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EXHIBIT 10.22
AMENDMENT
TO
AGREEMENT AND PLAN OF REORGANIZATION
THE UNDERSIGNED, being all of the parties to that certain AGREEMENT AND
PLAN OF REORGANIZATION (hereinafter referred to as the "Agreement") made and
entered into as of the 31st day of July, 1997, by and among LYONNAISE AMERICAN
HOLDING, INC., a Delaware corporation, GESTRA CORPORATION N.V., a company
organized in the Netherlands Antilles, RUSH CREEK LLC, a Wisconsin limited
liability company, AQUA-CHEM, INC., a Delaware corporation, A-C ACQUISITION
CORP., a Delaware corporation, and JEFFREY A. MILLER hereby agree as follows:
1. Capitalized terms used herein and not defined shall have the meaning
set forth in the Agreement.
2. Section 9.1 of the Agreement is amended to read as follows in its
entirety:
9.1 UPON REDEMPTION OF SERIES A AND SERIES B PREFERRED STOCK.
The General Indemnity, [THIS PROVISION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION AND IS SUBJECT
TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO 17 CFR SECTION
240.24b2] obligations of each Seller as the same shall have
accrued from the date of Closing to the date of complete redemption
of the Series A and Series B Preferred Stock shall be satisfied from
such Seller's shares of the Series A and Series B Preferred Stock and
required cash payments in accordance with the priorities and solely
and exclusively in the manner hereinafter set forth.
(a) First, the [THIS PROVISION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO 17 CFR SECTION 240.24b2] obligation (as the
same shall exist at the time of redemption of the Series B
Preferred Stock) shall be satisfied in full and solely and
exclusively (i) first, by reducing the redemption price of the
Series B Preferred Stock and (ii) second, by reducing the
dividends accrued on the Series B Preferred Stock.
(b) Second, the [THIS PROVISION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO 17 CFR SECTION 240.24b2] obligation (as the
same shall exist at the time(s) of any redemption(s) of all or
any part of the Series A and Series B Preferred Stock) shall
be satisfied in full and solely and exclusively (i) first, by
reducing any remaining redemption price of the Series B
Preferred Stock, (ii) second, by reducing any remaining
dividends accrued on the Series B Preferred Stock, (iii)
third, by reducing the dividends accrued on the Series A Stock
and (iv) fourth, by reducing the redemption price of the
Series A Preferred Stock.
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EXHIBIT 10.22
(c) Third, the General Indemnity obligation (as the
same shall exist at the time of any redemption(s) of all or
any part of the Series A and Series B Preferred Stock) shall
be satisfied in full and solely and exclusively (i) first, by
reducing any remaining redemption price of the Series B
Preferred Stock, (ii) second, by reducing any remaining
dividends accrued on the Series B Preferred Stock, (iii)
third, by reducing the dividends accrued on the Series A Stock
(iv) fourth, by reducing the redemption price of the Series A
Preferred Stock and (v) fifth, by cash payment from the
Seller.
3. Section 9.2 of the Agreement is amended to read as follows in its
entirety
9.2 SUBSEQUENT TO THE COMPLETE REDEMPTION OF ALL ISSUED AND
OUTSTANDING SERIES A AND SERIES B PREFERRED STOCK. Subject in all
respects to the limitations on indemnification set forth in Sections 6,
7 and 8 of this Agreement, the General Indemnity, [THIS PROVISION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO 17 CFR SECTION 240.24b2] obligations of each Seller as
the same shall accrue from and after the date of the complete
redemption of all of the issued and outstanding shares of Series A and
Series B Preferred Stock shall be satisfied in accordance with the
priorities and solely and exclusively in the manner hereinafter set
forth.
(a) First, any unfulfilled [THIS PROVISION HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO 17 CFR SECTION 240.24b2] obligation
shall be satisfied by cash payment from the Seller to the
Purchaser Group, with such payment not to exceed an amount
equal to (i) the total cash proceeds in payment of the
redemption price and accrued dividends actually received by
the Seller upon redemption of its Series B Preferred Stock,
plus (ii) the amount of any General Indemnity obligation of
the Seller that was satisfied at the time of redemption by
offset against the redemption price and/or accrued dividends
paid with respect to the Seller's Series B Preferred Stock,
plus (iii) the amount of any [THIS PROVISION HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO 17 CFR SECTION 240.24b2] obligation of
the Seller that was satisfied at the time of redemption by
offset against the redemption price and/or accrued dividends
paid with respect to the Seller's Series B Preferred Stock,
minus (iv) any previous payments made by the Seller to the
Purchaser Group subsequent to the date of such redemption
pursuant to this paragraph (a).
(b) Second, any unfulfilled [THIS PROVISION HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO 17 CFR SECTION 240.24b2] obligation
shall be satisfied by cash payment from the Seller to the
Purchaser Group, with such payment not to exceed an amount
equal to (i) the cash proceeds in payments of the redemption
price and accrued dividends actually received by the Seller
with respects to theSeries A and Series B Preferred Stock
owned by the Seller, plus (ii) the amount of any General
Indemnity obligation of the Seller that was satisfied at any
times by offset against the redemption price
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EXHIBIT 10.22
and/or accrued dividends paid with respect to the Seller's
Series A or Series B Preferred Stock, minus (iii) the sum of
(A) any previous payments made by the Seller to the Purchaser
Group subsequent to the date of such redemption pursuant to
paragraph (a) immediately above or this paragraph (b), plus
(B) any current payment to be made by the Seller pursuant to
paragraph (a) immediately above.
(c) Third, any unfulfilled General Indemnity
obligation shall be satisfied by cash payment from the Seller
to the Purchaser Group, with such payment not to exceed an
amount equal to Five Million Dollars ($5,000,000) minus the
sum of (i) the amount of any General Indemnity obligation of
the Seller that was satisfied by offset against the redemption
price and/or accrued dividends paid with respect to the
Seller's Series A or Series B Preferred Stock, and minus the
sum of (ii) any previous payments made by the Seller to the
Purchaser Group subsequent to the date of such redemption
pursuant to this paragraph (c).
Notwithstanding anything to the contrary in this Section 9.2,
the total indemnity to the Purchaser Group with respect to
[THIS PROVISION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION AND IS SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO 17 CFR SECTION
240.24b2] and interest thereon shall not exceed the lesser of
(i) the redemption price plus accrued dividends for the
Series A and Series B Preferred Stock and (ii) $10,000,000.
4. There shall be substituted for Exhibit B to the Agreement the terms
of the Series A and Series B Preferred Stock as set forth in the Certificate of
Amendment attached hereto.
5. Except to the extent expressly set forth herein, all provisions of
the Agreement shall continue in full force and effect.
6. This Amendment to Agreement and Plan of Reorganization may be
executed in counterparts, which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Agreement and Plan of Reorganization as of the 22nd day of June, 1998.
Lyonnaise American Holding, Inc.
By: /s/ Joseph V. Boyle
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Vice President-Finance
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EXHIBIT 10.22
Gestra Corporation, N.V.
By: /s/ Miraj Ubdin
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Rush Creek LLC
By: /s/ JA Miller
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Aqua-Chem, Inc.
By: /s/ JA Miller
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A-C Acquisition Corp.
By: /s/ JA Miller
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/s/ JA Miller
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Jeffrey A. Miller, Individually
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