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EXHIBIT (2)(b)
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Stock Purchase Agreement is entered into as of
the 15th day of December, 1995 by and between Eagle Industrial Products
Corporation, a Delaware corporation ("Seller") and Xxxxxx & Xxxxx Corporation,
a New Jersey corporation ("Buyer").
RECITALS
The parties have entered into that certain Stock Purchase Agreement
dated as of November 1, 1995 (the "Stock Purchase Agreement") and desire to
amend the Stock Purchase Agreement as provided herein. All terms used herein
bearing initial capital letters which are defined in the Stock Purchase
Agreement and not otherwise defined herein shall have like meaning when used
herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants set forth below and other good and valuable consideration, the
receipt and sufficiency of which is hereof acknowledged, the parties agree as
follows:
A. PURCHASE PRICE AND CALCULATION OF PURCHASE PRICE ADJUSTMENT
(a) The Purchase Price for the Stock provided in Section
2.1 of the Stock Purchase Agreement is hereby amended to equal Two Hundred
Twenty Million, Five Hundred Fifty Thousand Dollars ($220,550,000), less the
Receivable Purchase Price, subject to adjustment pursuant to Section 2.2 of the
Stock Purchase Agreement.
(b) Section 2.3(a)(i) of the Stock Purchase Agreement is
amended to provide that the reserves for Environmental Liabilities on the
Closing Balance Sheet will be $16,786,000, less the amount of expenses with
respect thereto paid since December 1, 1995.
B. ADDITIONAL PARCEL
The property commonly known as 00 Xxxxxxxx Xxxx, Xxxxxxxxxxxx,
Xxx Xxxxxx, shall be prior to Closing, or has been, transferred back to
Amerace, provided, however, no entry or adjustment shall be made to the Closing
Balance Sheet relating to such parcel.
C. CERTAIN INSURANCE MATTERS
(a) Seller hereby transfers and assigns to Amerace the
right to recover any insurance proceeds for damage or destruction to the Assets
during the period commencing the date hereof until the Closing Date, including,
without limitation, any business interruption insurance relating to the
Companies or the Assets for such period. Seller hereby agrees to cause Amerace
to be named as a loss payee for such insurance policies. Any right to
proceeds from business interruption insurance with respect to periods after the
Closing shall not be reflected on the Closing Balance Sheet.
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(b) The parties acknowledge that future premium
adjustments pertaining to Current Insurance (as defined in Section 5.12 of the
Stock Purchase Agreement) for any time between September 29, 1989 and the
Closing Date (whether xxxxxxxx or credits) including but not limited to
exposure charges, residual margin load charges and assessments and only those
taxes not included in the tax multiplier used in the calculation of the
insurance reserves on the Closing Balance Sheet (i) shall be for the account of
Seller, and (ii) Buyer and the Companies shall have no rights or obligations
with respect thereto.
(c) The parties agree that the interest of Eagle
Industries, Inc. under the insurance policy issued by American Nuclear
Insurers, No. NS-0359 relating to coverage with respect to nuclear products is
hereby assigned to Amerace effective the Closing. In consideration thereof,
Buyer hereby agrees to cause Amerace to remit to Seller, within 5 days of
receipt thereof, the amount of any dividends or return premiums or other
similar amounts received from time to time pursuant to such policy with respect
to periods preceding the Closing Date.
D. CERTAIN LIENS
The parties acknowledge (i) a lien against certain assets
regarding High Point Landfill Site in favor of State of New Jersey, Department
of Environmental Protection and Energy and, (ii) a lien in the amount of
$29,535.35 of record with respect to Amerace. Seller hereby agrees to
indemnify and hold harmless Buyer from any loss, cost, expense or liability
(including reasonable attorneys' fees and expenses) relating to either such
lien or the claim of any underlying liability secured thereby. Seller further
agrees to make available to Buyer any records regarding payment or satisfaction
thereof.
E. CERTAIN GUARANTEES
The parties acknowledge that Seller and/or its Affiliates (as
applicable) have executed the following guarantees for the benefit of the
indicated companies: (i) Eagle Industrial Products Corporation Self-Guarantee
Application regarding Amerace-Rubber Dump ($100,000); (ii) Amerace-Esna Road
($35,000); (iii) Continuing Contract of Parent Guaranty of Payment by Eagle
Industries, Inc. for the benefit of Amerace Corporation (regarding lease of
equipment from IBM; payments of approximately $380,000 remain outstanding over
the remaining term of the underlying lease). Buyer agrees promptly following
the Closing Date, to use its best efforts to cause itself to be substituted as
guarantor or provide other collateral necessary to cause the release of Seller
and/or its Affiliates (as applicable) as guarantor. Buyer hereby agrees to
indemnify and hold Seller and its Affiliates harmless from and against any
loss, cost, expense or liability (including reasonable attorneys' fees and
expenses), which may arise in connection with any such guarantees.
F. DATE OF CLOSING
Section 7.1 of the Stock Purchase Agreement is amended to
provide that the Closing shall occur on January 2, 1996, at 9:00 a.m. at the
offices of Buyer's counsel in Chicago, Illinois. Notwithstanding any other
provision in the Stock Purchase Agreement, the Closing Balance Sheet shall be
dated as of January 1, 1996.
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G. ESCROW AGREEMENT. Concurrently herewith, Buyer and Seller are
entering into an escrow agreement (the "Escrow Agreement") with their
respective counsel, XxXxxxx Xxxxx & Xxxxx ("Buyer's Escrowee") and Xxxxxxxxx &
Xxxxxxxxxxx, P.C. ("Seller's Escrowee"), pursuant to which various closing
documents are being deposited and held for delivery at the Closing. All terms
used herein or in the Stock Purchase Agreement (as herein amended) bearing
initial capital letters which are defined in the Escrow Agreement and are not
otherwise defined herein shall have like meaning when used herein.
H. SATISFACTION OF CONDITIONS
(a) Buyer hereby acknowledges that, subject to the action
to be taken at Closing as provided in Section L hereof, as of the date hereof
all conditions to the obligations of Buyer with respect to the Closing,
including without limitation, those conditions set forth in Section 6.1 of the
Stock Purchase Agreement, have been satisfied or are hereby irrevocably waived.
(b) Seller hereby acknowledges that, subject to the
action to be taken at Closing as provided in Section L hereof, as of the date
hereof all conditions to the obligations of Seller with respect to the Closing,
including, without limitation, those conditions set forth in Section 6.2 of the
Stock Purchase Agreement, have been satisfied or are hereby irrevocably waived.
I. CONCURRENT DELIVERIES BY SELLER. Concurrently herewith,
Seller is delivering to Buyer's Escrowee, pursuant to the Escrow Agreement, the
documents listed on Exhibit A to the Escrow Agreement (collectively,
hereinafter the "Seller Closing Documents").
J. CONCURRENT DELIVERIES BY BUYER. Concurrently herewith, Buyer
is delivering to Seller's Escrowee, pursuant to the Escrow Agreement, the
documents listed on Exhibit B to the Escrow Agreement (collectively,
hereinafter the "Buyer Closing Documents").
K. ADDITIONAL ACTION BEING TAKEN CONCURRENTLY. Concurrently
herewith, the following persons are taking the following actions:
(a) Buyer and First Trust of Illinois, National
Association, as Trustee, under the Eagle Trade Receivable Master Trust
("Trustee") are entering into the Receivables Agreement.
(b) Trustee is delivering to Buyer's Escrowee, the
documents listed on Exhibit C to the Escrow Agreement (collectively,
the "Trustee Closing Documents").
L. CLOSING MATTERS
Sections 7.2, 7.3 and 7.4 of the Stock Purchase Agreement are
hereby deleted and a new Section 7.2 is substituted to read as follows:
"7.2 Action to be Taken at Closing. At the Closing:
(a) Buyer's Escrowee shall deliver to Buyer the
Seller's Closing Documents and the Trustee Closing Documents;
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(b) Seller's Escrowee shall deliver to Seller
the Buyer's Closing Documents;
(c) Buyer shall wire transfer the amount of
$220,550,000 in immediately available "same day" funds as
follows:
(i) $220,550,000 less the Receivable
Purchase Price to:
Eagle Industrial Products Corporation
Bank: Chemical Bank, New
York
ABA Number: 000000000
Account: Eagle Industrial
Products Corporation
Account Number: 323-290280; and
(ii) The Receivables Purchase Price to:
First Trust of Illinois, National
Association, N.A., as Trustee
Bank: Bank of America
Illinois
ABA Number: 000000000
Account: Eagle Trade
Receivable Master
Trust
Account Number: 72-09916
(d) Among the Buyer Closing Documents is an
original irrevocable letter of credit in principal amount of
$220,550,000 reflecting Seller as beneficiary (the "Purchase
Price Letter of Credit"). In the event the full amount
required to be paid via wire transfer pursuant to the
provisions of Section 7.2(c) above shall not have been paid in
full by 11:00 a.m. C.S.T. on the Closing Date, then Seller
shall have the right to draw upon the Purchase Price Letter of
Credit with respect to such amount, or unpaid portion thereof,
plus interest thereon from and after January 2, 1996 at the
rate of 6.4375% per annum. Upon payment in full by Buyer of
the Purchase Price and the Receivables Purchase Price, the
Letter of Credit, or any undrawn portion thereof in the event
of a partial draw, shall be returned to Buyer.
M. BONUSES. Buyer hereby agrees that the Closing Balance Sheet
shall accrue an amount, as determined by Seller, in its discretion, for bonus
compensation to employees of the Companies with respect to 1995 performance
pursuant to the Seller's or the Companies' plans and arrangements. Buyer
agrees to pay bonuses to the employees of the Companies, (in the respective
amounts designated by Seller but not to exceed, in the aggregate, the amount of
the bonus accrual reflected on the Closing Balance Sheet), on or before
February 28, 1996.
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N. LETTERS OF CREDIT. Pursuant to Section 5.7 of the Stock
Purchase Agreement, Buyer delivered to Seller two letters of credit identified
on Exhibit A ("Buyer Letters of Credit") to support Seller's letters of
credits, bonds, and obligations to third parties identified on Exhibit B
("Seller Collateral"). If Seller is obligated to pay any sums to third
parties pursuant to the Seller Collateral, Seller shall advise Buyer of such
payment, and Buyer shall reimburse Seller for said payment within five (5)
business days of Seller's written demand. Seller shall be permitted to draw
upon Buyer Letters of Credit if such amounts are not timely paid. As soon as
Buyer replaces Seller Collateral, Buyer shall provide Seller with a written
acknowledgment of the third party's acceptance of Buyer's replacement letter of
credit or other collateral. Upon receipt of such acknowledgment, and the
return of Seller Collateral, Seller shall within three (3) business days advise
the issuing bank of Buyer Letters of Credit to reduce proportionately the
amount of the Buyer Letters of Credit. Buyer shall arrange for the return of
Seller Collateral if necessary to effect the release of Seller from liability
thereunder, or in the alternative a written statement by the third party
releasing Seller from such liability.
O. CERTAIN FURTHER ASSIGNMENTS. Buyer hereby acknowledges that
third-party consents may be required with respect to the assignment from Seller
or its Affiliates to Amerace or Buyer of (i) that certain Master Equipment
Lease Agreement Schedule between Seller, as Lessee, and AT&T Credit
Corporation, as Lessor, dated April 26, 1995 (the "AT&T Lease"), and (ii)
certain vehicle leases regarding fleet vehicles used by Amerace or its
subsidiaries or divisions, including without limitation leases from USL Capital
and GE Capital (collectively with the AT&T Lease, the "Eagle Leases"). Seller
and Buyer shall cooperate and use commercially reasonable efforts to obtain
such consents as soon as practicable after the Closing. Upon receipt of such
consents, Seller shall assign its rights, and Buyer shall assume the
obligations, under the Eagle Leases. Buyer further acknowledges and agrees
that the foregoing covenant by Seller shall fulfill and/or supersede all of
Seller's obligations under the Agreement relating to the Eagle Leases,
including, without limitation, the disclosure obligations set forth in Section
3.3(v) of the Agreement (and Schedule 3.3 thereto) and the covenant set forth
in Section 5.11 of the Agreement (and Schedule 5.11 thereto).
P. NO OTHER AMENDMENTS. Except as expressly provided herein, the
Stock Purchase Agreement shall remain unamended and in full force and effect;
provided, however, that the terms of this Amendment shall supersede any
inconsistent provisions of the Stock Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
to Stock Purchase Agreement as of the day and year first above written.
Eagle Industrial Products Corporation
By: /s/ Xxx X. Xxxxx
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Its: Senior Vice President
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Xxxxxx & Xxxxx Corporation
By: /s/ Xxxxx Xxxxxxxxxx
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Its: Vice President
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EXHIBIT A
1. Wachovia Bank Letter of Credit #LC968-065776 in the amount of
$4,293,600.00 to Eagle Industrial Products Corporation, as
beneficiary, dated December 14, 1995; Xxxxxx & Xxxxx, applicant.
2. Wachovia Bank Letter of Credit #LC968-065777 in the amount of
$4,172,000.00 to Eagle Industrial Products Corporation, as
beneficiary, dated December 14, 1995; Xxxxxx & Xxxxx, applicant.
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EXHIBIT B
a. Eagle Industrial Products Corporation Letter of Credit to CIGNA which
covers all of the Amerace companies collateral requirements for their
liability insurance program (approximately $4,172,000 as of 9/30/95).
b. Letter of Credit - #G-200713. $220,000 from Amerace Corporation in
favor of the Travelers Indemnity Co. (Insurance)
c. Letter of Credit - #T-245413. $46,540.92 from Xxxxxxx in favor of
Israel Electric Corp. Ltd. (Performance Bond)
d. Eagle Industrial Corporation Letter of Credit Bonds issued by SAFECO:
1. Bond #5727025. $12,000 Amerace Corporation to Florida Power
and Light Utility (Payment Bond expires 1/4/97)
2. Bond #5834664. $16,860 Elastimold to State of Nevada -
retailer and/or user bond (expires 6/21/96)
3. Bond #5622352-0103. $5,000 Wellsley Municipal Light
Department MA Bid Bond (expires 1/26/96)
4. Bond #5622352-0102. $5,000 Lincoln Electric System, NE Bid
Bonds (expires 1/6/96)
5. Bond #5622352-0101. $5,000 Lincoln Electric System, NE Bid
Bond (expires 1/10/96)
6. Bond #5696209/253604. $5,000 Elastimold to The Guarantee
Company of North America relating to Ontario Customs and
Excise Tax Payments
7. Bond #5696210/253605. $5,000 Industrial Electrical Products
to The Guarantee Company of North America relating to Ontario
Customs and Excise Tax Payments
8. Bond #5622352-0104. $5,000 Lincoln Electric System, NE Bid
Bond (expires 11/30/96)
d. Letter of Credit - #T-235389. $3,333,200 from Conductron Corporation
in favor of USA, the State of New Hampshire, and Hitchiner Mfg.
(Environmental)
e. Eagle Industrial Products Corporation Self-Guarantee Application
regarding Amerace-Rubber Dump (Environmental) - $100,000
f. Eagle Industrial Products Corporation Self-Guarantee Application
regarding Amerace-ESNA Road (Environmental) - $35,000
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