EXHIBIT 2.2
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Stock Purchase Agreement is entered into as of
the 15th day of December, 1995 by and between Eagle Industrial Products
Corporation, a Delaware corporation ("Seller") and Xxxxxx & Xxxxx
Corporation, a New Jersey corporation ("Buyer").
RECITALS
The parties have entered into that certain Stock Purchase Agreement
dated as of November 1, 1995 (the "Stock Purchase Agreement") and desire to
amend the Stock Purchase Agreement as provided herein. All terms used herein
bearing initial capital letters which are defined in the Stock Purchase
Agreement and not otherwise defined herein shall have like meaning when used
herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
set forth below and other good and valuable consideration, the receipt and
sufficiency of which is hereof acknowledged, the parties agree as follows:
A. PURCHASE PRICE AND CALCULATION OF PURCHASE PRICE ADJUSTMENT
(a) The Purchase Price for the Stock provided in Section 2.1 of
the Stock Purchase Agreement is hereby amended to equal Two Hundred Twenty
Million, Five Hundred Fifty Thousand Dollars ($220,550,000), less the
Receivable Purchase Price, subject to adjustment pursuant to Section 2.2 of
the Stock Purchase Agreement.
(b) Section 2.3(a)(i) of the Stock Purchase Agreement is amended
to provide that the reserves for Environmental Liabilities on the Closing
Balance Sheet will be $16,786,000, less the amount of expenses with respect
thereto paid since December 1, 1995.
B. ADDITIONAL PARCEL
The property commonly known as 00 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxx
Xxxxxx, shall be prior to Closing, or has been, transferred back to Amerace,
provided, however, no entry or adjustment shall be made to the Closing
Balance Sheet relating to such parcel.
C. CERTAIN INSURANCE MATTERS
(a) Seller hereby transfers and assigns to Amerace the right to
recover any insurance proceeds for damage or destruction to the Assets during
the period commencing the date hereof until the Closing Date, including,
without limitation, any business interruption insurance relating to the
Companies or the Assets for such period. Seller hereby agrees to cause
Amerace to be named as a loss payee for such insurance policies. Any right
to proceeds from business interruption insurance with respect to periods
after the Closing shall not be reflected on the Closing Balance Sheet.
(b) The parties acknowledge that future premium adjustments
pertaining to Current Insurance (as defined in Section 5.12 of the Stock
Purchase Agreement) for any time between September 29, 1989 and the Closing
Date (whether xxxxxxxx or credits) including but not limited to exposure
charges, residual margin load charges and assessments and only those taxes
not included in the tax multiplier used in the calculation of the insurance
reserves on the Closing Balance Sheet (i) shall be for the account of Seller,
and (ii) Buyer and the Companies shall have no rights or obligations with
respect thereto.
(c) The parties agree that the interest of Eagle Industries, Inc.
under the insurance policy issued by American Nuclear Insurers, No. NS-0359
relating to coverage with respect to nuclear products is hereby assigned to
Amerace effective the Closing. In consideration thereof, Buyer hereby agrees
to cause Amerace to remit to Seller, within 5 days of receipt thereof, the
amount of any dividends or return premiums or other similar amounts received
from time to time pursuant to such policy with respect to periods preceding
the Closing Date.
D. CERTAIN LIENS
The parties acknowledge (i) a lien against certain assets
regarding High Point Landfill Site in favor of State of New Jersey,
Department of Environmental Protection and Energy and, (ii) a lien in the
amount of $29,535.35 of record with respect to Amerace. Seller hereby agrees
to indemnify and hold harmless Buyer from any loss, cost, expense or
liability (including reasonable attorneys' fees and expenses) relating to
either such lien or the claim of any underlying liability secured thereby.
Seller further agrees to make available to Buyer any records regarding
payment or satisfaction thereof.
E. CERTAIN GUARANTEES
The parties acknowledge that Seller and/or its Affiliates (as
applicable) have executed the following guarantees for the benefit of the
indicated companies: (i) Eagle Industrial Products Corporation Self-Guarantee
Application regarding Amerace-Rubber Dump ($100,000); (ii) Amerace-Esna Road
($35,000); (iii) Continuing Contract of Parent Guaranty of Payment by Eagle
Industries, Inc. for the benefit of Amerace Corporation (regarding lease of
equipment from IBM; payments of approximately $380,000 remain outstanding
over the remaining term of the underlying lease). Buyer agrees promptly
following the Closing Date, to use its best efforts to cause itself to be
substituted as guarantor or provide other collateral necessary to cause the
release of Seller and/or its Affiliates (as applicable) as guarantor. Buyer
hereby agrees to indemnify and hold Seller and its Affiliates harmless from
and against any loss, cost, expense or liability (including reasonable
attorneys' fees and expenses), which may arise in connection with any such
guarantees.
F. DATE OF CLOSING
Section 7.1 of the Stock Purchase Agreement is amended to provide
that the Closing shall occur on January 2, 1996, at 9:00 a.m. at the offices
of Buyer's counsel in Chicago, Illinois. Notwithstanding any other provision
in the Stock Purchase Agreement, the Closing Balance Sheet shall be dated as
of January 1, 1996.
G. ESCROW AGREEMENT. Concurrently herewith, Buyer and Seller are
entering into an escrow agreement (the "Escrow Agreement") with their
respective counsel, XxXxxxx Xxxxx & Xxxxx ("Buyer's Escrowee") and Xxxxxxxxx
& Xxxxxxxxxxx, P.C. ("Seller's Escrowee"), pursuant to which various closing
documents are being deposited and held for delivery at the Closing. All
terms used herein or in the Stock Purchase Agreement (as herein amended)
bearing initial capital letters which are defined in the Escrow Agreement and
are not otherwise defined herein shall have like meaning when used herein.
H. SATISFACTION OF CONDITIONS
(a) Buyer hereby acknowledges that, subject to the action to be
taken at Closing as provided in Section L hereof, as of the date hereof all
conditions to the obligations of Buyer with respect to the Closing, including
without limitation, those conditions set forth in Section 6.1 of the Stock
Purchase Agreement, have been satisfied or are hereby irrevocably waived.
(b) Seller hereby acknowledges that, subject to the action to be
taken at Closing as provided in Section L hereof, as of the date hereof all
conditions to the obligations of Seller with respect to the Closing,
including, without limitation, those conditions set forth in Section 6.2 of
the Stock Purchase Agreement, have been satisfied or are hereby irrevocably
waived.
I. CONCURRENT DELIVERIES BY SELLER. Concurrently herewith, Seller is
delivering to Buyer's Escrowee, pursuant to the Escrow Agreement, the
documents listed on Exhibit A to the Escrow Agreement (collectively,
hereinafter the "Seller Closing Documents").
J. CONCURRENT DELIVERIES BY BUYER. Concurrently herewith, Buyer is
delivering to Seller's Escrowee, pursuant to the Escrow Agreement, the
documents listed on Exhibit B to the Escrow Agreement (collectively,
hereinafter the "Buyer Closing Documents").
K. ADDITIONAL ACTION BEING TAKEN CONCURRENTLY. Concurrently herewith,
the following persons are taking the following actions:
(a) Buyer and First Trust of Illinois, National Association, as
Trustee, under the Eagle Trade Receivable Master Trust ("Trustee") are
entering into the Receivables Agreement.
(b) Trustee is delivering to Buyer's Escrowee, the documents
listed on Exhibit C to the Escrow Agreement (collectively, the "Trustee
Closing Documents").
L. CLOSING MATTERS
Sections 7.2, 7.3 and 7.4 of the Stock Purchase Agreement are
hereby deleted and a new Section 7.2 is substituted to read as follows:
"7.2 Action to be Taken at Closing. At the Closing:
(a) Buyer's Escrowee shall deliver to Buyer the Seller's
Closing Documents and the Trustee Closing Documents;
(b) Seller's Escrowee shall deliver to Seller the Buyer's
Closing Documents;
(c) Buyer shall wire transfer the amount of $220,550,000 in
immediately available "same day" funds as follows:
(i) $220,550,000 less the Receivable Purchase Price to:
Eagle Industrial Products Corporation
Bank:
ABA Number:
Account:
Account Number:
(ii) The Receivables Purchase Price to:
First Trust of Illinois, National Association, N.A.,
as Trustee
Bank:
ABA Number:
Account:
Account Number:
(d) Among the Buyer Closing Documents is an original
irrevocable letter of credit in principal amount of $220,550,000
reflecting Seller as beneficiary (the "Purchase Price Letter of
Credit"). In the event the full amount required to be paid via
wire transfer pursuant to the provisions of Section 7.2(c) above
shall not have been paid in full by 11:00 a.m. C.S.T. on the
Closing Date, then Seller shall have the right to draw upon the
Purchase Price Letter of Credit with respect to such amount, or
unpaid portion thereof, plus interest thereon from and after
January 2, 1996 at the rate of 6.4375% per annum. Upon payment in
full by Buyer of the Purchase Price and the Receivables Purchase
Price, the Letter of Credit, or any undrawn portion thereof in the
event of a partial draw, shall be returned to Buyer.
M. BONUSES. Buyer hereby agrees that the Closing Balance Sheet shall
accrue an amount, as determined by Seller, in its discretion, for bonus
compensation to employees of the Companies with respect to 1995 performance
pursuant to the Seller's or the Companies' plans and arrangements. Buyer
agrees to pay bonuses to the employees of the Companies, (in the respective
amounts designated by Seller but not to exceed, in the aggregate, the amount
of the bonus accrual reflected on the Closing Balance Sheet), on or before
February 28, 1996.
N. LETTERS OF CREDIT. Pursuant to Section 5.7 of the Stock Purchase
Agreement, Buyer delivered to Seller two letters of credit identified on
Exhibit A ("Buyer Letters of Credit") to support Seller's letters of credits,
bonds, and obligations to third parties identified on Exhibit B ("Seller
Collateral"). If Seller is obligated to pay any sums to third parties
pursuant to the Seller Collateral, Seller shall advise Buyer of such payment,
and Buyer shall reimburse Seller for said payment within five (5) business
days of Seller's written demand. Seller shall be permitted to draw upon
Buyer Letters of Credit if such amounts are not timely paid. As soon as
Buyer replaces Seller Collateral, Buyer shall provide Seller with a written
acknowledgment of the third party's acceptance of Buyer's replacement letter
of credit or other collateral. Upon receipt of such acknowledgment, and the
return of Seller Collateral, Seller shall within three (3) business days
advise the issuing bank of Buyer Letters of Credit to reduce proportionately
the amount of the Buyer Letters of Credit. Buyer shall arrange for the
return of Seller Collateral if necessary to effect the release of Seller from
liability thereunder, or in the alternative a written statement by the third
party releasing Seller from such liability.
O. CERTAIN FURTHER ASSIGNMENTS. Buyer hereby acknowledges that third-
party consents may be required with respect to the assignment from Seller or
its Affiliates to Amerace or Buyer of (i) that certain Master Equipment Lease
Agreement Schedule between Seller, as Lessee, and AT&T Credit Corporation, as
Lessor, dated April 26, 1995 (the "AT&T Lease"), and (ii) certain vehicle
leases regarding fleet vehicles used by Amerace or its subsidiaries or
divisions, including without limitation leases from USL Capital and GE
Capital (collectively with the AT&T Lease, the "Eagle Leases"). Seller and
Buyer shall cooperate and use commercially reasonable efforts to obtain such
consents as soon as practicable after the Closing. Upon receipt of such
consents, Seller shall assign its rights, and Buyer shall assume the
obligations, under the Eagle Leases. Buyer further acknowledges and agrees
that the foregoing covenant by Seller shall fulfill and/or supersede all of
Seller's obligations under the Agreement relating to the Eagle Leases,
including, without limitation, the disclosure obligations set forth in
Section 3.3(v) of the Agreement (and Schedule 3.3 thereto) and the covenant
set forth in Section 5.11 of the Agreement (and Schedule 5.11 thereto).
P. NO OTHER AMENDMENTS. Except as expressly provided herein, the
Stock Purchase Agreement shall remain unamended and in full force and effect;
provided, however, that the terms of this Amendment shall supersede any
inconsistent provisions of the Stock Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
to Stock Purchase Agreement as of the day and year first above written.
Eagle Industrial Products Corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Its: Senior Vice-President
Xxxxxx & Xxxxx Corporation
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Its: Vice-President and General
Counsel
