EXHIBIT 2.2
AMENDMENT No. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT No.1 (this "Amendment") to that certain Stock Purchase
Agreement entered into as of November 27, 2002, by and among Tecumseh Products
Company, a corporation organized and existing under the laws of the State of
Michigan (the "Purchaser"), BTR Industries Limited, a corporation organized and
existing under the laws of England and Wales ("BTRI"), BTR (European Holdings)
BV, a corporation organized and existing under the laws of the Netherlands ("BTR
Holdings"), CPN Holdings Pty Limited, a corporation organized and existing under
the laws of Australia ("CPN"), Invensys Controls Mexican Holding, L.L.C., a
limited liability company organized and existing under the laws of Mexico
("ICMH") and BTR (USA) Finance Company, a Massachusetts business trust ("BTR
Finance" and collectively with BTRI, BTR Holdings, CPN and ICMH, the "Sellers"),
and Invensys plc, a corporation organized and existing under the laws of England
and Wales ("Invensys") (together with the Annexes, Schedules and Exhibits
thereto, the "Agreement") is entered into as of the 3rd day of December, 2002.
WHEREAS, capitalized terms used and not defined herein shall have the
meanings ascribed to such terms in the Agreement; and
WHEREAS, the parties desire to amend Sections 2.3.1, 2.4.1 and 10.1 of
the Agreement as described herein and to add a new Section 9.6.7 to the
Agreement.
NOW THEREFORE, in consideration of the mutual premises herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser, Sellers and Invensys agree to amend
the Agreement as follows:
1. Section 2.3.1 is hereby amended by adding, immediately after the phrase
"minus the Escrow Funds", the following:
"and, if a certificate from the Canadian Minister of National Revenue
under Section 116 of the Income Tax Act (Canada) with a limit at least
equal to the allocation to Fasco Motors Limited (set forth in Section
2.4.1) is not received on or prior to the Closing Date, minus the
Canadian Withholding Xxxxxx"
0. Section 2.4.1 is hereby replaced in its entirety with the following:
Sellers and Purchaser agree to allocate (i) 39,250,000 Canadian dollars
to Fasco Motors Limited (Canada) and (ii) the balance of the Initial
Purchase Price (which shall be determined by subtracting the amount
described in clause (i) as converted to US dollars at the closing
mid-point US dollar spot rate shown in the Financial Times published on
the second Business Day before the Closing) among the remaining
Companies at or prior to Closing. Within thirty (30) days following the
later of the determination of the Adjustment Amount or the Pension Plan
Assets Adjustment, Sellers and Purchaser shall agree upon a revised
purchase price
allocation to reflect such adjustments in accordance with the character
of each such adjustment and in a manner that is consistent with the
allocation of the Initial Purchase Price; provided, that, for purposes
of Section 2.4, no such adjustments shall be allocable to Fasco Motors
Limited (Canada).
3. The following is added to the Agreement as a new Section 9.6.7:
9.6.7 Notwithstanding the issuance of a certificate from the
Canadian Minister of National Revenue as described in Section 2.3.1, in the
event that the Canadian authorities reject, challenge, or invalidate such
certificate or seek an adjustment of any kind from Purchaser with regard to the
Canadian Withholding Amount, such rejection, challenge, invalidation, or
adjustment shall constitute a Seller Tax Act subject to the indemnification
provisions of Section 9.6.1.
4. Section 10.1 of the Agreement is hereby amended by inserting the following
defined term in alphabetical order:
"Canadian Withholding Amount" shall mean the amount that is
required to be withheld by the Purchaser (or any Affiliate of the Purchaser that
purchases the shares of Fasco Motors Limited (Canada)) pursuant to Section 116
of the Income Tax Act (Canada) (based upon the allocation to Fasco Motors
Limited (Canada) set forth in Section 2.4) converted to US dollars at the
closing mid-point US dollar spot rate shown in the Financial Times published on
the first Business Day before the Closing.
5. Notwithstanding any other provision of the Agreement, the failure to obtain a
certificate under Section 116 of the Income Tax Act (Canada) shall not
constitute a condition to Closing.
6. Except as set forth herein, the Agreement is not otherwise amended in any
respect.
7. This Amendment shall be governed by and construed in accordance with the laws
of the State of Delaware regardless of the laws that might otherwise govern
under applicable principles of conflicts of laws thereof.
8. This Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
written above.
TECUMSEH PRODUCTS COMPANY
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
BTR INDUSTRIES LIMITED
By: /s/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
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Title: General Counsel
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BTR (EUROPEAN HOLDINGS) BV
By: /s/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
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Title: General Counsel
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CPN HOLDINGS PTY LIMITED
By: /s/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
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Title: General Counsel
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INVENSYS CONTROLS MEXICAN HOLDING, L.L.C.
By: /s/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
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Title: General Counsel
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BTR (USA) FINANCE COMPANY
By: /s/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
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Title: General Counsel
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INVENSYS PLC
By: /s/ XXXXXXXX XXXX
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Name: Xxxxxxxx Xxxx
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Title: General Counsel
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