Exhibit 2.2
AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT, is entered into
as of August 28, 2003 (this "Amendment"), by and among the stockholders listed
as the GENSTAR STOCKHOLDERS on Schedule I to the Agreement (as defined below)
(the "Genstar Stockholders"), the ONTARIO TEACHERS' PENSION PLAN BOARD, a
non-share capital corporation organized and existing under the Teachers' Pension
Act R.S.C. 1990, C.T.I. (Ontario) ("OTPPB"), and the other stockholders listed
on Schedule I to the Agreement (together with the Genstar Stockholders and
OTPPB, collectively, "Sellers" and each, a "Seller"), as sellers, the
Sherwin-Williams Claims Trust, a statutory trust organized and existing under
the laws of the State of Delaware (the "Sherwin-Williams Claims Trust"), GENSTAR
CAPITAL CORPORATION, a corporation organized and existing under the laws of the
Province of Alberta, Canada ("Genstar"), as sellers' representative (Genstar
acting in such capacity or such other Person as may succeed Genstar in such
capacity being referred to herein as "Sellers' Representative") and Managing
Trustee of the Sherwin-Williams Claims Trust (Genstar acting in such capacity or
such other Person as may succeed Genstar in such capacity being referred to
herein as the "Managing Trustee"), GENTEK HOLDINGS, INC., a corporation
organized and existing under the laws of the State of Delaware ("Gentek
Holdings"), GENTEK BUILDING PRODUCTS, INC., a corporation organized and existing
under the laws of the State of Delaware ("Gentek U.S."), GENTEK BUILDING
PRODUCTS LIMITED, a corporation organized and existing under the laws of the
Province of Ontario, Canada ("Gentek Canada"), and ASSOCIATED MATERIALS
INCORPORATED, a corporation organized and existing under the laws of the State
of Delaware ("Purchaser"), as purchaser.
W I T N E S S E T H:
WHEREAS, Sellers, the Sherwin-Williams Claims Trust, Genstar (as
Sellers' Representative and Managing Trustee), Gentek Holdings, Gentek U.S.,
Gentek Canada and Purchaser are parties to that certain Stock Purchase
Agreement, entered into as of July 31, 2003 (the "Agreement").
WHEREAS, pursuant to Section 11.08 of the Agreement, the parties
thereto and hereto desire to amend the Agreement on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
agreements, covenants, representations and warranties hereinafter set forth and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise
defined have the meanings assigned to them in the Agreement.
2. Amendments to the Preamble of the Agreement. The preamble to the
Agreement is hereby amended as follows:
(a) The phrase "the Sherwin-Williams Claims Trust, a trust organized
and existing under that certain Trust Agreement, dated as of July 31, 2003, by
and among Genstar Capital Corporation and the persons listed on Schedule I
thereto (the "Sherwin-Williams Claims Trust")" is hereby deleted and replaced by
the phrase "the Sherwin-Williams Claims Trust, a statutory trust organized and
existing under the laws of the State of Delaware (the "Sherwin-Williams Claims
Trust")".
(b) The phrase "(Genstar acting in such capacity or such other Person
as may succeed Genstar in such capacity being referred to herein as the
"Trustee")" is hereby deleted and replaced by the phrase "(Genstar acting in
such capacity or such other Person as may succeed Genstar in such capacity being
referred to herein as the "Managing Trustee")". Except as otherwise provided in
Section 3(b) of this Amendment, each reference to the "Trustee" in the Agreement
is hereby deleted and replaced by a reference to the "Managing Trustee".
3. Amendment to Section 1.01 of the Agreement. Section 1.01 of the
Agreement is hereby amended as follows:
(a) The following definition is hereby added to Section 1.01 of the
Agreement in alphabetical order: ""Managing Trustee" shall have the meaning
specified in the preamble to this Agreement."
(b) The definition of "Trustee" is hereby deleted in its entirety.
4. Amendment to Heading of Section 2.05 of the Agreement. The phrase
", the Sherwin-Williams Claims Trust and Sellers' Representative" is hereby
inserted immediately after the word "Sellers" in the heading of Section 2.05 of
the Agreement.
5. Amendment to Section 2.05(iv) of the Agreement. Section 2.05(iv) of
the Agreement is hereby amended and restated in its entirety as follows:
"counterparts, executed by Sellers' Representative and the Sherwin-Williams
Claims Trust, of the Escrow Agreement dated as of the Closing Date;".
6. Amendment to Section 2.06(i) of the Agreement. Section 2.06(i) of
the Agreement is hereby amended and restated in its entirety as follows:
"[Intentionally Omitted];".
7. Amendment to Section 2.09(b)(i) of the Agreement. The phrase
"thirty (30) calendar days" in Section 2.09(b)(i) of the Agreement is hereby
deleted and replaced by the phrase "thirty one (31) calendar days".
8. Amendment to Section 3.01(c) of the Agreement. The following two
sentences are hereby inserted at the beginning of Section 3.01(c) of the
Agreement "The Sherwin-Williams Claims Trust is a statutory trust duly
organized, validly existing and in good standing under the laws of the State of
Delaware. A certificate of conversion to statutory trust and a certificate of
trust have been duly filed in proper form in the name and on behalf of the
Sherwin-Williams Claims Trust with the Secretary of State of the State of
Delaware and have become effective in accordance with the Delaware Statutory
Trust Act.".
9. Amendment to Section 6.12 of the Agreement. The phrase "and that
certain Promissory Note between Charles Canning and Gentek U.S. dated February
11, 1997, as revised pursuant to that certain Revision to Term Promissory Note
dated April 6, 1998" is hereby inserted immediately before the end of the first
parenthetical of Section 6.12 of the Agreement.
10. Amendment to Schedule III of the Agreement. Item 8 of Schedule III
to the Agreement is hereby deleted and replaced by the phrase "[Intentionally
Omitted.]".
11. Continuing Effect of the Agreement. This Amendment shall not
constitute a waiver, amendment or modification of any other provision of the
Agreement not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of any of the
parties that would require a waiver or consent of the other party. Except as
expressly amended or modified herein, the provisions of the Agreement are and
shall remain in full force and effect.
12. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same agreement.
13. Governing Law; Jurisdiction.
(a) This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the state of Delaware.
(b) Any judicial proceeding brought against any of the parties to this
Amendment in connection with any dispute arising out of this Amendment or the
transactions contemplated hereby (each, a "Proceeding") may be brought in the
courts of the State of New York, or in the United States District Court for the
Southern District of New York, and, by execution and delivery of this Amendment,
each of the parties to this Amendment accepts the exclusive jurisdiction of such
courts, and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Amendment. The
foregoing consent to jurisdiction shall not constitute general consents to
service of process in the State of New York for any purpose except as provided
above and shall not be deemed to confer rights on any Person other than the
respective parties to this Amendment. Each of the Sellers, Sellers'
Representative and Purchaser agree that service of any process, summons, notice
or document by U.S. registered mail to such party's address as set forth in the
Agreement shall be effective service of process for any action, suit or
proceeding in the State of New York with respect to any Proceeding.
14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO TRIAL BY
JURY IN RESPECT OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED ON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY OR OTHERWISE. EACH OF THE PARTIES HERETO HEREBY AGREES
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, each party hereto has executed, or caused its duly
authorized officer(s) to execute, this Agreement as of the date first written
above.
SELLERS
THE MANUFACTURERS LIFE
INSURANCE COMPANY
439246 ONTARIO INC.
ROYAL TRUST CORPORATION OF
CANADA, TRUSTEE FOR DUPONT
CANADA INC. PENSION TRUST FUND
FIDUCIE DESJARDINS, COMPTE #43-
00418-7 FOR SOCIETE DE TRANSPORT
DE LA COMMUNAUTE URBAINE DE
MONTREAL
COMINCO PENSION FUND CO-
ORDINATING SOCIETY
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
ASSOCIATION DE BIENFAISANCE ET
DE RETRAITE DES POLICIERS DE LA
COMMUNAUTE URBAINE DE
MONTREAL
THE RETIREMENT PLAN FOR
EMPLOYEES OF CANADIAN UTILITIES
LIMITED AND PARTICIPATING
COMPANIES PLAN I
BANTOR COMPANY
CROWN LIFE INSURANCE COMPANY
DESJARDINS FINANCIAL SECURITY
LIFE ASSURANCE COMPANY
OEFC PRIVATE EQUITY HOLDCO INC.
AXA SECONDARY FUND LP
PAUL CAPITAL PARTNERS VI
HOLDINGS
BPO PROPERTIES LTD.
SUN LIFE ASSURANCE COMPANY OF
CANADA
CITIBANK CANADA
CAPITAL GUIDANCE (PLACEMENTS)
LTD.
DAVID H. BUTTERFIELD
RICHARD USHER-JONES
RAYQUEST HOLDINGS LTD.
MANFRED WIRTH
BMO NESBITT BURNS INC.
TOW PARTNERS, A CALIFORNIA
LIMITED PARTNERSHIP
G.R. DAWSON HOLDINGS LIMITED
INVENTURES CAPITAL
805491 ONTARIO INC.
ZURI-INVEST A.G.
ALDERPRISE INC.
DAVID L. ANDERSON
TERRY A. JACKSON
PATHONIC ULC
G. LEONARD BAKER, JR.
JIC
WIRRAL BOROUGH COUNCIL
MERCEYSIDE PENSION FUND
GE CAPITAL EQUITY INVESTMENT
LTD.
NORTH BAY LIMITED
ABN AMRO VENTURES BV
GENSTAR INVESTMENT
CORPORATION
RICHARDSON VENTURES INC.
ONTARIO TEACHERS' PENSION PLAN
BOARD
DAVID L. BURKE
KONG H. CHEN
GEORGE E. ECKERD
J. HERBERT GAUL, JR.
JOSEPH P. IPPOLITO
DARVIN L. KING
STEPHEN L. KLEIN
ALAIN LAROSE
JEFFREY V. MILLER
MICHAEL C. MILLER
WAYNE G. PALMER
JAN P. RANDLES
ALAIN ROBITAILLE
DONALD L. SPERRY
DANIEL R. TAYLOR
DENNIS M. THOMPSON
JOHN UMIASTOWSKI
By: Genstar Capital Corporation, as
Sellers' Representative
By: /s/ William MacDonald
Name: William MacDonald
Title: Chairman and President
THE SHERWIN-WILLIAMS CLAIMS
TRUST
SHERWIN-WILLIAMS CLAIMS TRUST
By: Genstar Capital Corporation, as
Managing Trustee
By: /s/ William MacDonald
Name: William MacDonald
Title: Chairman and President
SELLERS' REPRESENTATIVE
GENSTAR CAPITAL CORPORATION
By: /s/ William MacDonald
Name: William MacDonald
Title: Chairman and President
GENTEK HOLDINGS
GENTEK HOLDINGS, INC.
By: /s/ Mark A. Gamble
Name: Mark A. Gamble
Title: Executive Vice President
and Chief Financial
Officer
GENTEK U.S.
GENTEK BUILDING PRODUCTS, INC.
By: /s/ Mark A. Gamble
Name: Mark A. Gamble
Title: Executive Vice President
and Chief Financial
Officer
GENTEK CANADA
GENTEK BUILDING PRODUCTS LIMITED
By: /s/ Mark A. Gamble
Name: Mark A. Gamble
Title: Executive Vice President
and Chief Financial
Officer
PURCHASER
ASSOCIATED MATERIALS INCORPORATED
By: /s/ D. Keith LaVanway
Name: D. Keith LaVanway
Title: Vice President, Chief
Financial Officer,
Treasurer and Secretary