EXHIBIT 10.1
EXECUTION VERSION
FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT
This
FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT, dated as of
August 7, 2007 (this “ Amendment ”), is
made by and between GENERAL MOTORS CORPORATION, a Delaware
corporation, and CLUTCH OPERATING COMPANY, INC., a Delaware
corporation.
W I
T N E S S E T H:
WHEREAS,
the parties hereto are parties to an Asset Purchase Agreement,
dated as of June 28, 2007 (the “ Purchase
Agreement ”); and
WHEREAS,
the parties hereto desire to amend the Purchase Agreement as set
forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained and other good and
valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows (all capitalized terms used but not defined herein shall
have the meanings specified in the Purchase Agreement):
Section 1. Amendments to the
Purchase Agreement.
(a) Section 1.1
of the Purchase Agreement is hereby amended to add or restate the
following definitions:
“
Brazil Assets ” means those Purchased Assets held
physically in, possessed by the Sellers organized in, or otherwise
related to the operations of the Business in, Brazil.
“
Brazil Phase 3 ” means the time at which Buyer Brazil
has been organized and has obtained all licenses, permits and
certificates of authority or orders issued by any Governmental
Entity necessary to conduct the Business in Brazil in substantially
the same manner as such Business was conducted immediately prior to
the Closing, which time shall be determined by written notice
provided by the Buyer to GM (it being understood that such events
shall be conclusively deemed to have occurred upon such written
notice).
“
Buyer Brazil ” means the newly formed subsidiary of
the Buyer to be organized under the Laws of Brazil for the purpose
of, among other things, acquiring the Brazil Assets.
“
China Deferred Purchase Price Amount ” means an amount
equal to Two Million Three Hundred Ninety Thousand Three Hundred
Fifteen Dollars ($2,390,315).
“
China Phase 3 ” means the time at which the WOFE has
been organized and has obtained all licenses, permits and
certificates of authority or orders issued by any Governmental
Entity necessary to conduct the Business in China in
substantially
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the same manner
as such Business was conducted immediately prior to the Closing,
which time shall be determined by written notice provided by the
Buyer to GM (it being understood that such events shall be
conclusively deemed to have occurred upon such written
notice).
“
China Post-Closing Fixed Assets ” means those tangible
Purchased Assets held physically in, possessed by the Sellers
organized in, or otherwise related to the operations of the
Business in, China, other than those such Purchased Assets that are
raw materials, work in process and finished good inventories.
“ GM
Brazil ” means General Motors do Brasil Ltda.
“
GM’s China Entities ” means, collectively,
General Motors (China) Investment Company Limited, General Motors
Warehousing and Trading (Shanghai) Co., Ltd. and General Motors
China, Inc.
“
India Stock ” means all of the outstanding capital
stock of Allison Transmission India Private Limited.
“
Shanghai Lease Assignment ” has the meaning set forth
in Section 7.2(g) .
“
Shanghai New Lease ” has the meaning set forth in
Section 7.2(g) .
“
Sublease Agreement ” has the meaning set forth in
Section 7.19 .
“
WOFE ” means the newly formed subsidiary of the Buyer
to be organized under the Laws of China in the Wai Gao Qiao Free
Trade Zone in Shanghai for the purpose of, among other things,
acquiring the China Post-Closing Fixed Assets.
(b) Section 2.1
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
“ Section 2.1 Purchase
of Assets and Assumption of Liabilities .
(a) On
the terms and subject to the conditions set forth in this
Agreement, at the Closing:
(i)
the Buyer shall purchase from the Sellers, and the Sellers shall,
and GM shall cause the other Sellers to, sell, transfer, assign,
convey and deliver to the Buyer, the Purchased Assets (other than
the China Post-Closing Fixed Assets and the Brazil Assets, which
the Sellers shall not transfer or convey to any party other than
the Buyer or its designee, except in a manner consistent with
Schedule A of the Transition Services Agreement), free and
clear of all Liens (other than Permitted Liens), and the
Transferred Stock (other than the India Stock), free and clear of
all Liens; and
(ii)
the Buyer shall assume and agree to pay, discharge and perform when
due all of the Assumed Liabilities.
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(b) On
the terms and subject to the conditions set forth in this
Agreement, promptly upon the occurrence of China Phase 3, the WOFE
shall purchase from the Sellers, and the Sellers shall, and GM
shall cause the other Sellers to, sell, transfer, assign, convey
and deliver to the WOFE, the China Post-Closing Fixed Assets, free
and clear of all Liens (other than Permitted Liens).
(c) On
the terms and subject to the conditions set forth in this
Agreement, promptly upon the occurrence of Brazil Phase 3, Buyer
Brazil shall purchase from the Sellers, and the Sellers shall, and
GM shall cause the other Sellers to, sell, transfer, assign, convey
and deliver to Buyer Brazil, the Brazil Assets, free and clear of
all Liens (other than Permitted Liens).
(d) As
soon as practicable following the Closing, the Buyer shall
purchase, and GM shall cause the sale, transfer, assignment,
conveyance and delivery to the Buyer of, the India Stock, free and
clear of all Liens.”
(c) Section 2.2(b)(ii)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
“(ii)
(A) any accounts and notes receivable contributed to GMTR
pursuant to the Receivables Agreement and any related rights to
payment therefor due to any Seller, (B) any accounts and notes
receivable and other such claims for money due to any Seller from
any other Seller or any of its Subsidiaries other than those
arising from the sale of Automatic Transmissions to the Sellers by
the Business (provided that any accounts and notes receivable and
other such claims for money due arising from sales to any of
GM’s China Entities or GM Brazil by any other Seller shall be
Excluded Assets) and (C) any accounts and notes receivable and
other such claims for money due to any of GM’s China Entities
or GM Brazil from any third party or any other Seller arising from
the rendering of services or the sale of goods or materials by the
Business or other conduct of the Business prior to the
Closing;”
(d) Section 2.3(b)
of the Purchase Agreement is hereby amended to change the
“.” at the end of clause (x) into a
“;” and to add the following clauses (xi) and
(xii):
“(xi) any
liabilities or obligations of Allison Transmission India Private
Limited incurred prior to the time the India Stock is transferred
to the Buyer; and
(xii) any
accounts payable and other current liabilities to the extent
(A) payable by any of GM’s China Entities or GM Brazil
arising from the receipt of services or the purchase of goods or
materials by the Business or other conduct of the Business prior to
the Closing and (B) of the amount that, but for this
Section 2. 3(b)(xii) , would have been required
to be accrued on a balance sheet of the Business prepared in
accordance with the Agreed Accounting Conventions as of the close
of business on the day immediately preceding the Closing
Date.”
(e) Section 3.2
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
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“Section 3.2 Closing
Payment.
“(a) On
the terms and subject to the conditions set forth in this
Agreement, at the Closing, the Buyer shall pay to GM an aggregate
amount (such amount, the “ Closing Payment ”)
equal to (i) Five Billion Five Hundred Seventy-Five Million
Dollars ($5,575,000,000) less (ii) the Estimated
Closing Date Debt less (iii) the China Deferred
Purchase Price Amount, in cash by wire transfer of immediately
available funds to the account or accounts designated in writing by
GM. The sum of the Closing Payment plus the China Deferred
Purchase Price Amount plus the aggregate amount of the
Assumed Liabilities, as such sum may be adjusted in accordance with
Sections 3. 2(b) , 3.3 and 9.6 ,
is referred to herein as the “ Purchase Price ”.
Upon the occurrence of China Phase 3 and contemporaneously with the
transfer of the China Post-Closing Fixed Assets to the Buyer as
contemplated by Section 2.1(b) , and in no event later
than March 31, 2008, the WOFE shall, and the Buyer shall cause
the WOFE to, pay an aggregate amount equal to the China Deferred
Purchase Price Amount to GM’s China Entities, which payment
shall be (x) allocated among such entities based on the
Allocation pursuant to Section 3.4 and (y) made in
cash by wire transfer of immediately available funds to the
accounts designated in writing by GM, as purchase price for the
China Post-Closing Fixed Assets.
(b) On
each of August 14, 2007, August 21, 2007, August 28,
2007 and September 4, 2007, GM shall pay to the Buyer Fifty
Million Dollars ($50,000,000), in cash by wire transfer of
immediately available funds to the account or accounts designated
in writing by the Buyer. Any payment pursuant to this
Section 3. 2(b) will be treated by the Parties
as an adjustment to the Purchase Price.”
(f) The
first sentence of Section 3.3(a) of the Purchase Agreement is
hereby amended and restated in its entirety to read as
follows:
“Within
35 days after the Closing Date, GM shall deliver to the Buyer
a preliminary statement (the “ Preliminary Statement
”) of (i) the Closing Date Debt and (ii) the sum,
without duplication, of (A) the aggregate amount of payments
actually made by GM to the Buyer pursuant to Section 3.
2(b) and (B) the Net Working Capital of the Business,
determined as of the close of business on the day immediately
preceding the Closing Date and in accordance with the Agreed
Accounting Conventions and exclusive of the Apportioned Obligations
(such sum, the “ Closing Date Net Working Capital
”).”
(g) The
first sentence of Section 3.3(b) of the Purchase Agreement is
hereby amended and restated in its entirety to read as
follows:
“The
Buyer shall have 35 days to review the Preliminary Statement
from the date of its receipt thereof (the “ Review
Period ”).”
(h) Clause
(y) of the last paragraph of Section 6.3 of the Purchase
Agreement is hereby deleted.
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(i) Section 7.2(g)
of the Purchase Agreement is hereby amended to add the following as
the new last sentence thereof:
“Notwithstanding the foregoing or anything else in this
Agreement to the contrary, (i) the Sellers shall use their
reasonable best efforts to obtain the consent of Shanghai
Industrial Wai Lian Fa International Logistics Co., Ltd. to either
(A) the assignment (the “ Shanghai Lease
Assignment ”) of the Plant, Warehouse Lease Contract
(Contract No. 2920), with supplementary agreement, dated
January 1, 2006, with General Motors Warehouse Trade
(Shanghai) Company Limited to the WOFE or (B) the execution of a
new lease (the “ Shanghai New Lease ”) with the
WOFE that replaces such Plant, Warehouse Lease Contract and
(ii) the Buyer shall (A) execute the Shanghai Lease
Assignment or the Shanghai New Lease, as applicable, in
substantially the form requested by Shanghai Industrial Wai Lian Fa
International Logistics Co., Ltd. and (B) reasonably cooperate
with the Sellers to consummate the transactions contemplated by the
Shanghai Lease Assignment or the Shanghai New Lease, as
applicable.”
(j) Section 7.6(f)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
“(f)
Notwithstanding anything else contained herein, GM and the Buyer
each shall be responsible for one-half of all amounts that are
required to be paid in respect of any transfer, sales, use,
recording, value-added or similar Taxes (including any registration
and/or stamp Taxes, levies and duties and any interest related to
the late payment of any such Transfer Taxes) (“ Transfer
Taxes ”) that may be imposed by reason of the sale,
assignment, transfer and delivery of the Purchased Assets. The
party legally responsible for filing any Transfer Tax Returns and
paying any Transfer Taxes shall file such Transfer Tax Returns
(including any amended Transfer Tax Returns (e.g., to reflect a
revision in the value of any property transferred)) and pay such
Transfer Taxes to the relevant Governmental Entity. The other party
shall pay its one-half portion of the Transfer Taxes to the paying
party no later than the due date for the payment of such Transfer
Taxes to the Governmental Entity (whether in connection with an
initial Transfer Tax Return or any amended Transfer Tax Return). If
any Transfer Tax is legally refundable, then the party eligible to
claim the refund shall use commercially reasonable efforts to
obtain such refund. In the event any such refund is obtained, the
party receiving the refund shall promptly reimburse, within ten
(10) days of receipt thereof, the other party for one-half of
the refund amount received, minus one-half of any expense of
obtaining the refund. In the event of the imposition of any
penalties or interest with respect to Transfer Taxes due, the party
responsible for causing the incurrence of such expense shall be
responsible for the payment thereof.”
(k) Section 7.7(b)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
“(b)
Subject to Section 7.7(n) , the Buyer agrees that the
Allison Indy Transmission Facilities shall be subject to the
following deed restrictions on use:
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(i) the Buyer shall prohibit all uses
of the Allison Indy Transmission Facilities that are not compatible
with the land use restrictions placed on the property in accordance
with the Corrective Action with the consent of the Buyer (not to be
unreasonably withheld, conditioned or delayed), otherwise subject
to this Section 7.7 ;
(ii) the Buyer shall manage, at its
own cost, all soils, media and/or debris that are ex
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