Exhibit 2.2
AMENDMENT NO. 1 TO THE SHARE PURCHASE AGREEMENT
This AMENDMENT NO. 1, dated as of June 3,1999 (this "Amendment"), by
and between Johnstown America Industries, Inc., a Delaware corporation
("Seller"), and Rabbit Hill Holdings, Inc., a Delaware corporation
("Buyer"), amends the Share Purchase Agreement, dated as of May 10, 1999
(the "Share Purchase Agreement"), by and between Seller and Buyer.
RECITALS
WHEREAS, Buyer and Seller are currently parties to the Share
Purchase Agreement;
WHEREAS, the parties hereto wish to amend the Share Purchase
Agreement as herein provided;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms which are used but not defined
herein shall have the meaning ascribed to such terms in the Share Purchase
Agreement.
2. Amendments to Share Purchase Agreement
(A) The first sentence of Section 1.2 of the Share Purchase
Agreement is hereby amended by deleting the amount "$110" and replacing
such amount with
$109".
(B) The first sentence of Section 1.2 of the Share Purchase
Agreement is further amended by deleting that portion of the first sentence
marked with "(ii)" and replacing such portion with the following:
"(ii) 2,500 shares of the Class A Voting Common Stock,
par value $0.01 per share, of Buyer, 1,000 shares of Class B
Non-Voting Common Stock, par value $0.01 per share, of Buyer
and 3,500 shares of Series B Non-Voting Preferred Stock of
Buyer."
(C) The third sentence of Section 1.2 of the Share Purchase
Agreement is hereby amended by deleting that portion of the third sentence
marked with "(y)" and replacing such portion with the following:
"(y) 2,500 shares of the Class A Voting Common Stock of Buyer, 1,000 shares
of Class B Non-Voting Common Stock of Buyer and 3,500 shares of Series B
Non-Voting Preferred Stock of Buyer."
(D) Section 1.3(b)(ii) of the Share Purchase Agreement is
hereby amended by deleting that portion of the first sentence marked with
"(B)" and replacing such portion with the following:
"(B) 2,500 shares of the Class A Voting Common Stock of
Buyer, 1,000 shares of Class B Non-Voting Common Stock of Buyer
and 3,500 shares of Series B Non-Voting Preferred Stock of
Buyer."
(E) Section 1.3(b)(iii) of the Share Purchase Agreement is
hereby amended by deleting Section 1.3(b)(iii) in its entirety and
replacing such section with the following:
"Section 1.3(b)(iii). Seller, Buyer and each of the other
holders of capital stock of Buyer as of the Closing Date shall
enter into a shareholders' agreement, which shall contain the
terms set forth on Exhibit H (the "Shareholders' Agreement")."
(F) The introductory clause of Section 1.4(a) of the Share
Purchase Agreement which reads "At least three days prior to Closing" is
hereby amended by replacing such clause with the following:
"At the Closing"
(G) Section 1.6(c)(ii) of the Share Purchase Agreement is
hereby amended by deleting and replacing both occurrences of the phrase
"common stock" in that portion of the section marked with "(B)" with the
following:
"capital stock"
(H) Section 2.10 (c) of the Share Purchase Agreement is hereby
amended by adding the following language to the beginning of the first
sentence therein:
"Except as set forth on Schedule 2.10(c),"
(I) The second sentence of Section 3.3(b) of the Share Purchase
Agreement is hereby amended by deleting the second sentence of Section
3.3(b) in its entirety and replacing such section with the following:
"All certificates representing the Class A Voting Common
Stock of Buyer, all certificates representing the Class B
Non-Voting Common Stock of Buyer and all certificates
representing the Series B Non-Voting Preferred Stock of Buyer
to be delivered to Seller pursuant to Section 1.3(b)(ii) shall
be duly authorized, validly issued, fully paid and
non-assessable and free of preemptive (or similar) rights."
(J) The introductory clause in Section 4.7(d) part "(i)" of the
Share Purchase Agreement which states "at least 10 days prior to the
Closing Date" is hereby amended by replacing such clause with the
following:
"prior to the Closing Date"
(K) Insert a new Section 4.7(k) immediately after Section
4.7(j) of the Share Purchase Agreement as follows:
"(k) Section 197 Election. With respect to the sale of
each of the Railcar Subsidiaries pursuant to this Agreement and
the corresponding Elections, Seller and the Railcar
Subsidiaries shall timely file with the Internal Revenue
Service a protective election under Section 197(f)(9)(B)(ii) of
the Code (the "Section 197 Election") and shall take all such
actions necessary and appropriate (including filing such forms,
returns, elections, schedules and other documents as may be
required) to perfect the Section 197 Election in accordance
with the provisions of the Code and applicable Treasury
regulations. Seller shall report the sale of each of the
Railcar Subsidiaries pursuant to this Agreement and the
corresponding Elections consistent with the Section 197
Election and shall take no position to the contrary thereto in
any Tax Return or in any proceeding before any Tax Authority or
otherwise."
(L) Section 4.8 of the Share Purchase Agreement is hereby
amended by deleting Section 4.8 in its entirety and replacing it with the
following:
"Section 4.8. Incremental Tax Resulting from the Elections.
(a) Buyer shall reimburse Seller as provided in this Section
4.8(a) for any incremental Taxes payable by Seller or any of the Railcar
Subsidiaries resulting from making the Elections (and any comparable
elections under the provisions of state and local tax law) (the
"Incremental Taxes") with respect to the taxable year that includes (i) the
Closing Date and (ii) if applicable, Seller's receipt of the Contingent
Additional Consideration, in each case, "grossed up" to reflect the
taxability to Seller of the receipt of any payments pursuant to this
Section 4.8(a). Seller shall provide to Buyer a statement (accompanied by
appropriate supporting documentation) calculating in reasonable detail
Buyer's reimbursement obligation pursuant to this Section 4.8(a). Buyer
shall have no reimbursement obligation pursuant to this Section 4.8(a)
until Buyer has received such statement and such supporting documentation.
If for any reason Buyer does not agree with Seller's calculation of Buyer's
reimbursement obligation pursuant to this Section 4.8(a), Buyer shall
notify Seller of its disagreement within ten days of receiving a copy of
such statement and such supporting documentation, and such dispute shall be
resolved pursuant to the Tax Dispute Resolution Mechanism. If Buyer agrees
with Seller's calculation of Buyer's reimbursement obligation, Buyer shall
pay to Seller the amount of Buyer's reimbursement obligation at the time
specified in Section 4.7(a)(v). Seller shall return to Buyer any amount
reimbursed by Buyer pursuant to this Section 4.8(a) to the extent that
Seller receives any refunds of any such Incremental Taxes.
(b) Notwithstanding any other provision of this Agreement to
the contrary, (i) Buyer shall be responsible for, and shall indemnify and
hold Seller harmless against, any liability for Taxes imposed on Seller or
any of the Railcar Subsidiaries resulting from or relating to any transfer
of assets from a Railcar Subsidiary to any of its subsidiaries after May
10, 1999 and on or prior to the Closing Date, (ii) Seller and Buyer shall
jointly control the resolution of any Tax Claim relating to the
indemnification obligation described in subclause (i) hereof, and (iii)
any indemnity payments made pursuant to this Section 4.8(b) shall be
"grossed up" to reflect the taxability to Seller of the receipt of any such
payments."
(M) Insert new Sections 4.15, 4.16 and 4.17 immediately after
Section 4.14 of the Share Purchase Agreement as follows:
"Section 4.15. Payment of Contingent Additional Consideration.
Upon the occurrence of any Triggering Event, if the payment by Buyer to
Seller of the Contingent Additional Consideration is restricted under the
terms of the Senior Secured Debt and the Senior Notes, then Buyer shall
either obtain the consent from all parties necessary to make such payment
or use its best efforts to replace or refinance the Senior Secured Debt and
the Senior Notes such that the payment is permitted.
"Section 4.16. Operating Leases. Immediately after Closing,
Buyer shall use its best efforts to release Seller of its obligations and
substitute Buyer under the following operating leases: (i) the Bankers
Direct Leasing Agreement and (ii) the GECC Leasing Agreement."
"Section 4.17. Transitional Services Agreement. Buyer shall
enter into a transitional services agreement containing customary terms
with Seller providing for the hourly services of Xxxxx Xxxxxx based on an
allocable portion of total employment cost."
(N) Section 5.3 of the Share Purchase Agreement is hereby
amended by deleting the first sentence in its entirety and replacing such
sentence with the following language:
"As soon as practicable following the Closing Date, Buyer
shall establish defined benefit pension plans for the Railcar
Subsidiaries' employees who participated in such plans
sponsored by Railcar Subsidiaries."
(O) Section 5.4(b) of the Share Purchase Agreement is hereby
amended by deleting the second sentence in its entirety and replacing such
sentence with the following language:
"As soon as practicable after assuming sponsorship of the
Johnstown Savings Plan, Seller will spinoff from the Johnstown
Savings Plan a new plan (the "New Johnstown Savings Plan")
which will contain the account balances of all Railcar
Subsidiaries employees who are participants in the Johnstown
Savings Plan on the date of the spinoff."
(P) Section 6.2 of the Share Purchase Agreement is hereby
amended by adding a new subsection (d) as follows:
"(d) Seller shall have received the consideration
provided for in that certain securities purchase agreement
dated as of June 3, 1999."
(Q) Insert a new definition immediately following "Rules" in
the Share Purchase Agreement as follows:
"Section 197 Election" shall have the meaning set forth
in Section 4.7(k)."
(R) Schedule 2.5 of the Share Purchase Agreement is hereby
amended by adding the items set forth on the Addition to Schedule 2.5
attached hereto.
(S) Schedule 2.8 of the Share Purchase Agreement is hereby
amended by adding the items set forth on the Addition to Schedule 2.8
attached hereto.
(T) Schedule 2. 10 of the Share Purchase Agreement is hereby
amended by adding the items set forth on the Addition to Schedule 2.10
attached hereto.
(U) Schedule 2.12 of the Share Purchase Agreement is hereby
amended by deleting "none" and adding the items set forth on the Addition
to Schedule 2.12 attached hereto.
(V) Schedule 2.14 of the Share Purchase Agreement is hereby
amended by deleting "none" and adding the items set forth on the Addition
to Schedule 2.14 attached hereto.
(W) Schedule 2.16 of the Share Purchase Agreement is hereby
amended by adding the items set forth on the Addition to Schedule 2.16
attached hereto.
(X) Schedule 2.17 of the Share Purchase Agreement is hereby
amended by adding the items set forth on the Addition to Schedule 2.17
attached hereto.
(Y) Schedule 2.21 of the Share Purchase Agreement is hereby
amended by adding the items set forth on the Addition to Schedule 2.21
attached hereto.
(Z) Exhibit D of the Share Purchase Agreement is hereby amended
by deleting Exhibit D in its entirety and replacing it with Exhibit D
attached hereto.
(AA) Exhibit I of the Share Purchase Agreement is hereby
amended by deleting Exhibit I in its entirety and replacing it with Exhibit
I attached hereto.
(BB) Exhibit J of the Share Purchase Agreement is hereby
amended by deleting Exhibit J in its entirety and replacing it with Exhibit
J attached hereto.
3. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of Delaware applicable to contracts
made herein.
4. Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed to be an original, but all of which shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date
first above written.
JOHNSTOWN AMERICA INDUSTRIES, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
__________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President, Secretary and
General Counsel
RABBIT HILL HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx, III
__________________________________
Name: Xxxxxxx Xxxxxxxxx, III
Title: President
