AMENDMENT TO PROMISSORY NOTE AND
STOCK PLEDGE AGREEMENT
AMENDMENT TO PROMISSORY NOTE AND STOCK PLEDGE AGREEMENT (the "Agreement"),
dated September 30, 1996, by and among Omniquip International, Inc., a Delaware
corporation formerly known as Uniquip Corporation (the "Corporation"), and Xxxx
X. Xxxxxx (the "Stockholder").
W I T N E S S E T H:
WHEREAS, the Corporation sold seventy-five thousand (75,000) shares (as
adjusted for stock splits effected or to be effected prior to the effective date
of this Agreement) of its Common Stock, par value $.01 per share (the "Shares"),
to the Stockholder at an aggregate purchase price of forty-seven thousand six
hundred forty-seven dollars ($47,647.00);
WHEREAS, in connection with the sale of the Shares to the Stockholder: (i)
the Stockholder and the Corporation entered into a Purchase and Stockholder
Agreement (the "Stockholder Agreement"), dated September 20, 1995; (ii) the
Stockholder executed and delivered a Promissory Note, dated September 20, 1995,
payable to the order of the Corporation in the principal amount of forty-seven
thousand five hundred seventy-two dollars ($47,572.00) (the "Stockholder Note");
and (iii) the Stockholder and the Corporation entered into a Stock Pledge
Agreement (the "Stock Pledge Agreement"), dated September 20, 1995, pursuant to
which the Stockholder pledged the Shares as security for the performance of his
obligations under the Stockholder Note; and
WHEREAS, the parties hereto desire (i) to modify the Stockholder Note and
(ii) to amend the Stock Pledge Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
made herein, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
A. MODIFICATION OF STOCKHOLDER NOTE. The third paragraph of the
Stockholder Note is hereby amended and restated on the Effective Date to read in
its entirety as follows:
"This Note may be prepaid, in whole or in part, at any time without
penalty. Upon the sale or other transfer of any of the Pledged Shares (as
such term is defined in that certain Stock Pledge Agreement, dated
September 20, 1995, by the Maker in favor of the Lender (as the same may be
amended, modified or supplemented, the "Stock Pledge Agreement")), a
prepayment of this Note shall be made in an amount equal to the then
outstanding principal balance of this Note multiplied by a fraction, the
numerator of which is the number of Pledged Shares sold or transferred and
the denominator of which is the total number of Pledged Shares immediately
prior to such sale or transfer. Notwithstanding the preceding sentence, no
prepayment hereunder shall be required in connection with any transfer of
the Pledged Shares to the Lender upon the exercise of any option granted to
the Maker under the Omniquip International 1996 Executive Stock Option Plan
(the "Plan"), PROVIDED that as a condition to such transfer, the Maker
agrees to deliver to the Lender the certificates evidencing the shares
issued upon exercise of such option (accompanied by duly executed stock
powers) and subjects such shares to the lien of the Stock Pledge Agreement
in substitution for the Pledged Shares so transferred. Any partial
prepayments hereunder shall not relieve the Maker of the obligation to pay
principal hereunder as and when the same would otherwise fall due."
B. AMENDMENT TO STOCK PLEDGE AGREEMENT. The Stock Pledge Agreement is
hereby amended on the Effective Date as follows:
1. by deleting Schedule 1 thereto in its entirety and inserting in lieu
thereof the schedule attached hereto as Schedule 1
2. by deleting the definition of the term "Liabilities" therein and
inserting in lieu thereof the following:
"The term "Liabilities," as used herein, shall mean all obligations and
liabilities of the Pledgor to the Pledgee under the Promissory Note of the
Pledgor of even date herewith, as may be amended, modified or supplemented
from time to time (the "Stockholder Note")."
3. by inserting a new Section 15 as follows:
"Section 15. TRANSFER AND PARTIAL RELEASE OF SHARES. The Pledgee agrees
that the Pledgor may sell or otherwise transfer all or any portion of the
Pledged Shares without the prior consent of the Pledgee, PROVIDED THAT
prior to or simultaneous with such sale or transfer a prepayment of the
Stockholder Note is made in an amount equal to the then outstanding
principal balance of the Stockholder Note multiplied by a fraction, the
numerator of which is the number of Pledged Shares sold or transferred and
the denominator of which is the total number of Pledged Shares immediately
prior to such sale or transfer. Upon such prepayment, the Pledgee shall
deliver to the Pledgor certificates evidencing the Pledged Shares being
sold or transferred, registered in such names as the Pledgor may request,
PROVIDED that the Pledgor shall be responsible for any transfer or similar
tax arising by reason of any such transfer.
Notwithstanding the foregoing, the Pledgor may transfer all of the Pledged
Shares to the Pledgee upon the exercise of any option granted to the
Pledgor under the Omniquip International 1996 Executive Stock Option Plan
(the "Plan"), without making any prepayment of the Stockholder Note,
PROVIDED that as a condition to such transfer, the Pledgor agrees to
deliver to the Pledgee the certificates evidencing the shares issued upon
exercise of such option (accompanied by duly executed stock powers) and
subjects such shares to the lien of this Stock Pledge Agreement in
substitution for the Pledged Shares so transferred."
D. WAIVER OF STOCKHOLDER AGREEMENT RESTRICTIONS. Notwithstanding anything
to the contrary contained in the Stockholder Agreement, the Pledgor may transfer
all of the Pledged Shares to the Pledgee upon the exercise of any option granted
to the Pledgor under the Omniquip International 1996 Executive Stock Option Plan
(the "Plan"), without making any prepayment of the Stockholder Note, PROVIDED
that as a condition to such transfer, the Pledgor agrees to deliver to the
Pledgee the certificates evidencing the shares issued upon exercise of such
option (accompanied by duly executed stock powers) and subjects such shares to
the lien of this Stock Pledge Agreement in substitution for the Pledged Shares
so transferred
E. EFFECTIVE DATE. This Agreement and each of the amendments effected
hereby shall become effective on the date the Corporation's Registration
Statement on Form S-1 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"), with respect to the initial public offering of the
Corporation's Common Stock becomes effective under the Act (the "Effective
Date"). Until the Effective Date, the Stockholder
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Note, the Stock Pledge Agreement and the Stockholder Agreement, as in effect on
the date hereof, shall remain in full force and effect without giving effect to
this Agreement. On and after the Effective Date, the Stockholder Note, the
Stock Pledge Agreement and the Stockholder Agreement, as modified hereby shall
continue to be in full force and effect and each is hereby ratified and
confirmed in all respects.
F. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Missouri (without giving effect to such
jurisdiction's conflict of laws principles).
G. HEADINGS. The headings and captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any of the provisions of this Agreement.
H. LEGEND. The Corporation shall cause the following legend to be typed
onto the face of the Stockholder Note:
"This Promissory Note has been modified pursuant to an Amendment to
Promissory Note and Stock Pledge Agreement, dated September 20, 1995, by
and between the Maker and the Lender, dated September 30, 1996."
I. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers on the day and year first
above written.
OMNIQUIP INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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Schedule 1
Issuer of Certificate Number of
Pledged Shares Class Number Shares
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Omniquip International, Inc. Common 75,000
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