AMENDMENT TO STOCK AND ASSET PURCHASE AGREEMENT
EXHIBIT 10.2
EXECUTION COPY
AMENDMENT TO STOCK AND ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO STOCK AND ASSET PURCHASE AGREEMENT (this “Amendment”), dated as of
the 1st day of July, 2006, to the Stock and Asset Purchase Agreement (the “Purchase
Agreement”) dated as of May 18, 2006, by and among Parsons, Brinckerhoff, Xxxxx & Xxxxxxx Inc.,
a New York corporation (“Seller”), PB Farradyne Inc., a Maryland corporation (the
“Company”), PB Energy Storage Services, Inc., a Texas corporation (“PB Energy”) and
Telvent Traffic North America Inc., a Texas corporation (“Purchaser”). Each of the
foregoing persons is referred to individually as a “Party” and collectively as the
“Parties.” Capitalized terms used and not otherwise defined herein shall have the meanings
given to them in the Purchase Agreement.
RECITALS
A. The Parties are parties to the Purchase Agreement.
B. In connection with the consummation of the transactions contemplated by the Purchase
Agreement, the Parties desire to amend the Purchase Agreement to reflect the agreements set forth
herein.
C. Under Section 10.09 of the Purchase Agreement, amendments to the Purchase Agreement must be
in writing and signed by each of the Parties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which are acknowledged,
the Parties hereby agree as follows:
1. Amendment of Section 2.02(d)(iii). Section 2.02(d)(iii) of the Purchase Agreement
is hereby amended in its entirety by deleting such Section 2.02(d)(iii) in its entirety and
replacing it with the following:
“(iii) any liabilities or obligations of Seller or PB Energy under the surety bonds set forth
on Schedule 2.02(d)(iii).”
For the avoidance of doubt, the Parties hereby acknowledge and agree that the surety bonds of
the Company listed as items 4 (#8189-09-39 by the Company for the benefit of City of Phoenix, in
the principal amount of $2,291,260.91) and 5 (#8189-09-39 by the Company for the benefit of City of
Phoenix, in the principal amount of $2,291,260.91) on Schedule 2.02(d)(iii) shall remain as
obligations of the Company after Closing.
2. Amendment of Section 3.01. Section 3.01 of the Purchase Agreement is hereby
amended by deleting the first paragraph of such Section 3.01 in its entirety and replacing it with
the following:
“The closing of the sale and purchase of the Shares and Purchased Assets and the assumption
of the Assumed Liabilities as contemplated by this Agreement (the
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“Closing”) shall take place at the offices of XxXxxxxxx Will & Xxxxx LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, effective as of July 1, 2006, or at such other
place, time and date as shall be agreed among the Parties. The date on which the Closing
occurs is referred to in this Agreement as the “Closing Date”. The Closing will be
deemed to have occurred as of 12:01 a.m. local time on the Closing Date. Unless expressly
set forth herein, each of the transactions contemplated below shall be deemed to have
occurred simultaneously.”
3. Amendment of Section 6.17(c). Section 6.17(c) of the Purchase Agreement is hereby
amended by deleting such Section 6.17(c) in its entirety and replacing it with the following:
“(c) Prior to or at the Closing, Seller shall cause the names of any legal entities owned by
Seller or any of Seller’s Affiliates, with the exception of PB Farradyne Engineering, P.C.,
containing the Company Names to be changed to names not including or similar to the Company
Names. Following the Closing, Seller and its Affiliates shall not use the Company Names
other than in a factual manner. “Company Names” means “Farradyne” and any variations and
derivatives thereof. Seller and Purchaser shall mutually agree as to whether and when the
name of PB Farradyne Engineering, P.C. shall be changed at or about the time Purchaser
elects to purchase this legal entity. Seller agrees that until the date of such
determination, Seller shall cause PB Farradyne Engineering, P.C. not to conduct any
substantive business activities.”
4. Amendment of Section 6.18. Section 6.18 of the Purchase Agreement is hereby
amended by deleting such Section 6.18 in its entirety and replacing it with the following:
“Section 6.18. Assignment of Michigan and Ohio Contracts. (a) Seller shall cause
Xxxxxxx Brinckerhoff Michigan, Inc. to assign to Purchaser or its designated Affiliate the
Contracts set forth on Schedule 6.18(a) in accordance with Section 6.05.
(b) Seller shall cause Xxxxxxx Xxxxxxxxxxxx Ohio, Inc. to assign to Purchaser or its
designated Affiliate the Contracts set forth on Schedule 6.18(b) in accordance with
Section 6.05.”
5. Amendment of Section 6.19. Section 6.19 of the Purchase Agreement is hereby
amended by deleting such Section 6.19 in its entirety and replacing it with the following:
“Section 6.19. Alltech Subcontracts. At the Closing, PB Energy shall, or shall
cause its applicable Affiliate(s) to, and Seller shall enter into written subcontractor
agreements, mutually acceptable to PB Energy, Seller and Purchaser, in respect of the
Contracts set forth on Schedule 6.19.”
6. Amendment of Section 10.11. Section 10.11 of the Purchase Agreement is hereby
amended by deleting such Section 10.11 in its entirety and replacing it with the following
“This Agreement shall be governed by and construed in accordance with the laws of the State
of Delaware, without regard to principles of conflict of laws. The Parties hereby declare
that it is their intention that this Agreement shall be regarded as made under the
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laws of the State of Delaware and that the laws of said State shall be applied in
interpreting its provisions in all cases where legal interpretation shall be required. Each
of the Parties agrees (a) that this Agreement involves at least $100,000.00, and (b) that
this Agreement has been entered into by the Parties in express reliance upon 6 Del. C. §
2708. Each of the Parties hereby irrevocably and unconditionally agrees (a) to be subject
to the jurisdiction of the courts of the State of Delaware and of the federal courts sitting
in the State of Delaware, and (b) (1) to the extent such Party is not otherwise subject to
service of process in the State of Delaware, to appoint and maintain an agent in the State
of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the
fullest extent permitted by applicable law, service of process may also be made on such
Party by prepaid certified mail with a proof of mailing receipt validated by the United
States Postal Service constituting evidence of valid service, and that service made pursuant
to (b) (1) or (2) above shall, to the fullest extent permitted by applicable law, have the
same legal force and effect as if served upon such party personally within the State of
Delaware.”
7. Amendment to Schedule 4.13(a). Schedule 4.13(a) to the Purchase Agreement is
hereby amended to add the following Business Contracts under the heading “Alltech Contracts”:
a. | “6. Intercompany Agreement, dated December 22, 2005, between the PB Farradyne division of Xxxxxxx Brinckerhoff Quade & Xxxxxxx, Inc. and Alltech, Inc.” | ||
b. | “7. Intercompany Agreement, dated October 25, 2002, between PB Farradyne division of Xxxxxxx Brinckerhoff Quade & Xxxxxxx, Inc. and Alltech, Inc.” |
8. Ancillary Agreements: For the avoidance of doubt, the Parties hereby acknowledge
and agree that the Ancillary Agreements include the Master Secondment Agreement set forth as
Exhibit B to the Transition Agreement and the Temporary Occupancy Agreement set forth as Exhibit D
to the Transition Agreement.
9. Effect on Purchase Agreement. This Amendment shall be incorporated into and deemed
to be a part of the Purchase Agreement. Except as modified by this Amendment, the Purchase
Agreement shall remain in full force and effect in accordance with its original terms.
10. Interpretation. In the event of a conflict between or inconsistency with the
terms of this Amendment and the Purchase Agreement, such conflict or inconsistency shall be
resolved by giving precedence to this Amendment.
11. Counterparts. This Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one single agreement.
12. Successors and Assigns. This Amendment shall be binding upon, and inure to the
benefit of, the Parties hereto and their respective heirs, successors and permitted assigns.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Amendment as of the date first
written above.
PARSONS, BRINCKERHOFF, XXXXX & XXXXXXX, INC. |
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By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President | |||
PB ENERGY STORAGE SERVICES, INC. |
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By: | /s/ Xxxxxxxx X. Xxxxx | |||
Name: | Xxxxxxxx X. Xxxxx | |||
Title: | Treasurer | |||
PB FARRADYNE INC. |
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By: | /s/ Xxxxxxxx Xxxxxxx | |||
Name: | Xxxxxxxx Xxxxxxx | |||
Title: | President | |||
TELVENT TRAFFIC NORTH AMERICA INC. |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Secretary | |||
Signature Page to SAPA Amendment