Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 8-K Gtech Holdings Corporation Form 8-K HTML 49K
2: EX-2.1 Agreement and Plan of Merger HTML 490K
3: EX-10.1 Agreement HTML 29K
4: EX-10.2 Supplementary Agreement to Master Agreement of HTML 53K December 5, 2004
5: EX-10.3 2nd Supplementary Agreement to Purchase Agreement HTML 42K
of December 5, 2004
6: EX-99.1 Press Release HTML 46K
EX-10.2 — Supplementary Agreement to Master Agreement of December 5, 2004
Notary
public with official place of business in Basel, Switzerland
at
my
office premises located at Gerbergasse 1, 4001, Basel, Switzerland
1.
Mr.
Ulrich Wüseke,
born
8 December 1955,
residing
at Töpferweg 41,
32429
Minden,
Germany
acting
here not in his own name, but under powers of attorney dated 9 January 2006,
presented to the notary in the originals and submitted to the files as
photocopies on behalf of
a) Mr.
Paul
Gauselmann,
born 26 August 1934,
residing
at Alter Moorweg 11,
32339
Espelkamp,
Germany
b) Mr.
Michael
Gauselmann,
born
28
November 1955,
residing
at Frotheimer Weg 54,
32339
Espelkamp,
Germany
2. Dr. Bernd
Meyer-Witting,
born
2
July 1960,
with
business address at Mainzer Landstrasse 46
60325
Frankfurt am Main,
Germany,
acting
here not in his own name, but under power of attorney dated 8 December 2005,
presented to the notary in the original and submitted to the files as photocopy
as representative with sole power of representation for GTECH
Corporation,
55
Technology Way, West Greenwich, Rhode Island, 02817 U.S.A.
The
persons present under Nos. 1 and 2 are personally known to the acting
notary.
At
the
request of the persons appearing before me, I hereby certify the
following
SUPPLEMENTARY
AGREEMENT
to
the
Master
Agreement of 5 December 2004
The
Parties notarially recorded on 5 December 2004 a Master Agreement (A. Record
294/2004 of Notary Etienne Petitpierre, with offices in Basel - "MA"),
a
Purchase Agreement (A. Record 293/2004 - "PA")
and on
4 March 2005 a Supplementary Agreement to the PA (A. Record 64/2005). The Master
Agreement of 5 December 2004 shall now be amended and/or supplemented as shown
in the following points, with all other provisions remaining unchanged. In
part,
however, only where expressly indicated these changes and/or amendments depend
on the occurrence of the circumstances defined in Annex 1 ("Circumstances").
In
this Master Agreement, all references to the Purchase Agreement are solely
to
the new version of the PA of today’s date unless otherwise expressly provided
herein:
A.
Unconditional Amendments
I.
1.
A
new
article
Security
Interests (§ 3A)
is
added
to the Master Agreement:
"§
3A.1.
The
Buyer
shall support AI through an additional financial commitment.
-
2 -
§
3A.1.1. The
Buyer
shall secure both of the following bank obligations of AI by means of
conventional security interests (selbstschuldnerische
Bürgschaften
or
similar security):
a)
Steierm’rkische
Bank under the agreements of 9 December 2003 and 5 January 2005 (status as
of 30
November 2005: EUR 3,000,000.00)
b)
Commerzbank
Osnabrück under the agreements of 28 October 2003, 23 October 2004, and 1
December 2003 (status as of 30 November 2005: EUR 6,251,728.01 in
total).
With
the
participation of the Central Finance Department of Gauselmann AG (Messrs. Ulrich
Wüseke and Achim Dethlaff), the Buyer shall coordinate the required security
interests with the respective creditor bank.
§
3A.1.2. Furthermore,
in the future, the Buyer shall in like fashion (§ 3A.1.1) secure, up to the
amount of EUR 10,700,000.00 and without reviewing AI’s creditworthiness or need
for credit, bank loans to be accepted by AI. This too must be done with the
participation of the Finance Department of Gauselmann AG. Moreover, the granting
of loans may be substituted for the security interests.
§
3A.1.3. The
loans
described in the foregoing paragraphs shall be repaid at customary interest
rates.
§
3A.1.4. The
security interests and/or loans granted under § 3A.1.1 and § 3A.1.2 must be
redeemed or repaid within 60 days after the day on which it is established
that
a Consummation, as defined in § 17 of the PA, shall not occur.
In
the
event of a Consummation, § 3.4 shall apply.
§
3A.1.5. The
Sellers must ensure that upon the Buyer establishing its right of redemption
and/or repayment pursuant to § 3A.1.4, the Buyer can, notwithstanding its other
rights, request all manner of merchandise deliveries from AI, Atronic Americas
LLC, Atronic Australien GmbH and/or all of its subsidiaries and can settle
the
consideration for the same with loans that have been granted or apply such
compensation directly to redeem security interests that have been provided.
The
Sellers shall have the same duty commencing with the establishment of the right
of redemption and/or repayment concerning other current or future obligations
of
the Buyer vis-à-vis AI, Atronic Americas LLC, Atronic Australien GmbH and/or any
of its subsidiaries.
-
3 -
§
3A.1.6.
The
Sellers must ensure that the Buyer receives the following reports from AI for
the Buyer itself and a consolidated version for its subsidiaries:
a)
a
monthly
management report including a forecast for the following three
months,
b)
each
month, a liquidity plan for the following three months, and
c) at
the
beginning of each calendar quarter, an estimate of the course of the business
and of the financial development of the business on a quarterly basis for the
following 12 months."
2.
§
8.7
sentence 1 is reworded as follows:
"The
Parties will consummate the Transfer of the Option Interests by notarial deed
on
the Consummation Date of the Option ("Option
Transaction Date")."
3.
§ 20 is amended as follows:
"This
document and all documents referred to herein, in particular the PA, the
1st
Supplementary Agreement to the PA, the MA and the two Supplementary Agreement
to
the PA and the MA of today's date contain all agreements made between the
Parties regarding the respective subject-matter of such documents and supersede
all prior oral and written covenants, agreements and arrangements made in this
respect between the Parties."
B.
Amendments conditional upon the occurance of the Circumstances specified
in
Annex
1
I.
Advisory
Board (§ 5)
The
following new paragraph is inserted:
"§
5.6. The
New
Shareholder agrees already now to appoint Messrs. W. Bruce Turner, Jaymin Patel
and Marc Crisafulli to the Advisory Board and agrees further that, provided
and
for so long as such individuals remain employees of the New Shareholder or
one
of its group companies, they shall not be removed from such office before 31
December 2008."
-
4 -
II.
Selling
Rights and Purchasing Rights (§ 8)
1.
The last sentence of § 8.1.1. shall be reworded as follows:
"The
Right to exercise this Option ends on 31 December 2011."
2.
In
§
8.1.2, the period "until the fifth anniversary of the Transaction Date" is
replaced by "until 31 December 2011".
3.
In
§
8.1.3, the time "upon expiration of five (5) years" is amended to "starting
with
1 January 2012".
4.
§
8.2.1
and § 8.2.2 (Purchase Options of the New Shareholder) shall cease to
apply.
5.
§
8.2.3
is reworded to read as follows:
"Beginning
with the Transaction Date without justification."
6.
§
8.4
is
reworded to read as follows:
"§
8.4.
The
purchase price of the Option Interests is calculated:
·
in
the case of § 8.1.1 and § 8.1.2, according to the following formula
("Formula
Purchase Price"):
Enterprise
value - net financial debt
2
·
in
the case of § 8.1.3, according to the "fair value" ("Fair-Value
Purchase Price")
·
in
the case of § 8.2.3, if the option is exercised on or before 31 December
2011 pursuant to the provisions of §§ 4 through 8 of the PA, subject to
the particulars specified in § 8.6A below ("Special-Option
Price").
The Special-Option Price consists of a purchase-price portion and
an
earn-out portion.
-
5 -
·
in
the case of § 8.2.3, if the option is exercised after 31 December 2011
according to the "fair value"."
7.
The
following new paragraph is inserted:
"§
8.4A: Any
Balance PA shall be set off against the purchase price of the Option Interests
pursuant to § 8.4."
8.
The
following § 8.6A is inserted after § 8.6:
"§
8.6A Calculation
of the Special-Option Price
§
8.6A.1: Pursuant
to § 4 of the PA, the purchase-price portion of the Special-Option Price shall
be calculated subject to the following:
·
§
4.3 PA shall not apply
·
the
12-month "Pre-Closing Phase" described in § 4.4 of the PA shall begin
retroactively upon expiration of the calendar quarter that precedes
the
Option Exercise Date
·
The
basis for the EBITDA calculation pursuant to § 4.5.7 of the PA shall be
two interim balance sheets for each of the four calendar quarters
ending
with the end of the Pre-Closing Phase "Pre-Closing
Interim Balance Sheet"
-
and with the end of the following 12 month period ("Post-Closing
Phase")
- "Post-Closing
Interim Balance Sheet."
·
§
4.5.8 PA shall not apply.
·
the
three (3) fiscal years that have closed immediately prior to the
Option
Exercise Date shall be controlling for purposes of determining the
Working
Capital Objective pursuant to § 4.7.8.
PA.
§
8.6A.2:
The
earn-out portion of the Special-Option Price shall be calculated pursuant to
§ 7
of the PA, subject to the following:
·
§
7.1 par. 1 PA is reworded to read as
follows:
"The
Buyer shall pay to the Sellers an earn-out, which shall be calculated according
to the following formula:
-
6 -
6
xEBITDA of Post-Closing Phase - EBITDA of Pre-Closing
Phase
2"
·
§
7.1 par. 2 PA is reworded to read as
follows:
"If
the
incontestably established EBITDA value for the Pre-Closing Phase is less than
the values indicated below, then instead of the actual EBITDA value, an EBITDA
value, in the amount of the value indicated below, shall be deducted from the
EBITDA value for the Post-Closing Phase:
in
case
of an exercise
in
2007:
EUR 25,000,000.00,
in
2008:
EUR 25,000,000.00,
in
2009:
EUR 30,000,000.00,
in
2010:
EUR 35,000,000.00, and
in
2011:
EUR 40,000,000.00."
·
§
7.2 PA shall be replaced by the following:
"A
negative Earn-Out shall not be taken into account."
·
in
§ 7.3 PA, the phrase "for fiscal year 2007" is replaced by "for the
Post-Closing Phase."
·
in
§ 7.4 PA Annex
§ 7.4
is
replaced by the new Annex
§ 7.4 NEW.
§
8.6A.3
The
Special-Option Price shall be at least EUR 50,000,000.00.
The
Special-Option Price may only be reduced by any Balance PA.
The
provisions of § 8 of the PA, entitled "Balance Sheets," shall apply mutatis
mutandis to
the
Pre-Closing Interim Balance Sheet and the Post-Closing Interim Balance Sheet,
subject to the following:
"§
8.2
PA
shall only apply if the Option Exercise Date falls before the end of the first
calendar quarter of 2008; thereafter, both interim balance sheets must be
prepared in accordance with US GAAP and subsequently transferred to the German
commercial-law provisions for corporate groups (§§ 290 et seq. of the Commercial
Code (HGB)). These transferred interim balance sheets shall be controlling
for
purposes of calculating the
-
7 -
Special-Option
Price. In paragraph 2, the reference
to fiscal year 2006 is replaced by "Pre-Closing Phase."
§
8
6A.4.
§§
5
and
6 of the PA shall apply mutatis
mutandis,
subject
to the following:
·
§
5.1 PA is reworded to read as
follows:
"On
the
Option Transaction Date, the Buyer shall pay to the Sellers a provisional
special-option purchase price calculated pursuant to § 6 PA ("Provisional
Special-Option Purchase Price"),
provided however, that the payment shall not be less than (i) the greater of
the
Provisional Special-Option Purchase Price and EUR 50,000,000.00, minus (ii)
the
Balance PA, if any."
·
The
following sentence is added to § 5.2
PA:
"However,
a duty of repayment on the part of the Sellers shall only exist for the amount
exceeding the following sum: EUR 50,000,000.00 minus the Balance PA, if
any.
Any
payment obligation of the Buyer shall be subject to a deduction of any Balance
KV."
·
The
following § 5.2 PA is inserted after § 5.2
PA:
"Any
earn-out payment shall only be made if and to the extent that the sum consisting
of the purchase-price portion and the earn-out portion of the Special-Option
Price exceeds the amount of EUR 50,000,000.00.
·
If
the sum consisting of the purchase-price portion and the earn-out
portion
of the Special-Option Price is less than the amount of EUR 50,000,000.00,
there shall be no repayment to the
Buyer.
·
Two
sample calculations are presented in Annex
§ 7.4 NEW (PA)."
·
§
6.1 of the PA shall apply, subject to the
following:
"Provided
the option is exercised by 31 March 2008, the Sellers shall appoint an auditing
firm ("Auditors").
Thereafter, the Buyer shall make the appointment.
The
Auditors shall conduct an auditor’s review of the summarized, consolidated
monthly balance sheets for the Pre-Closing Phase. Subsequently, on this basis,
the Auditors shall specify an estimated provisional special-option purchase
price."
-
8 -
§
8.6A.5: The
Buyer
undertakes as against the Sellers that, at the written request of the Sellers,
it shall procure for the Sellers payment in satisfaction of the Special-Option
Price in the form of shares up to a maximum value of EUR 50,000,000.00 in a
parent company or another company that directs the main business of the company
that is exercising the Special Option, which company in either case must be
publicly listed. The Sellers shall have the right to determine the respective
company ("Right
of Determination").
The
number of shares to be procured (which may be by transfer or issuance) shall
be
calculated by reference to the market price for such shares on the Transaction
Date of the Special Option.
The
company determined by the Sellers shall not be obliged to increase its
authorized share capital.
The
Sellers may, however, in the alternative, require payment of the Special-Option
Price in cash, in whole or in part. This right and the Right of Determination
must be exercised in writing within one month of the exercise of the
Special-Option Right.
The
aforementioned option of the Sellers to require payment of the Special-Option
Price to be made in the form of shares shall, however, be subject to this being
in accordance with the laws applicable to the company whose shares are at issue
and also to the charter documents of such company.
§
8.6A.6 The
Consummation of the Special Option shall take place in accordance with the
provisions of § 8.7 and § 8.8 of the MA."
9.
The
period specified in § 9.2, i.e., "until the fifth anniversary of the Transaction
Date," shall be replaced by "until 31 December 2011".
10.
§
10.3
MA
shall have the following additional sentence inserted at the end:
"The
provision in § 8.6A.5 shall apply to the Special Option."
This
deed
together with the Annexes was read aloud to the persons appearing and, to the
extent that reading them aloud was not suitable, was submitted for review and
signed individually by them, was approved by them and was signed together with
the Notary as follows: