Exhibit 2(b)
AMENDMENT NO. 3
Dated as of May 4, 1999
to
TRANSACTION AGREEMENT
Dated as of July 12, 1998
By and Between
THE BLACK & XXXXXX CORPORATION
and
XXXXXX HOLDING AG
AMENDMENT NO. 3 TO TRANSACTION AGREEMENT
This Amendment No. 3 to Transaction Agreement ("Amendment No. 3") is
made as of the 4th day of May, 1999, by and between The Black & Xxxxxx
Corporation, a Maryland corporation ("Black & Xxxxxx"), and Xxxxxx Holding AG, a
Swiss corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Black & Xxxxxx, through certain of its direct and indirect
Subsidiaries, was engaged in the Glass Machinery Business;
WHEREAS, Black & Xxxxxx and Buyer entered into a Transaction Agreement
dated as of July 12, 1998 (the "Agreement") pursuant to which Black & Xxxxxx
agreed to sell and Buyer agreed to purchase the Glass Machinery Business upon
the terms and subject to the conditions set forth therein;
WHEREAS, Black & Xxxxxx and Buyer entered into an Amendment No. 1 to
Transaction Agreement dated as of September 21, 1998 amending the Agreement (the
"First Amendment");
WHEREAS, Black & Xxxxxx and Buyer entered into an Amendment No. 2 to
Transaction Agreement dated as of November 20, 1999 amending the Agreement (the
"Second Amendment");
WHEREAS, Black & Xxxxxx and Buyer desire to amend certain of the
Agreement in accordance with the terms of this Amendment No. 3;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, the parties agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein
have the meanings given to them in the Agreement. In addition, the following
term shall have the following meaning:
"Notice of Objections" means Buyer's February 5, 1999 notice of its
objections to the Proposed Final Net Tangible Asset Amount as provided by Black
& Xxxxxx to Buyer on November 20, 1998.
Section 2. Amendments. The Agreement, the First Amendment and the
Second Amendment are hereby amended as follows:
2.01. The parties agree that the Final Net Tangible Asset Amount is
$61,295,000. Such Final Net Tangible Asset Amount represents a $6,200,000
reduction of the Proposed Final Net Tangible Asset Amount which reduction of the
Exchange Consideration shall be allocated to Transferred Assets located in
Switzerland. On May 14, 1999, in accordance with Section 2.04(c) of the
Agreement, Black & Xxxxxx shall pay to Buyer the sum of $11,370,000 representing
the difference between $61,295,000 and $72,665,000. Notwithstanding any contrary
provision of the Agreement, no interest shall be due on such payment.
2.02. Section 2.04(f) is hereby amended by providing that the
$15,344,000 payment to be made by Buyer to Black & Xxxxxx thereunder shall be
made on May 14, 1999. Notwithstanding any contrary provision of the Agreement,
no interest shall be due on such payment.
2.03. Section 7.09 of the Agreement is hereby amended to provide that
Black & Xxxxxx will pay to Buyer the sum of $7,000,000 on May 14, 1999 as an
advance reimbursement of the restructuring costs that are described in such
section. Such payment shall fully satisfy all of Black & Xxxxxx'x obligations
under Section 7.09 of the Agreement.
2.04. Section 10.02(b) of the Agreement is hereby amended by adding to
the end of such section the following clauses:
(v) the ALVER performance bond guaranteed by the Union Bank of
Switzerland as described in Sections B.2 and B.3 of the Notice of
Objections; and (vi) the ENAVA performance bond guaranteed by the
Midland Bank as described in Section D.2 of the Notice of Objections.
2.05. Section 10.04(b) of the Agreement is hereby amended by adding to
the end of such section the following clauses:
(iii) with respect to the matter described in Section
10.02(b)(v), to the extent of the first $200,000 of Damages incurred by
all Indemnified Parties as a result thereof; and
(iv) with respect to the matter described in Section
10.02(b)(vi), to the extent that the Damages incurred by all
Indemnified Parties as a result thereof exceed $92,000.
2.06. This Amendment No. 3 is intended by the parties to constitute a
settlement of all matters raised in the Notice of Objections and, except as
expressly provided for herein, Buyer hereby releases and discharges Black &
Xxxxxx from each and every obligation, claim, liability or expense for which
Black & Xxxxxx or any of its Affiliates may be or become liable to Buyer or any
of its Affiliates with respect to any and all of the matters raised in the
Notice of Objections.
IN WITNESS WHEREOF, the parties hereto caused this Amendment No. 3 to
be duly executed by their respective authorized officers on the day and year
first above written.
THE BLACK & XXXXXX CORPORATION
By: /s/XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title:
XXXXXX HOLDING AG
By: /s/XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title:
