EXHIBIT 2.2
AMENDMENT TO RECAPITALIZATION AND STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 dated as of September 30, 1996, to RECAPITALIZATION
AND STOCK PURCHASE AGREEMENT, dated as of August 15, 1996 (the "Agreement"),
among STRATA ASSOCIATES, L.P. (formerly Strata Holdings L.P.), a Delaware
limited partnership ("Purchaser"), ABARCO N.V., a Netherlands Antilles
corporation ("Parent"), and E&S HOLDINGS CORPORATION, a Delaware corporation and
a wholly-owned subsidiary of Parent (the "Company"). Capitalized terms not
otherwise defined herein have the meanings set forth in the Agreement.
W I T N E S S E T H :
WHEREAS, Purchaser, Parent and the Company have agreed that the
Agreement be amended as set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants of the parties hereto, it is hereby agreed as follows:
Section 1. Amendment and Restatement of Section 4.04(b) of the
Agreement. Section 4.04(b) of the Agreement is hereby amended and restated to
read in its entirety as follows:
(b) The Working Capital of the Company and the Subsidiaries on the
Closing Date ("Closing Date Working Capital") shall not be less than $98 million
or more than $102 million. For purposes of this Section 4.04(b), Working Capital
shall mean, as of any date of determination on a consolidated basis consistent
with the preparation of the audited consolidated balance sheet of Spalding as of
September 30, 1995, the sum of (i) trade accounts receivable and (ii)
inventories, less (iii) the current liabilities of Spalding after excluding (A)
indebtedness of Spalding (other than bankers acceptances arising in connection
with the purchase of inventory), (B) income taxes and (C) LTIP liabilities
classified as current liabilities by the Company. As soon as practicable
following the Closing Date, but in any event within 60 days thereafter,
Purchaser shall prepare a calculation of Closing Date Working Capital (the
"Closing Date Working Capital Calculation") and shall deliver the Closing Date
Working Capital Calculation to Parent. Parent shall, within 30 days after the
delivery by Purchaser of the Closing Date Working Capital Calculation, complete
their review of the calculation and shall in a written notice to Purchaser,
either accept the calculation or describe in reasonable detail any proposed
adjustments to the Closing Date Working Capital Calculation and the reasons
therefor. If no notice is received by Purchaser within such 30-day period,
Parent will be deemed to have accepted the Closing Date Working Capital
Calculation. Purchaser and Parent shall negotiate in good faith to resolve any
disputes over any proposed adjustment to the Closing Date Working Capital
2
Calculation raised by Parent; provided, that if they are unable to resolve any
disputes over any proposed adjustments within 15 days following Purchaser's
receipt of Parent's proposed adjustments, Purchaser and Parent shall engage
Price Waterhouse, or select jointly a mutually acceptable nationally recognized
independent public accounting firm to resolve such disputes, which resolution
shall be final and binding. The fees and expenses of such accounting firm shall
be shared equally by Purchaser and Parent. Within 5 business days of the
acceptance of the Closing Date Working Capital Calculation by Parent or the
resolution of any disputes arising out of any proposed adjustments, (i) Parent
shall pay to Purchaser immediately available funds equal to the amount by which
the Closing Date Working Capital, as set forth on the Closing Date Working
Capital Calculation, is less than $98 million or (ii) Purchaser shall pay to
Parent immediately available funds equal to the amount by which the Closing Date
Working Capital, as set forth on the Closing Date Working Capital Calculation,
is more than $102 million.
Section 2. Limitation of Amendment. Except as expressly provided
herein, the Agreement shall continue to be, and shall remain, in full force and
effect. Except as expressly provided herein, this First Amendment shall not be
deemed to be a waiver or, or consent to, or a modification or amendment of, any
other term or condition of the Agreement.
Section 3. Severability. If any provision of this Amendment shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Amendment shall not be affected and
shall remain in full force and effect.
Section 4. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
Section 5. Applicable Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
ABARCO N.V.
BY__________________________________________
E & S HOLDINGS CORPORATION
BY__________________________________________
STRATA ASSOCIATES, L.P.
BY__________________________________________