EXHIBIT 2.3
AMENDMENT NO. 2
TO THE
STOCK AND ASSET PURCHASE AGREEMENT
AMENDMENT NO. 2, dated as of November 30, 2004 (this "AMENDMENT"), to
the Stock and Asset Purchase Agreement, dated as of July 8, 2004 and amended
November 1, 2004 (the "AGREEMENT"), by and between Affinia Group Inc. (f/k/a
"AAG Opco Corp."), a Delaware corporation, and Xxxx Corporation, a Virginia
corporation.
Capitalized terms used herein but not defined herein shall have the
meanings ascribed to such terms in the Agreement.
W I T N E S S E T H :
WHEREAS, the parties to the Agreement desire to amend and supplement
certain terms of the Agreement as described herein.
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements hereinafter set forth, and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be bound hereby, the parties hereby
agree as follows:
ARTICLE XVI Schedule 1.1(a) (Purchased Entities): Schedule 1.2(g)
(Purchased Intellectual Property) Schedule 3.2(g) (Officers and Directors of
Acquired Companies). Effective as of the date of this Amendment, Schedules
1.1(a), 1.2(g) and 3.2(g) to the Agreement are hereby replaced with Exhibits 1,
2 and 3, respectively, to this Amendment.
ARTICLE XVII Schedule 1.1(b) (Purchased Ventures). Schedule 1.1(b) to the
Agreement is hereby deleted in its entirety.
ARTICLE XVIII Section 2.1 (Amount and Form of Consideration). Section 2.1 of the
Agreement (as amended by Amendment No. 1 to the Agreement) is hereby amended to
read in its entirety as follows:
"Section 2.1. Amount and Form of Consideration. The consideration to be
paid to Seller and its Subsidiaries (other than an Acquired Company) in
full consideration of the Purchased Shares and the Purchased Assets
shall consist of:
(a) U.S.$1,024.5 million, consisting of (i) U.S.$950 million (the
"INITIAL CASH CONSIDERATION") in cash, subject to adjustment as set
forth in Section 2.3 (the Initial Cash Consideration, as so adjusted,
the "FINAL CASH CONSIDERATION"), to be paid by Purchaser in the manner
and at the time set forth in Sections 2.2 and 2.3, and (ii) a note
issued by Affinia Group Holdings Inc., a Delaware corporation and the
indirect parent of Purchaser ("PARENT PURCHASER"), substantially in the
form attached hereto as Exhibit K in the principal amount of U.S.$74.5
million (the "NOTE"), subject to adjustment as set forth in Section
2.3, to be delivered to Seller at the Closing, in each case in exchange
for the assets as set forth on Schedule 2.4; and
(b) the assumption by Purchaser on and as of the Closing Date of the
Assumed Liabilities."
ARTICLE XIX Section 3.2 (Deliveries by Seller to Purchaser). Section 3.2 of the
Agreement is hereby amended to add the following at the end thereof:
"Without limiting any of its rights or obligations hereunder, Parent
Purchaser directs Seller to deliver those assets acquired hereunder by
Parent Purchaser in exchange for the Note directly to Purchaser on
behalf of Parent Purchaser."
ARTICLE XX Section 3.3 (Deliveries by Purchaser to Seller). Section 3.3 of the
Agreement is hereby amended and supplemented to include a clause (h), which
reads in its entirety as follows:
"(h) the Note, duly executed by Parent Purchaser"
ARTICLE XXI Sections 4.2 (Capital Structure of Purchased Companies), 4.3(a)
(Ownership of Purchased Assets), 4.3(b) (Ownership of Acquired Companies) and
4.9(a) (Owned Real Property) of the Seller Disclosure Schedule. Sections 4.2,
4.3(a), 4.3(b) and 4.9(a) of the Seller Disclosure Schedule are hereby replaced
with Exhibits 4, 5, 6 and 7, respectively, to this Agreement. The disclosures
set forth on Xxxxxxxx 0, 0, 0 xxx 0 xxxxx xx deemed for all purposes of the
Agreement to have been disclosed as of the date of this Amendment, except for
purposes of determining whether any representation or warranty of Seller set
forth in the Agreement (a) is true and correct for purposes of Section 8.1 and
(b) is accurate or has been breached for purposes of Section 11.2(a)(i) (in each
of which cases, the disclosures set forth on Xxxxxxxx 0, 0, 0 xxx 0 xxxxx xx
deemed to have been disclosed as of the date of the Agreement).
ARTICLE XXII Section 5.10. The Agreement is hereby amended by adding a new
Section 5.10 as follows:
"Section 5.10. Note. Purchaser, on behalf of itself and Parent
Purchaser, represents and warrants that the Note, upon execution and
delivery at the Closing, will constitute a valid obligation of Parent
Purchaser, enforceable against Parent Purchaser in accordance with its
terms."
ARTICLE XXIII Section 10.2 (Transition Agreements: Ancillary Agreements).
Section 10.2 of the Agreement (as amended by Amendment No. 1 to the Agreement)
is hereby amended to read in its entirety as follows:
"On and after the date hereof and until the 10th day following the
Closing, but effective at the Closing, Purchaser and Seller, or such
of their respective Subsidiaries as appropriate, shall enter into one
or more transition services agreements substantially in the form of
Exhibit H (the "Transition Services Agreements" and together with the
Transition Intellectual Property License Agreement, the "Transition
Agreements"). On and after the date hereof and until the 10th day
following the Closing, but effective at the Closing, Purchaser and
Seller agree to negotiate in good faith to enter into agreements on the
terms and conditions set forth in the schedule of ancillary agreements
attached as Exhibit I (the "Schedule of Ancillary Agreements").
Purchaser and Seller hereby agree that the final terms and conditions
of the Transition Agreements and the agreements described in the
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Schedule of Ancillary Agreements (the "Ancillary Agreements") will be
consistent with the terms set forth in the term sheet attached hereto
as Schedule 10.2 and substantially on the terms contained in the drafts
circulated among the parties prior to the date hereto. Until such time
as the Transition Agreements and the Ancillary Agreements are executed
and delivered. Purchase, Seller and their respective Subsidiaries shall
perform the services described in the applicable exhibits and drafts
for the consideration to be specified in the final Transaction
Agreements and Ancillary Agreements."
ARTICLE XXIV Miscellaneous. All terms set forth in Article XV of the Agreement
are restated herein in full with the exception that references to "this
Agreement" shall be references to "this Amendment."
ARTICLE XXV Remainder of Agreement. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Agreement, all of which shall continue to be in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
AFFINIA GROUP INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
and Treasurer
XXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Power of Attorney
