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Exhibit 10(h)
AMENDMENT TO ASSET PURCHASE AGREEMENT
Among
CLAY EQUIPMENT CORPORATION, CLAY HOLDING, INC.,
and
TOP AIR MANUFACTURING, INC.
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment")
is made as of the 5th day of May, 1995, by and among TOP AIR
MANUFACTURING, INC., an Iowa corporation ("Top Air"), CLAY
EQUIPMENT CORPORATION, an Iowa corporation ("Clay Equipment") and
Clay Holding, Inc., an Iowa corporation ("Clay Holding").
WHEREAS, Top Air, Clay Equipment, and Clay Holding have
entered into an Asset Purchase Agreement dated as of April 11, 1995
(the "Agreement") whereby substantially all of the assets of Clay
Equipment, except for certain real estate and incidental property,
will be transferred to Top Air in exchange for the assumption by
Top Air of certain liabilities of Clay Equipment and the issuance
by Top Air to Clay Holding of common stock; and
WHEREAS, in order to reflect the intent of the parties that
the Transaction constitute a reorganization under Section
368(a)(1)(C) of the Code, and to make certain other revisions to
the Agreement, the parties to the Agreement wish to amend the
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
agreements and provisions set forth herein, and subject to the
conditions herein contained, it is mutually agreed as follows:
1. Capitalized Terms. All capitalized terms used herein but
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not defined herein shall have the meanings set forth in the
Agreement.
2. Assumed Liabilities. An additional sentence, to consti-
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tute the last sentence of Section 1.05 of the Agreement, shall be
added to such Section 1.05, which last sentence shall read as
follows:
"Notwithstanding the foregoing, in no event shall any
indebtedness owing by Clay Equipment to Clay Holding or
to any affiliate of Clay Equipment or Clay Holding
(collectively, "Intercompany Indebtedness") be assumed by
Top Air."
3. Closing Date. Section 1.16 of the Agreement is hereby
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deleted in its entirety and replaced with the following:
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"1.16 'Closing Date' means 10:00 a.m. on June 30,
or such sooner date following the fulfillment of all the
conditions to closing, as shall be directed by Top Air;
provided, however, that if all of the conditions to
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Closing have not been met, then Top Air shall have the
option to extend the Closing Date once, to a date not
later than December 31, 1995."
4. NASDAQ Delisting. In order to reflect the delisting of
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the common stock, without par value, of Top Air from the NASDAQ
Small-Cap Market effective April 13, 1995, Section 1.35 of the
Agreement is hereby amended by the substitution of the term "NASDAQ
Bulletin Board" for the term "NASDAQ Small-Cap Market."
5. Intercompany Indebtedness. A new paragraph, to be num-
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bered as (j) shall be added to Section 2.03, which new paragraph
(j) shall read as follows:
"Any Intercompany Indebtedness."
To conform Section 2.03 with the new paragraph (j), the word "or"
following the phrase "the Union Contract," set forth in paragraph
(h) of such Section 2.03 is hereby deleted, and the period at the
end of paragraph (i) of such Section 2.03 is hereby changed to a
semi-colon.
6. Restriction on Transfer of Shares. A new Section 2.05 is
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hereby added to the Agreement which new Section 2.05 shall read in
its entirety as follows:
"2.05 Restriction on Transferability of Shares. The
Shares to be issued by Top Air pursuant to Section 2.02
shall not be transferable or assignable without the prior
written consent of Top Air, except in connection with the
Distribution or by operation of law. No permitted
transfer hereunder shall affect shall restriction on the
transferability or assignability of the Shares, and those
transferees, assignees or distributees who receive Shares
will hold such Shares subject to such restrictions. All
certificates evidencing Shares shall bear a legend
thereon describing the restriction on the transferability
thereof pursuant to this Section 2.05."
7. Tax-Free Nature of Transaction. A new Section 2.06 is
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hereby added to the Agreement, which new Section 2.06 shall read in
its entirety as follows:
"2.06 Plan of Reorganization. Consistent with their
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intention that the Transaction qualify as a tax-free
reorganization under Section 368(a)(1)(C) of the Code,
the parties hereto agree that this Agreement, together
with the resolutions adopted in connection herewith by
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the Boards of Directors of Top Air and Clay Equipment,
shall constitute the Plan of Reorganization of Top Air
and Clay Equipment."
8. Technical Correction. Solely to eliminate a possible
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ambiguity, and not to reflect any substantive change in the
Agreement, Section 8.19 is hereby deleted in its entirety and
replaced with the following:
"Plan Participants entitled to the distribution of
at least ninety percent (90%) of the Shares shall have
directed the ESOP Trustee as described in Section 11.01
(a)(i)."
9. Elimination of an ESOP Amendment Requirement. Section
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11.01 of the Agreement is hereby amended by deleting clause (b)
thereof in its entirety, whereupon the current clause (c) of
Section 11.01 of the Agreement shall be renumbered and referred to
as clause (b).
10. Entire Agreement. Section 15.09 of the Agreement shall
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be amended by inserting the following after the word "Agreement" in
its first line with "as amended by the First Amendment hereto, ".
Every reference to the Agreement made therein shall be deemed to
include this Amendment.
11. No Allocation. In light of the intended tax-free nature
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of the Transaction, Section 15.19, "Allocation of Purchase Price,"
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shall be and hereby is deleted from the Agreement in its entirety.
12. Ratification of Agreement. Except as expressly stated
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herein, all of the provisions of the Agreement shall be unchanged
and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first set forth above.
TOP AIR MANUFACTURING, INC.,
an Iowa corporation
By: /s/ Steven R. Lind
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Steven R. Lind, President and
Chief Executive Officer
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CLAY EQUIPMENT CORPORATION,
an Iowa corporation
By: /s/ Leonard J. Hare
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Leonard J. Hare, President and
Chief Executive Officer
CLAY HOLDING, INC.,
an Iowa corporation
By: /s/ Leonard J. Hare
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Leonard J. Hare, President and
Chief Executive Officer
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