EXHIBIT 2.2
AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Amendment dated as of October 9, 1998 is by and between Cooper
Industries, Inc., a corporation organized under the laws of Ohio ("Seller");
Federal-Mogul Corporation, a corporation organized under the laws of Michigan;
Federal-Mogul Comercio Internacional Ltda., a Brazilian corporation;
Federal-Mogul Pty. Ltd., an Australian limited company; and Federal- Mogul
Global Growth Ltd., a limited company incorporated under the laws of England and
Wales (collectively "Buyer") and F-M U.K. Holding Limited, a limited company
incorporated under the laws of England and Wales; and F-M International Group,
Inc., a corporation organized under the laws of Delaware (collectively
"Additional Parties").
WHEREAS, Seller and Buyer entered into a Purchase and Sale Agreement
dated August 17, 1998 (the "Agreement"); and
WHEREAS, Seller and Buyer desire to amend the terms of the Agreement
to include the Additional Parties as parties to the Agreement, to correct
certain typographical and other errors and to reflect certain other agreements
of the parties.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. The Additional Parties are hereby added as parties to the Agreement and
included in the term "Buyer" in the Agreement.
2. The parties discovered certain typographical and other errors in the
Agreement. Attached hereto are replacement pages correcting the errors on pages
35, 41, 54, 74 and 87, the Index to the Disclosure Schedules and Disclosure
Schedules 3.11(b), (d), (e), (f) and (h). The corrections on the attached
replacement pages are highlighted.
3. Seller has agreed to allow Gordon Ulsh to take his computer laptop and other
computer equipment for use in his position with Buyer following the Closing. The
parties agree that the book value of such equipment is not included in the Peg
Statement of Net Assets, but will be included in the Preliminary and Final
Closing Statements of Net Assets.
4. Section 5.26 of the Agreement is deleted in its entirety and replaced by the
following provision:
"5.26. Environmental Insurance Policy. Seller shall purchase an
environmental insurance policy in a form reasonably acceptable to both
parties. If any Adverse Consequence or Environmental Claim is not subject to
the
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indemnification provisions of Section 9.4, Seller shall nevertheless
indemnify the Buyer Indemnified Parties for any Adverse Consequences and
Environmental Claims to the extent such Adverse Consequences and
Environmental Claims are covered by such environmental insurance policy.
Further, in the event that a claim is made under such policy, the related
$250,000 deductible shall be paid by Buyer and shall apply to the aggregate
amount of Adverse Consequences suffered by the Buyer Indemnified Parties as
described in Section 9.3(a), whether or not such claim is based on a breach
by Seller of its representations and warranties under Section 3.11.
Notwithstanding anything to the contrary contained in this Agreement, a copy
of this Agreement may be disclosed to the insurer."
5. The following provision is added to the Agreement as Section 7.8:
"7.8 Provisions Concerning Certain Mexican Share Transfers by Cooper
a) Buyer will indemnify the Seller Indemnified Parties for any
Mexican capital gains taxes imposed pursuant to Article 151 of
the Mexican Income Tax Law ("Indemnification Payment") incurred
by Seller on the transfer by Seller of the shares of Frenos
Hidraulicos Automotrices, S.A. de C.V. to Champion Spark Plug
Company.
b) If the transfer(s) by certain Affiliates of Seller of the shares
of Cooper Automotive S.A. de C.V. to Champion Spark Plug Company
and Cooper Automotive Company are deemed void because the Mexican
tax authorities deny exemption of these transfer(s) from
application of the Mexican capital gains tax, then Seller agrees
that it shall cause its Affiliates to sell and Buyer agrees to
cause its designated Affiliate to purchase for $1, all the
outstanding shares of Cooper Automotive S.A. de C.V. on a date
mutually agreed to by the parties, but in no event later than
December 31, 1998. The Preliminary and Final Closing Statements
of Net Assets will include the assets and liabilities of Cooper
Automotive S.A. de C.V. as of October 9, 1998 regardless of the
date of the sale of its shares to Buyer's designated Affiliate.
c) If any Mexican capital gains taxes are payable due to the
transfers of the shares of Cooper Automotive S.A. de C.V. to
Champion Spark Plug Company and Cooper Automotive Company, then
Buyer will indemnify the Seller Indemnified Parties for any such
Mexican capital gains taxes incurred by Seller and its Affiliates
on the transfer of such shares. Buyer shall indemnify the Seller
Indemnified Parties for such capital gains taxes within ten days
of written demand therefor; provided, however, that such written
demand sets forth in reasonable detail the computation of the
Indemnification Payment.
d) Notwithstanding anything contained in subparagraphs (a) and (c)
above, Buyer shall have no obligation to indemnify the Seller
Indemnified Parties for any Mexican capital gains taxes incurred
on the transfers referred to in
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subparagraphs (a) and (c) if such taxes would be imposed in any
event by the sale of the shares of Champion Spark Plug Company
by Seller to Buyer.
e) If Buyer makes an Indemnification Payment to Seller under clause
(a) or (c) and Seller is able to use permanently all or any
portion of the Mexican capital gains taxes which caused such
Indemnification Payment as a credit against United States taxes,
Buyer and Seller shall adjust the Indemnification Payment
downward by the amount of Mexican capital gains taxes so used.
Seller shall be deemed to have permanently used Mexican capital
gains taxes as United States credits only if, and to the extent
that, for all tax years Seller's United States federal income tax
(x), with credit for all or a portion of the Mexican capital
gains taxes taken as a credit, is less than (y) the United States
tax that would have been payable without said Mexican capital
gains taxes as credits. Both alternatives (x) and (y) shall take
into consideration applicable carryforwards and carrybacks of
foreign tax credits under the respective alternatives."
6. Unless otherwise defined herein, Capitalized terms have the meanings
ascribed to them in the Agreement.
7. Except as amended by Sections 1 through 5 above, the Agreement remains in
full force and effect in accordance with the terms thereof.
IN WITNESS WHEREOF, the parties hereto have executed this amendment
as of the date first written above.
COOPER INDUSTRIES, INC.
/s/ David A. White, Jr.
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By: David A. White, Jr.
FEDERAL-MOGUL CORPORATION
/s/ David M.Sherbin
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By: David M. Sherbin
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FEDERAL-MOGUL COMERCIO
INTERNACIONAL LTDA.
/s/ David M. Sherbin
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By: David M. Sherbin
FEDERAL-MOGUL PTY. LTD.
/s/ David M. Sherbin
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By: David M. Sherbin
FEDERAL-MOGUL GLOBAL
GROWTH LTD.
/s/ David M. Sherbin
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By: David M. Sherbin
F-M U.K. HOLDING LIMITED
/s/ David M. Sherbin
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By: David M. Sherbin
F-M INTERNATIONAL GROUP, INC.
/s/ David M. Sherbin
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By: David M. Sherbin
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