AMENDMENT NO. 1 TO
MERGER AGREEMENT
dated as of
February 23, 1998
among
EAGLE-PICHER INDUSTRIES, INC. PERSONAL
INJURY SETTLEMENT TRUST,
EAGLE-PICHER INDUSTRIES, INC.,
EAGLE-PICHER HOLDINGS, INC.
and
E-P ACQUISITION, INC.
AMENDMENT NO. 1 TO MERGER AGREEMENT
AMENDMENT NO. 1 TO MERGER AGREEMENT (this "Amendment"), dated as of
February 23, 1998, among Eagle-Picher Industries, Inc. Personal Injury
Settlement Trust, an Ohio trust (the "Trust"), Eagle-Picher Industries, Inc., an
Ohio corporation (the "Company"), Eagle-Picher Holdings, Inc., a Delaware
corporation ("Holdings"), and E-P Acquisition, Inc., a Delaware corporation and
a wholly-owned subsidiary of Holdings ("Acquisition"), amending the Merger
Agreement, made as of December 23, 1997, among the Trust, the Company, Holdings
and Acquisition (the "Merger Agreement").
The parties to the Merger Agreement desire to amend the Merger Agreement on
the terms set forth herein. Accordingly, this Amendment shall be deemed to be
part of the Merger Agreement and all references in the Merger Agreement to "this
Agreement" (or similar terminology) shall be deemed to refer to the Merger
Agreement after giving effect to the amendments set forth in this Amendment. All
capitalized terms used herein, unless otherwise defined herein, are used as
defined in the Merger Agreement.
In consideration of the mutual covenants and agreements contained in the
Merger Agreement and in this Amendment, and notwithstanding anything in the
Merger Agreement to the contrary, the parties hereto agree as follows:
1. Amendment to Section 1.7(c) of the Merger Agreement. Section 1.7(c) of
the Merger Agreement is hereby amended by adding the language "from Acquisition
(and Holdings shall cause Acquisition to pay to the Trust)" after the language
"shall be converted into and become the right to receive" in the third line of
Section 1.7(c).
2. Amendment to Article 4 of the Merger Agreement. Article 4 of the Merger
Agreement is hereby amended by adding the following Sections 4.16, 4.17, 4.18
and 4.19:
4.16 Assignment to the Trust of Certain Claims Against Third Parties.
Except as set forth in Section 4.18, the Company and the Company
Subsidiaries hereby (i) assign to the Trust all rights, claims, and causes
of action of the Company and Company Subsidiaries against any third party
arising out of (x) any payment made by the Company or Company Subsidiaries
prior to the Closing Date to any claimant alleging bodily injury from
exposure to asbestos-containing products and (y) any defense costs incurred
by the Company or Company Subsidiaries prior to the Closing Date in the
defense of claims alleging bodily injury from exposure to
asbestos-containing products, (ii) agree to execute and deliver to the
Trust such documents as shall, in the reasonable opinion of the Trust, be
necessary to further evidence the assignment referred to in clause (i) of
this Section 4.16, and (iii) shall transfer to the Trust upon its request
originals or complete and correct copies of all files, records and other
documents relating to the matters referred to in clause (i) of this Section
4.16.
4.17 Claims by the Trust of Rights Under Certain Insurance Policies.
(a) Except as set forth in Section 4.18, the Company and the Company
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Subsidiaries acknowledge that the Trust is an insured party under all general
liability, umbrella, and excess liability policies issued to the Company, a
Company Subsidiary or any current or former Affiliate of the Company prior to
December 23, 1997 to the extent such policies cover claims alleging bodily
injury arising out of exposure to lead-containing products (the "Lead
Policies").
(b) Except as set forth in Section 4.18, Holdings, the Company, the
Company Subsidiaries and their respective Affiliates (i) shall refrain from
opposing, contesting or impeding, in any manner whatsoever, any claim the
Trust may make for coverage under the Lead Policies for claims alleging
bodily injury as a result of exposure to lead-containing products and (ii)
shall provide reasonable cooperation to the Trust in pursuing any such
claims under the Lead Policies, provided that the Company shall not be
required to incur any unreasonable expense in providing such cooperation.
4.18 Certain Insurance Claims.
(a) Section 4.16 shall not apply to (i) any claims against Liberty
Mutual Insurance Company, or any of its Affiliates, of any rights, claims,
payments or causes of action in connection with the matter of Eagle-Picher
Industries, Inc. v. Eagle-Picher Industries, Inc. Personal Injury
Settlement Trust, Number 97-1032, pending before the United States
Bankruptcy Court for the Southern District of Ohio, Western Division,
relating to Eagle-Picher Industries, Inc., Debtors (Consolidated Case
Number 1-91-00100) (the "Liberty Mutual Settlement"), (ii) any claims
against General Accident Insurance Company of America or American
Employers' Insurance Company, of any rights, claims, payments or causes of
action in connection with the matter of Eagle-Picher Industries, Inc. v.
General Accident Insurance Company of America, et al., Number C-1-96-1082,
pending before the United States District Court for the Southern District
of Ohio, Western Division (the "Insurance Coverage Litigation") or (iii)
any other pending claims against insurance companies under policies issued
to Eagle-Picher Industries, Inc. or any affiliated company other than for
claims alleging bodily injury arising out of exposure to asbestos-related
and lead-related products.
(b) The Trust and its Affiliates shall refrain from opposing,
contesting or impeding, in any manner whatsoever, any claim Holdings, the
Company, the Company Subsidiaries and their respective subsidiaries may
make for coverage under the claims identified in Section 4.18(a) (including
the Liberty Mutual Settlement and the Insurance Coverage Litigation).
4.19 Payments to Trust. Holdings and the Trust shall enter into
arrangements, reasonably satisfactory to the Trust, which shall result in
the Trust receiving the payments contemplated by Sections 7.2(i) and 7.3
simultaneously with the Effective Time.
3. Amendment to Section 8.1 of the Merger Agreement. Section 8.1 of the
Merger Agreement is hereby amended by (i) inserting "or" at the end of Section
8.1(e) and (ii) adding the following Section 8.1(f):
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(f) the matter of the Unofficial Committee of Co-Defendants v.
Eagle-Picher Industries, Inc., et al., Case Nos. 96-4309 and 97-149,
pending before the United States Court of Appeals for the Sixth Circuit,
relating to In re Eagle-Picher Industries, Inc., Debtor.
4. Amendment to Section 8.3 of the Merger Agreement. Section 8.3 of the
Merger Agreement is hereby amended by deleting "Section 8.1(c)" in the fifteenth
and eighteenth lines of Section 8.3 and replacing such language with "Section
8.1".
5. Amendment to Section 8.4 of the Merger Agreement. Section 8.4 of the
Merger Agreement is hereby amended by:
(a) (i) deleting "Section 8.1" in the first line of Section 8.4(a)(ii) and
replacing such language with "Sections 8.1(a), (b), (c), (d), or (e)", (ii)
deleting "Section 8.1" in the sixth line of Section 8.4(a)(ii) and replacing
such language with "Sections 8.1(a), (b), (c), (d) and (e)", and (iii) deleting
"and" at the end of Section 8.4(a)(ii);
(b) adding the following Section 8.4(a)(iii):
(iii) The cumulative aggregate amount of all Losses for which the
Trust shall be liable pursuant to Section 8.1(f) shall in no event exceed
an amount equal to (x) the sum of the Merger Consideration plus Two Hundred
Fifty Million Dollars ($250,000,000) less (y) the cumulative aggregate
amount of all Losses for which the Trust shall be liable pursuant to
Sections 8.1 (a), (b), (c), (d) and (e); and
(c) replacing "(iii)" at the beginning of Section 8.4(a)(iii) with "(iv)".
6. Amendment to Article 10 of the Merger Agreement . Article 10 of the
Merger Agreement is hereby amended by adding the following Section 10.17:
10.17 Specific Performance. The parties recognize that any breach of
any covenant or agreement contained in this Agreement may give rise to
irreparable harm for which money damages would not be an adequate remedy
and accordingly agree that, in addition to other remedies, any
non-breaching party will be entitled to enforce the covenants and
agreements of a breaching party contained herein by a decree of specific
performance without the necessity of proving the inadequacy as a remedy of
money damages.
7. Ratification. Except as amended hereby, the Merger Agreement continues
and shall remain in full force and effect in all respects. In the event of any
conflict or inconsistency between the terms of this Amendment and the Merger
Agreement, the terms of this Amendment shall govern.
8. Miscellaneous. This Amendment may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall together constitute and be the same instrument. This
Amendment shall in all respects be interpreted, construed and governed by and in
accordance with the laws of the State of New
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York, disregarding any conflict of laws provisions which might otherwise require
the application of the law of another jurisdiction.
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IN WITNESS WHEREOF, the duly authorized officers or representatives of the
parties hereto have duly executed this Amendment on the date first written
above.
EAGLE-PICHER HOLDINGS, INC. EAGLE-PICHER INDUSTRIES, INC.
PERSONAL INJURY SETTLEMENT TRUST
By: /s/ XXXX X. XXXXX By: /s/ XXXX X. XxXXXXXX
---------------------------- ---------------------------
Name: Xxxx X. Xxxxx Name: Xxxx X. XxXxxxxx
Title: Chairman and President Title: Chairperson of the Trustees
E-P ACQUISITION, INC. EAGLE-PICHER INDUSTRIES, INC.
By: /s/ XXXX X. XXXXX By: /s/ XXXXXXX XXXXXXXXXXXX
----------------------------- ----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx Xxxxxxxxxxxx
Title: Chairman and President Title: President and Chief Operating Officer
