Exhibit 2.2
THIS AMENDMENT AGREEMENT is made on 4 December 2002
BETWEEN:
(1) PHOENIX ACQUISITION COMPANY S.ar.l (registered at the Luxembourg Trade and
Companies Registry under No. 66455) whose registered office is at 398
route d'Esch, L-1471 Luxembourg (Phoenix);
(2) THE PERSONS other than Phoenix whose names and addresses are set out in
Part A of Schedule 1 of the SPA (as defined below) (the Other Investors
and each an Other Investor and, together with Phoenix, the Investors);
(3) THE PERSONS whose names and addresses are set out in Part C of Schedule 1
of the SPA (the Mezzanine Lenders and each a Mezzanine Lender and,
together with the Investors, the BCcH Shareholders);
(4) Stichting Administratiekantoor Phoenix whose registered office is at
Meerenakkerplein 27-30, 5652 BJ Eindhoven, The
Netherlands (the Foundation);
(5) VISHAY INTERTECHNOLOGY, Inc. (the Purchaser);
(6) VISHAY EUROPE GMBH (VEG);
(7) BCCOMPONENTS INTERNATIONAL B.V. (BCc International),
(together, the Parties)
WHEREAS:
(A) On 10 November 2002, the Parties entered into a share sale and purchase
agreement under which (i) the Purchaser agreed to purchase all of the Sale
Shares, the Foundation Shares, the Company Warrants and the Co-Investor Loan,
the BCcH Shareholders agreed to sell the Sale Shares, the Mezzanine Lenders
agreed to sell the Company Warrants and the Co-Investors agreed to assign the
Co-Investor Loan, (ii) the Mezzanine Lenders agreed to assign the Mezzanine
Credit Agreement and contribute the DIPs and (iii) the Foundation undertake
certain obligations on and subject to the terms of Schedule 5 of the SPA (the
Transaction), in each case on and subject to the terms and subject to the
conditions set out in the agreement (the SPA).
(B) The Parties wish to amend the SPA in the manner described in this
Amendment Agreement.
IT IS AGREED as follows:
INTERPRETATION
1.1 Terms and expressions defined in the SPA have the same meaning when used
in this Amendment Agreement.
1.2 The headings in this Amendment Agreement shall not affect its
interpretation.
1.3 The Schedule to this Agreement forms part of this Amendment Agreement.
AMENDMENT OF THE SPA
2.1 The Parties hereby agree that, subject to clause 2.2 below, the SPA shall
be, and shall be deemed to be, amended with effect on and from the date of this
Amendment Agreement (the Effective Date) as set out in the Schedule hereto.
2.2 The SPA, as amended by this Amendment Agreement, shall remain in full
force and effect and, save where the context otherwise requires, any reference
in the SPA to "Agreement" shall be read and construed as a reference to the SPA
as amended by this Amendment Agreement. Any schedule or exhibit attached to the
SPA shall remain valid and documents relating to the Transaction which were in
agreed form at the date of the SPA shall continue to be treated as being in
agreed form.
NOTICE
3.1 The Purchaser and VEG each hereby acknowledge and agree that the notices
served by Phoenix on the Purchaser pursuant to, on the one hand, Clause 5.1(a)
and (b) of the SPA, and, on the other hand, Clause 5.1(c) of the SPA,
respectively transmitted by fax by Phoenix to the Purchaser on 28 and 29
November 2002 (together, the Phoenix Pre-Completion Notices), were both validly
served on 29 November 2002, in accordance with the terms of the SPA in the form
in which it subsisted on that date.
3.2 Each of the Parties acknowledges and agrees that the Phoenix
Pre-Completion Notice served pursuant to Clause 5.1(a) and (b) of the SPA is
hereby revoked and shall be treated as being of no further force and effect, but
that the execution of this Amendment Agreement is without prejudice to the
Phoenix Pre-Completion Notice served pursuant to Clause 5.1(c) of the SPA and
such notice continues to be in full force and effect and has not been revoked.
WARRANTIES
4.1 Each BCcH Shareholder warrants severally to the Purchaser in respect of
itself that as of the date of this Amendment Agreement:
(a) it has obtained all corporate authorisations required to empower it to
enter into and to perform its obligations under this Amendment Agreement;
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(b) this Amendment Agreement constitutes a valid and binding obligation of it
in accordance with its terms subject to applicable bankruptcy, insolvency,
reorganisation, moratorium and similar laws affecting creditors' rights
and remedies generally; and
(c) the execution and delivery of, and the performance by it of its
obligations under, this Amendment Agreement will neither:
(i) conflict with, or result in the breach of, any provision of its
Memorandum or Articles of Association or other constitutional or
empowering agreement (if any); nor
(ii) violate any statute, rule, regulation, order, judgment or decree
of, or undertaking to, any court or governmental body or
authority by which it is bound.
and the provisions of sub-clauses 9.6 to 9.14 inclusive (other than sub-clause
9.11) of the SPA shall apply in respect of the above warranties, mutatis
mutandis.
4.2 The Purchaser and VEG each warrant to each of the BCcH Shareholders and
the Foundation that as of the date of this Amendment Agreement:
(a) it has obtained all corporate authorisations required to empower it to
enter into and to perform its obligations under this Amendment Agreement;
(b) this Amendment Agreement constitutes (or, to the extent that, in order to
be valid and binding on VEG under the laws of Germany, this Amendment
Agreement requires to be notarised before notaries public in any one or
more jurisdictions, it will constitute for VEG after such notarisations
have been duly made) a valid and binding obligation of it in accordance
with its terms subject to applicable bankruptcy, insolvency,
reorganisation, moratorium and similar laws affecting creditors' rights
and remedies generally; and
(c) the execution and delivery of, and the performance by it of its
obligations under, this Amendment Agreement will neither:
(i) conflict with, or result in the breach of, any provision of its
Certificate of Incorporation, by-laws or other constitutional or
empowering agreement (if any); nor
(ii) violate any statute, rule, regulation, order, judgment or decree
of, or undertaking to, any court or governmental body or
authority by which it is bound.
and the provisions of sub-clauses 10.2 and 10.4 of the SPA shall apply in
respect of the above warranties, mutatis mutandis.
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GENERAL
5.1 The provisions of Clauses 11-17, 19-23 and 25-28 (in each case inclusive)
of the SPA shall apply in respect of this Amendment Agreement, mutatis mutandis.
5.2 The Parties to this Amendment Agreement hereby agree that, if any or all
of them are party to any other agreement entered into prior to the date of this
Amendment Agreement which refers to any sub-clauses in Clause 6 of the SPA, such
agreements shall, with effect from the amendments provided for in this Amendment
Agreement, be deemed to refer to to the applicable provisions as renumbered in
the amended SPA which is attached hereto as a Schedule.
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IN WITNESS whereof this Amendment Agreement has been signed by and on behalf of
the Parties on the day and year first before written.
SIGNED )
for and on behalf of )
PHOENIX ACQUISITION COMPANY )
S.a.r.l )
SIGNED )
for and on behalf of )
COMPASS PARTNERS EUROPEAN )
EQUITY FUND (BERMUDA) L.P. )
SIGNED )
for and on behalf of )
COMPASS PARTNERS EUROPEAN )
EQUITY INVESTORS L.P )
SIGNED )
for and on behalf of )
COMPASS PARTNERS 1999 FUND L.P. )
SIGNED )
for and on behalf of )
EUROPEAN PRIVATE EQUITY )
INVESTORS LLC )
SIGNED by SANKATY ADVISORS, LLC )
for and on behalf of )
SANKATY HIGH YIELD ASSET )
PARTNERS L.P. )
SIGNED by SANKATY ADVISORS, LLC )
for and on behalf of )
BCM CAPITAL PARTNERS L.P. )
5
SIGNED by SANKATY ADVISORS, LLC )
for and on behalf of )
BCIP ASSOCIATES II )
SIGNED by SANKATY ADVISORS, LLC )
for and on behalf of )
BCIP TRUST ASSOCIATES II )
SIGNED by SANKATY ADVISORS, LLC )
for and on behalf of )
BCIP TRUST ASSOCIATES II-B )
SIGNED by SANKATY ADVISORS, LLC )
for and on behalf of )
BAIN CAPITAL V MEZZANINE )
FUND L.P. )
SIGNED )
for and on behalf of )
GARMARK PARTNERS L.P. )
SIGNED )
for and on behalf of )
JP MORGAN PARTNERS (BHCA), L.P. )
By: JPMP Master Fund Manager, L.P.,
its general partner
By: JPMP Capital Corp.,
its general partner
By: ____________________________
Name:
Title:
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SIGNED )
for and on behalf of )
Stichting )
Administratiekantoor )
Phoenix )
SIGNED )
for and on behalf of )
VISHAY INTERTECHNOLOGY INC. )
SIGNED )
for and on behalf of )
VISHAY EUROPE GMBH )
SIGNED )
for and on behalf of )
BCCOMPONENTS INTERNATIONAL )
B.V. )
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Schedule
Amended Form of the SPA
8
4 December 2002
PHOENIX ACQUISITION COMPANY S.a.r.l
THE OTHER INVESTORS
THE FOUNDATION
THE MEZZANINE LENDERS
VISHAY INTERTECHNOLOGY, INC.
VISHAY EUROPE GMBH
AND
BCCOMPONENTS INTERNATIONAL B.V.
============================================================
AMENDMENT AGREEMENT
to amend the Share Sale and Purchase Agreement
relating to the sale and purchase of the
issued share capital of BCcomponents Holdings
B.V.
dated 10 November 2002
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FRESHFIELDS BRUCKHAUS DERINGER
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.................................................2
2. AMENDMENT OF THE SPA...........................................2
3. NOTICE.........................................................2
4. GENERAL........................................................4
SCHEDULE..........................................................8