AMENDMENT NO. 1
TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment No. 1"), 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:
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,
L1.00 par value per share, deferred shares, L1.00 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
Xxxxxxxx Capital Limited, an Ontario corporation ("Xxxxxxxx"),
and Xxxxxxxx;
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/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
SECURICOR COMMUNICATIONS LIMITED
By: /s/ X. Xxxxxxxxx
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Name: X. Xxxxxxxxx
Title: Director
