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AMENDMENT NO. 1
TO THE
PURCHASE AGREEMENT
among
KONINKLIJKE PHILIPS ELECTRONICS N.V.,
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION,
PHILIPS BROADBAND NETWORKS, INC.
and
X-XXX.XXX CORP.
Dated as of September 15, 2002
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This AMENDMENT NO. 1 to the Original Purchase Agreement (this
"Amendment") is entered into as of September 15, 2002 among KONINKLIJKE PHILIPS
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ELECTRONICS N.V., a limited liability company organized under the laws of The
Netherlands ("Seller"), PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, a
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Delaware corporation ("PENAC"), PHILIPS BROADBAND NETWORKS, INC., a Delaware
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corporation (the "Company"), and X-XXX.XXX CORP., a Pennsylvania corporation
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("Purchaser") (each a "Party", and collectively, "Parties").
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WHEREAS, the Parties have entered into that certain Purchase Agreement,
dated as of July 8, 2002 (the "Original Purchase Agreement");
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WHEREAS, the Parties desire to make certain amendments to the Original
Purchase Agreement in accordance with Section 9.2 of the Original Purchase
Agreement;
WHEREAS, the Parties desire that, except as set forth herein, the
Original Purchase Agreement shall remain in full force and effect; and
WHEREAS, the capitalized terms used herein but not defined herein shall
have the meaning set forth in the Original Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and the agreements set
forth herein, and intending to be legally bound hereby, the Parties agree as
follows:
Section 1. Section 1.1 of the Original Purchase Agreement is amended by adding
the following defined terms:
"Local Closing" shall have the meaning set forth in Section
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2.2(b).
"Local Closing Date" shall have the meaning set forth in
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Section 2.2(b).
Section 2. The definition of the defined term "Transferred Employees" in Section
1.1 of the Original Purchase Agreement is amended and restated to read as
follows:
"'Transferred Employees' shall mean all employees of the
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Business listed on Schedule 5.4(l) of the Disclosure
Schedules, as amended by the Update to the Disclosure
Schedules."
Section 3. Section 2.1(a) of the Original Purchase Agreement is amended and
restated to read as follows:
"On the terms and subject to the conditions set forth herein,
at the Closing (or, for the Non-U.S. Assets and Non U.S.
Liabilities, at the relevant Local Closing), PENAC agrees, and
Seller agrees to cause PENAC, to sell, transfer, assign and
deliver the Company Shares, free and clear of any
Encumbrances, to Purchaser or its designee, and Seller further
agrees to sell, transfer, assign and deliver, or cause the
Local Sellers to sell, transfer, assign and deliver, to
Purchaser or its designees all of Seller's and each Local
Seller's right, title and interest in and to the Non-U.S.
Assets, and Purchaser agrees, and shall cause its designees to
agree, to purchase the Company Shares and all of Seller's and
each Local Seller's right, title and interest in and to the
Non-U.S. Assets (the "Purchase") for an aggregate purchase
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price of EUR 79,950,000, allocated among the Company Shares
and the Non-U.S. Assets (net of the Non-U.S. Liabilities) as
set forth on Schedule 2.1 (the "Purchase Price"), subject to
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adjustment pursuant to Section 2.3 below. The Purchase Price
shall be divided into (i) an amount of EUR 75,000,000 which
portion of the Purchase Price shall be paid, in immediately
available funds by wire transfer, at the Closing and (ii) an
amount of EUR 4,950,000 which portion of the Purchase Price
shall be paid promptly after the determination of the Final
Statement of Net Operating Capital pursuant to Section 2.3(d)
hereof; provided, however, that the portion of the Purchase
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Price payable pursuant to (ii) shall be netted with the Seller
Adjustment Payment, if any."
Section 4. Section 2.1(e) of the Original Purchase Agreement is amended by
replacing the term "Closing" with the words "applicable Local Closing".
Section 5. Section 2.2 of the Original Purchase Agreement is amended and
restated to read as follows:
"(a) Closing. The closing of the Purchase provided for in
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Section 2.1 hereof with respect to the Company Shares (the
"Closing") shall take place at the offices of Xxxxxxxx &
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Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx on September
16, 2002 provided the conditions set forth in Sections 6.1,
6.2 and 6.3 (other than those conditions that by their nature
are to be satisfied at the Closing but subject to the
fulfillment or waiver of those conditions) (the "Closing
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Conditions") shall have been satisfied or waived prior to
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September 12, 2002. If the Closing Conditions have not been
satisfied by September 12, 2002, the Closing shall occur on
the third Business Day after the satisfaction or waiver of all
Closing Conditions or on such other date and at such other
time and place as Seller and Purchaser may hereafter mutually
agree upon in writing. The date on which the Closing is to
occur as provided by this Section 2.2 is herein called the
"Closing Date" and the time and date on which the Closing is
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to occur as provided in this Section 2.2 are herein called the
"Closing Time". Notwithstanding the foregoing, the Closing
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shall for all purposes be deemed to occur at 12:01 a.m., New
York City time, on the Closing Date.
(b) Local Closings. Unless otherwise agreed in writing by
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Seller and Purchaser, individual closings of the Purchase with
respect to the Non-U.S. Assets (each a "Local Closing") shall
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occur on the Closing Date (except in the case of China in
which case such Local Closing shall occur three (3) Business
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Days following the date on which all requisite approvals for
the transfer of the Non-U.S. Assets and Non-U.S. Liabilities
that primarily relate to the Business as it is carried out in
China are obtained) (the "Local Closing Date") in accordance
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with the respective Local Asset Transfer Agreements and in
such places as are necessary to effect the transactions to be
consummated under such Local Asset Transfer Agreements,
provided that the conditions set forth in Sections 6.1, 6.2
and 6.3 or Section 6.4, as applicable, (other than those
conditions that by their nature are to be satisfied at the
Local Closing) shall have been satisfied or waived prior to
the applicable Local Closing Date.
(c) Effective Date. Notwithstanding (a) and (b) above, the
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portion of the Business transferred at the Closing and the
Local Closings shall be deemed to have been operated for the
account of Purchaser, and the risks and rewards of the
Business, including the profits, losses and liabilities, shall
accrue to the Purchaser from and after 12:01 a.m., New York
City time, on August 26, 2002 (the "Effective Date"). This
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paragraph (c) shall not otherwise limit the effect of any
representations, warranties, covenants, agreements or
conditions to the obligations of any of the Parties under the
Agreement as of the Closing Date."
Section 6. The first sentence of Section 2.3(a) of the Original Purchase
Agreement is amended to replace the words "Closing Date" in clause (i) with the
words "Effective Date".
Section 7. The first sentence of Section 2.4 of the Original Purchase Agreement
is amended by replacing the words "At the Closing" with the words "At the
Closing (or, where specified, at the Local Closing)".
Section 8. Section 2.4(a) of the Original Purchase Agreement is amended by
replacing the term "Purchase Price" with the words "portion of the Purchase
Price payable at the Closing".
Section 9. Section 2.4(b) of the Original Purchase Agreement is amended by
adding the following language at the beginning of such section: "At the Local
Closings,".
Section 10. The first sentence of Section 2.5 of the Original Purchase Agreement
is amended by replacing the words "At the Closing" with the words "At the
Closing (or, where specified, at the Local Closing)".
Section 11. Section 2.5(b) of the Original Purchase Agreement is amended by
adding the following language at the beginning of such section: "At the Local
Closings,".
Section 12. Section 5.1 of the Original Purchase Agreement is amended by
replacing the words "During the period from the date hereof to the Closing" with
the following language: "During the period from the date hereof to (a) with
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respect to the portion of the Business operated by the Company, the Closing and
(b) with respect to the portions of the Business operated by the Local Sellers,
the applicable Local Closing,".
Section 13. Section 5.2(d) of the Original Purchase Agreement is amended by
inserting the text ", other than the Transition Services Agreements and the
Local Asset Transfer Agreements to be entered into by Local Sellers and
Affiliates of Purchaser, which Purchaser and Seller shall cause to be executed
and delivered at the applicable Local Closing," immediately after the term
"Ancillary Agreements".
Section 14. Section 5.2(j)(i) of the Original Purchase Agreement is amended and
restated to read as follows:
"Seller represents that, except for the relocation of the
German offices of the Business to a new site, all cash
payments resulting from the implementation of the Seller
Restructuring Plan have been made prior to or on September 12,
2002. Purchaser and Seller agree that the cost of the
relocation of the German offices of the Business is deemed to
be equal to EUR 25,000. Purchaser and Seller further agree
that there shall be no adjustment to the Purchase Price
pursuant to this Section 5.2(j)(i); and"
Section 15. Section 5.3(c)(ii) of the Original Purchase Agreement is amended by
replacing the words "on or prior to the Closing Date" with the words "on or
prior to the Closing Date (or, as it may pertain to the portions of the Business
operated by the Local Sellers, on or prior to the relevant Local Closing)".
Section 16. Section 5.3(i)(i) of the Original Purchase Agreement is amended and
restated to read as follows:
"Notwithstanding anything to the contrary contained in this
Agreement, (A) to the extent that the sale, assignment,
transfer, conveyance or delivery or attempted sale,
assignment, transfer, conveyance or delivery to Purchaser or
its designee, as required hereunder, of any Non-U.S. Assets is
prohibited by any applicable Law or would require any
governmental or third party authorizations, approvals,
consents or waivers and such authorizations, approvals,
consents or waivers shall not have been obtained prior to the
applicable Local Closing Date, or (B) to the extent that
Purchaser, following its reasonable best efforts to do so, is
unable to establish prior to the applicable Local Closing Date
benefit arrangements for Non-U.S. Employees in a particular
country or jurisdiction to replace the benefit arrangements
maintained by Sellers with respect to such Non-U.S. Employees,
and Sellers and Purchaser agree that, providing that Purchaser
continues to use its reasonable best efforts to establish such
arrangements following the applicable Local Closing Date, the
transfer of Non-U.S. Assets with respect to the Business
employing such Non-U.S. Employees should be delayed until such
benefit arrangements have been put in place, the Closing and
the Local Closings shall occur without any adjustment to the
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Purchase Price and this Agreement shall not constitute a sale,
assignment, transfer, conveyance or delivery, or any attempted
sale, assignment, transfer, conveyance or delivery, of that
portion of such Non-U.S. Assets. Non-U.S. Assets and Non-U.S.
Liabilities held by Seller and the Local Sellers for the
benefit of Purchaser pursuant to this Section shall be
included in the Final Statement of Net Operating Capital."
Section 17. Section 5.3(i)(ii) of the Original Purchase Agreement is amended by
replacing the term "Closing" with the words "the applicable Local Closing" and
by replacing the term "Closing Date" with the words "applicable Local Closing
Date".
Section 18. Section 5.3(j) of the Original Purchase Agreement is amended and
restated to read as follows:
"(i) Any amounts (A) paid by Seller, any Local Seller or any
other Seller's Affiliate after the Closing to satisfy any
accounts payable with respect to the Business (other than the
portion of the Business not yet transferred to Purchaser or
its Affiliates hereunder or other than in respect of the
Excluded Liabilities), and (B) received by Seller, any Local
Seller or any other Seller's Affiliate after the Closing in
satisfaction of accounts receivable with respect to the
Business (other than the portion of the Business not yet
transferred to Purchaser or its Affiliates hereunder) (to the
extent such received amounts have not already been transferred
to Purchaser), shall be determined by Seller every 30 days
following the Closing Date on an ongoing basis by netting any
such amounts paid with any such amounts received, as
applicable, and such net amount shall be the "Seller Corrected
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Receivable and Payable Amount".
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(ii) Any amounts (A) paid by the Company (after the Closing),
Purchaser or any of its Affiliates to satisfy any accounts
payable in respect of any Seller business (excluding the
Business already transferred to Purchaser or its Affiliates
hereunder but including the Business not yet transferred to
Purchaser or its Affiliates hereunder as of the time of such
payment) or in respect of the Excluded Liabilities and (B)
received by the Company (after the Closing), Purchaser or any
of its Affiliates in satisfaction of accounts receivable in
respect of any Seller business (excluding the Business already
transferred to Purchaser or its Affiliates hereunder but
including the Business not yet transferred to Purchaser or its
Affiliates as of the time of such receipt), shall be
determined by Purchaser every 30 days following the Closing
Date on an ongoing basis by netting any such amounts paid with
any such amounts received, as applicable, and such net amount
shall be the "Purchaser Corrected Receivable and Payable
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Amount".
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(iii) On an ongoing basis following the Closing Date, unless
otherwise agreed, Seller and Purchaser shall net and promptly
settle as between each of them the Seller Corrected Receivable
and Payable Amount and the Purchaser Corrected Receivable and
Payable Amount."
Section 19. A new Section 5.3(m) is inserted into the Original Purchase
Agreement reading as follows:
"As soon as practicable after the Closing, Purchaser will
cause the Company to amend the Company's certificate of
authority to transact business (or an equivalent thereof) in
all jurisdictions where the Company is qualified to do
business to reflect a change in the Company's name."
Section 20. A new Section 5.3(n) is inserted into the Original Purchase
Agreement reading as follows:
"Purchaser agrees to provide, and shall cause its Affiliates
to provide, to Seller the Common Core Standard Reporting Forms
(the "SRFs") required by Seller for its 2002 quarterly and
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year-end reporting. The quarterly SFRs shall be delivered to
Seller prior to September 26, 2002. The year-end SRFs shall be
delivered to Seller prior to December 1, 2002. Additionally,
Purchaser shall, and shall cause its Affiliates to, complete
the PENAC year-end reporting package and tax packages. The
foregoing does not limit the rights and obligations of the
Parties under Sections 5.3(d) and 5.3(e)(viii) hereof."
Section 21. Sections 5.4(a) through (f) of the Original Purchase Agreement are
amended by inserting the words "or a Local Closing, as applicable," immediately
after each instance of the term "Closing" and by inserting the words "or the
applicable Local Closing Date, as the case may be," immediately after each
instance of the term "Closing Date".
Section 22. Sections 5.5(b), 5.5(c), 5.5(d)(i) and 5.5(d)(iii) of the Original
Purchase Agreement are amended by replacing the term "Closing Date" with the
words "applicable Local Closing Date".
Section 23. The third sentence of Section 5.5(d) of the Original Purchase
Agreement is amended by inserting the words "or the applicable Local Closing
Date, as the case may be," immediately after the term "Closing Date".
Section 24. Section 5.5(d)(ii) of the Original Purchase Agreement is amended by
replacing the words "pre-Closing Date accrued benefits" with the words "benefits
accrued prior to the applicable Local Closing Date" and by replacing the term
"Closing Date" with the words "such applicable Local Closing Date".
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Section 25. Section 5.5(e) of the Original Purchase Agreement is amended by
replacing the term "Closing Date" with the words "applicable Local Closing Date"
and by replacing the term "Closing" with the term "Local Closing".
Section 26. Section 5.8 of the Original Purchase Agreement is amended by adding
the words "Notwithstanding Section 2.2(c) and" before the words "Subject to
applicable law".
Section 27. A new Section 5.9 is inserted into the Original Purchase Agreement
reading as follows:
"Payment of Business Interim Net Cash Flow and Cash Generation
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(a) Within 20 Business Days of the Closing Date, Seller shall
deliver to Purchaser a statement (the "Business Interim Net
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Cash Flow and Cash Generation Statement") setting forth on a
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net basis the net cash flow and cash generation (excluding the
impact of any dividend paid in accordance with Section 5.8
hereof) of the portion of the Business transferred to
Purchaser and its Affiliates at the Closing from and after the
Effective Date, including the Effective Date, and until the
Closing Date (the "Business Interim Cash Flow and Cash
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Generation Amount"). Purchaser shall complete its review of
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the Business Interim Net Cash Flow and Cash Generation
Statement within 10 Business Days after delivery by Seller of
such statement. In the event that Purchaser has reasonable
objections to the Business Interim Net Cash Flow and Cash
Generation Statement, Purchaser and Seller shall negotiate in
good faith to resolve any such objections. Within 3 Business
Days of the resolution of Purchaser's objections to the
Business Interim Net Cash Flow and Cash Generation Statement
or, if Purchaser raised no such objections, within 13 Business
Days of Purchaser's receipt from Seller of the Business
Interim Net Cash Flow and Cash Generation Statement, (A) if
the Business Interim Cash Flow and Cash Generation Amount is
positive, Seller shall pay to Purchaser, or (B) if the
Business Interim Cash Flow and Cash Generation Amount is
negative, Purchaser shall pay to Seller, by wire transfer of
immediately available funds, an amount equal to the Business
Interim Cash Flow and Cash Generation Amount.
(b) With respect to each Local Closing occurring after the
Closing, within 20 Business Days of the date of such Local
Closing, Seller shall deliver to Purchaser a statement (the
"Local Business Interim Net Cash Flow and Cash Generation
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Statement") setting forth on a net basis the net cash flow and
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cash generation of the portion of the Business transferred to
Purchaser or its Affiliate at such Local Closing from and
after the Effective Date, including the Effective Date, and
until the date of such Local Closing (the "Local Business
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Interim Cash Flow and Cash Generation Amount"). Purchaser
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shall complete its review of the Local Business Interim Net
Cash Flow and Cash Generation Statement within 10 Business
Days after delivery by Seller of such statement. In the event
that Purchaser has reasonable objections to the Local Business
Interim Net Cash Flow and Cash Generation Statement, Purchaser
and Seller shall negotiate in good faith to resolve any such
objections. Within 3 Business Days of the resolution of
Purchaser's objections to the Local Business Interim Net Cash
Flow and Cash Generation Statement or, if Purchaser raised no
such objections, within 13 Business Days of Purchaser's
receipt from Seller of the Local Business Interim Net Cash
Flow and Cash Generation Statement, (A) if the Local Business
Interim Cash Flow and Cash Generation Amount is positive,
Seller shall pay to Purchaser, or (B) if the Local Business
Interim Cash Flow and Cash Generation Amount is negative,
Purchaser shall pay to Seller, by wire transfer of immediately
available funds, an amount equal to the Local Business Interim
Cash Flow and Cash Generation Amount."
Section 28. Sections 6.2(c) and 6.3(c) of the Original Purchase Agreement are
each amended by inserting the following words at the beginning of each section:
"For each Local Closing to be closed on the Closing Date pursuant to Section
2.2(b) of this Agreement,".
Section 29. Sections 6.2(d) and 6.3(d) the Original Purchase Agreement are
amended by inserting the following text after the term "Ancillary Agreements":
"(other than the Local Asset Transfer Agreements and the
Transition Services Agreements to be entered into by the Local
Sellers pursuant to Local Closings occurring after the Closing
Date)"
Section 30. The Original Purchase Agreement is amended by inserting the
following new Section 6.4:
"Section 6.4. Conditions to Local Closings. The obligations of
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the Parties to effect any Local Closing which does not occur
on the Closing Date are subject to the reasonable satisfaction
(or waiver) prior to the Local Closings of the following
conditions:
(a) Competition Laws. All required filings under any
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applicable Competition Laws shall have been made and any
required waiting period under such laws applicable to the
transactions contemplated hereby shall have expired or been
earlier terminated and approval shall have been obtained,
except those that the failure to make or to obtain are not,
individually or in the aggregate, reasonably likely to have a
Material Adverse Effect.
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(b) No Injunctions. No court or governmental authority of
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competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Order which is in effect
on the applicable Local Closing Date and prohibits the
consummation of the Local Asset Transfer Agreement.
(c) Conditions to the Obligations of Purchaser. The obligation
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of Purchaser to effect a Local Closing is subject to the
execution and delivery by Seller (in case of the Transition
Services Agreement) and the Local Seller at or prior to such
Local Closing, of a Transition Services Agreement and Local
Asset Transfer Agreement in substantially the forms attached
hereto and any deeds or other instruments of conveyance called
for therein.
(d) Conditions to the Obligations of Seller and Local Sellers.
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The obligation of Seller and Local Sellers to effect a Local
Closing is subject to the execution and delivery by the
Purchaser (in case of the Transition Services Agreement) and
Purchaser's Affiliate at or prior to such Local Closing, of a
Transition Services Agreement and Local Asset Transfer
Agreement in substantially the forms attached hereto and any
deeds or other instruments of conveyance called for therein."
Section 31. Section 7.2(iv) of the Original Purchase Agreement is amended by
replacing clause (iv) in its entirety with the following language:
"the operation of the Business, as currently operated by the
Company, by the Company following the Closing Date and the
operation of the Business, as currently operated by the Local
Sellers, by the Purchaser or its Affiliates following the
applicable Local Closing Date."
Section 32. Section 2.1 of Exhibit B of the Original Purchase Agreement is
amended by inserting the following text after the first sentence of such
Section:
"Notwithstanding the foregoing, Seller, and each applicable
Local Seller, retains a prepaid, limited, nontransferable
license to use the Assigned Marks solely to operate the
portions of the Business not transferred at the Closing
pursuant to Section 2.2(c) of the Principal Agreement and to
provide certain Services (as such term is defined in the
applicable Transition Services Agreement) to Purchaser until
the termination of the applicable Transition Services
Agreement or, should there be no such applicable Transition
Services Agreement, the applicable Local Closing Date. Seller
will, and will cause each Local Seller to, provide goods and
services in connection with the Assigned Marks that are
consistent with Seller's historical standards."
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Section 33. Purchaser and Seller agree that all assets and liabilities primarily
related to the Business in India (i) shall not transfer from Seller and the
Local Seller to Purchaser or Purchaser Affiliate and (ii) shall not be included
in the Final Statement of Net Operating Capital.
Section 34. (a) Purchaser and Seller shall consult and cooperate with each other
in connection with a potential settlement of the alleged claim of Niagara
Frontier Hockey, L.P., referred to in Schedule 3.10 of the Disclosure Schedules
(the "Niagara Matter"). In case Purchaser reasonably determines to settle the
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Niagara Matter for an amount greater than $1,200,000 then Purchaser shall seek
Seller's consent to entering into such a settlement, which consent shall not be
unreasonably withheld by Seller.
(b) Provided that the Parties have complied with the
provisions of Section 34(a) above, Seller shall reimburse Purchaser for any
amount in excess of $1,200,000 that Purchaser actually pays to Niagara Frontier
Hockey, L.P., in connection with the settlement or final adjudication of the
Niagara Matter.
Section 35. This Amendment shall be governed by and construed in all respects in
accordance with the laws as stipulated in Section 9.13 of the Original Purchase
Agreement.
Section 36. Except as set forth herein, the Original Purchase Agreement shall
remain in full force and effect. All references to "Agreement" in the Original
Purchase Agreement shall be references to the Original Purchase Agreement as
amended pursuant to this Amendment. Except to the extent required by local law,
nothing contained in the Local Asset Transfer Agreements, any of their schedules
or any side letter agreements to such Local Asset Transfer Agreements shall be
deemed to contradict, supercede, expand upon or limit the provisions of the
Original Purchase Agreement as amended pursuant to this Amendment.
Section 37. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall constitute
one and the same Amendment. Copies of executed counterparts transmitted by
telecopy, telefax or other electronic transmission service shall be considered
original executed counterparts for purposes of this Section 37, provided that
receipt of copies of such counterparts is confirmed.
Section 38. This Amendment shall be governed by and construed in all respects in
accordance with the laws as stipulated in Section 9.13 of the Original Purchase
Agreement and all disputes hereunder shall be settled in accordance with Section
9.13 of the Original Purchase Agreement.
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IN WITNESS WHEREOF, the Parties have executed or caused this Amendment to be
executed as of the date first written above.
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By:/s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Attorney-in-fact
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION
By:/s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Senior Vice President
PHILIPS BROADBAND NETWORKS, INC.
By:/s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Senior Vice President
X-XXX.XXX CORP.
By:/s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: CFO
