AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Exhibit
2.2
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 (this
“Amendment”),
dated as of April 18, 2007, to and
of the Stock Purchase Agreement, dated as of February 25, 2007 (the
“Agreement”),
by and among Actaris Metering
Systems S.A., a Luxembourg public limited liability company, having its
registered office at 00, xxx xx Xxxxxxxx, X-0000, Xxxxxxxxxx and registered
with
the Luxembourg Trade and Companies Register under the number B 108445 (the
“Company”),
LBO France Gestion SAS, as
agent and attorney-in-fact for the Stockholders (the “Stockholder
Representative”),
and Itron,
Inc., a Washington corporation (the “Buyer”). Capitalized
terms
used and not defined herein shall have the meanings given to such terms in
the
Agreement.
RECITALS
WHEREAS,
the Company, the Stockholders, the Stockholder Representative and the Buyer
have
previously entered into the Agreement;
WHEREAS,
pursuant to Section 10.2 of the Agreement, the Agreement may only be amended
by
an instrument in writing signed by the Company, the Stockholder Representative
and the Buyer; and
WHEREAS,
the parties hereto wish to amend the Agreement on the terms set forth in this
Amendment.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Amendment
of Section 2.1(a). Section 2.1(a) of the Agreement is
hereby amended in its entirety to read as follows:
“Upon
the
terms and subject to the conditions of this Agreement, at the Closing, (i)
(A) each Stockholder shall sell, assign, transfer, convey and deliver to
the Buyer, and the Buyer shall purchase from such Stockholder, the amount of
Common Stock and Convertible Bonds set forth opposite such Stockholder’s name on
Exhibit A, free and clear of all Encumbrances, and (B) the Buyer
shall pay to such Stockholder the amount of the Purchase Price set forth
opposite such Stockholder’s name on Exhibit A (which amount shall be
provided in an updated Exhibit A in accordance with this Section
2.1(a) and shall be based on such Stockholder’s percentage ownership of
Shares and Convertible Bonds at Closing), by wire transfer of immediately
available funds in Euro, and (ii) the Buyer shall repay the Group Indebtedness
on behalf of the Company and/or the Subsidiaries of the Company. Ten
Business Days prior to the anticipated Closing Date, the Company shall deliver
to the Buyer a schedule setting forth the amount of Group Indebtedness to be
repaid by the Buyer on behalf of the Company and/or the Subsidiaries of the
Company at the Closing. The Buyer acknowledges and agrees that the
Stockholders may transfer a certain amount of Common Stock and/or Convertible
Bonds among themselves prior to the Closing and that the amount of the Common
Stock and Convertible Bonds, the percentage ownership of Shares and Convertible
Bonds, and the Purchase Price set forth opposite each Stockholder’s name on
Exhibit A shall be updated by the Stockholder Representative to reflect
the amounts of Common Stock and Convertible Bonds owned by, the percentage
ownership of Shares and Convertible Bonds of, and the amount of the Purchase
Price to be paid to, each Stockholder at the Closing; provided, that,
between the date of this Agreement and the Closing, no amount of Common Stock
or
Convertible Bonds may be transferred by any Stockholder to a Person that is
not
a Stockholder as of the date of this Agreement; provided, further,
that such updated Exhibit A shall be delivered to the Buyer by the
Stockholder Representative at least ten Business Days prior to the Closing
Date. The Buyer agrees that the Buyer shall pay, on behalf of the
Company, certain expenses of the Company that are set forth on such updated
Exhibit A; provided that the Purchase Price shall be reduced by
the amount of such expenses and such reduced Purchase Price shall be distributed
to the Stockholders in accordance with this Section
2.1(a). Such updated Exhibit A shall also set forth a bank
account opposite each Stockholder’s name into which the Buyer shall deposit the
amount of the Purchase Price to be paid to such Stockholder at the
Closing. The Stockholder Representative shall be the sole responsible
for the allocation of the Purchase Price among the Stockholders and each
Stockholder acknowledges that the Buyer shall be fully discharged from its
obligation to pay the Purchase Price by paying to each Stockholder such amount
of the Purchase Price as shall have been set forth opposite such Stockholder’s
name in the updated Exhibit A in accordance with this Section
2.1(a). The Stockholders may be entitled to receive an additional
payment to be calculated and to be allocated among the Stockholders as set
forth
on Exhibit E.”
2. Amendment
to Section 2.1(c). Section 2.1(c) of the Agreement is hereby
amended in its entirety to read as follows:
“Provided
the Buyer has (i) paid the Purchase Price and (ii) repaid the Group Indebtedness
on behalf of the Company and/or the Subsidiaries of the Company, this Agreement
transfers the rights to the Shares and to the Convertible Bonds and all rights
and obligations attached thereto, including the right to dividends or other
distributions pertaining to the Shares, as from the Closing Date.”
3. Amendment
to Section 2.1(d). Section 2.1(d) of the Agreement is hereby
amended in its entirety to read as follows:
“At
the
offices of Loyens Winandy, at 00, xxx Xxxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx, on
the
Closing Date, or at such other place or at such other time as the Buyer and
the
Stockholder Representative mutually may agree in writing, provided that the
conditions set forth in this Agreement are met (or waived, as applicable),
the
Company shall sell, assign, transfer, convey and deliver to a wholly-owned
Subsidiary of the Buyer (the “German and UK Subsidiaries Buyer”), which
shall purchase from the Company, (i) immediately prior to the Closing, all
of
the issued and outstanding shares of capital stock of Actaris Development UK
II
(the “UK Subsidiary Stock”), a company organized under the laws of the
United Kingdom and wholly-owned Subsidiary of the Company (the “UK
Subsidiary”), and the German and UK Subsidiaries Buyer shall deliver to the
Company a check made by the Buyer payable to the Company in the amount of
€169,000,000 (the “UK Subsidiary Check”) in exchange therefor
(the “UK Subsidiary Purchase”), and (ii) immediately following the UK
Subsidiary Purchase and prior to the Closing, all of the issued and outstanding
shares of capital stock of Actaris Development Germany (the “German
Subsidiary Stock”), a company organized under the laws of Germany and
wholly-owned Subsidiary of the Company (the “German Subsidiary”), and the
German and UK Subsidiaries Buyer shall deliver to the Company a check made
by
the Buyer payable to the Company in the amount of €205,000,000 (the “German
Subsidiary Check”) in exchange therefor (the “German Subsidiary
Purchase” and, together with the UK Subsidiary Purchase, the “German and
UK Subsidiary Purchase”). Each of the Company and the German and
UK Subsidiaries Buyer shall deliver all documents, in form and substance
reasonably satisfactory to the Buyer and the Company, respectively, as such
party may request or as may be otherwise necessary or desirable to evidence
and
effect the German and UK Subsidiaries Purchase. For the avoidance of
doubt, the UK Subsidiary Stock and the German Subsidiary Stock shall be subject
to Permitted Encumbrances at the time of the consummation of the German and
UK
Subsidiary Purchase. Upon consummation of the Closing, the UK
Subsidiary Stock and the German Subsidiary Stock shall be free and clear of
all
Encumbrances.”
4. Amendment
to Section 2.1(e). Section 2.1(e) of the Agreement is hereby
amended in its entirety to read as follows:
“If,
following the consummation of the German and UK Subsidiaries Purchase in
accordance with Section 2.1(d), the Closing does not take place for any
reason whatsoever, the parties agree that (i) the German Subsidiary Stock and
the UK Subsidiary Stock shall be retransferred to the Company and (ii) the
German Subsidiary Check and the UK Subsidiary Check shall be cancelled and
shall
have no force or effect. Each of the Company and the German and UK
Subsidiaries Buyer shall take all actions and shall deliver all documents as
may
be necessary or desirable to evidence such retransfers and
cancellations. The German and UK Subsidiaries Buyer further
undertakes that it shall pay all taxes and fees incurred in connection with
such
retransfers and cancellations and that it shall indemnify and hold harmless
the
Company from and against any and all Losses incurred by the Company arising
from
or relating to the retransfer of the German Subsidiary Stock and the UK
Subsidiary Stock to the Company, except for any such Losses arising from or
relating to the failure of any Stockholder or the Company to fulfill any
covenant or obligation of such party under this Agreement).”
5. Amendment
to Section 2.2(a). Section 2.2(a) of the Agreement is hereby
amended in its entirety to read as follows:
“The
purchase and sale of the Shares and of the Convertible Bonds shall take place
at
a closing (the “Closing”) to be held in Luxembourg at the offices of
Loyens Winandy, at 00, xxx Xxxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx, at 10:00 A.M.,
Luxembourg Time, at the latest on the first Business Day following the 64th
day
following the date of this Agreement, or at such other place or at such other
time or on such other date as the Buyer and the Stockholder Representative
mutually may agree in writing, provided that the conditions set forth in this
Agreement are met (or waived, as applicable). The day on which the
Closing takes place is referred to as the “Closing Date”.”
6. Amendment
to Section 2.2(d)(v). Section 2.2(d)(v) of the Agreement is
hereby amended in its entirety to read as follows:
“such
other documents, in form and substance reasonably satisfactory to the
Stockholder Representative, as the Stockholder Representative may reasonably
request or as may be otherwise necessary or desirable to evidence and effect
the
sale, assignment, transfer, conveyance and delivery of the Shares and the
Convertible Bonds to the Buyer and the payment of the Purchase Price in
accordance with Section 2.1(a).”
7. Amendment
to Section 3.6(b). Section 3.6(b) of the Agreement is hereby
amended in its entirety to read as follows:
“As
of
the date hereof, the Group Indebtedness is €480,600,000 and set forth on
Schedule 3.6(b) of the Disclosure Schedules are fair and carefully
prepared estimates (which includes the Group Indebtedness’ estimate as of the
date hereof), produced by the Company in good faith and reflecting the past
business history of the Company, of the amount of Group Indebtedness that will
be repaid by the Buyer on behalf of the Company and/or the Subsidiaries of
the
Company if the Closing Date were on the dates indicated in such
schedule.”
8. Amendment
to Section 5.10. Section 5.10 of the Agreement is hereby amended
in its entirety to read as follows:
“The
Company shall have obtained and communicated to the Purchaser on or prior to
the
Closing a statement from the lenders under the Credit Facilities Agreement
listing all Credit Facilities Liens, expressing that the Credit Facilities
Liens
shall be released at Closing, upon and subject to full repayment to such lenders
of the Group Indebtedness, and whereby the lenders undertake to provide all
reasonably required assistance for the purpose of making effective such
releases.
Subject
to the delivery of the above statement, and to the Company's commitment to
provide all reasonably required assistance in connection therewith, the Buyer
shall be solely responsible of obtaining of the release of the Credit Facilities
Liens.
At
Closing, the Buyer shall, in addition to the payment of the Purchase Price,
pay
in cash into an account or accounts of or for the benefit of Mizuho Corporate
Bank, Ltd. an aggregate amount sufficient to repay the Group Indebtedness with
value date (date de valeur) at the Closing Date, in accordance with the
terms and conditions of the Credit Facility Agreements.”
9. Amendment
to Section 6.11. Section 6.11 of the Agreement is hereby amended
in its entirety to read as follows:
“The
Buyer shall repay the Group Indebtedness on behalf of the Company and/or the
Subsidiaries of the Company at the Closing. The Stockholders shall
use commercially reasonable efforts to assist the Company and the Buyer with
preparations for prepayments and termination of the Group
Indebtedness.”
10. Counterparts. This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same instrument and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other party.
11. Continuing
Effect of the Agreement. Except for the amendments expressly set
forth herein, the Agreement shall continue to be, and shall remain, in full
force and effect in accordance with its terms.
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remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, each party has caused this Amendment to be duly executed as
of
the date first written above.
ACTARIS
METERING SYSTEMS S.A.
By: /s/
Clermont Xxxxxx
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Name:
Clermont Xxxxxx
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Title:
Administrateur
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ITRON,
INC.
By:
/s/ Xxxx X. Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
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Title:
Senior Vice President
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LBO
FRANCE GESTION SAS,
By: /s/
Xxxxxx Daussun
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Name:
Xxxxxx Daussun
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Title:
President
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