AMENDMENT to AGREEMENT OF PURCHASE AND SALE
Exhibit 2.2
This amendment (this “Amendment”) is entered into as of September 14, 2007 among Xxxxx
Xxxxxxx Investment Management Inc. (formerly known as Xxxxx Xxxxxxx Newco Inc.), a Delaware
corporation (the “Purchaser”), Xxxxx Xxxxxxx Companies, a Delaware corporation (the
“Parent”), WG CAR, LLC, a Missouri limited liability company (the “Seller”), and
each of the individuals listed on the signature page hereto (collectively, the
“Principals”).
Recitals
A. The Purchaser, the Parent, the Seller, and the Principals are parties to the Agreement of
Purchase and Sale dated as of April 12, 2007 (the “Original Agreement”).
B. The parties desire to amend the Original Agreement in certain respects.
Agreement
Therefore, the parties agree as follows:
1. Definitions. The following new definitions are added to Section 1.1 of the
Original Agreement:
“Aggregate December 15 Advisory Revenue Run-Rate” means the sum of the December
15 Advisory Revenue Run-Rates.
“December 15 Adjusted Purchase Price” means the product of $66.4 million
multiplied by the December 15 Adjustment Factor.
“December 15 Adjustment Factor” means 1.0 minus the product of (x) 1.0
minus the December 15 Adjustment Percentage multiplied by (y) 2.18.
“December 15 Adjustment Percentage” means the quotient (expressed as a decimal
rounded to four decimal places) of (x) the Aggregate December 15 Advisory Revenue
Run-Rate divided by (y) the Baseline Advisory Revenue Run-Rate; provided,
however, that if the December 15 Adjustment Percentage is greater than 1.0, then the
December 15 Adjustment Percentage shall be deemed to be 1.0.
“December 15 Advisory Revenue Run-Rate” means, with respect to any Advisory
Client, an amount equal to the product of (x) the December 15 Assets Under
Management of such Advisory Client as of December 15, 2007 multiplied by (y) the
applicable December 15 Fee Rate.
“December 15 Assets Under Management” means, with respect to any Advisory
Client, the dollar amount of assets under management by the Company for such Advisory Client
pursuant to an Advisory Contract as of the Base Date (or, in the case of any
Advisory Client who became an Advisory Client after the Base Date, the dollar amount of
the assets such Advisory Client placed under management by the Company on the date such
Person became an Advisory Client), as adjusted to reflect any contributions or purchases or
redemptions or withdrawals by such Advisory Client after the Base Date (or, in the case of
any Advisory Client who first became an Advisory Client after the Base Date, any
contributions or purchases or redemptions or withdrawals by such Advisory Client after the
Base Date) and prior to December 15, 2007, but not including any contributions or purchases
by the Purchaser, the Seller, the Principals or any of their Affiliates, family members or
“associates” (as such term is defined in Rule 12b-2 under the Exchange Act). For the
avoidance of doubt, the calculation of “December 15 Assets Under Management” is intended to
exclude any market appreciation or depreciation of assets under management following the
Base Date.
“December 15 Fee Rate” means, with respect to any Advisory Client, an amount
equal to the actual fee rate payable to the Company pursuant to the Advisory Contract of
such Advisory Client that is in effect as of December 15, 2007, calculated on a pro-forma
basis with respect to the 12-month period commencing on December 15, 2007.
2. Purchase Price Adjustment. A new Section 2.8 is added to the Original
Agreement as follows:
Section 2.8 Post-Closing Adjustment Based on Changes in Revenue Run-Rate.
(a) The Purchaser shall prepare (or cause to be prepared) in good faith, and shall
deliver to the Seller not later than 5:00 p.m. on December 20, 2007, a statement showing a
calculation, in reasonable detail, of the Aggregate December 15 Advisory Revenue Run-Rate.
(b) The Purchaser shall, and shall cause the Company and its advisers, counsel and
accountants to, give the Seller and its advisers, counsel and accountants reasonable access
to the Company’s books, records and personnel in order to enable the Seller to review the
statement delivered by the Purchaser pursuant to Section 2.8(a). If the Seller disputes
such statement or any amounts or calculations contained therein, the Seller shall give a
written notice of such dispute to the Purchaser within 15 days following the delivery of
such statement and such dispute thereafter shall be resolved as follows:
(i) The Seller and the Purchaser shall first attempt to reconcile their
differences, and any resolution by them as to any disputed amounts or calculations
shall be final, binding and conclusive on the parties hereto.
(ii) If the Seller and the Purchaser are unable to reach a resolution with such
effect within 10 Business Days, the Seller and the Purchaser shall submit the items
remaining in dispute for resolution to the Accounting Firm, which shall, within 15
Business Days after such submission, determine and report to the Seller and the
Purchaser upon such remaining disputed items or calculations, and such report shall
be final, binding and conclusive on the Seller and the Purchaser. The
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Purchaser and the Seller shall make reasonably available to the Accounting Firm all
relevant books and records, any work papers (including those of the parties’
respective accountants, to the extent applicable) and supporting documentation
relating to the determination of the Aggregate December 15 Advisory Revenue
Run-Rate. The fees and disbursements of the Accounting Firm shall be borne equally
by the Purchaser and the Seller.
(c) The calculation of the Aggregate December 15 Advisory Revenue Run-Rate
shall be deemed final for purposes of this Section 2.8 upon the earliest of the following:
(i) the failure of the Seller to notify the Purchaser of a dispute within 15 days
following the delivery of the statement pursuant to Section 2.8(a); (ii) the
resolution of all disputes by the Seller and the Purchaser pursuant to clause (i) of
Section 2.8(b); or (iii) the resolution of all disputes by the Accounting Firm
pursuant to clause (ii) of Section 2.8(b).
(d) If the December 15 Adjusted Purchase Price, as finally determined, is less than the
Closing Payment (as adjusted pursuant to Section 2.5 but without regard to any adjustment
pursuant to Section 2.6), then no payment shall be due under this Section 2.8.
(e) If the December 15 Adjusted Purchase Price, as finally determined, exceeds the
Closing Payment (as adjusted pursuant to Section 2.5 but without regard to any adjustment
pursuant to Section 2.6), then the Purchaser shall pay the Seller an amount equal to such
excess within five Business Days after such final determination.
(f) Notwithstanding anything in this Agreement to the contrary, the sum of the Closing
Payment (as adjusted pursuant to Section 2.5 but without regard to any adjustment pursuant
to Section 2.6) plus any amount payable under Section 2.8(e) shall not exceed $66.4 million,
and any amount payable under Section 2.8(e) that would cause such sum to exceed $66.4
million shall be reduced so that such sum equals $66.4 million.
3. Closing Conditions. Section 8.1(d) of the Original Agreement is amended and
restated in its entirety to read as follows:
(d) Fund Board Approvals; Fund Shareholder Approvals; Sponsored Fund Consents.
The following consents and approvals, which shall not be subject to any requirements or
conditions that are not reasonably acceptable to the Purchaser, shall have been obtained:
(i) (A) Fund Board Approvals with respect to each of the Sub-Advised Funds
(other than the Sub-Advised Funds listed on Schedule 8.1(d)) and (B) Fund
Shareholder Approvals with respect to each of the Sub-Advised Funds (other than the
Sub-Advised Funds listed on Schedule 8.1(d)), and (ii) Sponsored Fund Consents with
respect to each of the Sponsored Funds.
4. Defined Terms — General. All capitalized terms used but not defined in this
Amendment have the meanings given them in the Original Agreement. All references in the Original
Agreement to “this Agreement” mean the Original Agreement as amended by this Amendment.
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5. Continuing Effect. Except as modified by this Amendment, the Original Agreement
remains in full force and effect, without change.
[Signature Page Follows]
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The undersigned have executed this Amendment as of the date first written above.
| Purchaser: XXXXX XXXXXXX INVESTMENT MANAGEMENT INC. |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President | |||
| Parent: XXXXX XXXXXXX COMPANIES |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| Seller: WG CAR, LLC By: X.X. Xxxxxxxxx, Inc., its Manager |
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| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | President | |||
| Principals: |
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| /s/ Xxxxxxx X. Xxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||
| /s/ Xxxxxx X. Xxxxxxxxx, Xx. | ||||
| Xxxxxx X. Xxxxxxxxx, Xx. | ||||
| /s/ Wiley X. Xxxxxx | ||||
| Wiley X. Xxxxxx | ||||
| /s/ Xxxxx X. Xxxxxxx, Xx. | ||||
| Xxxxx X. Xxxxxxx, Xx. | ||||
| /s/ Xxxxxxxx Xxxx | ||||
| Xxxxxxxx Xxxx | ||||
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