Asset Purchase Agreement [Amendment No. 1] - Westinghouse Electric Corp. (CBS Corp.) and Siemens Power Generation Corp.
AMENDMENT NO. 1 TO ASSET
PURCHASE AGREEMENT
THIS AMENDMENT is made January 23, 1998, between WESTINGHOUSE ELECTRIC
CORPORATION (now known as CBS Corporation), a Pennsylvania corporation ("WEC"),
and SIEMENS POWER GENERATION CORPORATION, a Delaware corporation ("Purchaser").
W I T N.E S S E T H:
WHEREAS, the parties hereto want to confirm the agreement and
understanding which WEC and Purchaser have reached with respect to Section
5.1(c) of the Asset Purchase Agreement between WEC and Siemens, dated November
14, 1997.
WHEREAS, Purchaser acknowledges that it has requested and that WEC has
agreed to take such action (referred to herein as "Restructuring") as described
in Schedule 5.1(c) to the Agreement as such action relates to the Business with
respect to approximately 650 employees (herein described as "Employees"), as
more fully described on Attachment A hereto.
WHEREAS, all capitalized terms contained herein shall have the meaning
to them assigned therein in the Agreement, unless expressly indicated otherwise.
This Amendment, upon execution as provided for below, shall constitute Amendment
No. 1 to the Agreement. The amendments below shall apply to the action to be
taken by WEC.
NOW, THEREFORE, the parties to this Amendment No. 1 hereby agree as
follows:
1. Section 5.1(c) shall be amended to read as follows:
"Purchaser acknowledges and agrees that WEC shall not be
deemed to be in breach of its representation and warranty contained in the first
sentence of Section 4.1(1) or its obligations under the first sentence of
Section 5.l(a) as a result of its determination not to take the actions
described in Schedule 5.l(c). WEC agrees not to take any such action without the
prior written consent of Purchaser. If Purchaser requests that WEC take such (or
similar) actions prior to the Closing and WEC agrees to take such actions,
Purchaser shall bear all costs of a cash nature incurred by WEC and its
Affiliates as a direct result of such actions (other than as set forth in
Section 5.5(d)(vi)), which costs shall be (i) reduced by all savings of cash
expenditures (calculated as set forth below) realized by WEC and its Affiliates
from the date of the Restructuring through the Closing Date as a direct result
of the action respecting the Restructuring of Employees and (ii) increased by
any incremental expenses (as described below) of cash expenditures (other than
as set forth in Section 5.5(d)(vi)) incurred by WEC and its Affiliates from the
date of the Restructuring through the Closing Date as a direct result of the
action respecting the Restructuring of Employees (such costs, to the extent so
reduced or increased, shall herein be referred to as Restructuring Costs) by
reimbursing WEC not later than
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30 days following receipt of reasonably detailed statements evidencing the
incurrence of such Restructuring Costs and the savings realized.
For purposes of reduction by savings in (i) above, such
reduction shall only act as an offset to any costs actually reimbursed by
Purchaser and under no circumstances shall WEC be required to make any payment
to Purchaser as a result of such savings, except as provided for below at the
time of Closing. Savings realized by WEC and its Affiliates shall consist of the
following: (1) with. respect to the terminated Employees, their (A) base payout
costs, (B) employment taxes, and (C) domestic employees' medical insurance costs
(prorated from the respective domestic employee's termination date to the
Closing Date measured using an estimated annual medical cost of $4,000 per
domestic employee) actually eliminated by WEC and its Affiliates for the
Employees and positions set forth per Attachment A from the Employees'
respective termination dates to the Closing Date and (2) any non-Employee exit
cost savings of cash expenditures directly resulting from the Restructuring,
such as cessation of lease payments due to Restructuring.
For purposes of incremental expenses in (ii) above, such
increase shall in any event be limited to 20% of the estimated monthly savings
calculated in (i) above, unless WEC first provides notice and reasonable detail
of requirements for a sum in excess of such amount and Purchaser consents to
such excess, which consent shall not be unreasonably withheld. Incremental
expenses incurred by WEC shall include, without limitation, all costs of
temporary assistance and independent contractors performing the duties of the
former Employees as set forth on Attachment A, as well as any exit costs of cash
expenditures directly resulting from the Restructuring, such as termination or
cancellation payments under a lease due to the Restructuring or relocation costs
for consolidation of facilities (but excluding any Environmental Liability).
WEC may invoice Purchaser each month following the
Restructuring for Restructuring Costs. At the Closing, there shall be a final
accounting of Restructuring Costs for the period from the Restructuring through
the Closing Date and any amounts due WEC for reimbursement shall be so paid by
Purchaser and any offsets due Purchaser (not to exceed costs reimbursed or to be
reimbursed by Purchaser) shall be so paid by or credited against WEC. Neither
reimbursement amounts paid to WEC nor offsets so paid to Purchaser shall be
included in the calculations for Purchase Price Adjustment under Section 2.5.
After the Closing, Purchaser, and not WEC, shall assume and be responsible for
all costs of Restructuring (other than as set forth in Section 5.5(d)(vi) and
other than Restructuring Costs which Purchaser has already reimbursed WEC
pursuant to this Section 5.1(c)). In the event this Agreement is terminated and
the transactions contemplated hereby are abandoned pursuant to Section 7.1 for
any reason, other than termination by WEC pursuant to Section 7.1 as a result of
a failure by Purchaser to satisfy any condition set forth in Section 6.3(a) or
(b), then WEC shall pay to Purchaser on demand by wire transfer an amount of
money equal to the Restructuring Costs previously reimbursed by Purchaser plus
interest on all such amounts reimbursed by Purchaser at the Rate from the date
of payment of each amount to the date of repayment by WEC."
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2. Section 7.1(d) shall be amended to read as follows:
"(d) If this Agreement is terminated and the transactions
contemplated hereby are abandoned as described in this Section 7.1, this
Agreement shall become null and void and of no further force and effect, except
for the provisions of (i) Section 5.2 relating to the obligation of Purchaser to
keep confidential certain information and data obtained by it from Sellers (ii)
the Agreement relating to expenses (including Sections 5.7 and 5.14(d)), (iii)
Section 5.8 relating to finder's fees and broker's fees, (iv) this Section 7.1,
(v) Article 9 and (vi) Section 5.1(c). Nothing in this Section 7.1 shall be
deemed to release either party from any liability for any breach by such party
of the terms and provisions of this Agreement or to impair the right of either
party to compel specific performance by the other party of its obligations under
this Agreement."
IN WITNESS WHEREOF, WEC and Purchaser have caused this Amendment to be
signed by their respective officers thereunto duly authorized, as of the date
first written above.
WESTINGHOUSE ELECTRIC CORPORATION
(now known as CBS Corporation)
By: /S/ Louis J. Briskman
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Name: Louis J. Briskman
Title:
SIEMENS POWER GENERATION CORPORATION
By: /S/ Michael W. Schiefen
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Name: Michael W. Schiefen
Title: Vice President
By: /S/ E. Robert Lupone
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Name: E. Robert Lupone
Title: Secretary
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