Exhibit 2.2
First Amendment
to
Purchase Agreement
and
Additional Agreements
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (the "Amendment"), dated as of
this 29/th/ of June, 2001, is made among Material Sciences Corporation ("MSC"),
a Delaware corporation, with its principal office at 0000 Xxxx Xxxxx Xxxxxxxxx,
Xxx Xxxxx Xxxxxxx, XX 00000, MSC Specialty Films, Inc. ("MSC/SFI"), a California
corporation and wholly-owned subsidiary of MSC, with its principal office at
0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000 (MSC and MSC/SFI, collectively,
herein the "MSC Parties"), and Bekaert Corporation ("Bekaert"), a Delaware
corporation and wholly-owned subsidiary of N.V. Bekaert S.A., with its principal
office at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000, and N.V. Bekaert
S.A. ("NVB"), a Belgian corporation, with its principal office at Xxxxxxxxxxxxx
0, X-0000, Xxxxxxxx, Xxxxxxx (Bekaert and NVB, collectively, herein the "Bekaert
Parties").
RECITALS:
A. The MSC Parties and the Bekaert Parties have entered into a Purchase
Agreement dated June 10, 2001 (the "Purchase Agreement"), whereby (i) Bekaert is
purchasing the ISF Membership Interest; (ii) Bekaert is purchasing the Newco
Membership Interest; and (iii) NVB is purchasing the MSC/SFI Intellectual
Property and MSC Intellectual Property.
B. The parties desire to amend the Purchase Agreement to provide for
further covenants and obligations between the parties and to enter into certain
additional agreements, in accordance with the terms and conditions set forth in
this Amendment.
NOW, THEREFORE, in consideration of the promises hereinafter set forth, and
for other good and valuable consideration, the mutual receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. All capitalized terms used in this Amendment and not otherwise
defined herein shall have the meaning set forth in the Purchase Agreement.
2. Section 1.4.6.1 shall be added to the Purchase Agreement as follows:
"1.4.6.1. Long Term Incentive Cash Award Adjustment. Schedule 8.3.2 is
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amended to add two (2) additional persons as attached hereto. An adjustment
shall be made to decrease the Purchase Price in the amount of Thirty-three
Thousand and Forty-nine US Dollars (US $33,049) for the additional two (2)
persons added to Schedule 8.3.2. The foregoing adjustment shall be coordinated
and netted with the other Purchase Price adjustments provided for in this
Section 1.4 as set forth in Section 1.4.7. Schedule 1.4.7 shall be amended to
reflect the same."
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3. Information relating to the Solar Unit Trust dated July 15, 1997
(the "Solar Unit Trust") established by MSC Specialty Films (Australasia) Pty
Limited, was an Open Due Diligence Matter (as such term is defined in Section
7.2.24 of the Purchase Agreement). The following representations and warranties
by the MSC Parties, jointly and severally, shall be added to Article 3 of the
Purchase Agreement:
"3.6.9 The Solar Unit Trust. The Solar Unit Trust has been
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terminated and is no longer in force and effect, and the entire legal and
beneficial ownership of all of the assets which were the subject of that trust
(including without limitation, all of the assets of Solar Shield Pty Ltd and
D.T.I. Solar Control Film (NZ) Limited transferred to such trust) are now owned
and held by and have been transferred to MSC Specialty Films (Australasia) Pty
Limited, unless disposed of in the ordinary course of business."
4. Section 8.1.6 shall be added to the Purchase Agreement as
follows:
"8.1.6 Guarantees. Immediately upon Closing, MSC shall execute
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and deliver the Notice of Release of Subsidiary Guarantee, in the form attached
hereto as Schedule 8.1.6, as required by Section 1.3 of each of the Material
Sciences Corporation Note Agreement dated as of February 15, 1998; and the
Material Sciences Corporation Note Agreement dated as of February 15, 1997, and
such action shall complete the release of all the guarantees entered into by the
MSC/SFI Entities prior to the Closing Date."
5. The last three sentences of Section 8.3.6 of the Purchase
Agreement are deleted in their entirety and are replaced by the following two
sentences:
"In addition, effective as of the Closing Date, Bekaert shall provide
nonqualified supplemental executive retirement plan benefits to those certain
Transferred Employees who MSC/SFI proposed to add to the SERP as of the date of
this Agreement (the "Additional SERP Participants"). The supplemental executive
retirement plan benefits provided to the Additional SERP Participants shall be
the same as those provided to the SERP Participants on the date of this
Agreement."
6. Section 9.7.1(i) of the Purchase Agreement shall be deleted in
its entirety and replaced by the following:
"(i) No time limits for making a claim under the representations and
warranties found in Section 3.1.4 (Capitalization), Section 3.1.5 (Beneficial
Ownership), Section 3.1.6 (Beneficial Ownership of MSC/SFI Entities), Section
3.6.1 (Title), Section 3.6.9 (The Solar Unit Trust) and Section 3.7.3 (Real
Estate Title), and the foregoing shall survive indefinitely (the "Excepted
Warranties");
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7. Section 9.2.7 shall be added to the Purchase Agreement as follows:
"9.2.7 Express Indemnity on San Diego Lease. (a) Failure to
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obtain the unconditional consent of HPC Properties, Inc., a California
corporation, or any successor thereto (the "Landlord") or its lender to the
assignment to Newco of the San Diego Lease, or (b) any damages paid in
accordance with Section 3 Assignment and Assumption of Lease between the
Landlord, MSC/SFI, Newco and MSC dated June 29, 2001. For purposes of this
Section, "San Diego Lease" shall mean the Amended and Restated Lease Agreement,
dated March 15, 2001, between MSC/SFI and Landlord for the premises located at
0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx. For the purposes of this Section
"Damages" shall include by way of emphasis not limitation Damages from the
failure to obtain the unconditional consent of the Landlord or its lender to the
assignment to Newco of the San Diego Lease arising, directly or indirectly, out
of business interruption, increases in rents or other changes to the terms of
the San Diego Lease, increases in rents due to relocation by Newco, or guaranty
requirements which are more onerous than the existing MSC guaranty required
under the San Diego Lease."
8. Section 9.7.6 shall be added to the Purchase Agreement as follows:
"9.7.6 Any claim for indemnification under Section 9.2.7 (Express
Indemnity on San Diego Lease) shall not be limited in time, and shall survive
indefinitely."
9. Section 9.9.1of the Purchase Agreement shall be amended to include
Section 9.2.7 (Express Indemnity on San Diego Lease) as a "Full Coverage Matter"
as such term is used in Article 9 of the Purchase Agreement and is excepted from
the maximum aggregate amount of claims as set forth in Section 9.9.1 of the
Purchase Agreement, and the Basket Threshold and per claim limitations set forth
in Section 9.9.2 of the Purchase Agreement; provided, however, that the amount
of claims for Section 9.2.7 (Express Indemnity on San Diego Lease) shall not be
counted for purposes of computing the Basket Threshold set forth in Section
9.9.2 of the Purchase Agreement.
10. Notwithstanding any assumption of Newco of MSC/SFI's lease
obligations pursuant to the Assignment and Assumption of Lease among HPC
Properties, Inc., MSC/SFI, Newco and MSC dated of even date herewith (the
"Assignment of Lease"), the MSC Parties acknowledge and agree that all tenant
obligations under the Lease (as defined in the Assignment of Lease) that accrue
or become due before the Effective Date (as defined in the Assignment of Lease)
shall remain the Retained Liabilities of MSC/SFI.
11. The parties acknowledge that the Closing of the transaction
without all of the consents required under Section 7.2 of the Purchase Agreement
shall not be deemed to be a waiver by the Bekaert Parties of the need of the MSC
Parties to obtain such consents. The MSC Parties acknowledge their obligations
under Section 8.1.4 of the Purchase Agreement to use commercially reasonable
efforts to obtain the consent of the other parties to such assignments to the
Companies or the Bekaert Parties, as the case may be, in all cases in which such
consent is required for assignment or transfer.
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The parties acknowledge that any Liabilities caused by the actions of the
Companies or the Bekaert Parties, as the case may be, arising out of the
operation of any of the Leased Real Property for which consent to assignment to
Newco has not been obtained prior to Closing and is operated after the Closing
Date in accordance with Section 8.1.4 of the Purchase Agreement shall be the
Liabilities of Newco.
12. The MSC Parties acknowledge and agree that the patents marked *OD on
Schedule 3.6.6 of the Disclosure Letter, are in full force and effect, and are
included in the representation and warranty of the MSC Parties given in Section
3.6.6 of the Purchase Agreement.
13. Except as expressly modified by the provisions of this Amendment, the
terms and conditions of the Purchase Agreement shall remain in full force and
effect. To the extent there is any conflict between the terms of the Purchase
Agreement and the terms of this Amendment, the terms of this Amendment shall
control.
14. This Amendment shall not be construed as affecting the Bekaert
Parties' rights as to any matters not expressly addressed herein.
15. This Amendment and all actions contemplated hereby shall be governed
by and construed and enforced in accordance with the internal laws of the State
of New York without reference to the principles of conflict of laws, as provided
in Section 5-1401 of New York General Obligations Laws.
[Signatures on the following page]
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INTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to
be duly executed as of the date and year first above written.
BEKAERT:
BEKAERT CORPORATION
By: /s/ Raf Xxxxxxxx
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Title: Chief Executive Officer
By: /s/ Xxxxx X. Best
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Title: Chief Financial & Administrative Officer
MSC:
MATERIAL SCIENCES CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Title: Vice President, Chief Financial Officer
and Secretary
MSC/SFI:
MSC SPECIALTY FILMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Title: Vice President, Chief Financial Officer
and Secretary
NVB:
N.V. BEKAERT S.A.
By: /s/ Xxx Xxxxxxx
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Title: Executive Vice-President
By: /s/ Raf Xxxxxxxx
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Title: Chief Executive Officer
