Exhibit 2.2
AMENDMENT NO. 1 TO
SHARE PURCHASE AGREEMENT
This Amendment Agreement dated as of December 19, 2005 (this
"Amendment") is entered into by and among Agrium Inc., a corporation
incorporated under the Canada Business Corporations Act ("Agrium"), United
Industries Corporation, a Delaware corporation ("United"), and Nu-Gro Holding
Company, L.P., an Ontario limited partnership ("Nu-Gro Holding"), all of whom
are parties to the Share Purchase Agreement dated November 22, 2005 (the "Share
Purchase Agreement"). For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties each hereby agree as
follows:
1. Amendment.
(a) Amendment to the Background Statement. The Background Statement of the
Share Purchase Agreement is hereby amended by deleting the words "Spectrum
Brands Lawn & Garden Canada L.P., a newly formed Affiliate of the Sellers
("Spectrum L&G Canada") all of the assets, and Spectrum L&G Canada" at the end
of the first page and replacing such deleted words with "Rayovac Canada, Inc.,
an Affiliate of Nu-Gro Corp. and also a wholly owned subsidiary of Spectrum
Brands, Inc. ("Rayovac Canada") all of the assets, and Rayovac Canada;" so that
as amended such final sentences of the background statement read as follows:
Prior to the Closing, the Companies and the Subsidiaries shall
transfer to Rayovac Canada, Inc., an affiliate of Nu-Gro and also a
wholly owned subsidiary of Spectrum Brands, Inc. ("Rayovac Canada")
all of the assets, and Rayovac Canada shall assume all of the
liabilities, of the Companies and the Subsidiaries that are primarily
related to the Consumer Products Business, as more particularly
described in Section 4.4.
(b) Amendment to Section 4.4(a) [Transfer of Consumer Assets and
Liabilities of Consumer Products Businesses: Indemnification.]. Section 4.4(a)
of the Share Purchase Agreement is hereby amended by deleting the two references
to "Spectrum L&G Canada" and replacing such deleted words with "Rayovac Canada;"
so that as amended Section 4.4(a) reads in its entirety as follows:
Transfer. Prior to the Closing, the Sellers shall cause the Companies
and the Subsidiaries to transfer to Rayovac Canada all of the assets
and employees of the Companies and the Subsidiaries that are
primarily related to the facilities of the Consumer Products Business
described generally on Exhibit C (the "Consumer Products
Facilities"), and the Sellers shall cause Rayovac Canada to assume
all of the liabilities primarily related to such assets and
employees, through a series of transactions as described in more
detail on Exhibit D.
(c) Amendment to Section 4.4(h) [Indemnification]. Section 4.4(b) of the
Share Purchase Agreement is hereby amended by deleting the two references to
"Spectrum L&G Canada" and replacing such deleted words with "Rayovac Canada;" so
that as amended Section 4.4(b) reads in its entirety as follows:
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Indemnification. From and after the Closing, (i) United shall defend,
indemnify and hold harmless Purchaser and its Affiliates, including
the Companies and the Subsidiaries, from and against any and all
costs, Liabilities (including those assumed by Rayovac Canada
pursuant to Section 4.4(a)), losses, judgments, damages, Taxes,
fines, penalties and expenses arising out of the operation or
transfer of the Consumer Products Facilities; and (ii) Purchaser
shall defend, indemnify and hold harmless United and its Affiliates,
including Rayovac Canada, from and against any and all costs,
Liabilities, losses, judgments, damages, Taxes, fines, penalties and
expenses arising out of the operation of the facilities of the
Companies and the Subsidiaries other than the Consumer Products
Facilities; provided, however, that neither United nor Purchaser
shall be liable in any event under this Section 4.4(b) for lost
profits or consequential, punitive, special, or incidental damages.
(d) Amendment to Section 4.14(i) [Noncompetition and No Interference by
Sellers. Tax Elections.]. Section 4.14(i) of the Share Purchase Agreement is
hereby amended by deleting the words "Spectrum L&G Canada" in the sixth sentence
of Section 4.14(i) and replacing such deleted words with "Rayovac Canada;" so
that as amended Section 4.14(i) reads in its entirety as follows:
Tax Elections. Purchaser and the Sellers will elect in prescribed
form to apply paragraph 56.4(3)(c) as proposed in clause 24.1(1) of
the July 18, 2005 draft technical amendments to the Income Tax Act
(Canada) (the "Draft Technical Amendments") in respect of this
Agreement. Each of Purchaser and the Sellers shall make such election
in a manner consistent with this Agreement and shall include a copy
of the prescribed form in its income tax return for its taxation year
that includes the day on which this Agreement is entered into and
such return will be filed on or before the applicable filing due date
for that year. If a prescribed form is not available at that time,
then the election shall be made in a manner acceptable to the Canada
Revenue Agency. If any relevant provincial taxing authority proposes
or enacts a similar provision, then Purchaser and the Sellers shall
make such similar provincial election. While no portion of the
Purchase Price is allocated to the non-competition and other
covenants of the Sellers in Section 4.14, if any portion of the
Purchase Price is determined by the Canada Revenue Agency to be in
respect of a "restrictive covenant" as that term is defined in the
Draft Technical Amendments, and the Sellers accept such determination
or such determination is accepted by a court of competent
jurisdiction and the Sellers do not appeal such judgment, then the
full amount of such portion shall be subject to the paragraph
56.4(3)(c) election and Purchaser and the Sellers will take all
necessary steps to amend or revise such election accordingly. Nu-Gro
Corp., Nu-Gro Canada and Rayovac Canada shall make and file such Tax
elections, and at such elected amounts, if applicable, as determined
by Nu-Gro Holding in its sole discretion, in respect of the transfer
of assets and the assumption of liabilities and related transactions
described in Section 4.4(a).
(e) Amendment to Section 4.15(a) [Noncompetition and No Interference by
Purchaser, Scope and Reasonableness of Restrictions.]. Section 4.15(a) of the
Share Purchase Agreement is hereby amended by deleting the words "the Spectrum
L&G Canada" and replacing such deleted words with "Rayovac Canada;" so that as
amended Section 4.15(a) reads in its entirety as follows:
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Scope and Reasonableness of Restrictions. Purchaser acknowledges (i)
that prior to the Closing the Companies and certain Subsidiaries have
conducted the Consumer Products Business, the assets and liabilities
of which have been transferred to Rayovac Canada, (ii) that the
Companies and certain Subsidiaries have conducted the Consumer
Products Business throughout the Territory, (iii) that certain of the
products, technology, trade secrets and confidential information
related to the Consumer Products Business also relate to the
Fertilizer Technology Business and the Professional Products
Business, and (iv) that the Sellers would not sell the Shares without
the assurance that Purchaser and its Affiliates (including, after the
Closing, the Companies and the Subsidiaries) will not engage in the
activities prohibited by this Section 4.15 for the periods set forth
herein, and to induce the Sellers to consummate the sale of the
Shares, Purchaser shall restrict its actions and those of the
Affiliates throughout the Territory as provided in this Section 4.15.
Purchaser acknowledges that such restrictions are reasonable in light
of the business of the Companies and the Subsidiaries and the
benefits of the transactions contemplated by this Agreement to
Purchaser.
(f) Amendment to Section 4.16 [Use of Names.]. Section 4.16 of the Share
Purchase Agreement is hereby amended by deleting the words "Spectrum L&G Canada"
in the second sentence and replacing such deleted words with "Rayovac Canada;"
so that as amended Section 4.16 reads in its entirety as follows:
Use of Names. Within five Business Days after the Closing, Nu-Gro
Holding shall, and United shall cause each of its Affiliates with
"Nu-Gro" in its corporate or organizational name to, amend its
governing documents to change its name to eliminate "Nu-Gro" from it.
The "Nu-Gro" name and certain other marks will be licensed to Rayovac
Canada by Nu-Gro IP pursuant to a license agreement to be delivered
at the Closing in the form of Exhibit E-1 (the "Nu-Gro License
Agreement").
(g) Amendment to Section 6.1(f) [To be Delivered by the Sellers.]. Section
6.1(f) of the Share Purchase Agreement is hereby amended by deleting the words
"Spectrum L&G Canada" and replacing such deleted words with "Rayovac Canada;" so
that as amended Section 6.1(f) reads in its entirety as follows:
Supply Agreements between Rayovac Canada and Nu-Gro Corp. with
respect to (i) the manufacture of finished products at the Morpac
plant, in the form of Exhibit F-1, (ii) the manufacture of finished
products at the Putnam plant, in the form of Exhibit F-2, and (iii)
the packaging and supply of fertilizer, in the form of Exhibit F-3,
and a Supply Agreement among Rayovac Canada and SCU Nitrogen, Wilson
Labs, Nu-Gro IP, Nu-Gro America and Nu-Gro Tech with respect to the
supply of raw materials, in the form of Exhibit F-4 (collectively,
the "Supply Agreements"), each duly executed by the parties thereto
other than Purchaser.
(h) Amendment to Section 6.1(h) [To he Delivered by the Sellers.]. Section
6.1(h) of the Share Purchase Agreement is hereby amended by (i) deleting the
words "Spectrum L&G Canada" in the first sentence and replacing such deleted
words with "Rayovac Canada" and (ii) deleting the word "Spectrum" and replacing
such deleted word with "Rayovac Canada;" so that as amended Section 6.1(h) reads
in its entirety as follows:
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The Nu-Gro License Agreement and a license agreement between Rayovac
Canada and Nu-Gro Corp. with respect to the license by Rayovac Canada
of certain other trademarks used by both the Consumer Products
Business and the Professional Products Business, in the form of
Exhibit E-2 (the "Rayovac Canada License Agreement" and together with
the Nu-Gro License Agreement, the "License Agreements"), duly
executed by the parties thereto.
2. Exhibits.
(a) Amendment to Exhibit D [Transfer of Consumer Products Business and
Related Actions.]. Exhibit D to the Share Purchase Agreement is hereby amended
by (i) deleting sections (2.) and (4.) in their entirety and changing sections
(3.) to (2.), (5.) to (3.), and (6.) to (4.), (ii) deleting the word
"contributes" in new section (2.) and replacing such deleted word with "sells"
(iii) adding the words "in exchange for a note issued by Rayovac Canada" to the
end of new section (3.) and (iv) deleting the words "Spectrum L&G Canada" in new
section (2.) and the final paragraph and replacing such deleted words with
"Rayovac Canada;" so that as amended Exhibit D reads in its entirety as follows:
1. Nu-Gro Corp, Nu-Gro Canada and Nu-Gro IP are all amalgamated
together, with the successor by amalgamation being named "Nu-Gro IP, Inc"
(the "Successor Entity").
2. The Successor Entity sells all of its assets and liabilities and
employees that are primarily related to the Consumer Products Facilities to
Rayovac Canada (this will include the trademarks and other intellectual
property assets that are related to the Consumer Products Business, which
are owned by Nu-Gro IP as of the date of this Agreement) in exchange for a
note issued by Rayovac Canada.
3. The Successor Entity dividends the promissory note to Nu-Gro
Holding.
4. Nu-Gro Holding sells the shares of the Successor Entity to
Purchaser at the Closing.
The Successor Entity and Rayovac Canada shall make and file such Tax
elections at such amounts, if applicable, as determined by the Sellers in
their sole discretion, with respect to the steps described above.
(b) Amendment to Exhibits E-1-2 [Nu-Gro and Spectrum License Agreements.].
Exhibit E-1 to the Share Purchase Agreement is hereby amended by deleting the
words "Spectrum Brands Lawn and Garden Canada, L.P, a __________ limited
partnership" and replacing such words with "Rayovac Canada, Inc., a corporation
incorporated under the Canada Business Corporations Act." Exhibit E-2 to the
Share Purchase Agreement is hereby amended by deleting the title "Spectrum
License Agreement" and replacing such deleted words with the title "Rayovac
Canada License Agreement." In connection with such change in title, all
references to "Spectrum Brands Lawn and Garden, L.P, a __________ limited
partnership" within such license agreement are hereby deleted and such words
shall be replaced with "Rayovac Canada, Inc., a corporation incorporated under
the Canada Business Corporations Act."
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(c) Amendment to Exhibits F-1-4 [Supply Agreements]. Exhibits F-1-4 to the
Share Purchase Agreement are hereby amended by (i) deleting any reference to
"Spectrum Brands Lawn and Garden Canada, L.P., an Ontario limited partnership"
and replacing such deleted words with "Rayovac Canada, Inc., a corporation
incorporated under the Canada Business Corporations Act" and (ii) deleting any
reference to "Spectrum" and replacing such deleted word with "Rayovac Canada."
3. General Provisions.
(a) Capitalized terms used in this Amendment have the same meaning ascribed
to them in the Share Purchase Agreement, unless otherwise defined herein.
(b) Except as provided in this Amendment, all of the provisions of the
Share Purchase Agreement will remain in full force and effect. To the extent
that the terms of this Amendment conflict with or are inconsistent with the
terms of the Share Purchase Agreement, this Amendment will control.
(c) This Amendment will be governed and construed in accordance with the
laws of the State of New York.
(d) The Share Purchase Agreement, as amended hereby and including its
Schedules and Exhibits and the other documents and agreements entered into in
connection with the Share Purchase Agreement, constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and thereof and
supersedes any prior or contemporaneous agreements or understandings, oral or
written, to the contrary.
(e) This Amendment is binding upon and inures to the benefit of the parties
and their respective successors and permitted assigns.
(f) This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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DULY EXECUTED and delivered by the parties as of the effective date, December
19, 2005.
Agrium Inc. United Industries Corporation
By: /s/ BRUCE G. WATERMAN By: /s/ ROBERT L. CAULK
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Name: Bruce G. Waterman Name: Robert L. Caulk
Title: Sr. V.P., Finance and C.F.O. Title: Chief Executive Officer
Agrium Inc. Nu-Gro Holding Company, L.P.
By: /s/ ANDREW K. MITTAG By: /s/ JAMES T. LUCKE
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Name: Andrew K. Mittag Name: James T. Lucke
Title: Sr. V.P., Corporate Title: Vice President, Secretary
Development and Strategy and General Counsel
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