Exhibit 2.2
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment to Stock Purchase Agreement ("Amendment") is made as of the
13th day of October, 1997, by and between CITYSIDE HOLDING L.L.C., a Minnesota
limited liability company ("Cityside"), C.H. ROBINSON, INC., a Minnesota
corporation ("C.H. Robinson"), and NORWEST CORPORATION, a Delaware corporation
("Norwest").
WHEREAS, Cityside Holding Company, a Minnesota corporation, C.H. Robinson
and Norwest have previously entered into that certain Stock Purchase Agreement
dated as of September 9, 1997 (the "Stock Purchase Agreement"; all capitalized
terms used herein and not otherwise defined shall have the same meaning ascribed
thereto as in the Stock Purchase Agreement); and,
WHEREAS, the parties desire to enter into this Amendment to amend the Stock
Purchase Agreement to provide that (i) the purchase of the Acquired Companies
Stock be funded into escrow pursuant to an escrow agreement, (ii) the Purchase
Price shall be determined as of the date of said funding into escrow, and (iii)
paragraph 7(j) shall be amended as provided herein.
WHEREAS, on October 10, 1997, Cityside Holding Company, Inc., a Minnesota
corporation merged into a single-member Minnesota limited liability company,
Cityside Holding L.L.C., the sole member of which is C.H. Robinson.
NOW THEREFORE, in consideration of Ten and 00/100 Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Subparagraph 1(b) of the Stock Purchase Agreement is deleted in its
entirety and replaced with the following:
(b) Purchase Price. The purchase price ("Purchase Price") for the
Acquired Companies Stock shall be the combined "Net Worth" of the acquired
companies as of October 14, 1997, plus $27,300,000.00 (the "Premium");
subject to the Closing, notwithstanding any provision in this Stock
Purchase Agreement to the contrary, all profits and expenses of the
Acquired Companies accrued on and after October 14, 1997 shall be for the
account of Norwest. "Net Worth" shall mean the combined excess of all
assets of the Acquired Companies over all of the liabilities of the
Acquired Companies, determined on a combined basis as of October 14, 1997
in accordance with accounting principles as historically used by Cityside
with respect to the Acquired Companies consistently applied. The Premium
paid by Norwest will be allocated solely to the purchase of the stock of
Cityside Financial and Cityside Indirect in proportion to the net finance
receivables of those two corporations as of October 14, 1997.
2. Subparagraph 1(c) of the Stock Purchase Agreement is deleted in its
entirety and is replaced with the following:
(c) Closing. The purchase of the Acquired Companies Stock shall be
funded by Norwest's transfer of funds on October 14, 1997 to the Escrow
Agent, as defined in the Escrow Agreement attached hereto as Attachment
1(c)("Escrow Agreement"), pursuant to Section 2(b)(ii)(A) of the Escrow
Agreement, and that upon transferring of said funds by Norwest, the
transfer of the Escrowed Funds (as defined in the Escrow Agreement), the
Acquired Companies Stock, and other documents held in escrow (the
"Closing"), shall be subject only to receipt of all required regulatory
approvals and satisfaction of all the terms and conditions of the Escrow
Agreement. Provided, however, all conditions precedent to Closing set
forth in paragraphs 6 and 7 of the Stock Purchase Agreement, other than
those set forth in subparagraphs 6(e), 7(d) and 7(i) thereof, shall have
been satisfied or waived by the applicable party prior to the transfer of
funds by Norwest to the Escrow Agent. Upon receipt by Norwest of the last
of all required regulatory approvals, Norwest shall promptly notify
Cityside and C.H. Robinson of the receipt of said approvals and the parties
shall set a Closing Date for the purchase and sale of the Acquired
Companies Stock, which shall be three (3) business days after the receipt
of the last of the required regulatory approvals, or such other time as the
parties may agree in writing. Not later than one (1) business day prior to
the Closing Date, Norwest, Cityside and C.H. Robinson shall jointly request
in writing to Escrow Agent that Escrow Agent, (i) deliver to Cityside on
the Closing Date the Escrowed Funds, plus any interest accrued thereon, and
(ii) deliver to Norwest the Acquired Companies Stock, and (iii) deliver all
other documents held in escrow to the appropriate party in accordance with
the Escrow Agreement. The date and time of the Closing are herein referred
to as the Closing Date. The Closing shall be deemed to be effective
immediately following the close of business on the date immediately
preceding the date on which the Closing shall occur.
The parties hereto acknowledge that a portion of the Escrowed Funds are (i)
the amount of intercompany debt and accrued taxes payable as stated on the
Preliminary Closing Statement, and (ii) the amount necessary to satisfy the
loan facility noted as item 2 on Schedule 2(d) as stated on the Preliminary
Closing Statement (collectively the "Escrowed Debt"). The Acquired
Companies will not accrue interest expense payable and C.H. Robinson will
not accrue interest income receivable on the Escrowed Debt from October 14,
1997, through the Closing Date. On the Closing Date, Norwest shall pay to
C.H. Robinson any amount due as a penalty as a result of prepaying the loan
facility noted as item 2 on Schedule 2(d).
3. Subparagraph 1(d) of the Stock Purchase Agreement is deleted in its
entirety and replaced with the following:
(d) Closing Deliveries. All closing documents and funds shall be
delivered to the Escrow Agent in accordance with the Escrow Agreement.
4. Subparagraph 1(e) of the Stock Purchase Agreement is deleted in its
entirety and replaced with the following:
(e) Preliminary Closing Statement; Adjustments. Cityside shall prepare
and deliver to Norwest at least four (4) business days prior to October 14,
1997, a Preliminary Closing Statement ("Preliminary Closing Statement")
consisting of a balance sheet and statements of income and shareholders' equity
as of the month end immediately preceding October 14, 1997, in each case
prepared in accordance with accounting principles as historically used by
Cityside with respect to the Acquired Companies, consistently applied, setting
forth the Acquired Companies' Net Worth as of the month end immediately
preceding October 14, 1997.
Within sixty (60) days after the Closing Date, Cityside shall prepare a
balance sheet as of October 14, 1997, and statements of income and shareholders'
equity as of the short year ended October 14, 1997, and a statement of debt owed
by the Acquired Companies to C.H. Robinson as of the Closing Date, which takes
into account the limitation on accrual of interest as set forth in subparagraph
1(c) hereof (the "Closing Date Intercompany Debt"), in each case prepared in
accordance with accounting principles as historically used by Cityside with
respect to the Acquired Companies, consistently applied ("Final Closing
Statement"), and will deliver the Final Closing Statement to Norwest. Cityside
shall grant Norwest and its representatives reasonable access to the books and
records of the Acquired Companies and their personnel for the purpose of
reviewing the Final Closing Statement. The amount (i) by which the Net Worth
set forth on the Final Closing Statement is greater or less than the Net Worth
as set forth on the Preliminary Closing Statement, (ii) by which the Closing
Date Intercompany Debt is greater or less than the Escrowed Debt, and (iii) of
interest accrued at the 30-day Fed Funds rate as published in the Wall Street
Journal on the Closing Date on the amount determined under subclause 1(e)(ii)
hereof, from the Closing Date to the date this amount is paid to the appropriate
party under the provisions of this subparagraph 1(e), shall be the "Adjustment
Amount." Norwest will provide a detailed objection (if any) to the Final
Closing Statement within thirty (30) days after receipt thereof. Norwest and
Cityside will use reasonable efforts to resolve any objections concerning the
Final Closing Statement themselves. If the parties do not obtain a final
resolution within ten (10) business days after Cityside has received a statement
of objections (if any), however, either Cityside or Norwest may elect to select
an accounting firm mutually acceptable to them to resolve any remaining
objections (the "Accountant"). If Norwest and Cityside are unable to agree on
the choice of an accounting firm, they will select a "big six" accounting firm
by lot as the Accountant, provided however that the Accountant shall not be
Arthur Andersen, L.L.P., KPMG Peat Marwick L.L.P. or Deloitte & Touche L.L.P.,
or any other firm
having a significant relationship with any party hereto, which shall be
jointly instructed by Norwest and Cityside to determine the amount of Net
Worth and Closing Date Intercompany Debt. The expenses of the Accountant shall
be borne by the party whose position is not supported by the Accountant's
determination, or, if the Accountant's determination does not support either
party's position, then such expenses shall be borne equally by Norwest and
Cityside. The determinations of the Accountant shall be final, binding and
unreviewable for error. Within three (3) business days after the parties have
reached agreement on, or the Accountant has determined the Final Closing
Statement, Norwest shall pay to Cityside in immediately available funds or
Cityside shall refund to Norwest in immediately available funds, in the same
manner, the Adjustment Amount.
5. Subparagraph 7(j) of the Stock Purchase Agreement shall be deleted in
its entirety and replaced with the following:
(j) The Acquired Companies shall have transferred, in accordance with
applicable laws and regulations, any and all loans to C.H. Robinson
employees held by the Acquired Companies; and neither Norwest nor the
Acquired Companies shall have any further liability with respect to such
loans; provided, however, Norwest shall hold such employees harmless from
any penalties associated with such transfer.
6. Except as amended herein, the Stock Purchase Agreement shall remain in
full force and effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
NORWEST CORPORATION CITYSIDE HOLDING L.L.C.
By: /s/ John E. Ganoe By: C. H. Robinson, a Minnesota corporation, its
------------------------- sole member
Title: E.V.P.
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By: /s/ Dale S. Hanson
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Title: V.P. & C.F.O.
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C. H. ROBINSON, INC.
By: /s/ Dale S. Hanson
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Title: V.P. & C.F.O.
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