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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, [OMITTED PROVISIONS SUBJECT TO CONFIDENTIAL
TREATMENT BY ORDER OF THE SECURITIES AND EXCHANGE COMMISSION]
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 [OMITTED PROVISIONS SUBJECT TO
CONFIDENTIAL TREATMENT BY ORDER OF THE SECURITIES AND EXCHANGE
COMMISSION] 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 [OMITTED PROVISIONS SUBJECT TO
CONFIDENTIAL TREATMENT BY ORDER OF THE SECURITIES AND EXCHANGE
COMMISSION] 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, [OMITTED PROVISIONS
SUBJECT TO CONFIDENTIAL TREATMENT BY ORDER OF THE SECURITIES AND
EXCHANGE COMMISSION] 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 [OMITTED PROVISIONS
SUBJECT TO CONFIDENTIAL TREATMENT BY ORDER OF THE SECURITIES
AND EXCHANGE COMMISSION] 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 [OMITTED PROVISIONS SUBJECT TO CONFIDENTIAL TREATMENT BY
ORDER OF THE SECURITIES AND EXCHANGE COMMISSION] 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 [OMITTED PROVISIONS
SUBJECT TO CONFIDENTIAL TREATMENT BY ORDER OF THE SECURITIES
AND EXCHANGE COMMISSION] 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 the Series 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
[OMITTED PROVISIONS SUBJECT TO CONFIDENTIAL TREATMENT BY ORDER
OF THE SECURITIES AND EXCHANGE COMMISSION] 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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