the Purchase Agreement, IR will
cause each of the Specified Entities to sell, convey, assign and
transfer, and Timken shall cause such Timken Affiliates as Timken
shall have designated, to purchase and acquire for $1.00, any and
all assets used or principally held for use in the Business by such
Specified Entities, pursuant to separate invoices prepared by Timken
in accordance with the Laws of the relevant jurisdiction in which
such assets are located.
"(b) On or prior to the Closing Date, Timken will deliver to
those employees whose names are set forth on Schedule 5.28
(collectively, the "Specified Employees"), written offers of ongoing
employment with Timken or such other Timken Affiliates as Timken
shall designate. The parties agree that such Specified Employees
shall be considered Company Employees of the Asset Sellers, and that
the rights and obligations under Section 5.8 shall be deemed to
apply in all respects to each Specified Entity that is not a Seller
and each such Timken Affiliate that is not a Buyer, as if each such
Specified Entity and Timken Affiliate were a party to this
Agreement, and that each of IR and Timken shall have all rights
under this Agreement, including under Article IX, to enforce the
provisions of this Section 5.28 on behalf of any such Specified
Entity or Timken Affiliate, as applicable.
"(c) The Section 2.3(c)(i) Allocation shall not be revised to
reflect the transfers referenced in this Section 5.28.
"Section 5.29. Fair Market Value of Separate Assets. The
parties agree that for all Tax purposes, the respective fair market
values as of the Closing of the
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separate items of property constituting the Separate Assets shall be
equal to the net book values of such items consistent with Schedule
2.3. IR agrees to furnish, or to cause to be furnished, to Timken a
copy of any Tax filing, including filing for VAT, that shall be due
after the Closing in respect of such items, not less than 15 days
prior to such filing or a reasonably shorter period if such
information is not available."
"5.30 Intercompany Receivables and Payables in Respect of Separate
Assets. IR confirms and agrees that, in connection with the sale of
the Separate Assets, no intercompany accounts receivable or
intercompany accounts payable existing or arising prior to or on the
Closing Date, among IR or any of its Affiliates (other than the Sold
Companies, the Subsidiaries or the Venture Entities) and any Asset
Seller, shall be transferred, sold or conveyed to any Buyer."
2.7 Schedules A and B. Schedules A and B to the Purchase Agreement
are hereby amended and restated in their entirety and, as so amended and
restated, are set forth in Appendix A hereto.
2.8 Schedule D. Schedule D to the Purchase Agreement is hereby
amended and restated in its entirety and, as so amended and restated, is set
forth in Appendix B hereto.
2.9 Schedule E. Schedule E to the Purchase Agreement is hereby
amended and restated in its entirety and, as so amended and restated, is set
forth in Appendix C hereto.
2.10 Schedule F. Schedule F to the Purchase Agreement is hereby
amended and restated in its entirety and, as so amended and restated, is set
forth in Appendix D hereto.
2.11 Schedule 1.1(c). Schedule 1.1(c) to the Purchase Agreement is
hereby amended and restated in its entirety and, as so amended and restated, is
set forth in Appendix E hereto.
2.12 Schedule 2.3. Schedule 2.3 to the Purchase Agreement is hereby
amended and restated in its entirety and, as so amended and restated, is set
forth in Appendix F hereto.
2.13 Schedule 3.3. Schedule 3.3 to the Purchase Agreement is hereby
amended and restated in its entirety and, as so amended and restated, is set
forth in Appendix G hereto.
2.14 Schedule 3.4(a). Schedule 3.4(a) to the Purchase Agreement is
hereby amended and restated in its entirety and, as so amended and restated, is
set forth in Appendix H hereto.
2.15 Schedule 3.9. In accordance with Section 5.27 of the Purchase
Agreement, Schedule 3.9 to the Purchase Agreement is hereby amended and restated
in its entirety and, as so amended and restated, is set forth in Appendix I
hereto.
2.16 Schedule 3.16. In accordance with Section 5.27 of the Purchase
Agreement, Schedule 3.16 to the Purchase Agreement is hereby amended and
restated in its entirety and, as so amended and restated, is set forth in
Appendix J hereto.
2.17 Schedules 3.19(a) and 3.19(b). Schedules 3.19(a) and 3.19(b)
to the Purchase Agreement are hereby amended and restated in their entirety and,
as so amended and restated, are set forth in Appendix K hereto.
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2.18 Schedule 5.25. Schedule 5.25 to the Purchase Agreement is
hereby amended and restated in its entirety and, as so amended and restated, is
set forth in Appendix L hereto.
2.19 Schedule 5.28. A new Schedule 5.28 to the Purchase Agreement
is hereby added to the Purchase Agreement and is set forth in Appendix M hereto.
ARTICLE III
MISCELLANEOUS
3.1 Effect of Amendment. Each of IR and Timken, on behalf of
itself and the other Sellers and Buyers, respectively, hereby acknowledges the
prior execution and delivery of the letters attached hereto in Appendix N, each
of which is hereby incorporated into and made a part of this Agreement. This
Amendment shall supersede any such letter if, and only to the extent that, the
subject matter of such letter is the specific subject matter of an amendment or
restatement contained in this Amendment. Except as expressly amended, modified
or supplemented hereby, the Purchase Agreement is hereby reaffirmed and remains
in full force and effect. This Amendment shall be effective as of the effective
time of the Closing under the Purchase Agreement, as amended by this Amendment.
On and after the date hereof, each reference in the Purchase Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of similar import referring
to the Purchase Agreement, and each reference in the Transaction Documents, or
any of them, to the "Purchase Agreement," "thereunder," "thereof" or words of
similar import referring to the Purchase Agreement shall mean, and shall be a
reference to, the Purchase Agreement as amended by this Amendment.
3.2 Amendment. This Amendment may not be amended, modified or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto and specifically referencing this Amendment.
3.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be considered one and the same instrument and
each of which shall be deemed an original.
3.4 Headings. The headings contained in this Amendment are for
reference only and shall not affect in any way the meaning or interpretation of
this Amendment.
3.5 Severability. Any provision of this Amendment which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
3.6 Governing Law. This Amendment shall be construed under and
governed by the Laws of the State of New York applicable to contracts made and
to be performed in that State.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
XXXXXXXXX-XXXX COMPANY LIMITED
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE TIMKEN COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and
General Counsel
SCHEDULES
Schedule A Stock Sellers/Asset Sellers
Schedule B Sold Companies
Schedule D Restructuring
Schedule E Separate Assets/Assumed Liabilities
Schedule F Buyers
Schedule 1.1(c) Cash of the Business
Schedule 2.3 Section 2.3(c)(i) Allocation
Section 2.3(c)(ii) Allocation
Schedule 3.3 Capital Stock of the Sold Companies
Schedule 3.4(a) Subsidiaries
Schedule 3.9 Proceedings
Schedule 3.16 Environmental Matters
Schedule 3.19(a) Leased Real Property
Schedule 3.19(b) Owned Real Property
Schedule 5.25 Certain Indebtedness of the Business
Schedule 5.28 Specified Employees
