EXHIBIT 2.2
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
This AMENDMENT (this "First Amendment") to the Stock Purchase Agreement (the
"Agreement"), dated as of July 10, 2004, by and among TA Leasing Co., Inc., a
Delaware corporation ("Seller"), Transamerica Corporation, in its capacity as
guarantor pursuant to Section 5.12 of the Agreement, and ▇▇▇▇▇▇ & Company
Limited, an English-registered limited company ("Purchaser"), is made and
entered into as of August 10, 2004. Except as otherwise specifically indicated,
capitalized terms shall have the meanings specified in the Agreement.
A. Seller and Purchaser desire to amend the Agreement to facilitate the purchase
of the Shares and the Business.
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Section 1.1 ("Definitions") of the Agreement is hereby
amended to include, delete or modify the following definitions:
"Combined Financial Statements" shall have the meaning set forth in Section
2.04.
"Commitment Letters" means the commitment letters from financial
institutions, dated as of August 10, 2004, issued to Purchaser and delivered to
Seller, pursuant to which such financial institutions agree to provide to
Purchaser, debt financing (as described in such commitment letters) in an
aggregate amount of $1,065,000,000 to fund the Acquisition (plus an additional
$100,000,000 for working capital purposes), on terms and conditions set forth in
the Commitment Letters.
"Cut-Off Date" is hereby deleted in its entirety from the Agreement.
"EBITDA Notice of Objection" is hereby deleted in its entirety from the
Agreement.
"Equipment Held for Lease" is hereby deleted in its entirety from the
Agreement.
"Equity Commitments" means (i) Purchaser's commitment to provide an
aggregate of $75,000,000 in equity funding to fund the Acquisition, and (ii) one
or more executed letters from one or more financial institutions, issued to
Purchaser, pursuant to which the financial institutions named therein agree to
provide to Purchaser equity financing in an aggregate amount of not less than
$125,000,000 to fund the Acquisition, on terms and conditions set forth in the
expression of interest letters delivered to Seller on August 10, 2004.
"Independent Expert" is hereby deleted in its entirety from the Agreement.
"Net Working Capital" is hereby deleted in its entirety from the Agreement.
"Net Book Value" means the total debt and equity (including inter-company
debt and current and deferred income tax liabilities) calculated consistently
with the calculation set forth on Exhibit A to this First Amendment.
"Tax Adjustment Amount" is hereby deleted in its entirety from the
Agreement.
2. Other Agreement Amendments.
2.1 Section 2.01 ("Purchase and Sale of Shares") of the Agreement is
hereby deleted in its entirety and replaced with the following:
Section 2.01 Purchase and Sale of Shares. Upon the terms and subject
to the conditions of this Agreement, at the Closing (as defined in Section
2.02(a)), Seller agrees to sell, transfer, assign and deliver to Purchaser,
the Purchased Entities by delivering all of the Shares, free and clear of
all Liens, and Purchaser agrees to purchase, acquire and accept from
Seller, the Shares, for an aggregate purchase price of $1,200,000,000 (the
"Purchase Price"), payable as set forth in Section 2.03 and subject to
adjustment after the Closing Date as set forth in Section 2.05. The
purchase and sale of the Shares are collectively referred to in this
Agreement as the "Acquisition".
2.2 Section 2.04 ("Pre-Closing Purchase Price Adjustment") of the
Agreement is hereby deleted in its entirety and replaced with the following:
Section 2.04 EBITDA Statement. Within seven (7) Business Days after
the date of this Agreement, Seller shall deliver to Purchaser the combined
consolidated historical balance sheets of the Purchased Entities as of
December 31, 2002 and 2003, and the related combined consolidated
historical statements of operations, cash flows and stockholders' equity
for each of the three years in the period ended December 31, 2003, all
certified by Ernst & Young LLP, independent certified public accountants
(collectively, the "Combined Financial Statements"), together with a
statement (the "EBITDA Statement") prepared by management of Seller and
audited by Ernst & Young LLP in accordance with auditing standards
generally accepted in the United States, setting forth the 2003 EBITDA.
Concurrently with the delivery of the Combined Financial Statements and the
EBITDA Statement, Seller shall also authorize and instruct Ernst & Young
LLP to provide access to Purchaser's accountants to working papers prepared
by Ernst & Young LLP in the course of the audit of the Combined Financial
Statements (but not including working papers considered proprietary,
privileged or otherwise prohibited from disclosure under applicable AICPA
guidelines and ethical standards).
2.3 Section 2.05 ("Post-Closing Purchase Price Adjustment") of the
Agreement is hereby deleted in its entirety and replaced with the following:
(a) Net Book Value. Within 60 days after the Closing Date, Purchaser
shall cause to be prepared and delivered to Seller a balance sheet for the
Purchased Entities as of the Closing Date, which shall have been audited at
Purchaser's expense by Purchaser's auditor, together with a statement (the
"Statement") prepared by Purchaser setting forth (i) the Net Book Value of
the Business as of the close of business on the Closing Date,
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and (ii) the amount, if any, of current Taxes payable allocable to Straddle
Period Taxes. After the Closing Date, at Purchaser's reasonable request,
Seller shall assist Purchaser and its representatives with respect to the
preparation of the Statement as may be reasonably requested.
(b) Objections; Resolutions of Disputes.
(i) Unless Seller notifies Purchaser in writing within 30 days after
Purchaser's delivery to Seller of the Statement of any objection to the
computation of Net Book Value set forth therein (the "Post-Closing Notice
of Objection"), the Statement shall become final and binding. During such
30-day period Seller and its representatives shall be permitted to review
the working papers of Purchaser relating to the Statement and shall be
afforded reasonable access, during normal business hours, to Purchaser's
employees for purposes of reviewing the Statement and related books and
records. Any Post-Closing Notice of Objection shall specify in reasonable
detail the basis for the objections set forth therein.
(ii) If Seller provides the Post-Closing Notice of Objection to
Purchaser within such 30-day period, Purchaser and Seller shall, during the
30-day period following Purchaser's receipt of the Post-Closing Notice of
Objection, attempt in good faith to resolve Seller's objections. During
such 30-day period, Purchaser and its representatives shall be permitted to
review the working papers of Seller relating to the Post-Closing Notice of
Objection and the basis therefor. If Purchaser and Seller are unable to
resolve all such objections within such 30-day period, the matters
remaining in dispute shall be submitted to the Selected Accounting Firm.
The parties shall instruct the Selected Accounting Firm to render its
reasoned written decision as promptly as practicable but in no event later
than 30 days after its selection. The resolution of disputed items by the
Selected Accounting Firm shall be final and binding, and the determination
of the Selected Accounting Firm shall constitute an arbitral award that is
final, binding and non-appealable and upon which a judgment may be entered
by a court having jurisdiction thereover. The fees and expenses of the
Selected Accounting Firm incurred under this Section 2.05(b) shall be
shared ratably by Purchaser and Seller in proportion to the relative
difference between the result obtained by the Selected Accounting Firm to
Purchaser's position, on the one hand, and to Seller's position, on the
other hand. After the Statement shall have become final and binding,
neither party may have any further right to make any claims against the
other party in respect of (i) any element of the Statement or (ii) any
payment made pursuant to Section 2.05(c).
(c) Adjustment Payment. The Purchase Price shall be: (A) decreased by
an amount equal to the amount, if any, by which Net Book Value as of
Closing plus $113,609,000, is less than the Purchase Price; or (B)
increased by an amount equal to the amount, if any, by which the Net Book
Value as of Closing plus $113,609,000 is greater than the Purchase Price
(the Purchase Price as so increased or decreased being hereinafter called
the "Adjusted Purchase Price"). Within 10 days after the Statement has
become final and binding in accordance with Section 2.05(b), (i) if the
Closing Date Payment is greater than the Adjusted Purchase Price, Seller
shall pay to Purchaser an amount equal to such difference, plus simple
interest thereon at the Applicable Settlement Rate from
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the Closing Date to the date payment is made in full, and (ii) if the
Closing Date Payment is less than the Adjusted Purchase Price, Purchaser
shall pay to Seller an amount equal to such difference, plus simple
interest thereon at the Applicable Settlement Rate from the Closing Date to
the date payment is made in full (the Closing Date Payment as so increased
or decreased being hereinafter called the "Final Purchase Price"). Any such
payment hereunder shall be made by wire transfer of immediately available
funds to an account designated in writing by Purchaser or Seller, as the
case may be. For purposes of this Section 2.05(c), (x) the "Applicable
Settlement Rate" shall be Closing Date L1BOR plus one percent (1%), and (y)
"Closing Date LIBOR" shall be the London Interbank Offered Rate (LIBOR) as
reported on the Closing Date in The Wall Street Journal for the specified
interval of calendar months (expressed as the 3-month LIBOR rate, 6-month
LIBOR rate, 9-month LIBOR rate and so on; as applicable), that most closely
corresponds to the time period between the Closing Date and the date that
payment in full pursuant to this Section 2.05(c) is made.
2.4 Section 2.06 ("Tax Adjustment Amount") of the Agreement is hereby
deleted in its entirety.
2.5 Section 3.05 of the Agreement is hereby amended by adding the
following subsection (c):
(c) Attached as Exhibit B to the First Amendment is the unaudited
combined consolidated balance sheet of the Purchased Entities as of June
30, 2004 (the "June 30. 2004 Balance Sheet"). The June 30, 2004 Balance
Sheet has been prepared from, is in accordance with and accurately
reflects, in all material respects, the books and records of the Purchased
Entities, has been prepared in accordance with U.S. GAAP for interim
financial statements on a consistent basis during the period involved, and
fairly presents, in all material respects, the combined consolidated
financial position of Purchased Entities as of the date referred to
therein.
2.6 Section 5.03(d) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(d) declare, set aside or pay any dividend (other than cash dividends)
or other distribution payable in stock or property with respect to any
shares of any class or series of its Capital Stock, except as set forth on
Schedule 5.08;
2.7 Section 5.03(g) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(g) (i) incur or assume any long-term or short-term Indebtedness; (ii)
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
other Person, except in the ordinary course of business and consistent with
past practice; (iii) make any loans, advances or capital contributions to,
or investments in, any other Person, other than finance leases entered into
in the ordinary course of business; or (iv) enter into any commitment or
transaction (including any capital expenditure or purchase, sale or lease
of assets or real
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estate) involving payments by any of the Purchased Entities in excess of
$500,000; provided that, notwithstanding the foregoing, the Purchased
Entities shall be permitted to incur, pay or satisfy any inter-company
Indebtedness;
2.8 Section 5.11(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(a) Between the date of the Agreement and the Closing, Purchaser
agrees to use its best efforts to secure all financing necessary for
Purchaser to consummate the Acquisition on or before September 30, 2004,
and to cause any conditions to Commitment Letters or other financing to be
satisfied as expeditiously as practicable; provided, however, that in
fulfilling its obligation under this Section 5.11, Purchaser shall not be
obligated to pay any amounts in excess of $10,000,000 in the aggregate to
secure financing necessary to consummate the Acquisition; provided further
that Purchaser shall not be obligated to (i) commence any litigation
against any financial institution or other third party unless Purchaser has
received advice of counsel acceptable to both Purchaser and Seller to the
effect that the initiation of any such litigation is reasonably likely to
result in Purchaser securing financing necessary to consummate the
Acquisition on or before September 30, 2004, or (ii) engage or contact any
third party financial institution unless Purchaser reasonably believes that
(A) any of the financial institutions providing the Commitment Letters are
not working in good faith to satisfy the conditions contained in such
Commitment Letters; and (B) engaging any such third party financial
institution is reasonably likely to result in Purchaser securing the
financing necessary to consummate the Acquisition on or prior to September
30, 2004.
2.9 Section 5.12 ("Transamerica Corporation Guarantee") of the
Agreement is hereby deleted in its entirety and replaced with the following:.
Section 5.12 Transamerica Corporation Guarantee. In order to induce
Purchaser to execute this Agreement, Transamerica Corporation (the
"Guarantor") hereby unconditionally guarantees the full and prompt payment
and performance of the obligations of Seller set forth in this Agreement
(the "Guaranty"). This Guaranty shall be a continuing and irrevocable
guaranty of payment and performance in accordance with the. terms of this
Agreement, and the Guarantor shall remain liable on its obligations
hereunder until the payment and performance in full of the obligations of
Seller. Guarantor hereby represents that it has all requisite corporate
power and authority to undertake its obligations set forth in this Section
5.12 and to guarantee the full and prompt payment and performance of the
obligations of Seller set forth in this Agreement. This Guaranty and the
rights, interests or obligations thereunder may not be assigned by
Guarantor or Purchaser without the prior written consent of the other
party; provided, however, that (i) Purchaser may assign its rights and
obligations under the Guaranty to Affiliates of Purchaser in connection
with consummating the transactions contemplated by this Agreement, and (ii)
Purchaser or its permitted assignees in clause (i) above may assign its
rights and obligations under the Guaranty to commercial lenders or
institutional investors (each, a "Financial lnstitution") as collateral in
connection with financing or refinancing the Acquisition and only to a
maximum of five (5) Financial Institutions. Notwithstanding anything to the
contrary, permissible Financial Institution assignees of
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Guaranty shall have no rights against Guarantor or with respect to the
Guaranty unless (i) Purchaser is in default of its obligations under
applicable agreements between Purchaser and such Financial Institution and
(ii) such permissible Financial Institution assignees have pursued all
available remedies against Purchaser. Guarantor's liability under the
Guaranty shall be secondary and not that of a principle obligor. Subject to
the foregoing, the Guaranty shall inure to the benefit of and be binding
upon Purchaser and Guarantor and their respective permitted successors and
assigns. Except as provided above, nothing in the Guaranty will confer upon
any person or entity not a party to the Guaranty, or the legal
representatives of such person or entity, any rights or remedies of any
nature or kind whatsoever under or by reason of the Guaranty. Guarantor
shall deliver to Purchaser the unaudited consolidated financial statements
of the Guarantor as of December 31 in each of the years during the term of
the Guaranty (which, for the avoidance of doubt, shall be prepared in
accordance with Dutch accounting principles until such time as Guarantor
adopts International Accounting Standards, and then in accordance with
International Accounting Standards); provided, however, that before the
delivery of such financial statements, Purchaser shall enter a
confidentiality agreement with the Guarantor in form and substance mutually
satisfactory to both parties. At the Seller's option (which option may be
exercised only once), Seller may at any time designate a substitute
guarantor, provided such substitute guarantor (i) has publicly available
financial statements; (ii) has a tangible net worth of not less than $2
billion dollars, calculated in accordance with U.S. GAAP; (iii) execute a
binding agreement, in form and substance reasonably satisfactory to
Purchaser, acknowledging its obligation to be bound by the terms,
conditions and obligations of the Guaranty set forth in this Section 5.12,
of the Agreement; and (iv) is an Affiliate of Seller. This paragraph
contains the entire agreement of Guarantor with respect to the Guaranty of
the obligations of Seller under this Agreement. The terms and conditions of
this Guaranty may not be waived, altered, amended or otherwise modified
except in writing signed by Guarantor and Purchaser.
2.10 Section 6.02(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
(a) From and after the Closing, Seller shall be liable for and shall
indemnify Purchaser Indemnitees against and hold them harmless on an
after-Tax basis from (i) all liability for Taxes of the Purchased Entities
and each Company Group with respect to any Pre-Closing Tax Period, (ii) all
liability (as a result of Treasury Regulation Section 1.1502-6(a) or
otherwise) for Taxes of Seller or any other corporation which is or has
ever been affiliated with Seller (other than the Purchased Entities) or
with whom the Purchased Entities otherwise joins, has ever joined, or is or
has ever been required to join, in filing any consolidated, combined or
unitary Tax Return prior to the Closing Date, (iii) all liability for Taxes
of the Purchased Entities or any Company Group arising (directly or
indirectly) as a result of the Acquisition or the other transactions
contemplated hereby (including, but not limited to, the Restructuring),
(iv) any breach of any representation or warranty contained in Section
3.17, (v) all liability for Seller Taxes resulting from the Section 338(g)
election contemplated by Section 6.07(b), (vi) all liability for Taxes
resulting from the Section 338(h)(10) elections (and any comparable
elections under state or local Tax law) contemplated by Section 6.07, and
(vii) all liability for reasonable legal fees and expenses attributable to
any item in the foregoing clauses.
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2.11 Section 8.01(a) ("Termination") of the Agreement is hereby
deleted in its entirety and replaced with the following:
(a) Notwithstanding anything to the contrary in this Agreement, this
Agreement may be terminated and the Acquisition and the other transactions
contemplated by this Agreement abandoned at any time prior to the Closing:
(i) by mutual written consent of Seller and Purchaser;
(ii) by Seller, if any of the conditions set forth in Section 7.01, or
7.03 shall have become incapable of fulfillment, and shall not have been
waived by Seller;
(iii) by Purchaser, if any of the conditions set forth in Section 7.01
or 7.02 shall have become incapable of fulfillment, and shall not have been
waived by Purchaser; or
(iv) by Seller or Purchaser, if the Closing does not occur on or prior
to September 30, 2004;
provided, however, that the party seeking termination pursuant to
clause (ii), (iii) or (iv) is not then in material breach of any of its
representations, warranties, covenants or agreements contained in this
Agreement.
2.12 Section 9.02(f) of the Agreement is hereby deleted in its
entirety.
2.13 Section 9.05(a)(i) of the Agreement is hereby deleted in its
entirety and replaced with the following:
(i) Seller shall not be responsible pursuant to Section 9.02(a),
(except in connection with a breach of representations and warranties
contained in Sections 3.02 (Ownership of Capital Stock), 3.17 (Tax Matters)
and 3.18 (Environmental Matters)), for (x) any Losses suffered by any
Purchaser Indemnitee unless the aggregate of all Losses suffered by the
Purchaser Indemnitees exceeds, on a cumulative basis, an amount equal to
Ten Million Dollars ($10,000,000) (the "Indemnity Threshold"), and then
only to the extent of Losses in excess of the Indemnity Threshold, or (y)
any individual items where the Loss relating thereto is less than Two
Thousand Five Hundred Dollars ($2,500) (provided that any Losses arising
out of one or more claims involving or arising out of the same or
substantially similar facts, events or circumstances shall be aggregated as
one claim for purposes of determining whether the basket set forth in this
Section 9.05(a)(i)(y) applies) ("Minor Claims"), unless the aggregate
amount of Minor Claims exceeds Fifty Thousand ($50,000), and then only to
the extent of any such excess (subject to the Indemnity Threshold); and
2.14 Section 10.06 ("Expenses") of the Agreement is hereby deleted in
its entirety and replaced with the following:
Section 10.06 Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, except as otherwise expressly provided
herein each of the
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parties hereto shall be responsible for the payment of its own respective
costs and expenses incurred in connection with the negotiations leading up
to and the performance of its respective obligations pursuant to this
Agreement and the Ancillary Agreements including the fees of any attorneys,
accountants, brokers or advisors employed or retained by or on behalf of
such party.
3. Construction. All provisions of the Agreement, as amended by this First
Amendment, shall apply to the purchase of the Shares and the Business.
4. Ratification of Agreement. Except as modified or otherwise provided by
the terms of this First Amendment, the Agreement, as amended by this First
Amendment, is hereby ratified and confirmed in its entirety, and remains in full
force and effect in accordance with its terms.
5. Entire Agreement. This First Amendment, along with the Agreement,
including the Schedules (and the Introduction thereto) and Exhibits thereto; any
written amendments to the foregoing satisfying the requirements of Section 10.01
of the Agreement, the Non-Disclosure Agreement and the Ancillary Agreements,
including the schedules, exhibits and annexes thereto, constitutes the entire
agreement of the parties with respect to the subject matter hereof and thereof
and supersedes any previous agreements and understandings between the parties
with respect to such matters. There are no promises, understandings or
representations other than those set forth in those documents.
6. Counterparts. This First Amendment may be signed in any number of
counterparts and the signatures delivered by telecopy, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument and delivered in person.
7. Governing Law. This First Amendment and any disputes arising under or
related thereto (whether for breach of contract, tortious conduct or otherwise)
shall be governed and construed in accordance with the laws of the State of New
York, without reference to its conflicts of law principles.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Seller, Guarantor end Purchaser have caused this First
Amendment to be duly executed as of the date first above written.
TA LEASING HOLDING CO, INC., SELLER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: EVP
▇▇▇▇▇▇ & COMPANY LIMITED, PURCHASER
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: A. ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
TRANSAMERICA CORPORATION,
in its capacity as Guarantor
pursuant to Section 5.12 of the Agreement
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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