FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of September
18, 2002, by and among Terex Corporation, a Delaware corporation (the "Buyer"),
Magic Acquisition Corp., a Washington corporation and a wholly owned subsidiary
of the Buyer ("Acquisition Subsidiary"), Genie Holdings, Inc., a Washington
corporation (the "Company"), and Xxxxxx Xxxxxxxxx, X. Xxxx Xxxxxxxx and F. Xxxxx
Xxxxx and the limited partnerships set forth in Section 1.1(a) of the Sellers
Disclosure Schedule (each individually, a "Seller" and collectively, the
"Sellers").
Recitals
A. The parties hereto are parties to an Agreement and Plan of Merger, dated
as of July 19, 2002 (the "Merger Agreement"), pursuant to which Acquisition
Subsidiary shall be merged with and into the Company. Capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Merger Agreement.
B. The Merger Agreement incorrectly defines the term "Per Share Value".
C. The parties have agreed to amend the Merger Agreement to provide the
correct definition of the term "Per Share Value".
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and agreed, the parties hereto
hereby agree as follows:
1. Amendment to Merger Agreement. (a)The number "74,250,000" which appears
in the first line of the definition of "Per Share Value" in Article I, 1.1,
is hereby deleted and replaced with the number "75,000,000".
(b) The parties acknowledge that the certificates representing 100 shares
of Common Stock held by the X. Xxxxx Limited Partnership have been transferred
as of the date hereof to F. Xxxxx Xxxxx, personally, and X. Xxxxx Limited
Partnership shall no longer be (i) deemed a "Seller" as such term is defined in
the Merger Agreement or (ii) a party to the other agreements entered into in
connection with the transactions contemplated by the Merger Agreement.
(c) The last sentence of Section 7.9 of the Merger Agreement is amended to
read as follows: "In the event Buyer does not obtain a Tax Opinion relating to
such Prohibited Action, the Sellers reserve all rights (contractual or
otherwise) to which they are entitled as a matter of Law arising from such
Prohibited Action."
(d) Section 8.4(b) of the Merger Agreement is amended to read as follows:
"Notwithstanding the foregoing, during the Restriction Period, each of the
Sellers shall be permitted to sell, transfer, convey, pledge or otherwise
dispose of its Pro Rata Portion of: (i) the number of shares of Buyer Common
Stock (rounded down to the nearest whole share) equal to the quotient of (A) the
difference between $25 million less the total Cash Consideration divided by (B)
the Buyer Price, (ii) following the twelve month anniversary of the Closing
Date, up to one-half of the Stock Consideration remaining after the release of
the number of shares of Buyer Common Stock pursuant to clause (i) above, (iii)
following the eighteen month anniversary of the Closing Date, up to three
quarters of the Stock Consideration remaining after the release of the number of
shares of Buyer Common Stock pursuant to clauses (i) and (ii) above and (iv) all
of the Stock Consideration following the twenty-four month anniversary of the
Closing Date. The operative agreement of the Trust shall provide that the Trust
is not permitted to sell, transfer, convey, pledge or otherwise dispose of the
Trust Consideration until the twenty-four month anniversary of the Closing Date,
at which point the Trust Consideration will no longer be subject to the
restrictions set forth in this Section 8.4."
2. Miscellaneous. (a) Except as expressly amended hereby, the Merger
Agreement shall continue in full force and effect in accordance with the
provisions thereof.
(b) This First Amendment and its validity, construction and performance
shall be governed in all respects by the law of the State of New York without
giving effect to any conflict of law provision thereof.
(c) This First Amendment may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(d) The headings in the sections of this First Amendment are inserted for
convenience of reference only and shall not constitute a part thereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be signed by their respective authorized officers as of the day and year first
above written.
TEREX CORPORATION
By:
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Name: Xxxx X Xxxxx
Title: Senior Vice President
MAGIC ACQUISITION CORP.
By:
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Name: Xxxx X Xxxxx
Title: Vice President
GENIE HOLDINGS, INC.
By:
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Name: Xxxxx Xxxxx
Title: General Counsel
and Secretary
XXXXXX XXXXXXXXX
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X. XXXX BUSHNELL
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F. XXXXX XXXXX
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XXXXXXXXX LIMITED PARTNERSHIP
-------------------------------------
Name:
Title:
BUSHNELL LIMITED PARTNERSHIP
-------------------------------------
Name:
Title:
-------------------------------------
X. XXXXX LIMITED PARTNERSHIP
Name:
Title:
