Exhibit 10.8
AMENDMENT NO. 2
TO ASSET AND STOCK PURCHASE
AGREEMENT
AMENDMENT NO. 2 (this “
Amendment ”), dated as of April 27, 2006 to the Asset
and Stock Purchase Agreement, between Texas Instruments
Incorporated (“ Seller ”) and S&C Purchase
Corp., dated as of January 8, 2006 (as amended, the “
Agreement ”).
W I T N E S S E T H
:
WHEREAS, subject to the terms and
conditions of Section 13.04 of the Agreement, S&C Purchase
Corp. transferred and conveyed to Sensata Technologies B.V.,
formerly known as Potazia Holding B.V. (“ Buyer
”), all of its right, title, interest and obligations in, to
or under the agreement (the “ Assignment ”)
effective as of February 8, 2006; and
WHEREAS, the parties desire to amend
the Agreement pursuant to Section 13.02 to reflect the changes
set forth herein.
NOW, THEREFORE, the parties hereto
agree as follows:
Section 1 . Definitions. Each
capitalized term used and not otherwise defined herein shall have
the meaning assigned to such term in the Agreement.
Section 2 . Real Property
Primarily Related to the Business. The disclosure set forth in
Sections 3.13(a) and (b) of the Disclosure Schedule shall be
deleted in its entirety and shall be deemed replaced, as of the
date of the Agreement, with the disclosure set forth in Annex A
hereto.
Section 3 . Disclosure
Schedules . (a) Items 5, 8 and 9 in Section 10.02(b) of
the Disclosure Schedule shall be deleted and replaced with the word
“[Reserved]”. For the avoidance of doubt, the amendment
of Section 10.02(b) of the Disclosure Schedule with respect to
Items 8 and 9, as set forth in the preceding sentence, shall not
otherwise modify the rights and obligations of Buyer and Seller
with respect to such Purchased Assets pursuant to the Agreement
(including pursuant to Sections 2.07, 7.01, 7.02 and 11.02
thereof).
Section 4 . Transferred
Indebtedness . The disclosure set forth in Item 4 of
Section 1.01(b) of the Disclosure Schedule shall be deleted in
its entirety and replaced with the words: “Intercompany loans
solely among Purchased Subsidiaries made pursuant to, and in
compliance with, Section 2.06(a)(i) of the Agreement,
including the entrusted loans between (i) Texas Instruments
(Changzhou) Co., Ltd. and Texas Instruments (China) Company Limited
and (ii) Texas Instruments (China) Company Limited and S&C
International Trading (Shanghai) Co., Ltd., in each case to the
extent entered into prior to the Closing in
accordance with that certain letter agreement
between Texas Instruments and Sensata Technologies B.V., formerly
known as Potazia Holding B.V., dated as of March 30, 2006 and
designated as Transferred Indebtedness therein”.
Section 5 . Sample Working
Capital Calculation . The disclosure set forth in
Section 2.10(a) of the Disclosure Schedule shall be deleted in
its entirety and replaced with the disclosure set forth in Annex B
hereto.
Section 6 . Assignment of
Contracts. (a) Buyer and Seller acknowledge and agree that
Seller shall be deemed to have satisfied its obligations pursuant
to Sections 2.07, 7.01 and 7.02 of the Agreement with respect to
Contracts listed in Annex C hereto (the “ Identified
Contracts ”); provided , that at the request of
Buyer, following the Closing, Seller and Buyer will use their
reasonable efforts (but without any payment of money by Buyer) to
obtain the Consent of the other parties to any such Identified
Contract or any claim or right or any benefit arising thereunder
for the assignment thereof to Buyer as Buyer may reasonably request
and the last three sentences of Section 2.07 and Sections 7.01
and 7.02 of the Agreement shall apply with respect to such
Identified Contract.
(b) Buyer and Seller acknowledge and
agree that the last sentence in Section 3.15 of the Agreement
shall not apply to any Identified Contract unless and until
(i) the counterparty to such Identified Contract shall have
asserted that Buyer is not entitled to continue to receive the
benefits of such Identified Contact in the absence of such
counterparty’s Consent, which assertion shall not have been
instigated, and shall not have arisen out of any dispute initiated,
by or on behalf of Buyer or any of its Subsidaries (other than the
Purchased Subsidiaries prior to Closing), and (ii) Buyer shall
have notified Seller of the receipt of such assertion.
Section 7 . Employees. Buyer
and Seller acknowledge and agree that the following shall be deemed
to be Excluded Liabilities: (i) the profit sharing rights
pursuant to Applicable Law of Business Employees employed in
jurisdictions outside the United States and (ii) all other
Liabilities and commitments relating to current or former Business
Employees that, in the case of each of clauses (i) and (ii),
(x) would but for the operation of this Section 7 be
Assumed Liabilities, (y) are current liabilities of the
Business as of the Closing Date and (z) as a result of
Applicable Law, cannot be assumed by Buyer or any of its Affiliates
at the Closing.
Section 8 . Closing .
Section 2.09(c)(i) shall be amended by inserting the words
“(or to such Subsidiary of Seller as Seller may prior to the
Closing designate with respect to any portion of the Purchase
Price)” after the phrase “Buyer shall deliver to
Seller”.
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Section 9 . Intercompany Payables
and Receivables . (a) Section 5.07 of the Agreement
shall be deleted and replaced in its entirety with the
following:
“At or prior to the Closing,
Seller shall, and shall cause its Subsidiaries to, retain or
eliminate all intercompany receivables and payables of the
Business, incurred in the ordinary course of business; provided,
however, that Seller shall not retain or eliminate (or cause to be
transferred to Seller or a Retained Subsidiary in the
Restructuring) the intercompany receivables and intercompany
payables outstanding as of the close of business on the Business
Day immediately prior to the Closing Date of each of Texas
Instrumentos Eletronicos do Brasil Limitada, Texas Instruments
(Changzhou) Co., Ltd., Texas Instruments (China) Company Limited or
S&C Korea, such intercompany receivables and payables to be
deemed, in each case, to be assets and liabilities, respectively,
primarily related to the Business. For the avoidance of doubt, any
Taxes of the Purchased Subsidiaries arising from such elimination
shall be treated as a Purchased Subsidiary Liability for purposes
of this Agreement.”
(b) Item 7 in
Section 2.03(e) of the Disclosure Schedule shall be deleted
and shall be replaced in its entirety with the following, “7.
All intercompany payables and receivables (i) between the
Business and any Retained Business or (ii) within the
Business, in each case, other than the intercompany receivables of
and payables of Texas Instrumentos Eletronicos do Brasil Limitada,
Texas Instruments (Changzhou) Co. Ltd, Texas Instruments (China)
Company Limited and S&C Korea.”
(c) Item 6 in
Section 2.06(a)(i) of the Disclosure Schedule shall be deleted
and shall be replaced in its entirety with the following, “6.
All intercompany receivables of any Purchased Subsidiary other than
those intercompany receivables outstanding as of the Closing Date
of Texas Instrumentos Eletronicos do Brasil Limitada, Texas
Instruments (Changzhou) Co., Ltd. and Texas Instruments (China)
Company Limited.”
(d) Item 2 in
Section 2.06(a)(ii) of the Disclosure Schedule shall be
deleted and shall be replaced in its entirety with the following,
“2. All intercompany payables of any Purchased Subsidiary
other than those intercompany payables outstanding as of the
Closing Date of Texas Instrumentos Eletronicos do Brasil Limitada,
Texas Instruments (Changzhou) Co., Ltd. or Texas Instruments
(China) Company Limited.”
(e) Buyer and Seller acknowledge and
agree that the intercompany receivables and intercompany payables
of Texas Instrumentos Eletronicos do Brasil Limitada outstanding as
of the close of business on the date immediately preceding the
Closing Date, shall be treated as accounts receivable and accounts
payable, as applicable, for purposes of Closing Working
Capital.
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Section 10 . Transfer
Documents. The parties acknowledge that they and certain of
their Subsidiaries have or will enter into various transfer
agreements, deeds, bills of sale, assignments and other instruments
of conveyance and assignment in connection with the consummation of
the Closing in various jurisdictions outside the United States
(collectively, the “ Local Transfer Documents
”). Buyer and Seller acknowledge and agree that nothing
contained in any Local Transfer Document shall in any way
supersede, modify, replace, amend, change, rescind, expand, exceed,
enlarge or in any way affect the provisions, including the
representations, warranties, covenants, agreements, conditions, or
in general, any rights, remedies, or obligations of Seller or Buyer
(or their respective Affiliates) set forth in the Agreement. To the
extent there are inconsistencies between the provisions of a Local
Transfer Agreement and the provisions of the Agreement, the
provisions of the Agreement shall prevail.
Section 11 . Value Added Tax
. Notwithstanding anything to the contrary in Section 8.02(c)
of the Agreement, Buyer and Seller agree that
