AMENDMENT NO. 1 TO PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 TO PURCHASE AGREEMENT (this “Amendment”)
is made
and entered into as of May 9, 2008 by and among the Parties (as hereinafter
defined) to that certain Purchase Agreement (the “Agreement,”
dated as
of March 6, 2008, by and among Essex Crane Rental Corp., a Delaware corporation
(the “Company”),
Essex
Holdings LLC, a Delaware limited liability company (“Holdings”),
the
members of Holdings listed on the signature page to the Agreement (the
“Members”),
KCP
Services, LLC, as Seller Representative (the “Seller
Representative”),
and
Hyde Park Acquisition Corp., a Delaware corporation (the “Purchaser”).
The
parties to the Agreement are herein referred to as the “Parties”
and
other capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Agreement.
RECITALS
A. The
Parties desire to amend the Agreement to take into account deposits for Rental
Equipment purchases paid by the Company between January 1, 2008 and the Closing
Date in determining Excess Crane Sales, Excess Crane Purchases and Working
Capital.
B. The
Parties desire to amend the Agreement, including certain Exhibits thereto,
to
(i) permit the Company, Holdings and the Members to purchase common stock of
the
Purchaser prior to the Closing and (ii) provide for certain agreements of the
Parties in the event of any such purchases of Purchaser Common
Stock.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein and in the Agreement,
and
subject to the terms and conditions set forth herein, the parties hereby agree
as follows:
1. Article
I
of the Agreement is hereby amended to amend and restate, or add, as applicable,
the following defined terms:
“Escrowed
Interests”
means
the Retained Interests held by Kirtland; provided, however, that, in the event
that Kirtland owns shares of Purchaser Stock as of the Closing, Escrowed
Interests shall also include a number of shares of Purchaser Stock owned by
Kirtland with a purchase price equal to the amount by which Kirtland’s Retained
Interest Value is reduced at the Closing.
“Rental
Equipment Deposits”
means
cash deposits paid by the Company since January 1, 2008 and outstanding as
of
the Closing Date in respect of purchases of Rental Equipment that will not
be
completed on or prior to the Closing Date, which deposits were paid pursuant
to
purchase orders reasonably satisfactory to the Purchaser.
“Retained
Interest”
means
that number of Interests retained by the Members and classified as Class A
Units
in the New LLC Agreement in the amounts set forth on Schedule I thereto;
provided, however, that if the Retained Interest Value of a Member is reduced
at
the Closing, then the number of Class A Units of such Member shall be reduced
at
the Closing to the number determined by dividing such Member’s reduced Retained
Interest Value by $7.90 (rounded up to the nearest whole share).”
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“Retained
Interest Value”
means
the value of a Member’s Retained Interest as set forth on Schedule
1-A
opposite
such Members name; provided, however, that the Retained Interest Value of a
Member set forth on Schedule
1-A
shall be
reduced at the Closing (not below zero) by the aggregate purchase price for
shares of Purchaser Stock held by such Member as of the Closing Date and voted
by the beneficial owner thereof in favor of all proposals included in the Proxy
Statement.”
2. Section
2.2(a) of the Agreement is hereby amended by adding the following after the
last
sentence thereof:
“Within
a
reasonable time prior to the Closing, Seller Representative shall deliver to
Purchaser a schedule containing the number of shares of Purchaser Stock to
be
owned as of Closing by each Member and the purchase price paid for such shares,
together with such supporting detail as may be reasonably requested by
Purchaser.”
3. Section
2.2(b) of the Agreement is hereby amended and restated in its entirety to read
as follows:
“(b) Within
a
reasonable time prior to the Closing, Holdings shall prepare and deliver to
the
Purchaser a statement, in form and substance reasonably satisfactory to the
Purchaser, that sets forth (i) Rental Equipment sales and Rental Equipment
purchases that have been or will be made by the Company after January 1, 2008
through the Closing Date and (ii) Rental Equipment Deposits. The Company shall
effect all such Rental Equipment sales on terms that require full settlement
in
cash prior to the Closing Date. In the event that the dollar volume of Rental
Equipment sales during such time period exceeds the sum of the dollar volume
of
Rental Equipment purchases made during such time period plus the amount of
Rental Equipment Deposits (“Excess
Crane Sales”),
then
the Total Purchase Price payable to the Seller Representative, for the benefit
of the Members, on the Closing Date will be decreased by the amount of such
Excess Crane Sales. In the event that sum of the dollar volume of Rental
Equipment purchases made during such time period plus the amount of Rental
Equipment Deposits exceeds the dollar volume of Rental Equipment sales during
such time period (“Excess
Crane Purchases”),
then
the Total Purchase Price payable to the Seller Representative, for the benefit
of the Members, on the Closing Date will be increased by the amount of such
Excess Crane Purchases.”
4. Section
2.2(c) of the Agreement is hereby amended to add the following clause “(z)”
before the word “minus” in the first sentence of such section:
“and
(z)
provided that (i) Seller Representative has delivered to Purchaser a copy of
a
Plan (as defined below) providing for the purchase by the Company prior to
the
Closing of $5,000,000 of Purchaser Stock at prices not to exceed $7.90 per
share
and (ii) such Plan is not terminated or amended prior to the Closing, an amount
equal to the greater of (A) $125,000 and (B) the product of $250,000 multiplied
by a fraction, the numerator of which is the gross purchase price paid for
shares of Purchaser Stock acquired pursuant to such Plan prior to the Closing,
and the denominator of which is $5,000,000.”
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5. Exhibit
A
to the Agreement is hereby amended to add the following under the heading
“Current Assets”:
“Rental
Equipment Deposits:
Rental
Equipment Deposits shall be excluded from the determination of Working
Capital.
Purchaser
Stock:
Shares
of Purchaser Stock owned by the Company shall be excluded from the determination
of Working Capital.”
6. Section
7.11 of the Agreement is hereby amended and restated in its entirety to read
as
follows:
“Section
7.11 Securities
Transactions.
(a)
Except as set forth in this Section 7.11, none of the Company, Holdings or
any
Member or any of their respective affiliates, directly or indirectly, shall
engage in any transactions involving any securities of the Purchaser prior
to
the Closing. The Company shall use its commercially reasonable efforts to
require each of its officers, directors, employees, agents and representatives
to comply with the foregoing requirement.
(b)
Notwithstanding Section 7.11(a) above, the Company, Holdings and the Members
may
purchase, but not sell, Purchaser Stock in open market or privately negotiated
transactions. Open market purchases shall only be made pursuant to an
arrangement designed to ensure compliance with the safe harbor provisions of
Section 10b-5(1) and 10b-18 of the Exchange Act (a “Plan”).
7. Sections
7.1(f) and (j) of the Agreement are hereby amended and restated to read in
their
entirety as follows:
“(f) declare,
distribute or set aside for distribution of any property (excluding cash),
or
directly or indirectly, redeem, purchase or otherwise acquire of any shares
of
capital stock, except that, on or prior to the Closing, the Company shall be
permitted to distribute by way of dividend or otherwise shares of Purchaser
Stock owned by the Company;”
“(j) enter
into or agree to enter into any merger or consolidation with any Person, or
acquire the equity securities or all or substantially all of the assets of,
or
otherwise make any investment in, any other Person, except that the Company
shall be permitted to acquire Purchaser Stock in accordance with the terms
of
this Agreement;”
8. The
Parties agree that if Kirtland owns shares of Purchaser Stock at Closing, the
execution copies of the form of Lock-Up Agreement attached to the Agreement
as
Exhibit B shall be appropriately revised to include in the definition of “Common
Shares” therein shares of Purchaser Stock owned at Closing by the Management
Members.
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9.
The
Parties agree that if Kirtland owns shares of Purchaser Stock at Closing, the
execution copy of the form of Escrow Agreement attached to the Agreement as
Exhibit C shall be appropriately revised to the extent necessary to conform
the
definition of “Escrow Units” therein to the definition of “Escrowed Interests”
as amended by this Amendment.
10. Except
as
expressly amended by this Amendment, the Agreement shall remain unchanged and
in
full force and effect. This
Amendment is to be governed by, and construed and enforced in accordance with,
the laws of the State of New York, without regard to its rules of conflict
of
laws. This Amendment may be executed in two or more counterparts, each of which
will be deemed an original but all of which will constitute but one
instrument.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the Purchaser, the Company, Holdings, the Members and the
Seller Representative have executed, or have caused their duly authorized
representatives to execute, this Amendment as of the day and year first above
written.
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By:
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/s/
Xxxxxxxx Xxxx
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Print
Name: Xxxxxxxx Xxxx
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Title:
CEO
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ESSEX
CRANE RENTAL CORP.
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By:
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/s/
Xxxxxx Xxxxx
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Print
Name: Xxxxxx Xxxxx
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Title:
CEO/President
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ESSEX
HOLDINGS LLC
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By:
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/s/
Xxxxxxx X. XxXxxxxxx
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Print
Name: Xxxxxxx X. XxXxxxxxx
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Title:
Vice President and Treasurer
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MEMBERS:
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KIRTLAND
CAPITAL PARTNERS III L.P.
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By:
Kirtland Partners Ltd., its general partner
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By:
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/s/
Xxxx X. Xxxxxx
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Print
Name: Xxxx X. Xxxxxx
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Title:
President
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KIRTLAND
CAPITAL COMPANY III LLC
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By:
Kirtland Partners Ltd., its managing member
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By:
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/s/
Xxxx X. Xxxxxx
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Print
Name: Xxxx X. Xxxxxx
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Title:
President
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
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/s/
Xxxxxxx X. X’Xxxxxx
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Xxxxxxx
X. X’Xxxxxx
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SELLER
REPRESENTATIVE:
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KCP
SERVICES LLC
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By:
Kirtland Capital Corporation, its managing member
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By:
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/s/
Xxxxxxx X. XxXxxxxxx
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Print
Name: Xxxxxxx X. XxXxxxxxx
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Title:
Treasurer
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