EXHIBIT 99.2
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AMENDMENT
TO
AGREEMENT OF PURCHASE AND SALE OF ASSETS AND STOCK
THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE OF ASSETS AND STOCK
(this "Amendment"), is made as of September 30, 1998, by and between ILLINOIS
TOOL WORKS INC., a Delaware corporation ("Purchaser"), and BINKS XXXXX
CORPORATION, a Delaware corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller have previously entered into that certain
Agreement of Purchase and Sale of Assets and Stock dated August 31, 1998 (the
"Agreement"); and
WHEREAS, Purchaser and Seller desire to amend the Agreement in certain
respects, as provided herein.
NOW, THEREFORE, in consideration of the premises and the other
agreements contained herein and in the Agreement, the parties hereto hereby
agree as follows:
1. AMENDMENTS TO AGREEMENT.
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1.1 All references in the Agreement and in any Schedule to "Binks
Xxxxx International, S.A." are hereby amended to refer to
"Binks Xxxxx, X.X."
1.2 Section 1.2 of the Agreement is hereby amended to add the
following:
1.2.15 all rights in and to the bank accounts listed
on Schedule 1.2.15.
1.3 Section 1.5 of the Agreement is hereby amended to add the
following:
1.5.1.4 Any and all liabilities, obligations and
commitments relating to, incurred or arising under
any of the foreign loan documents listed on Schedule
1.5.1.4 as of the Closing Date (the "Foreign Debt").
For purposes of this Section 1.5.1.4, the parties
acknowledge and agree that as the exact amount of
Foreign Debt is not determinable on the Closing Date,
such amount shall be estimated on the Closing Date
with a final accounting and adjustment to occur
concurrently with the Purchase Price adjustment in
accordance with the provisions of Section 2.3 to
reflect the exact amount of Foreign Debt assumed by
Purchaser on the Closing Date. For purposes of
calculating the estimated Foreign Debt assumed by
Purchaser hereunder, the parties agree to use the
applicable conversion values set forth in the Wall
Street Journal on the day preceding the
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Closing Date. For purposes of the final accounting
and adjustments to Foreign Debt, the parties agree to
use the applicable conversion values set forth in the
Wall Street Journal on the Closing Date. The Foreign
Debt shall not be included as a liability on the
Closing Balance Sheet. If Seller or an affiliate of
Seller which is not being sold to Purchaser hereunder
has guaranteed any Foreign Debt, Purchaser will
promptly obtain releases of all such guarantees
following the Closing.
1.4 The last sentence of Section 6.11 of the Agreement is hereby
deleted and the following is inserted in its place:
The payment to be made at Closing has been agreed
upon and is reflected in an attachment to the
Reconciliation of Purchase Price and Funds Flow
Memorandum. Until a final accounting is prepared as
discussed in the following sentence, all intercompany
payables will be paid within sixty (60) days of the
applicable invoice date unless, with respect to
outstanding projects, the parties have entered into a
written agreement which provides for different terms.
A final accounting will be based upon the Closing
Balance Sheet to be prepared in accordance with the
provisions of Section 2.3 hereof and payment shall be
made when the Closing Balance Sheet becomes final. To
the extent any disputed items are included in the
payment at Closing or otherwise exist as of the
Closing, such items will be reconciled in the Closing
Balance Sheet.
1.5 Section 6.16 of the Agreement is hereby deleted in its
entirety and restated to read as follows:
Binks Xxxxx Scandinavia AB. Prior to or concurrently
with the Closing, the Seller shall cause Binks Xxxxx
(UK) Ltd. to transfer all of the issued and
outstanding shares of the capital stock of Binks
Xxxxx Scandinavia AB (the "Binks Scandinavia Shares")
to Seller in consideration for the cancellation of
US$550,000 of the outstanding payables balance owed
by Binks Xxxxx (UK) Ltd. to Binks Xxxxx Corporation
on the Closing Date. Following the Closing, Purchaser
shall cause Midland Bank Plc to release its lien on
the Binks Scandinavia Shares.
1.6 Section 9.1 of the Agreement is hereby amended by adding the
following:
9.1.6 Any and all losses, liabilities or damages
suffered or incurred by Purchaser by reason of or in
connection with any claims of retirees under the
Executive Retirement Income Contracts.
1.7 Section 10.1 of the Agreement is hereby deleted in its
entirety and restated to read as follows:
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10.1 Term. Purchaser's right to indemnification under
Section 9 shall apply with respect to the matters
covered by Section 9.1, or elsewhere pursuant to this
Agreement only to those matters, written notice of
which shall have been delivered by hand or by mail
not later than two (2) years, except that: (i) with
respect to any tax liability or expense covered by
Section 3.7, such right shall apply until the
expiration of the applicable statutes of limitation
or until six (6) months after the assessment of taxes
has become final with respect to taxes related to
Acquisition Assets located outside the United States
or owned by a Foreign Subsidiary; (ii) with respect
to the breach of any environmental warranty covered
under Section 3.22, such right shall apply until
September 30, 2003; and (iii) with respect to claims
under any Executive Retirement Income Contract, such
right shall apply until the earlier of (x) the
expiration of the all of the Executive Retirement
Income Contracts, or (y) the full funding of the
Rabbi Trust.
1.8 Section 15.5 of the Agreement is hereby amended by adding the
following at the end of the first sentence:
The parties hereby acknowledge that all Provincial
Sales Taxes ("PST") applicable in Ontario and British
Columbia are the obligation of the Purchaser and are
required to be remitted by the Seller no later than
the end of the calendar month following the Closing
Date (the "Filing Deadline"). The parties further
acknowledge that no Goods and Service Tax ("GST")
shall be imposed on the transaction in Canada
provided the parties make an election not to pay the
GST because of a "sale of business" exemption by
jointly filing Form GST 44E. Purchaser and Seller
shall each use its reasonable best efforts to remit
the required PST and file Form GST 44E on or before
the Filing Deadline. In the event either party fails
to remit the required PST and/or file Form GST 44E on
or before the Filing Deadline, such party shall be
liable for any and all interest and/or penalties
imposed as a result of such failure.
2. MISCELLANEOUS.
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2.1 The Agreement is incorporated herein by this reference.
2.2 The Purchaser hereby acknowledges receipt of the Amended and
Restated Disclosure Schedules attached hereto; provided,
however, that such acknowledgment shall not be deemed a waiver
by Purchaser of any breach by Seller of its representations
and warranties contained in the Agreement and related
Schedules as of August 31, 1998.
2.3 Except as otherwise set forth herein, the Agreement shall
remain in full force and effect and the parties shall have all
the rights and remedies provided thereunder.
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2.4 The provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective executors,
heirs, personal representatives, successors and assigns.
2.5 This Amendment may be executed and delivered in several
counterparts with the intention that all such counterparts,
when taken together, shall constitute one and the same
instrument.
2.6 One or more counterparts of this Amendment may be delivered
by facsimile, with the intention that delivery by such means
shall have the same effect as delivery of an original
counterpart thereof.
2.7 The section headings contained in this Amendment are for
convenience of reference only and in no way shall modify any
of the terms or provisions hereof or of the Agreement.
2.8 Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment
as of the day and year first above written.
BINKS XXXXX CORPORATION ILLINOIS TOOL WORKS INC.
By:/s/ Xxxxxxx X. Xxxxxxxx By:/s/ Xxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxxx Its: Executive Vice President
Chief Financial Officer
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