EXHIBIT 2.3
SECOND AMENDMENT TO
STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment") is
made and entered into as of July 22, 1998 by and among AMERICAN ALLSAFE COMPANY,
a Delaware corporation (the "Buyer"), the selling stockholders party hereto (the
"Seller") and KEDMAN COMPANY, a Utah corporation ("Kedman"). This Amendment
amends that certain Stock Purchase Agreement dated as of June 5, 1998 by and
among the Buyer, the Seller and Kedman, as amended by the First Amendment to
Stock Purchase Agreement dated as of June 18, 1998 by and among the Buyer, the
Seller and Kedman (as amended, the "Stock Purchase Agreement").
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Stock Purchase
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
AGREEMENT
SECTION 1. Section 4.2 of the Stock Purchase Agreement is hereby
amended by deleting the first sentence thereof and substituting the following
therefor: "The entire authorized capital stock of Kedman consists of 150,000
shares of common stock, $1 par value, of which 53,799 shares are issued and
outstanding."
SECTION 2. Section 4.20 of the Stock Purchase Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:
SECTION 4.20. Litigation. Schedule 4.20 sets forth each instance in
which any of the Companies (i) is subject to any outstanding injunction,
judgment, order, decree, ruling or charge; or (ii) is a party or, to the
Knowledge of Sellers, is threatened to be made a party to any action, suit,
proceeding, hearing or investigation of, in or before any court or
quasi-judicial or administrative agency of any federal, state, local or foreign
jurisdiction or before any arbitrator. The Companies and the Sellers hereby
warrant, but make no representations to the Buyer, that none of the actions,
suits, proceedings, hearings and investigations set forth in Schedule 4.20 will
result in a Material Adverse Effect. To the Knowledge of the Sellers, neither
the Sellers nor any of the Companies have any Liability with respect to any
claims or threatened claims by third
parties relating to any sale or proposed sale of any of the Companies (whether
structured as a sale of stock, a sale of assets, a merger or otherwise) or any
division of any of the Companies. Neither the Sellers nor any of the Companies
are a party to any litigation relating to such claims and, to the knowledge of
the Sellers, no such litigation is threatened.
SECTION 3. Section 7.5(e) of the Stock Purchase Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:
(e) Kedman shall have delivered to the Buyer a balance sheet of Kedman
and an income statement and monthly statement of assets of Tripoli, all as of
June 30, 1998 (the "Preliminary Closing Balance Sheet") together with a
certificate of the Chief Financial Officer of Kedman stating that the
Preliminary Closing Balance Sheet was prepared so as to present fairly in all
material respects the financial position of the Companies as of June 30, 1998 on
a basis consistent with the Financial Statements.
SECTION 4. Article VIII-A is hereby added to the Stock Purchase
Agreement as follows:
ARTICLE VIII-A
ADJUSTMENTS TO PURCHASE PRICE
SECTION 8A.1. Closing Adjustment. The parties hereto agree that the
Purchase Price payable to the Sellers by the Buyer shall be increased by the
amount of $632,561, such amount being the Adjustment Amount referenced in
Section 7.5.
SECTION 5. Section 9.1 (a) of the Stock Purchase Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:
(a) Subject to the limitations set forth in this Article IX, all of the
terms and conditions of this Agreement, together with the warranties,
representations, agreements and covenants contained herein or in any instrument
or document delivered or to be delivered pursuant to this Agreement, shall
survive the execution of this Agreement and the Closing Date. Unless otherwise
expressly stated in this Agreement, the agreements and covenants set forth in
this Agreement shall survive and continue only until the obligations set forth
therein shall have been performed and satisfied. Notwithstanding the foregoing,
the warranty of the Sellers, without representation, set forth in Section 4.20,
only where made with respect to Schedule 4.20 and the suit Xxxxxxxxxxx v.
Snap-On Tools (the "Xxxxxxxxxxx Suit") shall survive and continue for, and all
indemnification claims pertaining solely with respect thereto shall be made
prior to the end of, three (3) years after the Closing Date (the "Xxxxxxxxxxx
Indemnification Period"). Notwithstanding the foregoing, all of the other
representations and warranties of the Sellers, the Companies and the Buyer, and
the related agreements of the Sellers and the Buyer to indemnify each other as
set forth in this Article IX that do not pertain to the Xxxxxxxxxxx Suit,
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shall survive and continue for, and all indemnification claims with respect
thereto shall be made prior to the end of 18 months after the Closing Date (the
"Indemnification Period"), except the specific indemnities for which an
indemnification claim shall be pending 18 months after the Closing Date shall
survive until the final disposition thereof, and any claim based solely on the
Xxxxxxxxxxx Suit shall survive for three years after the Closing Date.
SECTION 6. Section 9.2A shall be added to the Stock Purchase Agreement
as follows:
SECTION 9.2A. Indemnification of the Xxxxxxxxxxx Suit. Subject to the
provisions of this Article IX and provided the Buyer makes a written claim to
the Sellers for expenses incurred or committed by the Buyer in excess of
$100,000 in connection with the Xxxxxxxxxxx Suit prior to the expiration of the
Xxxxxxxxxxx Indemnification Period, the Sellers, jointly and severally, shall
indemnify the Buyer Indemnified Parties for (i) all amounts actually paid by
Kedman in satisfaction of judgments of any nature entered against Kedman by a
court in connection with the Xxxxxxxxxxx Suit, (ii) all settlement amounts paid
pursuant to a settlement of the Xxxxxxxxxxx Suit approved in writing by the
Sellers or (iii) reasonable legal fees and costs incurred in defense of claims
based upon the Xxxxxxxxxxx Suit solely by reason of the insurance carrier
refusing to defend such claims, in each case both through and after the date of
the claim for indemnification and as a result of the Xxxxxxxxxxx Suit having a
Material Adverse Effect.
SECTION 7. Section 9.2B shall be added to the Stock Purchase Agreement
as follows:
SECTION 9.2B. Obligation to Provide Information. The Buyer hereby
agrees that the Buyer will keep the Sellers informed of all material
developments and negotiations that take place with respect to the Xxxxxxxxxxx
Suit and Buyer will promptly provide copies of all pleadings and correspondence
regarding the Xxxxxxxxxxx Suit and any insurance claims pertaining thereto to
the Sellers. The Buyer further agrees that the Buyer will obtain the written
consent of the Sellers prior to entering into any settlement agreement with
respect to the Xxxxxxxxxxx Suit not fully covered by insurance. The Sellers will
not be liable for any claim for indemnification made by the Buyer Indemnified
Parties upon the Sellers with respect to any settlement amounts in connection
with the Xxxxxxxxxxx Suit not covered by insurance proceeds unless the Sellers
have, in their sole discretion, agreed in writing to the terms of such
settlement amounts.
SECTION 8. The Schedules attached hereto shall replace any prior
Schedules to the Stock Purchase Agreement delivered prior to the date hereof and
shall become the most recent Schedules to the Stock Purchase Agreement as of the
date hereof.
SECTION 9. Except as expressly modified by this Amendment. the Stock
Purchase Agreement shall remain in full force and effect without any other
change or modification.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
` AMERICAN ALLSAFE COMPANY
By:_____________________________
Xxxxxxxxxxx X. Xxxxx
Vice President
KEDMAN COMPANY
By:_____________________________
Name: X.X. Xxxxxxx
Title: President
SELLERS
_____________________________
G. Xxxxxxx Xxxxxxx
_____________________________
Xxxxxx X. Xxxxxxx
_____________________________
Xxxxx X. Xxxxxxx
G.M.E. ASSOCIATES, LTD.
By:_____________________________
G. Xxxxxxx Xxxxxxx
General Partner
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XXXXXXX PRODUCTS, INC.
Solely for purposes of
Section 12.15 of the
Stock Purchase Agreement
By:_____________________________
Xxxxxxxxxxx X. Xxxxx
Vice President
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