Exhibit 2.7
Execution Copy
AMENDMENT
This AMENDMENT (together with the
Schedules hereto, this “Amendment”), dated
January 25, 2006, by and among Hushang Ansary
(“Buyer”), and Stewart & Stevenson
Services, Inc., a Texas corporation (“Parent”),
and certain subsidiaries of Parent signatory hereto (collectively,
with Parent, “Sellers” and each, including Parent, a
“Seller”). Buyer and each Seller may be referred
to herein collectively as the “Parties” and
individually as a “Party”. Capitalized terms used
herein but not defined herein shall have the meanings ascribed to
such terms in the PPD Purchase Agreement (as defined
below).
RECITALS
A.
Pursuant to that certain Asset
Purchase Agreement, dated September 27, 2005, among Parent and
certain of its subsidiaries party thereto and Buyer (as amended,
supplemented or otherwise modified from time to time upon the
mutual agreement of the parties, the “EPD Purchase
Agreement”), Buyer has agreed to acquire certain assets, and
assume certain liabilities, of the EPD Business;
B.
Pursuant to that certain Asset
Purchase Agreement, dated as of October 24, 2005, among Parent
and certain of its subsidiaries party thereto and Buyer (as
amended, supplemented or otherwise modified from time to time upon
the mutual agreement of the parties, the “PPD Purchase
Agreement” and, together with the EPD Purchase Agreement, the
“Purchase Agreements”), Buyer has agreed to acquire
certain assets, and assume certain liabilities, of the Business
(the “PPD Business” and, together with the EPD
Business, the “Businesses”); and
C.
Buyer desires to purchase, and
Sellers desire to sell, certain other assets related to the
Businesses, and Buyer and Sellers desire to enter into certain
additional agreements related to the transactions contemplated by
the Purchase Agreements.
The Parties, intending to be legally
bound, agree as follows:
1.
Additional Assets and
Liabilities.
(a)
For all purposes of the EPD Purchase
Agreement, provided the PPD Purchase Agreement shall not have been
terminated, the term “Business” shall include the
Hybrid Bus Business (as defined below), the term
“Assets” shall include the assets of the Hybrid Bus
Business set forth in Schedule 1(a) hereto, and the term
“Assumed Liabilities” shall include the liabilities of
the Hybrid Bus Business described on
Schedule 1(a) hereto. The term “Hybrid Bus
Business” means the Sellers’ business of designing,
converting and manufacturing diesel-electric hybrid powered busses.
All references to the property, assets or rights of the Hybrid Bus
Business as Excluded Assets (as defined in the EPD Purchase
Agreement), including any references thereto in any of the sections
of the Seller Disclosure Letter to the EPD Purchase Agreement, are
correspondingly deleted.
(b)
For all purposes of the EPD Purchase
Agreement, provided the PPD Purchase Agreement shall not have been
terminated, the term “Business” shall include the Snow
Blower Business (as defined in the EPD Purchase Agreement), the
term “Assets” shall include the assets of the Snow
Blower Business set forth on Schedule 1(b) hereto, and
the term “Assumed Liabilities” shall include the
liabilities of the Snow Blower Business described on
Schedule 1(b) hereto; provided, however, that
notwithstanding anything herein or in the Purchase Agreements to
the contrary, at the Closing and effective as of the Effective
Time, the design library and all other Intellectual Property of the
Snow Blower Business described in Schedule 1(b) hereto
will be sold, conveyed, assigned, transferred, and delivered to
Buyer “As Is/Where Is,” without any representation or
warranty whatsoever.
(c)
Attached hereto as
Schedule 1(c) is a balance sheet of the Hybrid Bus
Business and Snow Blower Business as of December 3, 2005,
prepared in accordance with Agreed Accounting
Principles.
2.
Consents.
The following provisions shall be
applicable to all Consents described in
Section 10.6(a) of the EPD Purchase Agreement or
Section 10.7(a) of the PPD Purchase Agreement other than
those of such Consents required to be obtained from the original
equipment manufacturers listed in Section 7.3(d) of the
Seller Disclosure Letter to the PPD Purchase Agreement (the
“OEM Consents”).
(a)
Notwithstanding the provisions of
Section 5.1 of either of the Purchase Agreements, Sellers
shall not be obligated to seek any Consent described in
Section 10.6(a) or (b) of the EPD Purchase Agreement
or Section 10.7(a) or (b) of the PPD Purchase
Agreement other than the OEM Consents and those Consents set forth
on Schedule 2(a) hereto (collectively, the
“Required Consents”). Receipt of the Required Consents,
but no other Consents, shall be a condition to the obligations of
Buyer to take and perform all actions required to be taken by
Buyer at the Closing. Prior to the Closing, Sellers shall be
permitted, however, to seek any Consents as Sellers may, in their
discretion, elect.
(b)
Except as provided in subparagraph
(a) above, the provisions of this Section 2 shall have no
effect on the rights, duties or obligations of the Parties under
Section 10.6 of the EPD Purchase Agreement or
Section 10.7 of the PPD Purchase Agreement.
3.
Additional Amendments.
(a)
Provided the PPD Purchase Agreement
shall not have been terminated, the obligations of Buyer or
Sellers, respectively, to take the actions required to be taken by
any of them at the Closing (as such term is defined in the EPD
Purchase Agreement) shall be subject, in addition to the conditions
precedent set forth in Article 7 and Article 8,
respectively, of the EPD Purchase Agreement, to the satisfaction,
at or prior to the Closing (as defined in the EPD Purchase
Agreement), of the conditions precedent set forth in Article 7
and Article 8, respectively, of the PPD Purchase
Agreement.
2
(b)
Provided the EPD Purchase Agreement
shall not have been terminated, the obligations of Buyer or
Sellers, respectively, to take the actions required to be taken by
any of them at the Closing shall be subject, in addition to the
conditions precedent set forth in Article 7 and
Article 8, respectively, of the PPD Purchase Agreement, to the
satisfaction, at or prior to the Closing, of the conditions
precedent set forth in Article 7 and Article 8,
respectively, of the EPD Purchase Agreement.
(c)
For all purposes of the PPD Purchase
Agreement, the following entities shall be “Purchased
Subsidiaries” and shall not be
“Sellers”:
(i)
Stewart & Stevenson
Distributor Holdings, Inc., or if such corporation has
converted to a limited liability company, Stewart &
Stevenson Distributor Holdings LLC; and
(ii)
Stewart & Stevenson Power
Products LLC.
(d)
If SSTH has converted from a
corporation to a limited liability company, the words “a
Delaware corporation” in the definition of “SSTH”
in Section 1.1 shall be amended to read “a Delaware
limited liability company”.
(e)
For all purposes of the PPD Purchase
Agreement, C. Jim Stewart & Stevenson, Inc., a
Delaware corporation, shall be a “Seller”.
(f)
Provided the PPD Purchase Agreement
shall not have been terminated, for all purposes of the EPD
Purchase Agreement, the EP
