Exhibit 2.2
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FIRST AMENDMENT dated as of May 2, 2002 (this "Amendment"), to the
Purchase Agreement dated as of January 12, 2002 (the "Purchase Agreement"),
by and among Rodamco North America, N.V. in liquidatie, an investment
company with variable capital, incorporated under the laws of The
Netherlands ("Target"), Westfield America Limited Partnership, a Delaware
limited partnership, Westfield Growth, LP, a Delaware limited partnership
("Wallaby Acquisition Sub"), Simon Property Group, L.P., a Delaware limited
partnership, Hoosier Acquisition, LLC, a Delaware limited liability company
("Hoosier Acquisition Sub"), The Xxxxx Company, a Maryland corporation, and
Terrapin Acquisition, LLC, a Maryland limited liability company ("Terrapin
Acquisition Sub" and, together with Wallaby Acquisition Sub and Hoosier
Acquisition Sub, "Purchasers"; Purchasers are sometimes referred to herein
individually as "Purchaser"). Each capitalized term used and not otherwise
defined herein shall have the meaning assigned to such term in the Purchase
Agreement.
WHEREAS, pursuant to the Purchase Agreement, Target has agreed to sell
to Purchasers, and Purchasers have agreed to purchase from Target, the
Assets; and
WHEREAS, Purchasers and Target desire to modify the Purchase Agreement
in accordance with the provisions of Section 9.9 thereof.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Amendments to the Purchase Agreement.
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(a) The definition of "Australian Amount" contained in Section 1.1 of
the Purchase Agreement is deleted in its entirety and the following
substituted therefor:
"Australian Amount" means the sum of (i) 0.498508437% of the
amount in Euros payable solely in respect of the common stock of
Hexalon in connection with the merger contemplated by the Hexalon
Merger Agreement plus (ii) an amount (the "Waiver Amount") in Euros
equal to $1,541,500.80 converted at the Noon Buying Rate published by
the Federal Reserve Bank in New York City on the date two (2) days
prior to the Closing, the aggregate of which shall in no event exceed
(euro)7,300,000.
(b) The definition of "Protocol" contained in Section 1.1 of the
Purchase Agreement is deleted in its entirety and the following substituted
therefor:
"Protocol" means the Amended and Restated Distribution and
Liquidation Protocol, dated as of April 30, 2002, among Purchasers,
the Parent Entities and Target.
(c) The definition of "Retained Assets" contained in Section 1.1 of
the Purchase Agreement is deleted in its entirety and the following
substituted therefor:
"Retained Assets" means the Purchase Price (reduced by an amount
equal to (x) the Waiver Amount less (y) the aggregate amount paid by
Target to Minority Stockholders who validly deliver a Release and
Waiver on or before the Expiration Date (each as defined in the
Solicitation Statement) in accordance with the terms of the
Solicitation Statement, any proceeds thereof, any rights of Target
under the Transaction Documents and any equity interests in the Target
Non-Purchased Entities.
(d) Section 1.1 of the Purchase Agreement is hereby amended by adding
the following definitions in the appropriate alphabetical order:
"Hexalon Merger Agreement" means the Merger Agreement, dated as
of May 3, 2002, by and among Hexalon, HRE Merger Co., Inc. and Hex
Holdings, LLC."
"Solicitation Statement" means the Release and Waiver
Solicitation Statement of Target, dated as of April 15, 2002, and
supplemented as of May 3, 2002, attached as Exhibit D hereto."
(e) All references in the Purchase Agreement to "H&T" are hereby
deleted and the word "WH&T" is hereby substituted in replacement thereof.
(f) Section 2.2(b) shall be amended by adding the following sentence
at the end of Section 2.2(b):
"All such payments by Purchasers to the applicable sellers of
assets shall be considered as partial payments of the Purchase Price."
(g) Section 2.3(b)(ii) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
(ii) liabilities that arise from any act or omission of any
agent, officer, managing or supervisory director or employee of Target
or any Target Non-Purchased Entity that occurs after the Closing Date,
other than liabilities (other than Excluded Taxes) that arise out of
the good faith actions of any agent, officer, employee, managing or
supervisory director or liquidator of any Target Non-Purchased Entity
taken, and reasonably necessary to effect the distribution of the
Purchase Price to Target's shareholders and the liquidation of the
Target Non-Purchased Entities, each in accordance with the terms and
conditions of the Protocol;
(h) Section 2.3(b)(iii) of the Purchase Agreement is hereby amended by
deleting the word "and" at the end thereof.
(i) Section 2.3(b)(iv) of the Purchase Agreement is hereby amended by
deleting the period (".") at the end of the subparagraph and adding "; and"
at the end thereof.
(j) Section 2.3(b) of the Purchase Agreement is hereby amended by
adding the following subparagraph after subparagraph (iv) therein as
follows:
(v) any and all obligations and liabilities arising from the
issuance by Target, formerly known as Rodamco N.V., of $350,000,000
7.30% Notes due 2005 and $150,000,000 7.75% Notes due 2015
(collectively, the "Notes") and arising from that certain Indenture,
dated as of May 15, 1995 (as amended to date, the "Indenture"),
between Rodamco N.V. and State Street Bank and Trust Company, as
trustee (the "Trustee"), pursuant to which the Notes were issued,
except for the obligations and liabilities arising under Article VI of
the Indenture, which obligations shall be Assumed Liabilities
hereunder.
(k) The first sentence of Section 5.11(a) of the Purchase Agreement is
hereby amended and restated as follows:
It is understood and agreed that, subject to the limitations on
indemnification under applicable law, Hoosier, Terrapin and Wallaby
(the "Indemnifying Parties") shall, to the fullest extent permitted
under applicable law, indemnify and hold harmless, for a period of six
years following the Closing, (x) each present and former managing or
supervisory director, officer and employee of the Target or any Target
Subsidiary against any costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any
claim, action, suit, proceeding or investigation (collectively,
"Losses") arising out of any action taken or omission occurring, in
his or her capacity as a managing or supervisory director, officer or
employee of the Target or any Target Subsidiary, at or prior to the
Closing Date, (y) each present and former managing or supervisory
director, officer and employee of any Target Non-Purchased Entity
against any Losses arising out of his or her good faith actions in
connection with the distribution of the Purchase Price to Target's
shareholders and the liquidation of the Target Non-Purchased Entities,
in each case, in accordance with the terms and conditions of the
Protocol and (z) each liquidator of a Target Non-Purchased Entity who
is duly appointed by the shareholders of such entity (which
liquidators for Target shall initially be Xxxxx Xxxxx, Xxxxxx X. Xxxx,
Xxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx) (together
with the persons with indemnification rights pursuant to clauses (x)
and (y) above, collectively, the "Indemnified Parties"), against any
Losses arising out of his or her good faith actions in connection with
the distribution of the Purchase Price to Target's shareholders and
the liquidation of the Target Non-Purchased Entities in accordance
with the terms and conditions of the Protocol; provided, that the
Indemnifying Parties shall not be liable for any settlement effected
without their prior written consent (which consent shall not be
unreasonably withheld).
(l) Section 5.11(b) of the Purchase Agreement is hereby amended and
restated as follows:
(b) For a period of six years after the Closing Date, the
Indemnifying Parties will maintain in effect the existing directors'
and officers' liability insurance covering the Indemnified Parties who
are currently covered by Target's and the Target Subsidiaries'
officers and directors liability insurance policies (copies of which
policies have been provided to Purchasers) on terms not less favorable
than those in effect on the date hereof in terms of coverage and
amounts and which provide coverage to Xxxxx Xxxxx, Xxxxxx X. Xxxx, Xxx
X. Xxxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx as to claims
arising out of the good faith actions of such persons in connection
with the distribution of the Purchase Price to Target's shareholders
and the liquidation of the Target Non-Purchased Entities, in each case
in accordance with the terms and conditions of the Protocol; provided,
however, that if the aggregate annual premiums for such insurance at
any time during such period exceed the per annum rate of premium paid
by Target for such insurance as of the date of this Agreement, then
the Indemnifying Parties shall provide the maximum coverage that will
then be available at an annual premium equal to 175% of such per annum
rate as of the date of this Agreement.
(m) Section 5.11(f) of the Purchase Agreement is hereby amended by
adding the following sentence at the end of Section 5.11(f):
Following the Closing, Purchasers and the Purchaser Designees
shall indemnify and hold harmless Target against any claims arising in
respect of the Notes or the Indenture.
(n) Article V of the Purchase Agreement is hereby amended by inserting
the following Section 5.17 and Section 5.18 at the end of such Article:
SECTION 5.17 Hexalon. On or before the Closing Date, Target shall
cause Hexalon to (i) adopt a plan of liquidation in a form
satisfactory to the Purchasers and (ii) enter into the Hexalon Merger
Agreement, pursuant to the terms of which HRE Merger Co., Inc., a
Delaware corporation ("Hexalon Acquisition Sub"), will merge with and
into Hexalon, with Hexalon as the surviving entity. On the Closing
Date, Target shall cause Hexalon to sell, and the Purchasers shall
purchase (or cause their designees to purchase) such assets as the
Purchasers designate. On the Closing Date, in accordance with the
provisions of the Hexalon Merger Agreement, Target and Purchasers
shall cause Hexalon to merge with Hexalon Acquisition Sub and
certificates representing shares of common stock in Hexalon shall
automatically be converted into the right to receive cash per share
equal to the per share merger consideration as set forth in the
Hexalon Merger Agreement (the "Merger Consideration"). On the Closing
Date, Purchasers agree to cause Hexalon to (i) pay the Merger
Consideration payable in respect of the shares of common stock of
Hexalon owned of record by any Target Non-Purchased Entity to such
record holder, subject solely to delivery of a receipt in form and
substance satisfactory to Purchasers and (ii) deposit the balance of
the Merger Consideration with a paying agent under terms and
conditions reasonably satisfactory to Target.
SECTION 5.18. Notes. At the Closing, the Purchasers shall cause
to be delivered, on behalf of Target, to the trustee or escrow agent
described below an amount of cash and/or U.S. government securities
(the "Notes Contribution") sufficient to fund any remaining principal
and interest payments on the Notes (the "Note Payments") as those
payments become due. Target is only authorized to use, and covenants
that it shall only use, the Notes Contribution to fund an irrevocable
trust with the Trustee, another trustee or an escrow agent approved by
the Purchasers for the benefit of the holders of the Notes to satisfy
the Note Payments. The irrevocable trust agreement shall be in the
form and on the terms as set forth in Exhibit E attached hereto or in
such other form or on such other terms as the Purchasers shall agree.
(o) Section 9.16 of the Purchase Agreement is hereby amended and
restated as follows:
SECTION 9.16 Joint and Several Obligations. Subject to the
following proviso, all obligations of any Purchaser Party hereunder
shall be joint and several obligations of all of the Purchaser
Parties; provided, however, that no obligation of a Purchaser under
Section 2.3, the second sentence of Section 5.11(f) or Article VI
hereof shall be a joint and several obligation of any Parent Entity.
(p) The Solicitation Statement attached hereto as Annex A shall be
attached to the Purchase Agreement as Exhibit D thereto.
(q) The Irrevocable Trust Agreement attached hereto as Annex B shall
be attached to the Purchase Agreement as Exhibit E thereto.
(r) Schedule 1.1 "Target Non-Purchased Entities" to the Target
Disclosure Letter is hereby amended and restated in its entirety to read as
set forth in Annex C hereto.
Section 2. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable
to contracts executed in and to be performed entirely within that state,
without regard to conflicts of law principles. All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined
in any New York state or federal court sitting in the City of New York.
Section 3. Headings. The headings of this Amendment are for purposes
of convenience only and shall affect the meaning or interpretation of this
Amendment.
Section 4. Counterparts. This Amendment may be executed (including by
facsimile transmission) with counterpart signature pages or in several
counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same instrument.
Section 5. Effect of Amendment. Except as expressly amended by this
Amendment, the Purchase Agreement shall remain in full force and effect as
the same was in effect immediately prior to the effectiveness of this
Amendment. All references in the Purchase Agreement to "this Agreement"
shall be deemed to refer to the Purchase Agreement as amended by this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and
year first above written.
RODAMCO NORTH AMERICA, N.V.
IN LIQUIDATIE
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
WESTFIELD AMERICA LIMITED PARTNERSHIP
By: Westfield America, Inc., its general
partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President and Chief Executive
Officer
WESTFIELD GROWTH, LP
By: Westfield Growth II, LP, its general
partner
By: Westfield Centers, LLC, its general
partner
By: Westfield America Limited
Partnership, its sole member
By: Westfield America, Inc., its general
partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President and Chief Executive
Officer
SIMON PROPERTY GROUP, L.P.
By: Simon Property Group,
Inc., its general partner
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
HOOSIER ACQUISITION, LLC
By: Simon Property Group, L.P., its
managing member
By: Simon Property Group, Inc., its
general partner
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
THE XXXXX COMPANY
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
TERRAPIN ACQUISITION, LLC
By: TRCGP, Inc., its managing member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
