FIRST AMENDMENT TO STOCK PURCHASE
AGREEMENT By and Among PIERCE MANUFACTURING INC.,
THE SHAREHOLDERS OF PIERCE MANUFACTURING INC.,
and OSHKOSH TRUCK CORPORATION
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (the "First
Amendment") is made and entered into as of this ___ day of September,
1996, by and between Pierce Manufacturing Inc., a Wisconsin corporation
(the "Company"), Oshkosh Truck Corporation, a Wisconsin corporation
("Buyer") and the individuals, entities and trusts listed on the signature
page hereof (the "Sellers").
WHEREAS, the parties entered into the Stock Purchase Agreement by and
among Buyer, the Company and Sellers dated August 7, 1996 (the
"Agreement");
WHEREAS, the Company has disclosed certain environmental matters
described herein to Buyers subsequent to the signing of the Agreement; and
WHEREAS, as a condition to Closing, Buyer requires the escrow of a
portion of the Purchase Price under the Agreement relating to these
recently disclosed environmental matters and an increase in the
environmental cap as provided by the modifications contained in this First
Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and conditions herein contained, the parties agree as
follows:
1. The last sentence of Paragraph 1.2 shall be deleted, and be
replaced as follows:
At the Closing, the Buyer shall pay the Purchase Price
by wire transfer of immediately available funds as follows:
(a) One Million Dollars ($1,000,000) to the Escrow Agent as
defined in and established pursuant to that certain
Investigation, Remediation and Escrow Agreement by and
among the Company, Buyer, the Sellers and Firstar Trust
Company (the "Escrow Agreement") in the form of Exhibit 9.8
(attached to this First Amendment); and (b) the remainder
of the Purchase Price to the Sellers in the amounts and per
the wire transfer instructions set forth on Schedule 1
attached hereto.
2. Paragraph 3.2(d) shall be added to the Agreement to read in its
entirety as follows:
(d) The Escrow Agreement dated the Closing Date duly
executed by Buyer and Escrow Agent.
3. Paragraph 3.3(h) shall be added to the Agreement to read in its
entirety as follows:
(h) The Escrow Agreement dated the Closing Date duly
executed by the Sellers, Company and Escrow Agent.
4. Paragraph 9.5.2(b) shall be deleted from the Agreement and
replaced to read in its entirety as follows:
(b) With respect to any Claim based upon breaches of the
warranties or representations contained in Paragraph 4.2.21 or a
Deemed Environmental Breach, the following shall apply: (i) the
Sellers shall be responsible for providing indemnification to
the Buyer under this Article IX, subject to the Environmental
Basket Amount, in an amount equal to fifty percent (50%) of the
amount of the Buyer's Claims for breach of such warranty or
representation or Deemed Environmental Breach until the
aggregate liability of the Sellers for breach of such warranty
or representation or Deemed Environmental Breach equals Four
Million Two Hundred Fifty Thousand Dollars ($4,250,000.00), at
which time the Sellers shall have no further liability for
breach of such warranty or representation or Deemed
Environmental Breach; and (ii) each Seller shall be responsible
for an amount equal to the product of the liability of all
Sellers under clause (i), above, and the percentage set forth
opposite such Seller's name on Schedule 1 attached hereto.
5. Paragraph 9.8 shall be added to the Agreement to read in its
entirety as follows:
9.8 Limitations/Relation to Escrow Agreement. The
limitations and procedures of this Article IX shall not apply
to, nor in any way limit the rights of Buyer and Company to be
reimbursed for Specific Environmental Claims (as defined in the
Escrow Agreement). To the extent that the Buyer shall receive
any disbursement of Escrow Funds under the Escrow Agreement, the
amount of any such disbursement shall not be included in
calculating the amount of any Buyer's Claim under Article IX of
the Agreement. In addition, the Buyer shall have no right to
receive any indemnification under Article IX of the Agreement,
for any Special Environmental Claim (as defined in the Escrow
Agreement) until such time as there are no remaining Escrow
Funds thereunder.
6. Except as modified by this First Amendment, the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, each party has caused this First Amendment
to Stock Purchase Agreement to be executed as of the date first written
above.
THE COMPANY:
PIERCE MANUFACTURING INC.
By:
William H. Peters, Vice President
and Treasurer
SELLERS:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: _______________, Its_________________
ROBERT W. BAIRD & CO. INCORPORATED
By: _______________, Its_________________
THE MICHAEL R. REESE AND KATHLEEN A. REESE
JOINT REVOCABLE TRUST DATED SEPTEMBER 23,
1993
By:
Michael R. Reese, Trustee
THE MICHAEL R. REESE IRREVOCABLE TRUST,
DATED SEPTEMBER 23, 1993, f/b/o JULIE S.
REESE, Marshall & Ilsley Trust Company,
Successor Trustee
By:
Name:
Title:
THE MICHAEL R. REESE IRREVOCABLE TRUST,
DATED SEPTEMBER 23, 1993, f/b/o BRET T.
REESE, Marshall & Ilsley Trust Company,
Successor Trustee
By:
Name:
Title:
David A. Ogilvie
BETH ALEXANDER LIMITED PARTNERSHIP DATED MAY
31, 1996
David A. Ogilvie, General Partner
Andrew D. Oglivie
FAITH LIMITED PARTNERSHIP DATED MAY 31, 1996
By:
Andrew D. Ogilvie, General Partner
DAVID A. OGLIVIE CHARITABLE REMAINDER
UNITRUST, F&M Bank of Kaukauna, Trustee
By:
Name:
Title:
ANDREW D. OGLIVIE IRREVOCABLE CHARITABLE
REMAINDER UNITRUST, F&M Bank of Kaukauna,
Trustee
By:
Name:
Title:
Peter M. Jansen
William H. Peters
Lloyd A. DeWald
James W. Staats
Gregory E. Potts
Jeffrey W. Strenger
Thomas R. Olson
Neil L. Ort
MARGARET BOLDT ANDERSON TRUST DATED OCTOBER
13, 1987
By: Margaret Boldt Anderson, Trustee
John W. Puth
Alison L. Puth
David W. Puth
Jonathan C. Puth
WINDFALLS UNLIMITED, LLC
By: Jeffrey D. Riester, Manager
THE BUYER:
OSHKOSH TRUCK CORPORATION
By: __________________, Its_______________