FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement is made and
entered into as of the 1st day of December, 1995, by and among THE
MANITOWOC COMPANY, INC., a Wisconsin corporation ("Purchaser"), and
TRIVEST INSTITUTIONAL FUND, LTD., a Florida limited partnership
("Trivest Institutional"), TRIVEST INVESTORS FUND, LTD., a Florida
limited partnership ("Trivest Investors"), TRIVEST PRINCIPALS' F UND
1988, a Florida general partnership ("Trivest Principals"), and XXXX
X. XXXXXXX ("Xxxxxxx") (Trivest Institutional, Trivest Investors,
Trivest Principals and Xxxxxxx are collectively referred to herein as
the "Company Stockholders").
PRELIMINARY STATEMENTS:
A. Purchaser and the Company Stockholders entered into a Stock
Purchase Agreement dated October 24, 1995 (the "Stock Purchase
Agreement").
B. Purchaser and the Company Stockholders desire to amend the
Stock Purchase Agreement in accordance with the terms and provisions
contained in this First Amendment.
C. Capitalized terms not otherwise defined herein shall have
the same meaning as set forth in the Stock Purchase Agreement.
AGREEMENT:
In consideration of the premises and the mutual promises and
conditions contained herein, the parties hereto agree as follows:
1. Additional Defined Terms. The following defined terms are
added to Section 1.1 of the Stock Purchase Agreement:
TERM SECTION
River Falls Escrow Deposit 2.3.3
River Falls Landfill
Indemnification Claim 9.3.3
River Falls Landfill
Litigation 9.3.2
River Falls Settlement Agreement 2.3.3
River Falls Settlement Terms 2.3.3
Trivest Funds' Liquidity Obligation 2.3.3
Trivest Funds' Termination Date 2.3.3
2. Amendment to Section 2.3.3. Section 2.3.3 of the Stock
Purchase Agreement is hereby amended in its entirety and restated as
follows:
"2.3.3 (a) At the Closing, Purchaser, the
Company Stockholders, the Company Stockholders' Agent and The
Bank of New York as escrow agent (the "Escrow Agent") will be
entering into an escrow agreement (the "Escrow Agreement") in the
form of Exhibit D hereto. At the Closing, $3,000,000 (the
"Escrow Deposit") shall be withheld from the Aggregate Purchase
Consideration and paid to the Escrow Agent, to be held and
disposed of by the Escrow Agent in accordance with the terms of
the Escrow Agreement.
(b) At the Closing, $1,000,000 (the "River Falls
Escrow Deposit") shall be withheld from the Aggregate Purchase
Consideration and retained by Purchaser, to be held and disposed
of by Purchaser in accordance with the terms of this Section
2.3.3(b). The River Falls Escrow Deposit shall be held by
Purchaser in a segregated, interest bearing account in
Purchaser's name.
(i) Upon delivery to Purchaser of a fully
executed Release, Tender of Defense and Indemnity Agreement (the
"River Falls Settlement Agreement") in conformity with the Term
Sheet dated December 1, 1995 between the Company and the City of
River Falls, as the same may be amended from time to time by
mutual agreement of the Company Stockholders' Agent and Purchaser
(the "River Falls Settlement Terms"), Purchaser shall pay the
River Falls Escrow Deposit to the City of River Falls in
accordance with the terms of the River Falls Settlement
Agreement. Any interest earned on the River Falls Escrow Deposit
shall be paid to the Company Stockholders in accordance with
their respective Pro Rata Percentages.
(ii) In the event the River Falls Settlement
Agreement has not been executed or the River Falls Landfill
Litigation has not otherwise been settled on terms reasonably
satisfactory to Purchaser and the Company Stockholders' Agent by
January 2, 1996, the Company Stockholders and Purchaser agree to
enter into a mutually acceptable escrow agreement substantially
in the same form as the Escrow Agreement, with Purchaser to pay
the River Falls Escrow Deposit, together with any income earned
thereon to the escrow agent under such agreement.
(iii) As a material inducement to the
Company Stockholders to enter into this First Amendment to Stock
Purchase Agreement and notwithstanding the provisions of Section
9.5, Purchaser agrees that in the event the River Falls
Settlement Agreement has not been executed, the Company
Stockholders shall have the sole right to control the defense of
the River Falls Landfill Litigation and shall be entitled to
first use the River Falls Escrow Deposit to pay or satisfy any
Adverse Consequences arising out of the defense or settlement of
the River Falls Landfill Litigation or any other liabilities
associated with the River Falls Landfill before using their own
funds therefor.
(iv) As a material inducement to Purchaser to
enter into this First Amendment to Stock Purchase Agreement,
Trivest Institutional and Trivest Investors covenant and agree to
retain aggregate cash, cash equivalents or marketable securities
of at least $1,000,000 (the "Trivest Funds' Liquidity
Obligation") until the earlier of (A) the date the River Falls
Settlement Agreement is executed, (B) the date the River Falls
Landfill Litigation is settled or otherwise resolved or (C) the
expiration of the partnership terms of Trivest Institutional and
Trivest Investors, which will not be sooner than December 31,
1998 (the "Trivest Funds' Termination Date"). If at the Trivest
Funds' Termination Date the River Falls Landfill Litigation is
not settled and the River Falls Escrow Deposit is less than
$1,000,000 due to the use thereof pursuant to Section
2.3.3(b)(iii), Trivest Institutional and Trivest Investors agree
to deposit the difference between $1,000,000 and the then
existing balance of the River Falls Escrow Deposit to the escrow
to be established pursuant to Section 2.3.3(b)(ii). Commencing
March 31, 1996 and on the last day of each calendar quarter
thereafter while the Trivest Funds' Liquidity Covenant is in
effect, Trivest Institutional and Trivest Investors agree to
provide Purchaser with a quarterly certificate from their general
partner certifying that the Trivest Funds' Liquidity Obligation
has been met.
(v) In the event the River Falls Landfill
Litigation is resolved and the Adverse Consequences suffered or
incurred are less than the River Falls Landfill Deposit and any
interest earned thereon, the excess funds shall be paid to the
Company Stockholders in accordance with their respective Pro Rata
Percentages."
3. Amendment to Section 9.1.2. Section 9.1.2 of the Stock
Purchase Agreement is hereby amended in its entirety and restated as
follows:
"9.1.2 the Company Stockholder's Pro Rata
Portion of any Adverse Consequences which the Indemnitees shall suffer
through and after the date of the claim for indemnification resulting
from, arising out of, relating to or caused by any breach or violation
of any of the representations or warranties of the Company
Stockholders contained in Article 4 of this Agreement; provided,
however:
(a) notwithstanding the disclosure set forth in
item 6 of Schedule 4.8, the Company Stockholders shall be
responsible for their Pro Rata Portion of any Adverse
Consequences which the Indemnitees shall suffer resulting from
the matter disclosed in item 6 of Schedule 4.8, subject to the
Basket, the Cap and the provisions of Section 9.11.3;
(b) notwithstanding the disclosure set forth in
item 7 of Schedule 4.8, as set forth in Disclosure Schedules
Update No. 2, the Company Stockholders shall be responsible for
their Pro Rata Portion of any Adverse Consequences which the
Indemnitees shall suffer resulting from the matter disclosed in
item 7 of Schedule 4.8, subject to the Cap and the provisions of
Section 9.11.3, but not subject to the Basket; and
(c) notwithstanding the disclosures set forth in
items 2, 3, 4 and 5 of the Phase I Environmental Site Assessment
and Limited Environmental Compliance Audit dated November, 1995
prepared by Law Engineering and Environmental Services, Inc. for
Purchaser for Kolpak Walk-Ins, River Falls Division, 000 Xx.
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx, as disclosed on Schedule
4.20, as set forth in Disclosure Schedules Update No. 2, the
Company Stockholders shall be responsible for their Pro Rata
Portion of any Adverse Consequences which the Indemnitees shall
suffer resulting from the matters disclosed in items 2, 3, 4 and
5 of such Phase I Environmental Site Assessment, subject to (i)
the Basket, (ii) the Cap, (iii) the provisions of Section 9.11.3
and (iv) the agreement of Purchaser not to initiate any of the
recommendations of Law Engineering and Environmental Services,
Inc. with respect to such items or take any other affirmative
action unless required by any Authority, any secured lender of
Purchaser or any third party with a valid and legitimate reason
to require such action; provided, however, that Purchaser shall
give the Company Stockholders' Agent prior written notice of the
action to be taken and the reason therefor and agrees to consult
with the Company Stockholders' Agent in connection with the
action being taken."
4. Amendment to Section 9.1.3. Section 9.1.3 of the Stock
Purchase Agreement is hereby amended in its entirety and restated as
follows:
"9.1.3 the Company Stockholder's Pro Rata
Portion of any Adverse Consequences which the Indemnitees shall suffer
through and after the date of the claim for indemnification resulting
from, arising out of or relating to (a) any Xxxxxx Landfill
Indemnification Claim as provided in Section 9.3.1 hereof, (b) the
River Falls Landfill Litigation as provided in Section 9.3.2 hereof
and (c) any River Falls Landfill Indemnification Claim as provided in
Section 9.3.3 hereof;"
5. Amendment to Section 9.3. Section 9.3 of the Stock Purchase
Agreement is hereby amended in its entirety and restated as follows:
"9.3 Environmental Indemnification Claims.
9.3.1 Upon the condition that the Closing be
effected, each of the Company Stockholders hereby severally
indemnifies and holds harmless the Indemnitees, and their respective
successors and assigns, from, against and in respect of its or his
respective Pro Rata Portions of any Adverse Consequences arising out
of the Xxxxxx Sanitary Landfill located in Hudson, Wisconsin (the
"Xxxxxx Landfill Indemnification Claim") in accordance with the
provisions of this Section 9.3.1 and the terms and provisions of the
Escrow Agreement. The parties acknowledge and agree that (a) the
Basket shall not apply to any Xxxxxx Landfill Indemnification Claim
and that the Company Stockholders shall be responsible for all Adverse
Consequences relating to any Xxxxxx Landfill Indemnification Claim up
to a maximum of $500,000 and (b) any Adverse Consequences paid by the
Company Stockholders for a Xxxxxx Landfill Indemnification Claim shall
be deemed to be Adverse Consequences for purposes of the Cap in
Section 9.1. On the Closing Date, Purchaser and the Company
Stockholders have agreed to establish the Xxxxxx Escrow Deposit for
the specific purpose of providing funds for the payment of any Xxxxxx
Landfill Indemnification Claim.
9.3.2 Upon the condition that the Closing be
effected, each of the Company Stockholders hereby severally
indemnifies and holds harmless the Indemnitees, and their respective
successors and assigns, from, against and in respect of its or his
respective Pro Rata Portions of any Adverse Consequences arising out
of the litigation disclosed in item 9 of Schedule 4.20, as set forth
in Disclosure Schedules Update No. 2 (the "River Falls Landfill
Litigation") in accordance with the provisions of Section 2.3.3(b).
The parties acknowledge and agree that (a) the Basket shall not apply
to any indemnification claim made by Purchaser with respect to the
River Falls Landfill Litigation and (b) any Adverse Consequences paid
by the Company Stockholders in connection with the River Falls
Landfill Litigation shall be deemed to be Adverse Consequences for
purposes of the Cap in Section 9.1. On the Closing Date, Purchaser
and the Company Stockholders have agreed to Purchaser's retention of
the River Falls Escrow Deposit for the specific purpose of providing
funds for the payment of any Adverse Consequences arising out of the
River Falls Landfill Litigation.
9.3.3 Upon the condition that the Closing be
effected, each of the Company Stockholders hereby severally
indemnifies and holds harmless the Indemnitees, and their respective
successors and assigns, from, against and in respect of its or his
respective Pro Rata Portions of any Adverse Consequences arising out
of or relating to the River Falls Landfill located in River Falls,
Wisconsin, including, but not limited to, (a) any release or alleged
release of hazardous substances at the River Falls Landfill, (b) the
transportation to or treatment, storage, disposal or other handling at
the River Falls Landfill of any substances by or on behalf of the
Company or its predecessors (including but not limited to Xxxxxxxx-
Xxxxxxxx, Inc. and Vollrath Refrigeration, Inc.), including, but not
limited to, any and all claims for investigative, remedial or monetary
costs, damage to the environment or natural resources and diminution
in property value and (c) claims for bodily injury in connection with
exposure to hazardous substances migrating from the River Falls
Landfill (the "River Falls Landfill Indemnification Claim"), subject
to the Basket, the Cap and the provisions of Section 9.11.1. The
parties acknowledge and agree that any Adverse Consequences paid by
the Company Stockholders for a River Falls Landfill Indemnification
Claim shall be deemed to be Adverse Consequences for purposes of the
Cap in Section 9.1."
6. Amendment to Section 9.10. Section 9.10 of the Stock
Purchase Agreement is hereby amended in its entirety and restated as
follows:
"9.10 Submission of Claims to Insurance Carriers.
9.10.1 Purchaser shall, in connection with any
Adverse Consequences for which it may seek indemnity under this
Agreement, (a) promptly submit all claims in respect of such Adverse
Consequences to its insurance carriers, unless Purchaser determines in
good faith that such claims are not covered by any such insurance and
so notifies the Company Stockholders, and (b) use its best efforts in
good faith to recover all amounts to which it may be entitled from any
applicable insurer in respect of the claims so submitted.
9.10.2 In the event any Adverse Consequences
are paid by the Company Stockholders and insurance proceeds with
respect thereto are later recovered by the Company or the Subsidiary,
Purchaser agrees to cause the Company and/or the Subsidiary to pay
such proceeds to the Company Stockholders.
9.10.3 In the event the Company Stockholders'
Agent attempts to recover any Adverse Consequences paid in connection
with any Xxxxxx Landfill Indemnification Claim, the River Falls
Landfill Litigation and/or the River Falls Landfill Litigation from
the insurance carrier or carriers which provided coverage to the
Company or its predecessors at the time the River Falls Landfill was
used by the Company's predecessors, Purchaser agrees to cooperate with
the Company Stockholders and/or the Company Stockholders' Agent, at
the cost of the Company Stockholders, in submitting such claims in the
name of the Company."
7. Amendment to Section 9.11.1. Section 9.11.1 of the Stock
Purchase Agreement is hereby amended in its entirety and restated as
follows:
9.11.1 the seventh anniversary of the Closing
Date for (a) any Xxxxxx Landfill Indemnification Claim and (b) the
River Falls Landfill Litigation and the maintenance of the River Falls
Escrow Deposit; and December 31, 1998 for any other matter described
in Section 9.1 of this Agreement insofar as it relates to the
representations and warranties of the Company Stockholders contained
in Section 4.20 of this Agreement or to any products liability claim;"
8. Escrow Agreement. The form of Escrow Agreement attached
hereto is hereby substituted for Exhibit D attached to the Stock
Purchase Agreement.
9. Counterpart Signatures. This Amendment may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which will be deemed to be one and the same
instrument.
10. The remaining provisions of the Stock Purchase Agreement are
hereby ratified and affirmed.
IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first above written.
PURCHASER:
THE MANITOWOC COMPANY, INC.
By: /s/ Xxxx Xxxxxx
-----------------
COMPANY STOCKHOLDERS:
TRIVEST INSTITUTIONAL FUND, LTD.
By: Trivest 1988 Fund Managers, Ltd.,
its General Partner
By: Trivest Group, Inc.,
its General Partner
By:/s/ Xxxx X. Xxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxx, Vice President
TRIVEST INVESTORS FUND, LTD.
By: Trivest 1988 Fund Managers, Ltd.,
its General Partner
By: Trivest Group, Inc.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------
Xxxx X. Xxxxxxxxx, Vice President
TRIVEST PRINCIPALS' FUND 1988
By: /s/ Xxxx X. Xxxxxx
---------------------
Xxxx X. Xxxxxx, Managing Partner
/s/ Xxxx X. Xxxxxxx
--------------------
Xxxx X. Xxxxxxx
EXHIBIT D
ESCROW AGREEMENT
