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.
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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.
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
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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
