Exhibit 2.2
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), made and
entered into on the 2nd day of October, 1998, to the
Purchase and Sale Agreement dated August 20, 1998 (the
"Purchase and Sale Agreement"), between UNOVA, INC.
("Parent"), a Delaware corporation, UNOVA INDUSTRIAL
AUTOMATION SYSTEMS, INC. ("Buyer"), a Delaware corporation
and a wholly-owned subsidiary of Parent, and UNOVA UK
LIMITED ("Buyer"), a company incorporated in England and a
wholly-owned subsidiary of Parent, on the one part (Parent,
Buyer and UK Buyer are sometimes referred to collectively as
the "Buying Entities"), and CINCINNATI MILACRON INC.
("Seller"), a Delaware corporation, on the other part.
Parent, Buyer, UK Buyer and Seller are sometimes referred to
collectively as the "Parties" and individually as a "Party."
W I T N E S S E T H:
WHEREAS, the Parties have previously entered into
the Purchase and Sale Agreement pursuant to which Seller has
agreed to sell (or to cause the sale of) and Buyer and UK
Buyer have agreed to purchase (or to cause the purchase of)
certain assets and shares of capital stock of Seller and
certain of its subsidiaries; and
WHEREAS, the Parties wish to amend the Purchase
and Sale Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises
and the mutual benefits to be derived from this Amendment,
the Parties agree as follows:
ARTICLE 1
Definitions
1.1 Purchase and Sale Agreement Definitions.
Terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Purchase and
Sale Agreement.
ARTICLE 2
Amendments
2.1 Amendments.
(a) Section 1.2(a) of the Purchase and Sale
Agreement is hereby amended by deleting the semicolon at the
end thereof and inserting in its place the following:
, other than cash-on-hand of Seller's Offenbach,
Germany and Paris, France branches;
(b) Section 1.2 of the Purchase and Sale
Agreement is hereby further amended by deleting the word
"and" at the end of Section 1.2(q), relettering current
Section 1.2(r) as Section 1.2(s), and inserting the
following immediately following Section 1.2(q):
(r) Any rights of Seller under the Stock Purchase
Agreement (the "Cast-Fab Agreement") dated as of March
29, 1988 between Parent and Cast-Fab Technologies,
Inc., an Ohio corporation; and
(c) Section 1.3(a) of the Purchase and Sale
Agreement is hereby amended by deleting the number
"27,000,002" in the penultimate line thereof and inserting
in its place "27,000,003".
(d) Section 1.3(c) of the Purchase and Sale
Agreement is hereby amended by deleting the number "61,400"
appearing in the penultimate line thereof and inserting in
its place "27,000".
(e) Section 1.5(a)(ii) of the Purchase and Sale
Agreement is hereby amended by deleting in its entirety
clause (3) in the proviso thereof and inserting in its place
the following:
(3) all account balances denominated in foreign
currencies shall be translated into United States
Dollars using the currency exchange rates published in
the Wall Street Journal on Thursday, September 24,
1998.
(f) Section 1.7(d) of the Purchase and Sale
Agreement is hereby amended by deleting the semicolon at the
end thereof and inserting the following:
, but excluding indebtedness of Seller's Offenbach,
Germany and Paris, France branches;
(g) Section 1.7 of the Purchase and Sale
Agreement is hereby amended by deleting the word "and" at
the end of Section 1.7(l), relettering current Section
1.7(m) as Section 1.7(n), and inserting the following
immediately following Section 1.7(l):
(m) All debts, liabilities and obligations
arising under the Cast-Fab Agreement, provided that any
debt, liability or obligation arising under the CastFab
Agreement which results from any action taken by, or
failure to act by, a Buying Entity or any of their
Affiliates following the Transfer Date shall constitute
an "Assumed Liability" for all purposes of this
Agreement; and
(h) Section 2.1 of the Purchase and Sale
Agreement is hereby amended by deleting the phrase
"September 30, 1998", which appears in the penultimate line
of such Section immediately prior to the words "(the
"Transfer Date")", and inserting in its place "September 26,
1998".
(i) Section 3.3 of the Purchase and Sale
Agreement is hereby amended by deleting the first sentence
thereof in its entirety.
(j) Section 5.7 of the Purchase and Sale
Agreement is hereby amended by deleting from the phrase
"sales of receivables" immediately following the phrase
"Sales Orders," in the fourth line thereof through the
phrase "Schedule 3.3" appearing in the next line thereof and
inserting the following in place thereof:
sales of receivables under the Second
Amended and Restated Receivables
Purchase Agreement (the "Receivables
Purchase Agreement") dated as of January
26, 1996 among Parent, Cincinnati
Milacron Commercial Corp., a Delaware
corporation, Valenite Inc., a Delaware
corporation, CMMC, Market Street Funding
Corporation, a Delaware corporation
("Market Street"), and PNC Bank,
national association
(k) Section 5.10 of the Purchase
and Sale Agreement is hereby amended by
inserting the following at the end of such
Section:
Notwithstanding anything to the contrary
contained in this Agreement, Seller shall
not be prohibited from purchasing (or
causing the purchase of) "Pool Receivables"
and "Related Assets" (each as defined in
the "Receivables Purchase Agreement) from
Market Street, or making any supplement,
amendment, termination or other
modification to the Receivables Purchase
Agreement.
(l) Section 6.12 of the Purchase and
Sale Agreement is hereby amended by deleting
such Section in its entirety and inserting in
its place the following (and the Table of
Contents of the Purchase and Sale Agreement is
hereby amended to reflect such change):
6.12 Settlement of Intercompany
Accounts. All intercompany advances and
loans shall have been paid, settled or
terminated, except to the extent such
intercompany advances and loans are
provided for on Exhibit B-2.
(m) Section 6.13 of the Purchase and Sale
Agreement is hereby amended by replacing the
second occurrence of "(ii)", which appears in
the eighth line thereof, with "(iii)".
(n) Section 8.2 of the Purchase and
Sale Agreement is hereby amended by inserting
the following at the end of such Section:
Notwithstanding anything to the
contrary contained in Section 1.2(h) and
Section 8.7 of this Agreement, to the
extent the Buying Entities have not
obtained as of the Closing Date all
necessary licenses, waivers, consents and
approvals from all relevant national and
local Asian governmental authorities to
legally and effectively own and operate the
Business, as presently conducted, in Asia
(collectively, the "Asian Approvals"),
Seller shall (and shall cause the
applicable Selling Subsidiaries to), at the
Buying Entities' expense, reasonably
cooperate with the Buying Entities in
obtaining the Asian Approvals, including,
without limitation, (i) permitting the
Buying Entities to use exclusively in China
(or, to the extent required in other Asian
countries, such other Asian countries), to
the extent it would be legally
impermissible or commercially impracticable
not to do so, the names "Cincinnati
Milacron", "Cincinnati Milacron Marketing
Company", "Cincinnati Milacron
International Marketing Company", or any
other name currently being used with
respect to the Business located in China
(or, to the extent required in other Asian
countries, such other Asian countries), and
(ii) using reasonable efforts to
assist the Buying Entities in obtaining the
Asian Approvals, including, without
limitation, Asian Approvals relating to tax
matters, provided that from and after the
Closing Date the Buying Entities shall use
all reasonable efforts to obtain the Asian
Approvals at the earliest practicable date.
Subject to Section 1.9, the Buying Entities
shall use reasonable efforts to obtain
other necessary waivers, consents and
approvals from other parties to any
contracts or agreements in respect of the
Business located in Asia, including,
without limitation, any consents, waivers
and approvals that the Buying Entities may
be required to obtain from China National
Machine Tool Corp. and China Royal
Technology & Trade Corp.
(o) Section 8.5 of the Purchase and
Sale Agreement is hereby amended by inserting a
new paragraph (d) at the end thereof as follows:
(d) Post-Transfer Date Workers'
Compensation. Seller shall retain liability
for claims for workers' compensation filed
by or incurred by Continuing Employees on
or after the Transfer Date but prior to the
Closing Date, provided that Buyer shall (in
addition to, and not in limitation of,
Article 11 hereof) indemnify the Selling
Interests (as defined in Section 11(b)) and
hold them harmless against and with respect
to any and all Losses (as defined in
Section 11(a)) resulting from such claims.
(p) Section 8.6 of the Purchase and
Sale Agreement is hereby amended by deleting
such Section in its entirety and inserting in
its place the following (and the Table of
Contents of the Purchase and Sale Agreement is
hereby amended to reflect such change):
8.6 Transfer of French Assets and
Liabilities.
(a) Notwithstanding anything to the
contrary contained in Sections 1.1, 1.6 and
2.1, the sale, transfer, assignment, grant,
conveyance and delivery of Purchased Assets
relating to the Paris, France branch of MTG
(the "French Branch"), and the assumption
of Assumed Liabilities relating to, arising
out of or attributable to the French
Branch, shall not occur on the Closing Date
to the extent it is not legally
permissible, or would not be effective
under applicable French law to do so;
provided, however, that Buyer shall use all
reasonable efforts to cause it or an
Affiliate to obtain any necessary
qualifications and to take all other
necessary actions to cause all such
transactions to legally and effectively be
consummated (whether occurring at one or
more dates, the "French Closing") at the
earliest practicable date(s) following the
Closing Date, at which date(s) the parties
shall consummate the French Closing;
provided further, that the provisions set
forth in the proviso of Section 2.1 shall
apply to the French Closing. Seller
agrees, at Buyer's expense, to reasonably
cooperate with Buyer in causing the consummation
of the French Closing,including, without
limitation, by providing any information that
Buyer may require in connection with obtaining
necessary qualifications for the French Closing.
For clarity, this Section 8.6 shall in no way
modify Sections 1.4 and 1.5 of this Agreement, and
shall in no way be construed to exclude any assets or
liabilities of the French Branch from the computation
of Closing Net Book Value or permit any reduction or
withholding of the Estimated Purchase Price on the
Closing Date or the Purchase Price at such later date
as it is finally determined (except as may be provided
by Section 8.6(d)).
(b) To the extent the French Closing shall
occur after the Closing Date pursuant to Section 8.6(a),
and subject to paragraph (d) below, Seller shall continue
to operate the French Branch in the ordinary course and in
accordance with the applicable provisions of Article 5,
mutatis mutandis, until the French Closing with the benefits
and rights, and debts, liabilities and obligations, of
the French Branch accruing to Buyer, and Seller agrees to
hold net cash receipts (subject to paragraph (c) below) of
the French Branch after the Closing Date for the benefit of
Buyer until the French Closing is consummated. Seller shall not,
and shall not be obligated to, exercise any right, make
any election or appointment or take any other action
relating to the French Branch which is outside the
ordinary course (including without limitation make any
cash expenditure outside the ordinary course), except
pursuant to Buyer's prior written request, or in
Seller's reasonable judgment in the event of any
emergency or urgent situation; provided, however, that
Seller shall use its reasonable efforts to notify Buyer
prior to taking such action in connection with any such
emergency or urgent situation. Buyer shall, at the
request of Seller, promptly reimburse Seller and its
Affiliates for any costs or expenses (including,
without limitation, Taxes and any cash expenditures
made at the request of Buyer) incurred as a result of
holding the Purchased Assets and Assumed Liabilities
relating to the French Branch after the Closing Date.
Buyer and Seller shall cooperate in good faith to cause
the benefits and rights and debts, liabilities and
obligations of the French Branch to accrue to Buyer
until the French Closing including, without limitation,
the assumption by Buyer or its designee hereunder of
any debts, liabilities or obligations which if existing
or incurred on or before the Transfer Date would
constitute Assumed Liabilities.
(c) Within 30 days after the consummation of the
French Closing, Seller shall provide Buyer with a
written statement (the "French Statement") setting
forth the total cash disbursements (net of any
reimbursement pursuant to Section 8.6(b)) and cash
receipts made with respect to the French Branch on or
after the Closing Date and prior to the French Closing.
Within 10 days after receipt of the French Statement,
Buyer shall deliver to Seller a writing accepting or
objecting to the French Statement. In the event that
Buyer objects to the French Statement, such writing
shall include an itemization of Buyer's specific
objections and its reasons therefor. If no such
writing is delivered by Buyer to Seller within the
10-day period, Buyer shall be deemed to have
accepted the French Statement. In
the event Buyer makes any objections in
accordance with the foregoing, Buyer and Seller
shall promptly meet and in good faith attempt to
resolve the issues that are in dispute. In the
event that the issues in dispute shall not have
been resolved within 30 days following Seller's
receipt of Buyer's written objections, such
disputed issues shall be resolved by the
Independent Firm, provided the Parties shall
attempt to reach a final resolution of any
matters which remain in dispute at the earliest
practicable date. The costs and expenses of the
Independent Firm in reviewing the issues in
dispute shall be borne fifty percent (50%) by
Buyer and fifty percent (50%) by Seller. Upon
final determination of the French Statement (i)
Buyer shall make a payment to Seller equal to
the excess of cash disbursements over cash
receipts reflected in the French Statement or
(ii) Seller shall make a payment to Buyer equal
to the excess of cash receipts over cash
disbursements reflected in the
French Statement, as the case may be.
(d) In the event the French Closing does
not occur within six months following the
Closing Date, the Parties agree in good faith to
negotiate a reasonable arrangement pursuant to
which Buyer will obtain the economic benefits
and rights of the Purchased Assets, and become
subject to the Assumed Liabilities, relating to
the French Branch, and the Parties shall have no
further obligation to proceed with the French
Closing; provided, however, that in the event
the French Closing does not occur within such
six month period solely as a result of any
action taken by or failure to act by Seller,
Seller shall pay to Buyer that portion of the
Purchase Price (or the Estimated Purchase Price,
if the Purchase Price shall not have been
determined by such date) allocable to the French
Branch, plus interest thereon from the Closing
Date to the date of payment at the Purchase
Price Adjustment Interest Rate.
(q) Section 11.2(b) of the Purchase and
Sale Agreement is hereby amended by deleting the period at
the end of such Section and inserting in its place a
semicolon.
(r) The Purchase and Sale Agreement is
hereby amended to replace Exhibits A, B-2 and G
thereto in their entirety with the Exhibits A, B-2
and G, respectively, attached to this Amendment.
ARTICLE 3
Miscellaneous Provisions
3.1 Governing Law. This Amendment shall
be construed, interpreted and enforced in accordance
with the laws of the State of Delaware, without
regard to its conflict of laws rules.
3.2 Counterparts and Facsimile. This
Amendment may be executed simultaneously in two or
more counterparts, each of which shall be deemed an
original, but all of which together shall constitute
but one and the same instrument, and any of such
counterparts may be delivered by facsimile
transmission.
3.3 Captions. The captions contained in this
Amendment are provided for convenience of reference
only and shall not be deemed to constitute a part of
this Amendment.
3.4 Full Force and Effect. Except as
specifically amended hereby, the Purchase and Sale
Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used
therein, the terms "Agreement", "herein",
"hereunder", "hereinafter", "hereto", "hereof", and
words of similar import shall, unless the context
otherwise requires, refer to the Purchase and Sale
Agreement as amended hereby. Any reference in any
document to the Purchase and Sale Agreement shall be
deemed to be a reference to the Purchase and Sale
Agreement as amended hereby.
(Signature page follows)
IN WITNESS WHEREOF, the Parties, intending
to be legally bound, have caused this Amendment to be
executed on and as of the date hereof.
UNOVA, INC.
By:
Name:
Title:
UNOVA INDUSTRIAL AUTOMATION SYSTEMS,
INC.
By:
Name:
Title:
UNOVA UK LIMITED
By:
Name:
Title:
CINCINNATI MILACRON INC.
By:
Name:
Title: