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Exhibit 10.3
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (this
"Amendment"),
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dated as of May 31, 2007, is between SOLUTIA INC., a Delaware
corporation (the
"Seller"), and THERMPHOS TRADING GMBH, a Swiss company (the
"Buyer").
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WHEREAS, the Seller and the Buyer have entered into that
certain
Asset Purchase Agreement dated as of March 11, 2007 (as amended
by that First
Amendment to the Asset Purchase Agreement, dated as of March 13,
2007, the
"Purchase Agreement") pursuant to which the Buyer has agreed to
purchase
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assets of the Seller and its Affiliates (as defined in the
Purchase Agreement)
that are used or held for use exclusively in the Business (as
defined in the
Purchase Agreement); and
WHEREAS, the parties hereto desire to amend the Purchase
Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and
the
covenants, representations and warranties set forth herein, and
for other good
and valuable consideration, the receipt and sufficiency of which
is hereby
acknowledged and accepted; the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used herein without
definition
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shall have their respective meanings assigned in the Purchase
Agreement.
2. DEFINITION OF "ANCILLARY AGREEMENTS". The definition of
"Ancillary
------------------------------------
Agreements" in Section 1.1 of the Purchase Agreement is hereby
amended and
restated in its entirety to read as follows:
"Ancillary Agreements" means, collectively, the Bills of
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Sale, the Assumption Agreements, the Employee Letter, the
Lease
and Operating Agreement, the Lease Agreements, the
Transition
Services Agreement, the Italian Letter Agreement, the
Trademark
Assignment Agreements, the Patent Assignment Agreements, the
Premises Lease and Services Agreements and such other
documents,
agreements, deeds, instruments of sale, transfer and conveyance
as
are required to be delivered by a Party pursuant to the terms
of
this Agreement and are actually delivered by such Party.
3. DEFINITION OF "BUSINESS EMPLOYEES". The definition of
"Business
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Employees" is hereby amended by adding the words "but excluding
in all cases
the Excluded Business Employee" after the words "regardless of
the company
payroll on which such individuals are listed" in such
definition.
4. DEFINITION OF "EMPLOYEE LETTER". The definition of
"Employee
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Letter" in Section 1.1 of the Purchase Agreement is hereby
amended and
restated in its entirety to read as follows:
"Employee Letter" means that certain letter dated as of
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the date hereof between the Seller and the Buyer with respect
to
certain Business
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Employee related matters (as such letter may be amended,
restated
or otherwise modified from time to time in writing executed
by
both parties thereto).
5. DEFINITION OF "TRANSFERRING AFFILIATE". The definition of
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"Transferring Affiliate" in Section 1.1 is hereby amended and
restated in its
entirety as follows:
"Transferring Affiliate" means (i) an Affiliate of the
----------------------
Seller that will be transferring Transferred Assets pursuant
to
this Agreement, (ii) Solutia Australia Pty. Ltd., (iii)
Solutia
(Thailand) Ltd. or (iv) Solutia South Africa (Pty.) Ltd ., as
the
case may be.
6. NEW DEFINITIONS. Section 1.1 of the Purchase Agreement is
hereby
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amended by adding the following new definitions in Section 1.1
of the Purchase
Agreement in their proper alphabetical order:
"Excluded Business Employee" means the individual listed
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on Schedule 5 to the Employee Letter.
"GE Lease" means that certain Car Leasing Agreement
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8180-83 (Rider No. 45) between the Seller and General
Electric
Railcar Services with respect to 16 railcars (and shall not
be
deemed to include any other Rider to such Car Leasing
Agreement).
"Italian Letter Agreement" means that certain letter
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agreement by and among the Seller, the Buyer and Solutia
Italy
regarding certain matters related to the transfer of
Transferred
Assets held by Solutia Italy.
"P4 Working Fund" means the "Working Fund" (as such term
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is defined in that certain Supply Agreement, dated as of May
31,
2000, by and between the Seller, P4 Production, LLC and
Pharmacia
Corporation (as in effect on the Closing Date)).
"Resale Services" shall have the meaning ascribed to such
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term in the Transition Services Agreement.
"Retained Inventory" means Inventory that is a Transferred
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Asset that is owned by the Seller, Solutia Canada Inc.,
Solutia
Australia Pty. Ltd., Solutia (Thailand) Ltd. or Solutia
South
Africa (Pty.) Ltd as of the Closing Time and is located in
the
jurisdiction of organization of such Person.
7. SECTION 2.1.
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(a) The first paragraph of Section 2.l of the Purchase
Agreement is hereby amended and restated in its entirety as
follows:
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Section 2.1 Purchase and Sale of Assets. Pursuant to
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Sections 363 and 365 of the Bankruptcy Code, the Sale Order
and
any other orders of the Bankruptcy Court pertaining to the
Transactions (provided that such Orders conform to the
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provisions of this Agreement and the Lease and Operating
Agreement), upon the terms and subject to the conditions of
this
Agreement, at the Closing, the Seller shall, and shall cause
its
applicable Affiliates to, sell, assign, transfer, convey and
deliver to the Buyer (or such of its Affiliates as the Buyer
may
direct), free and clear of all Encumbrances (other than
Permitted Encumbrances), all of the Seller's and such
Affiliates' rights, title and interest as of the Closing Time
in
and to the Transferred Assets (other than the Retained
Inventory) and the Buyer shall (or shall procure that its
relevant Affiliates shall) (i) purchase, acquire, accept and
pay
for the Transferred Assets (other than the Retained
Inventory,
except as provided in Section 2.1(ii)), (ii) pay for the
Retained Inventory as if title thereto were being transferred
on
the Closing Date and (iii) assume the Assumed Liabilities.
"Transferred Assets" shall mean the rights, title and
interest
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of the Seller and its Affiliates in and to the assets,
buildings, properties and rights (wherever located, including
in
transit to the Seller and its Affiliates), whether tangible
or
intangible, used or held for use (except for assets described
in
Section 2.1(k) and Section 2.1(l)) exclusively in the
Business
(other than the Excluded Assets), as they exist at the
Closing
Time, as set forth below:
(b) Section 2.1 of the Purchase Agreement is hereby further
amended by adding the following language at the end of Section
2.1:
Notwithstanding the foregoing, the GE Lease shall be deemed
sold, transferred and assigned to Thermphos USA Corp., after
the
Closing Time, without further action by any of the parties
to
this Agreement or to the GE Lease upon entry of the
Stipulation
and Order Resolving the Objection of General Electric
Railcar
Services to the Proposed Assumption and Assignment of
Certain
Executory Contracts by Solutia Inc. and Determining the Cure
Amount by the Bankruptcy Court.
8. SECTION 2.1(i). Section 2.1(i) of the Purchase Agreement is
hereby
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amended and restated in its entirety to read as follows:
(i) all credits, prepaid expenses, security
deposits and all prepayments or deposits, in each case in
respect of orders or product to be shipped after the
Closing, and in each case to the extent relating exclusively
to the Business;
9. SECTION 2.8. Sections 2.8(b), (c) and (d) of the Purchase
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Agreement are hereby amended and restated in its entirety as
follows:
(b) Final Inventory Value Adjustment/P4 Amount.
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(i) Within sixty (60) days following the Closing
Date, the Seller shall deliver to the Buyer the Final
Inventory Value Statement and a statement showing the
calculation of an amount equal to the amount of the balance
of the P4 Working Fund as of the Closing Time (such amount,
the "P4 Amount" and such statement, the "P4 Statement"). The
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Final Inventory Value Statement shall be prepared in a
manner consistent with the Accounting Principles. The Seller
shall derive the Final Inventory Value from the Final
Inventory Value Statement, and shall deliver such
calculation together with the Final Inventory Value
Statement to the Buyer.
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