AMENDMENT XX. 0 XX XXXXXXXXX XXX XXXX XX XXXXXX
XXXXXXXXX XX. 0, dated July 18, 2005 (the "Amendment"), to the
AGREEMENT AND PLAN OF MERGER, dated as of June 28, 2005 (the "Agreement"), by
and among Jarden Corporation, a Delaware corporation ("Purchaser"); JCS/THG,
LLC, a Delaware limited liability company and a wholly owned subsidiary of
Purchaser ("Merger Sub"); The Xxxxxx Group, Inc., a Massachusetts Corporation
(the "Company"); Berkshire Investors LLC, a Massachusetts limited liability
company ("Berkshire LLC"); Berkshire Fund IV, Limited Partnership, a
Massachusetts limited partnership ("Berkshire IV"); Berkshire Fund V, Limited
Partnership, a Massachusetts limited partnership ("Berkshire V", and together
with Berkshire LLC, Berkshire IV, the "Berkshire Holders"); Jordan X. Xxxx
("Xxxx"); The Jordan X. Xxxx Family Limited Partnership, a Delaware Limited
Partnership (the "Xxxx FLP", and together with Xxxx, the "Xxxx Holders"; the
Xxxx Holders and the Berkshire Holders are collectively referred to herein as
the "Principal Shareholders"); the other AI Shareholders that deliver a Joinder
Signature Page to the Company pursuant to the terms hereof; and Berkshire
Partners LLC, a Massachusetts limited liability company, as the Shareholders'
Representative.
R E C I T A L S
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WHEREAS, the parties hereto desire to make certain amendments to the
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in the
Agreement, and intending to be legally bound hereby, the parties hereto agree to
amend the Agreement as follows:
TERMS OF AMENDMENT
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SECTION 1. The definition of "Working Capital Target" contained in
Section 1.01 of the Agreement is hereby amended to read in its entirety as
follows:
""Working Capital Target" shall mean $145,046,000 as calculated in the
manner described in Schedule 1.01(d) hereof, which is the average Working
Capital over the trailing twelve month period ending on March 31, 2005
calculated using the month end balance for each month during such period."
SECTION 2. Schedule 1.01(d). In connection with revising the definition
of "Working Capital Target" set forth above, the Principal Shareholders deliver
herewith to Purchaser and Merger Sub a revised Schedule 1.01(d) to the Agreement
which is set forth as Exhibit A to this Agreement.
SECTION 3. The definition of "Cash Consideration Increase Amount"
contained in Section 1.01 of the Agreement is hereby amended to read in its
entirety as follows:
""Cash Consideration Increase Amount" shall mean an amount equal to the sum
of: (i) the Working Capital amount set forth on the Estimated WC/ NI
Statement less the Working Capital Target (but only if the Working Capital
is more than the Working Capital Target), (ii) the 2005 Tax Adjustment
Amount, (iii) $89,738, representing one-
half of the cost of the insurance premium paid by the Company relating to
the insurance policies described in Schedule 1.01(b) hereto and (iv)
$208,500, representing one-half of the payment made by the Company on July
15, 2005 relating to the Cash Balance Plan."
SECTION 4. The definition of "Current Assets" and "Current Liabilities"
contained in Section 1.01 of the Agreement are hereby amended to read in its
entirety as follows:
""Current Assets" shall mean the sum of the accounts receivable, inventory
(including, inventory in transit), and current prepaid assets of the
Company and each Company Subsidiary, each determined in accordance with
GAAP; provided, that Current Assets shall not include any amount of cash,
intangible assets and income tax assets (whether in the form of deposits,
prepaids, refunds or other accruals representing tax attributes), other
than $63,000 of US income tax receivables included in prepaid items.
"Current Liabilities" shall mean the sum of the accounts payable and other
current liabilities of the Company and each Company Subsidiary, each
determined in accordance with GAAP; provided that Current Liabilities shall
not include any amount of Indebtedness, income tax liabilities (whether in
the form of accruals or deferrals), China ITT, accruals in respect to the
Cash Balance Plan and severance payments to Xxxx under the Termination
Agreement."
SECTION 5. The definition of "Expenses" contained in Section 1.01 of
the Agreement is hereby amended by deleting paragraph (iii) thereof and
replacing the semi-colon after paragraph (i) with the word "and".
SECTION 6. The definition of "Losses" contained in Section 1.01 of the
Agreement is hereby amended to read in its entirety as follows:
""Losses" shall mean the full amount of all liabilities, damages, claims,
deficiencies, fines, assessments, losses, Taxes, penalties, interest, costs
and expenses (including, without limitation, reasonable fees and
disbursements of counsel) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted in any way against an
Indemnified Party relating to the applicable matter, together with the
related costs of enforcement and collection by the Indemnified Party
against the Indemnifying Party; provided, however, that Losses shall not
include (i) without duplication, any amounts reserved (except in the case
of Special Indemnity Losses) against in the Financial Statements or, with
respect to Current Liabilities, the Estimated Closing Balance Sheet or, if
prepared, the Closing Balance Sheet and/or (ii) any indirect, punitive,
special or exemplanary damages and unforeseen or other consequential
damages."
SECTION 7. The definition of "Working Capital" contained in Section
1.01 of the Agreement is hereby amended to read in its entirety as follows:
""Working Capital" shall mean, as of immediately prior to Closing,
consolidated Current Assets less consolidated Current Liabilities, as
calculated in a manner consistent with the calculation of the Working
Capital Target."
SECTION 8. Section 2.06. Section 2.06(a) and (b) of the Agreement is
hereby amended to read in its entirety as follows:
"2.06 Cash Payment for Company Eligible Options; Termination of Option
Plan. (a) Promptly after the Closing, but no later than two (2) Business
Days after the Closing. Purchaser shall pay, or cause the Surviving Entity
to pay, without interest, in cash to each Option Holder who executes and
delivers an Option Holder Agreement to the Shareholders Representative, for
the Eligible Options held by such Option Holder at the Effective Time, with
respect to each share of Company Common Stock subject thereto: (i) an
amount equal to the Merger Consideration Price Per Share less the per share
exercise price of such Eligible Option (the "Option Consideration Amount"
and with respect to all Eligible Options held by Option Holders who execute
and deliver an Option Holder Agreement, the "Aggregate Option Consideration
Amount") less (ii) the amount of any withholding that is required by
applicable Tax Law and less (iii) such Option Holder's Option Indemnity
Amount (the "Option Settlement Payment"). No Option Holder shall be
entitled to receive the payments provided for in this Section 2.06(a)
unless such Option Holder has executed an Option Holder Agreement, unless
the execution thereof is waived by the Company or, to the extent
applicable, by the Surviving Entity, or by the Shareholders' Representative
after Closing.
(b) Simultaneously with the payment by either Purchaser or the Surviving
Entity to the Option Holder pursuant to 2.06(a) above, the Purchaser shall
pay directly to the Paying Agent, for each Option Holder that has executed
and delivered to the Company an Option Holder Agreement, an amount equal to
the aggregate Option Indemnity Amount for all such Eligible Options. Each
Company Option with an exercise price equal to or greater than the Merger
Consideration Price Per Share shall be cancelled at the Closing without any
consideration. Subject to the payments by Purchaser as set forth above, the
Company and Principal Shareholders shall ensure (i) that the Option Plan
and each other Company Option to purchase Company Common Stock shall
terminate as of the Closing all in accordance with the terms thereof and
(ii) that following the Closing no participant in the Option Plan or other
plans, programs or arrangements shall have any right thereunder to acquire
any capital stock of the Company, the Surviving Entity or any of its
Subsidiaries, all in accordance with the terms thereof. On and after the
date hereof, the Company shall grant no additional Company Options under
the Option Plan or otherwise. All administrative and other rights and
authorities granted under any Option Plan to the Company, the Board of
Directors of the Company or any Committee or designee thereof, shall,
following the Effective Time, reside with the Surviving Entity. No interest
will be paid or will accrue in the cash payable upon surrender of any of
the Company Options."
SECTION 9. Section 8.01(f). Section 8.01(f) of the Agreement is hereby
amended to read in its entirety as follows:
"(f) No 368(a) Disqualification Events. Neither Purchaser, Merger Sub, the
Company has taken or shall take any action that would prevent the Merger from
qualifying as a reorganization under Section 368(a) of the Code."
SECTION 10. Merger Agreement in Full Force and Effect. Other than as
amended pursuant to Sections 1, 2, 3, 4, 5, 6, 7, 8 and 9 of this Amendment, the
Agreement shall remain in full force and effect.
SECTION 11. Effectiveness. This Amendment to the Agreement shall be
effective as of the date of this Amendment, and all references to the Agreement
shall, from and after such time, be deemed to be references to the Agreement as
amended hereby.
SECTION 12. The Principal Shareholders hereby represent that at least
66-2/3 % of the issued and outstanding shares of Company Common Stock have
approved the Amendment and the Amendment does not require any further approval
of the shareholders of the Company under the MBCA.
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAW DOCTRINES.
SECTION 14. CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT, BY
ITS EXECUTION HEREOF, (I) HEREBY IRREVOCABLY SUBMITS, AND AGREES TO CAUSE EACH
OF ITS SUBSIDIARIES TO SUBMIT, TO THE EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (OR IF JURISDICTION
THERETO IS NOT PERMITTED BY LAW, THE STATE COURTS OF THE STATE OF NEW YORK
LOCATED IN NEW YORK COUNTY) FOR THE PURPOSE OF ANY ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE
SUBJECT MATTER HEREOF, (II) HEREBY WAIVES, AND AGREES TO CAUSE EACH OF ITS
SUBSIDIARIES TO WAIVE, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND
AGREES NOT TO ASSERT, AND AGREES NOT TO ALLOW ANY OF ITS SUBSIDIARIES TO ASSERT,
BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, ANY CLAIM THAT
IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT
ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH
PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS IMPROPER, OR THAT THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT
AND (III) HEREBY AGREES NOT TO COMMENCE OR TO PERMIT ANY OF ITS SUBSIDIARIES TO
COMMENCE ANY ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR
OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON
THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF OTHER THAN BEFORE ONE OF
THE ABOVE-NAMED COURTS NOR TO MAKE ANY MOTION OR TAKE ANY OTHER ACTION SEEKING
OR INTENDING TO CAUSE THE TRANSFER OR REMOVAL OF ANY SUCH ACTION, CLAIM, CAUSE
OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION TO ANY COURT OTHER THAN ONE OF THE ABOVE-NAMED COURT WHETHER ON
THE GROUNDS OF INCONVENIENT FORUM OR OTHERWISE.
EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN ANY
MANNER PERMITTED BY NEW YORK LAW, AND AGREES THAT SERVICE OF PROCESS BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED
PURSUANT TO SECTION 12.11 OF THE AGREEMENT IS REASONABLY CALCULATED TO GIVE
ACTUAL NOTICE.
SECTION 15. Miscellaneous. This Amendment may be executed in any number
of counterparts, each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, illegal, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
SECTION 16. Defined Terms. Unless otherwise defined herein, all
capitalized terms used in this Amendment shall have the meaning ascribed to such
terms in the Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
PURCHASER: COMPANY:
JARDEN CORPORATION THE XXXXXX GROUP, INC.
By: /s/ Xxxxxxx XxXxxxxxx By: /s/ Jordan X. Xxxx
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Name: Xxxxxxx XxXxxxxxx Name: Jordan X. Xxxx
Title: Executive Vice President of Title: Chairman and Chief Executive
Finance Officer
MERGER SUB: SHAREHOLDERS' REPRESENTATIVE
JCS/THG, LLC BERKSHIRE PARTNERS LLC
By: /s/ Xxxxxxx XxXxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx XxXxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President Title: Managing Director
PRINCIPAL SHAREHOLDERS:
BERKSHIRE INVESTORS LLC
/s/ Jordan X. Xxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Jordan X. Xxxx Name: Xxxxxxx X. Xxxxx
Title: Managing Director
THE JORDAN X. XXXX BERKSHIRE FUND IV, LIMITED
FAMILY LIMITED PARTNERSHIP PARTNERSHIP
By: Fourth Berkshire Associates LLC,
General Partner
By: /s/ Jordan X. Xxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Jordan X. Xxxx Name: Xxxxxxx X. Xxxxx
Title: General Partner Title: Managing Member
BERKSHIRE FUND V, LIMITED
PARTNERSHIP
By: Fifth Berkshire Associates LLC,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
