Exhibit 2.3
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "First Amendment")
is made and entered into as of this 29th day of May, 2001, by and between CPM
Acquisition Corp., a Delaware corporation ("Buyer"), and Consolidated Process
Machinery, Inc., a California corporation ("Seller") and Debtor and Debtor in
Possession under a case (the "Case") in the United States Bankruptcy Court for
the Middle District of Florida (the "Bankruptcy Court"), and amends that certain
Asset Purchase Agreement, dated as of March 21, 200l (the "Purchase Agreement"),
by and between Seller and Buyer.
WHEREAS, Buyer and Seller have previously entered into the Purchase
Agreement; and
WHEREAS, Buyer and Seller desire to amend the Purchase Agreement as set
forth herein; and
WHEREAS, capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as
follows:
1. The following new Section 1.1.8 is hereby added to the Purchase Agreement:
1.1.8 Purchased Subsidiary Cash. Cash owned by the Purchased
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Subsidiaries as follows: (i) cash owned by CPM Pacific (Private) Ltd in an
amount equal to the domestic currency equivalent of US$100,000; (ii) cash
owned by CPM Europe S.A. in an amount equal to the domestic currency
equivalent of US$40,000; (iii) cash owned by CPM Europe B.V. in an amount
equal to the domestic currency equivalent of US$280,000; (iv) cash owned by
CPM Europe Ltd in an amount equal to the domestic currency equivalent of
US$50,000; (v) cash owned by California Pellet Mill Europe Ltd. in
an, amount equal to the domestic currency equivalent of US$10,000, and (vi)
any amount greater than the sums enumerated above shall be deemed Purchased
Subsidiary Cash only to the extent of the value of such amount after
deduction of any applicable taxes, fees or other charges assessed on the
repatriation of such amount. (collectively, the actual amounts on the
date hereof, "Purchased Subsidiary Cash"),
2. Section 1.2, subparagraph (ii) of the Purchase Agreement is hereby amended
to read as follows: "(ii) all cash (other than Purchased Subsidiary Cash), cash
equivalents and marketable securities (including cash, cash equivalents and
marketable securities, other than Purchased Subsidiary Cash, owned by the
Purchased Subsidiaries);"
3. Section 1.2 of the Purchase Agreement is hereby amended by adding, at the
end thereof, the following new sentence:
"Buyer shall use all reasonable efforts to cause the payment to Seller of
any amount previously declared as a dividend by CPM Pacific (Private) Ltd.
("CPM Pacific") in respect of cash on hand on the Closing Date at CPM
Machinery (Wuxi) Pte. Ltd. ("Wuxi"), to the extent such cash can be lawfully
removed from the Peoples Republic of China, and in respect of cash payments
in at least the amount of $460,227 for purchases made by Wuxi from CPM
Pacific (which amount Seller certifies to Buyer as being in transit from
Wuxi to CPM Pacific at the time of Closing); provided, however, that any
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such payment shall be made to Seller after deduction of any and all
applicable taxes, fees or charges of any kind whatsoever, including any
applicable taxes in respect of dividends declared prior to the Closing.
5. Section 2.3.3 of the Purchase Agreement is hereby deleted in its entirety
and the following new Section 2.3.3 substituted in is place:
2.3.3 If the Modified Working Capital Statement reflects
Modified Working Capital of greater than $18,900,000, then Seller shall be
entitled to payment in the amount of such excess (the "Seller Closing
Adjustment") in immediately available funds, provided, however, that under
no circumstances shall Buyer be obligated to make payment in respect of the
Seller Closing Adjustment in excess of $500,000 plus the Purchased
Subsidiary Cash.
6. The following new Section 3.3.6 is hereby added to the Purchase Agreement:
3.3.6 A certificate signed on behalf of Seller and acceptable to
Buyer certifying that all intercompany accounts by and among the Purchased
Subsidiaries and Seller and/or any affiliate of Seller have been
extinguished at or prior to the Closing, preserving only a payable in the
amount of $180,000 owing from CPM Europe B.V. to Seller, Seller and Buyer
agree that, notwithstanding anything herein to the contrary, the parties
hereto agree that such payable shall not be paid directly but shall be
netted against amounts owed by Seller to Buyer under Section 2.3.2 of the
Purchase Agreement.
7. All references to the Purchase Agreement in each document annexed as an
exhibit or schedule thereto shall be references to the Purchase Agreement as
amended by this First Amendment.
8. The parties have, for purposes of prorations required under Section 3.5,
credited Buyer in the amount of $500,000 for liabilities associated with income
taxes payable by the Purchased Subsidiaries (the "Tax Amount"). The parties
agree that such amount, together with all other prorations, shall be used as a
basis for preparing the Modified Working Capital Statement. The parties further
agree that if the Tax Amount, or any portion thereof, has been paid, such amount
shall be treated as a prepayment and such amount shall be credited to the Seller
in the Modified Working Capital Statement.
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9. Seller covenants to deliver to Buyer any technical drawings located at CPM
Brazil, Inc. relating to processing machinery (whether or not such drawings
constitute Property) as soon as it gains control thereof and when such delivery
is possible under applicable law, if ever.
10. Buyer and Seller have agreed to eliminate the Working Capital Escrow and in
connection therewith, the deposit of Working Capital Escrow Amount shall not be
made by Buyer at Closing. In lieu thereof, Seller shall receive a credit in the
amount of One Million Ten Thousand Three Hundred Seventeen and 00/xx Dollars
($1,010,317.00) against any sums due to Buyer under Section 2.3.2 of the
Purchase Agreement.
11. Except as expressly provided in this First Amendment, all of the terms and
conditions of the Purchase Agreement and the exhibits and schedules thereto
remain unchanged and in full force and effect.
12. This First Amendment may be executed in separate counterparts, each of
which shall be deemed an original, and all of which together shall be deemed a
fully executed agreement.
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IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered as of the date first above written.
CPM Acquisition Corp.
By: /s/ I. Xxxxxx Xxxxxxx
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Name: I. XXXXXX XXXXXXX
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Its: PRESIDENT
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Consolidated Process Machinery, Inc.
Debtor and Debtor In Possession
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Its: Vice President
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CLOSING PRORATIONS
As of the Closing on May 30, 2001, under the Asset Purchase Agreement by
and between CPM Acquisition Corp., a Delaware corporation and Consolidated
Process Machinery, Inc., a California corporation.
Purchase Price: $52,000,000.00
Prorations:
(a) Per Attached Schedule A $ 9,836.97
(2) Income Taxes on Foreign
Subsidiary (Estimated) (500,000.00)
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$ 490,163.03 (490,163.03)
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Net Purchase Price: 51,509,836.97
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Less: Elimination of Working Capital
Escrow and credit towards
Buyer Closing Adjustment (1,000,000.00)
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Less: Aggregate "stay" bonus obligation
to be paid by Buyer (460,000.00)
Total to Credit Lyonnaise /1/: $50,049,836.97
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Less: Deposit Escrow (5,029,324.03)
Total Due from Buyer at Closing: $45,020,512.94
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[SIGNATURES APPEAR ON NEXT PAGE]
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/1/ Includes Deposit Escrow plus Total Due from Buyer at Closing. Due not
include $950, 163.03 that Buyer will pay Credit Lyonnaise to bring the total
payment to Credit Lyonnaise to $51,000,000.00.
ACKNOWLEDGED AND AGREED AS OF THE DATE
WRITTEN ABOVE:
CONSOLIDATED PROCESS MACHINERY, INC.
By: /s/ Xxxx X. Xxxxxxx
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Its: _____________________
CPM ACQUISITlON CORP.
By:
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Its: President
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