FIRST AMENDMENT TO THE
ACQUISITION AGREEMENT
BY AND BETWEEN
ESCO ELECTRONICS CORPORATION AND SCHAWK, INC.
DATED DECEMBER 18, 1996
This First Amendment to the Acquisition Agreement by and between ESCO
Electronics Corporation and Schawk, Inc. dated December 18, 1996 (this
Amendment ) is dated as of February 6, 1997.
Whereas, ESCO Electronics Corporation, a Missouri corporation ( Buyer )
and Schawk, Inc., a Delaware corporation ( Seller ) are parties to an
acquisition agreement (the Acquisition Agreement ) dated
December 18, 1996, to which they desire to make certain
amendments, as further described herein.
Now therefore, in consideration of the foregoing recitals and the
premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto
agree for themselves, their successors and assigns, as follows:
1. The following clause shall be added at the end of
subparagraph 2.9 (e): and shall include interest at
the prime rate of interest as announced from time to
time by Xxxxxx Guaranty Trust Co. of New York from
the Closing Date through the date of
payment.
1. Clause (b)(i) in Section 3.13 of the Acquisition Agreement is
deleted and replaced by the following:
(i)(A) registered patents and trademarks included in the
Intellectual Property were validly issued, (B) unregistered
trademarks included in the Intellectual Property are
valid, to the full extent, in civil law counties, of protection
for unregistered trademarks
under applicable Law, and in common law counties, to the full
extent under common law and (C) except as set forth on
Schedule 3.13(b), no Seller Group Person has
received notice of the invalidity or unenforccability of any
Intellectual Property;
1. Section 5.4 of the Acquisition Agreement is hereby deleted and replaced
by the following:
51 Full Access. Seller covenants that, until the Closing,
representatives of Buyer shall have full access at all reasonable
times to all premises, properties, books, records,
contracts, tax records and documents of each Seller Group Person
relating to the Business, and Seller will furnish to Buyer any
information in respect to the
Business as Buyer may from time to time request. Such examination
and investigation by Buyer, and any discovery of facts resulting
therefrom, shall not affect the warranties and representations of
Seller contained in this Agreement.
Buyer shall inform Seller of any matter involving Indemnified Loss
involving $50,000 or more as to which Buyer believes, as of the
Closing Date, that it is entitled to and intends to assert a claim
pursuant to Article IX hereof that arises from a breach of the
representations and warranties pursuant to Article III hereof.
1.The following clause (h) shall be added to Section 9.1 of the Acquisition
Agreement. and/or (h) any fines, orders, sanctions, penalties, or other
claims by any Government, and any Liability to any to any Employee,
arising from any actual or alleged violation of any Law respecting
employee or occupational safety or health ( OSHA Law ) arising from or in
connection with conditions at any facility of the Business or other
Purchased Asset if such conditions existed at the Effective Time, provided
that (A) Buyer provides notice to Seller of any such claim or Liability
not later than March 31, 1998, and (B) notwithstanding the foregoing.
Buyer shall be responsible for any capital expenditure to remedies such
facilities and Purchased Assets in order to comply with
such OSHA Law, and shall use reasonable best efforts to mitigate any such
claims or Liabilities by endeavoring to cure after governmental notice of
violation has been received, and shall proceed to implement procedures in
accordance with good business practice.
1. Buyer and Seller agree that proper accruals shall be made in accordance
with GAAP on the closing Date Balance for inter ail 1996 ad valorem
real estate taxes.
2. The following shall be added to Section 9.8:
The Purchased Assets shall include certain items as provided in the
letter dated February 7, 1997 attached as Schedule 9.8. Seller further
agrees to indemnify, defend and hold harmless the Buyer Indemnified
Parties from and against all Taxes and Tax Losses (as to any event, net
of any actual tax gain realized in connection with the same
event) payable as a result of the transactions contemplated in
Section 9.8 including without limitation any Taxes or Tax Losses
arising from the invalidity, transfer or repayment of any intercompany
loans or administration thereof, so as to put the Buyer
Indemnified Parties in all respects in the same position with respect
to Taxes and tax attributes that they would have had if the
transactions contemplated in Schedule 9.8 had not occurred and the
Closing had occurred as contemplated in this Agreement
without reference to Schedule 9.8; provided, that the foregoing shall
not be subject to the limitations in Section 9/4(a)(i) or (iii) hereof.
Seller and Buyer agree to review the transactions described in said
February 7, 1997 letter during the sixty days after
Closing to ascertain whether such transactions may be restructured in a
manner more favorable or neutral the Parties provided that neither
Party shall be required to incur any additional expense in such respect.
The Closing Balance Sheet shall be prepared in all respects as if the
Closing had occurred without reference to the transactions
contemplated in Schedule 9.8.
1. This Amendment is limited as specified and shall not constitute a
modification of any other provision of the Acquisition Agreement.
Except as expressly amended hereby, the Acquisition Agreement shall
continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Acquisition
Agreement, herein. hereinafter, hereto, hereof, and words of similar
import shall, unless the context otherwise requires, mean the
Acquisition Agreement after the amendments by this Amendment.
2. This Amendment may be executed in one or more identical counterparts,
each of which shall be deemed an original but all of which together
will constitute one and the same instrument.
In witness whereof, ESCO Electronics Corporation and Schawk, Inc., hereby
approve this Amendment as of the day and year first written above.
ESCO Electronics Corporation
/s/ X. X. Xxxxx
/s/ A. Xxxx Xxxxxxxxx
