AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT
This Amendment No. 1 (the “Amendment”),
dated as of July 9, 2007, to the Stock Purchase Agreement,
dated as of October 17, 2006 (the
“Agreement”), is among Xxxx Corporation, a
Delaware corporation (the “Company”), and those
other parties named on the signature page hereto (collectively,
the “Buyers” or individually, a
“Buyer”).
RECITALS
WHEREAS, Section 8(e) of the Agreement permits the
parties to amend the Agreement by an instrument in writing
signed on behalf of the Company and the Buyers; and
WHEREAS, the parties hereto desire to amend the Agreement
as provided herein.
STATEMENT
OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties and covenants and subject to
the conditions herein contained and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
Section 1.01. Definitions;
References. Unless otherwise specifically defined
herein, each capitalized term used but not defined herein shall
have the meaning assigned to such term in the Agreement. Each
reference to “hereof,” “hereunder,”
“hereby,” and “this Agreement” shall, from
and after the date of this Amendment, refer to the Agreement, as
amended by this Amendment. Each reference herein to “the
date of this Amendment” shall refer to the date set forth
above and each reference to the “date of this
Agreement” or similar references shall refer to
October 17, 2006.
ARTICLE 2
AMENDMENT TO AGREEMENT
AMENDMENT TO AGREEMENT
Section 2.01. Amendment to Section 6(a)
of the Agreement. Effective as of the date
hereof, Section 6(a)(ii) of the Agreement is amended by
deleting “24%” and replacing such amount with
“24.5%”. Effective as of immediately prior to the
Section 5.4 Issuance (as defined in the Merger Agreement
dated as of February 9, 2007 by and among AREP Car Holdings
Corp. (“Parent”), AREP Car Acquisition Corp.
and the Company, as amended), Section 6(a)(ii) of the
Agreement is amended by deleting “24.5%” and replacing
such amount with “27%”. The Company and the Buyers
acknowledge and agree that for purposes of
Section 6(a)(ii), “Buyers” shall be deemed to
include Parent and its affiliates and associates.
Section 2.02. Additional Representations and
Warranties of the Company. The Company hereby
represents and warrants to the Buyers as follows:
(a) Authority Relative to Amendment. The
Company has all necessary corporate power and authority to
execute and deliver this Amendment, and to perform its
obligations hereunder. The execution and delivery of this
Amendment by the Company have been duly and validly authorized
by all necessary corporate action, and no other corporate
proceedings on the part of the Company are necessary to
authorize the execution and delivery of this Amendment. This
Amendment has been duly and validly executed and delivered by
the Company and, assuming the due authorization, execution and
delivery by the Buyers, this Amendment constitutes a legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms (except as such
enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other
similar Laws of general applicability relating to or affecting
creditors’ rights, and to general equitable principles).
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(b) Section 203. The Company has
taken all necessary corporate action to make the
Section 5.4 Issuance and any other subsequent purchases by
the Buyers that do not exceed the limitations set for in
Section 6(a)(ii) of the Agreement, as amended by this
Amendment, including any necessary corporate action to cause the
Buyers not to be deemed an interested stockholder for purposes
of Section 203 of the Delaware General Corporation Law
(“Section 203”) by reason of such purchase or
purchases. A copy of the Board’s 203 resolution is attached
as Exhibit A hereto and indicates that the approval is
limited as set forth thereon.
Section 2.03 Additional Representations and
Warranties of the Buyers. The Buyers each hereby
jointly and severally represent and warrant to the Company as
follows:
(a) Authority Relative to Amendment. The
Buyers have all necessary power and authority to execute and
deliver this Amendment, and to perform their respective
obligations hereunder. The execution and delivery of this
Amendment by each Buyer have been duly and validly authorized by
all necessary action on the part of each Buyer, and no further
consent or action is required by any Buyer, its governing body,
partners or members. This Amendment has been duly and validly
executed and delivered by each Buyer and, assuming the due
authorization, execution and delivery by the Company, this
Amendment constitutes a legal, valid and binding obligation of
each Buyer, enforceable against each Buyer in accordance with
its terms (except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability
relating to or affecting creditor’s rights, and to general
equitable principles).
ARTICLE 3
MISCELLANEOUS
MISCELLANEOUS
Section 3.01. No Further
Amendment. Except as expressly amended hereby,
the Agreement is in all respects ratified and confirmed and all
of the terms and conditions and provisions thereof shall remain
in full force and effect. This Amendment is limited precisely as
written and shall not be deemed to be an amendment to any other
term or condition of the Agreement or any of the documents
referred to therein.
Section 3.02. Effect of
Amendment. This Amendment shall form a part of
the Agreement for all purposes, and each party thereto and
hereto shall be bound hereby. From and after the execution of
this Amendment by the parties hereto, any reference to
“this Agreement”, “hereof”,
“herein”, “hereunder” and words or
expressions of similar import shall be deemed a reference to the
Agreement as amended hereby.
Section 3.03. Governing
Law. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the
State of New York applicable to contracts executed and to be
wholly performed within such State without giving effect to its
conflicts of laws principles thereof.
Section 3.04. Counterparts. This
Agreement may be executed in two or more identical counterparts,
all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by
each party and delivered to the other party; provided that a
facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and
effect as if the signature were an original, not a facsimile
signature.
[Remainder
of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company and the Buyers have
caused this Amendment to be executed as of the date first
written above by their respective officers thereunto duly
authorized.
XXXX CORPORATION
| By: |
/s/ Xxxxxx
X. Xxxxxxxxx
|
Name: Xxxxxx X. Xxxxxxxxx
| Title: | Executive Vice President, General Counsel and Chief Administrative Officer |
BUYERS:
ICAHN PARTNERS LP
| By: |
/s/ Xxxxxx
Xxxxxxx
|
Name: Xxxxxx Xxxxxxx
| Title: | Authorized Signatory |
ICAHN PARTNERS MASTER FUND LP
| By: |
/s/ Xxxxxx
Xxxxxxx
|
Name: Xxxxxx Xxxxxxx
| Title: | Authorized Signatory |
KOALA HOLDINGS LLC
| By: |
/s/ Xxxxxx
Xxxxxxx
|
Name: Xxxxxx Xxxxxxx
| Title: | Authorized Signatory |
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