SECOND AMENDMENT TO PURCHASE AGREEMENT
Exhibit 10.2
[The Schedules and Exhibits referenced in this Second Amendment
to Purchase Agreement have been omitted pursuant to
Item 601(b)(2) of
Regulation S-K.
Copies of the omitted Schedules and Exhibits will be provided to
the Securities and Exchange Commission upon its request.]
SECOND
AMENDMENT TO PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AGREEMENT (this “Second
Amendment”) is entered into as of the 1st day of July,
2007, by and among ADVENT OXEA CAYMAN LTD., a Cayman Island
limited liability company (“Parent Buyer”),
OXEA CORPORATION, a Delaware corporation
(“U.S. Buyer”), OXEA HOLDING GMBH, a
German limited liability company (“German
Holdco”), OXEA DEUTSCHLAND GMBH, a German limited
liability company (“German Buyer”), OXEA
XXXXXX, LLC, a Delaware limited liability company (“Oxea
Xxxxxx”), OXEA JAPAN KK, a Japanese business
corporation (“Oxea Japan”), OXEA UK LTD., a
United Kingdom limited company (“Oxea UK”),
CELANESE LTD., a Texas limited partnership (“Celanese
Ltd.”), TICONA POLYMERS INC., a Delaware corporation
(“Ticona,” and together with Celanese Ltd.,
“U.S. Seller”), and CELANESE CHEMICALS
EUROPE GMBH, a German limited liability company (“German
Seller”). U.S. Seller and German Seller are
collectively referred to herein as “Sellers”
and individually as a “Seller.” Parent Buyer,
U.S. Buyer, German Holdco, German Buyer, Oxea Xxxxxx, Oxea
Japan and Oxea UK are collectively referred to herein as
“Buyer”. Buyer, U.S. Seller and German
Seller are collectively referred to herein as the
“Parties” and individually as a
“Party.”
WHEREAS, certain of the Parties are party to that certain
Purchase Agreement dated as of December 12, 2006, as
amended by that certain First Amendment to Purchase Agreement
dated as of February 28, 2007 among all the Parties (as
amended, the “Purchase Agreement”); and
WHEREAS, the Parties desire to further amend the Purchase
Agreement in accordance with Section 11(i) thereof as set
forth in this Second Amendment.
NOW, THEREFORE, in consideration of the premises and mutual
promises herein made, the Parties agree as follows:
1. Capitalized Terms. Unless otherwise defined
in this Second Amendment, all capitalized terms used herein
shall have the meanings ascribed to such terms in the Purchase
Agreement.
2. Non-Solicitation by Buyer. Section 6(c)
of the Purchase Agreement is hereby amended by adding a new
subparagraph (vi) after Section 6(c)(v) (and
renumbering subparagraph (vi) as a new subparagraph (vii))
as follows:
‘‘(vi) Buyer agrees that during the period
commencing on July 1, 2007 and ending on the third
anniversary of the Closing Date, the Buyer (including any
Subsidiary of Parent Buyer) shall not cause, solicit, induce or
encourage employees of Parent or Sellers (or any other Affiliate
of Parent) to leave such employment; provided, however, that
this prohibition shall not apply to any such employee who
responds to a public solicitation not targeted directly at such
employee, Parent or the Sellers (or any other Affiliate of
Parent).”
3. Payments under Natural Gas
Contract. Section 6 of the Purchase Agreement is
hereby amended by adding a new subparagraph (p) thereto as
follows:
‘‘(p) Parent and Sellers acknowledge that Buyer has
agreed to credit Seller with EUR 600,000 as an account
receivable in the Working Capital calculation on the Closing
Date Statement, which amount relates to the rebates to be paid
to German Seller under that certain supply agreement (as amended
by letter agreement dated 11 February 2007) between
German Seller and Infraserv GmbH & Co. Hochst KG
(“IFS”) (the “IFS Supply Agreement”) to
supply natural gas to the syngas plant in Oberhausen (the
“IFS Supply Agreement”). According to the IFS Supply
Agreement, German Seller was entitled to the following payments:
(a) By 1 April 2007 — EUR
2.0 million plus VAT;
(b) By 1 July 2007 — EUR 1.5 million
plus VAT; and
(c) By 1 February 2008 — EUR
2.0 million plus VAT.
Parent and Sellers acknowledge and agree that (i) the IFS
Supply Agreement is deemed assigned from German Seller to German
Buyer with economic effect as of the Closing pursuant to
Section 2(a)(v) of the Agreement, (ii) German Buyer is
entitled to all rights of German Seller in and to the
aforementioned rebates (totaling EU5.5M) to be paid to German
Seller under the IFS Supply Agreement, and (iii) Sellers
shall notify IFS to pay all such rebates directly to Buyer. In
the event any such rebates are mistakenly paid to Parent or the
Sellers, Parent or Sellers shall promptly pay such amounts over
to Buyer.”
4. Purchase Agreement Definition. All
references in the Purchase Agreement to “this
Agreement” and any other references of similar import shall
hereafter refer to the Purchase Agreement as amended by this
Second Amendment.
5. Purchase Price Allocation; Closing Date Statement;
Final Specified Deductions. Prior to the date hereof
the Parties have finalized the Closing Date Statement and the
Final Specified Deductions (as such terms are defined in the
Purchase Agreement). The Parties agree that the purchase price
allocation attached as Exhibit A hereto shall be the
final agreed upon allocation referenced in Section 2(e) of
the Purchase Agreement.
6. Counterparts. This Second Amendment may be
executed in one or more counterparts (including by means of
facsimile), each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this
Second Amendment by facsimile shall be effective as delivery of
an originally executed counterpart to this Agreement.
7. Effect of Second Amendment. Except as set
forth in this Second Amendment, the terms and provisions of the
Purchase Agreement (a) are hereby ratified and confirmed,
and (b) shall be and remain in full force and effect.
BALANCE
OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the Parties have executed this Second
Amendment as of the date first above written.
ADVENT OXEA CAYMAN LTD.
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OXEA DEUTSCHLAND GMBH | |
By:
/s/ Xxxxxxx
X. Xxxxxxxx |
By:
/s/ Xxxxxxx
Floeel |
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Name: Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Floeel
|
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Title: Director
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Title: Managing Director
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OXEA CORPORATION | OXEA XXXXXX, LLC | |
By:
/s/ Xxxxxx
X. Xxxxxxxxxx |
By:
/s/ Xxxxxx
X. Xxxxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx |
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Title: President
|
Title: President
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OXEA HOLDING GMBH | OXEA JAPAN KK | |
By:
/s/ Xxxxxxxxx
Xxxxxxxxx |
By:
/s/ Xxxxxxxxx
Xxxxxxxxx |
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Name: Xxxxxxxxx Xxxxxxxxx
|
Name: Xxxxxxxxx Xxxxxxxxx
|
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Title: Managing Director
|
Title: Managing Director
|
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OXEA UK LTD. | ||
By:
/s/ Xxxxxxxxx
Xxxxxxxxx |
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Name: Xxxxxxxxx Xxxxxxxxx
|
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Title: Managing Director
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IN WITNESS WHEREOF, the Parties have executed this Second
Amendment as of the date first above written.
CELANESE LTD.
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CELANESE CHEMICALS EUROPE GMBH | |
By: Its General Partner, Celanese International Corporation
|
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By:
/s/ Xxxxx
X. Xxxxx |
By: /s/ Xxxxxxx
Xxxx |
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Name: Xxxxx X. Xxxxx
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Name: Xxxxxxx Xxxx
|
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Title: Assistant Secretary
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Title: Attorney-in-Fact
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TICONA POLYMERS INC. | ||
By:
/s/ Xxxxx
X. Xxxxx |
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Name: Xxxxx X. Xxxxx
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Title: Assistant Secretary
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