EXHIBIT 2
AMENDMENT NO. 1
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TO STOCK PURCHASE AGREEMENT
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THIS AMENDMENT ▇▇. ▇ ("▇▇▇▇▇▇▇▇▇ ▇▇. ▇"), dated as of
September 19, 1996, to that certain Stock Purchase Agreement, dated as
of June 18, 1996 (the "Agreement"), between Intek Diversified
Corporation, a Delaware corporation ("Purchaser"), and Securicor
Communications Limited, a corporation formed under the laws of England
and Wales ("Seller"), a wholly-owned indirect subsidiary of Securicor
plc and the sole shareholder of Securicor Radiocoms Limited, a
corporation formed under the laws of England and Wales ("Radiocoms").
W I T N E S S E T H:
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WHEREAS, Purchaser and Seller have entered into the
Agreement providing for Seller to sell to Purchaser, and Purchaser to
purchase from Seller, all of the ordinary shares, (pound)1.00 par value per
share, deferred shares, (pound)1.00 par value per share and ordinary
shares, $0.10 par value per share, of Radiocoms, for the purchase price and
upon the terms and conditions set forth in the Agreement;
WHEREAS, the consummation of the transactions contemplated
by the Agreement is a condition precedent to, and is conditioned upon,
the consummation of certain other transactions (the "Other
Transactions") pursuant to that certain Sale of Assets and Trademark
License Agreement, dated as of June 18, 1996 and as amended and
restated as of the date hereof (as so amended and restated, the
"Amended and Restated Midland Agreement"), by and among Purchaser,
Midland International Corporation, a Delaware corporation and a
wholly-owned indirect subsidiary of ▇▇▇▇▇▇▇▇ Capital Limited, an
Ontario corporation ("▇▇▇▇▇▇▇▇"), and ▇▇▇▇▇▇▇▇;
WHEREAS, Seller and Purchaser have determined that it is
mutually beneficial to amend the Agreement to provide for the
consummation of the Other Transactions prior to the consummation of
the transactions contemplated by the Agreement (the "Transactions")
and to make certain other changes as set forth therein, said amendment
to be in accordance with the terms and subject to the conditions set
forth in this Amendment No. 1; and
WHEREAS, capitalized terms used in this Amendment No. 1
without definition herein shall be deemed to have the meanings
ascribed to such terms in the Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter contained, the parties
hereby agree as follows:
ARTICLE I
1.1. Wherever in the Agreement (a) the term "Agreement"
appears it shall be deemed to refer to the Agreement as amended by
this Amendment No. 1, (b) the term "Midland Agreement" appears it
shall be deemed to refer to the Midland Agreement as amended and
restated in the Amended and Restated Midland Agreement and (c) the
term "Transactions" appears it shall be deemed to refer to the
transactions contemplated under the Agreement and not the transactions
contemplated under the Midland Agreement, which are referred to herein
as "Other Transactions", except in the case of each of the foregoing
where the context otherwise requires.
1.2. Section 4.6(b) of the Agreement is hereby amended by
deleting clause (ii) thereof in its entirety and such clause (ii) is
replaced with the following:
"(ii) for amendments to Seller's Schedule 13D filing with
respect to Purchaser to reflect the execution of this Agreement (or
any amendments hereto) and the consummation of the Transactions or the
Other Transactions, and"
1.3. Section 5.2(b) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(b) Assuming the accuracy of Seller's representation in
Section 4.27, the affirmative vote of the holders of a majority of the
outstanding shares of Purchaser Common Stock is the only vote of the
holders of any class or series of Purchaser's capital stock (under
applicable Law or otherwise) necessary to approve this Agreement, the
issuance of the Purchaser Shares or the Transactions, and no vote of
the holders of any class or series of Purchaser's capital stock (under
applicable Law or otherwise) is necessary to approve the Midland
Agreement or the Other Transactions."
1.4. Section 5.11(d) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(d) Neither Purchaser nor any of its Subsidiaries has
issued any equity securities or any securities convertible into or
exchangeable for equity securities of Purchaser or any of its
Subsidiaries, except for the issuance of 2,500,000 shares of Purchaser
Common Stock in connection with the consummation of the Other
Transactions and the issuance of the option contemplated by the
Midland Agreement in respect of the capital stock of Midland USA, Inc.
("MUSA");"
1.5. Section 5.11(g) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(g) Neither Purchaser nor any of its Subsidiaries has
entered into any transaction or Contract or conducted its business
other than in the ordinary course consistent with past practice,
except for the consummation of the Other Transactions and in
connection with the Loan Agreement, dated the date hereof, by and
between MUSA and Seller (the "Loan Agreement") and the documents
thereunder to which MUSA or Purchaser is a party (the Loan Agreement
and such loan documents are collectively referred to herein as the
"Loan Documents");"
1.6. Section 5.11(i) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(i) Neither Purchaser nor any of its Subsidiaries has made
any loans, advances or capital contributions to, or investments in,
any Person or paid any fees or expenses to the Purchaser or any
Affiliate or holder of 15% or more of the issued and outstanding
capital stock of Purchaser, except in connection with the consummation
of the Other Transactions;"
1.7. Section 5.11(j) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(j) neither Purchaser nor any of its Subsidiaries has
mortgaged, pledged or subjected to any Lien any assets, or acquired
any assets or sold, assigned, transferred, conveyed, leased otherwise
disposed of any assets of Purchaser or its Subsidiaries, except in the
ordinary course of business consistent with past practice and except
in connection with the consummation of the Other Transactions or the
execution, delivery and performance of the Loan Documents."
1.8. Section 5.16(c) of the Agreement is hereby
deleted in its entirety and is replaced with the following:
"(c) Simultaneously with the execution of this Agreement,
Purchaser has delivered to Seller a true, complete and correct copy of
the Midland Agreement (including all exhibits and schedules thereto)
as in effect on the date hereof and will deliver to Seller a true,
complete and correct copy of any amendments to, or restatements of,
the Midland Agreement (or any exhibits or schedules thereto). The
Midland Agreement, as the same may be amended or restated from time to
time, is valid and enforceable in accordance with its terms, subject
to the Bankruptcy Exception. Each of the representations and
warranties of Purchaser contained in the Midland Agreement, and to
Purchaser's knowledge, each of the representations and warranties of
Midland US contained therein, is true and correct in all material
respects and will be true and correct in all material respects as of
the date of the consummation of the Other Transactions. (i) Neither
Purchaser nor, to the knowledge of Purchaser, Midland US, is in
material breach of or in material default under the Midland Agreement,
(ii) to the knowledge of Purchaser, there has not occurred any event
which, after the giving of notice or the lapse of time or both, would
constitute a material default under, or result in a material breach
of, the Midland Agreement, (iii) no party to the Midland Agreement has
given notice of or made a claim with respect to any material breach or
material default thereunder, (iv) except as set forth in the Midland
Agreement, none of the rights of Purchaser under the Midland Agreement
will be subject to termination or modification as a result of the
consummation of the transactions contemplated by this Agreement, and
(v) except as set forth therein, no consent or approval of any third
party is required under the Midland Agreement to the consummation of
the transactions contemplated thereby or hereby."
1.9. The prefatory clause of paragraph (b) of Section 6.2
of the Agreement is hereby deleted in its entirety and replaced with
the following:
"(b) Prior to the Closing Date, except as otherwise
expressly contemplated by this Agreement, or in connection with, or as
a result of the consummation of the Other Transactions or the
execution, delivery and performance of the Loan Documents, or with the
prior unanimous written consent of the Committee (which consent shall
not be unreasonably withheld), Seller shall cause Radiocoms and its
Subsidiaries and to the extent that it is engaged in the Business, any
Relevant Affiliate, not to and Purchaser shall not, and shall cause
its Subsidiaries not to:"
1.10. Section 6.4 of the Agreement is hereby amended by
adding the words "and the Other Transactions" in the last sentence
thereof, immediately following the word "Transactions".
1.11. Section 7.1(c) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(c) No Legal Proceedings shall have been instituted or
threatened or claim or demand made against Seller, Radiocoms or
Purchaser seeking to restrain or prohibit or to obtain damages with
respect to the consummation of any of the Transactions or the Other
Transactions and there shall not be in effect any Order by
Governmental Body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of any of the Transactions or
the Other Transactions;"
1.12. Section 7.1(e) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(e) All approvals required to be obtained by Seller,
Purchaser or Midland US from any Governmental Body with respect to any
of the Transactions or the Other Transactions shall have been
obtained;"
1.13. Section 7.1(f) of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"(f) The Purchaser Stockholders' Meeting shall have been
duly convened and held, and Purchaser shall have obtained the
requisite vote so as to authorize this Agreement, the Midland
Agreement (if necessary) and the consummation of each of the
Transactions and (if necessary) the Other Transactions;"
ARTICLE II
2.1. It is understood and agreed that the consummation of
the Other Transactions prior to the consummation of the Transactions
and the execution, delivery and performance by MUSA of the Loan
Agreement and the execution, delivery and performance by MUSA and
Purchaser of the Loan Documents thereunder to which each is a party
will necessitate the updating of the Purchaser Disclosure Letter that
was delivered by Purchaser to Seller in connection with the execution
of the Agreement, as contemplated by Section 6.12 of the Agreement,
and in some cases (as where the Agreement does not contemplate any
exceptions being set forth in the Purchaser Disclosure Letter) will
necessitate a further amendment to the Agreement to provide for the
disclosure of information in the relevant section of the Purchaser
Disclosure Letter. Purchaser agrees to update the Purchaser
Disclosure Letter promptly following the execution of this
Amendment No. 1 (and Purchaser and Seller agree promptly to
enter into any further
amendment to the Agreement necessary to give effect thereto) and, in
any event, shall deliver a complete, revised Purchaser Disclosure
Letter to Seller within 20 Business Days following the date hereof
(and Purchaser and Seller agree to execute and deliver any amendment
to the Agreement required in connection therewith by such date). It
is understood and agreed that, to the extent such revised Purchaser
Disclosure Letter (or amendment) reflects (a) the addition of matters
that were disclosed as of June 18, 1996 in the "Midland Disclosure
Schedules" referred to in the Midland Agreement or matters resulting
directly from the consummation of the Other Transactions prior to the
consummation of the Transactions or (b) the transactions contemplated
by the Loan Documents, no representations or warranties of Purchaser
contained in the Agreement shall be deemed to be breached solely by
such additions.
2.2 It is understood and agreed that (a) the consummation
of the Other Transactions on or after the date of this Amendment No.
1, on the terms and in the manner contemplated by the Amended and
Restated Midland Agreement and (b) the consummation of the
transactions contemplated by the Loan Documents on the terms and in
the manner contemplated therein, shall not be deemed to violate any
covenants or other obligations of Purchaser pursuant to Section 6.2 of
the Agreement.
2.3. Pursuant to the provisions of Section 6.8 of this
Agreement, execution of this Agreement by Seller shall constitute the
written consent of Seller to the Amended and Restated Midland
Agreement.
ARTICLE III
3.1. Each of Purchaser and Seller hereby represents and
warrants to the other that: (a) it has all requisite power, authority
and legal capacity to execute and deliver this Amendment No. 1; (b)
the execution and delivery of this Amendment No. 1 has been duly and
validly authorized by its Board of Directors, and no other corporate
proceedings on its part will be necessary to authorize this Amendment
No. 1; and (c) assuming the due authorization, execution and delivery
by the other party hereto, this Amendment No. 1 constitutes its legal,
valid and binding obligation, enforceable against it in accordance
with its terms, subject to the Bankruptcy Exception.
ARTICLE IV
4.1. Except as expressly amended hereby, the Agreement shall
remain in full force and effect from and after the execution of this
Amendment No. 1.
4.2. This Amendment No. 1 shall be governed by and
construed in accordance with the Laws of the State of New York
(without application of its principles of conflicts of Laws).
4.3. This Amendment No. 1 may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to the Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first written
above.
INTEK DIVERSIFIED CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Secretary
SECURICOR COMMUNICATIONS LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
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