Exhibit 10.2
AMENDMENT
AMENDMENT, dated as of April 29, 1998 (this "Amendment"), to the
Stock and Asset Purchase Agreement dated as of March 10, 1998 (as amended,
supplemented or otherwise modified, the "Purchase Agreement"), by and among
Hanson Funding (G) Limited, a limited company organized under the laws of
England and Wales, Deutsche Grove Corporation, a Delaware corporation, Hanson
America Holdings (4) Limited, a limited company organized under the laws of
England and Wales, Grove France SA, a societe anonyme organized under the laws
of France, Kidde Industries, Inc., a Delaware corporation, Hanson Finance PLC, a
public limited company organized under the laws of England and Wales, and Grove
Worldwide LLC, a Delaware limited liability company.
W I T N E S S E T H:
WHEREAS, the Sellers and the Purchaser are parties to the Purchase
Agreement; and
WHEREAS, the Sellers and Purchaser desire to amend the Purchase
Agreement, subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Sellers and the
Purchaser hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Purchase Agreement shall have such meanings when used herein.
2. Amendment of Section 2.1 (Purchase and Sale of the Grove
Operations). Section 2.1 of the Purchase Agreement is hereby amended as follows:
the amount "$605,000,000" is hereby deleted and replaced with the amount
"$583,000,000." For purposes of the Purchase Agreement, this $22,000,000
reduction in the Purchase Price shall be treated as an adjustment to the amount
of Purchase Price allocated to the Specified Grove Assets pursuant to Section
2.8 of the Purchase Agreement with the effect set forth in Section 2.8(j)
thereof.
3. Amendment of Section 6.2(h) (Liquidity). Section 6.2(h) of the
Purchase Agreement is hereby amended as follows: the amount "$28,524,000" in
clause (x) thereof is hereby deleted and replaced with the amount "$6,524,000."
4. Amendment of Section 9.3 (Assignment). Section 9.3 is hereby
amended as follows: the phrase "to any wholly-owned Subsidiary" is hereby
deleted and
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replaced with the phrase "to any direct or indirect wholly-owned Subsidiary
(without giving effect to foreign statutory share ownership or similar
requirements)."
5. Amendment to Section 2.2 of the Disclosure Schedule. Section 2.2
of the Disclosure Schedule is hereby amended as follows: the amount
"442,499,000" of purchase price allocated to the Specified Grove Assets is
hereby deleted and replaced with the amount "420,499,000." The amount
"605,000,000" in the first paragraph under "Specified Grove Assets" is hereby
deleted and replaced with the amount "583,000,000."
6. Amendment to Section 2.5 of the Disclosure Schedule. Section 2.5
of the Disclosure Schedule is hereby amended as follows: in the sixth entry, at
the end of the second line, after the words "the HSBC Letter," there shall be
added the phrase: "as the same are more particularly identified in the second
paragraph on page 2 of the HSBC Agency Agreement, and".
7. Amendment to Section 1.1(a) of the Disclosure Schedule. Section
1.1(a) of the Disclosure Schedule is hereby amended as follows: as an additional
adjustment under the heading "Adjustments to Be Made Only to The Closing Balance
Sheet," there shall be added:
"The Closing Balance Sheet will reflect the receipt of U.S.
$3.5 million by Grove France SA representing the proceeds from the
sale of Delta Manlift SAS, the repayment by Grove France SA to Grove
Europe Limited of the sum of (pound)2,097,441 (being $3,500,000 at
$1.6687 to (pound)1) or if a lesser amount, the remaining balance of
the debt due from Grove France SA to Grove Europe Limited, and any
net cash retained by Grove France SA as a consequence of such
transactions as if such transactions had taken place on the
Determination Date and not on the Closing Date."
8. Amendment of Section 5.6 (Benefit Plans). Section 5.6 of the
Purchase Agreement is hereby amended to add the following subsection:
"(d) Additional Contributions. Sellers (for themselves and for
Hanson) and Purchaser hereby agree that each of them will contribute
$2.25 million to Grove's hourly pension plan within five (5)
Business Days of the Closing Date. The cost of the Sellers'
contribution will be borne by them and will not be indirectly passed
on to increase the Purchase Price (as an adjustment to the Closing
Balance Sheet or otherwise). Similarly, the cost of Purchaser's
contribution will be borne by Purchaser and will not be used to
decrease the Purchase Price (as an adjustment to the Closing Balance
Sheet or otherwise)."
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9. Amendment to Section 7.3(a)(viii) (Indemnification by Sellers).
Section 7.3(a)(viii) of the Purchase Agreement is hereby amended as follows:
after the words "Inactive Companies," insert the phrase ", other than those that
constitute Assumed Liabilities."
10. Amendment to Section 2.6 (Assumed Liabilities). Section 2.6 of
the Purchase Agreement is hereby amended by inserting the following sentence
after the first sentence thereof:
"For the avoidance of doubt, the parties agree that the term
"Assumed Liabilities" shall include all of the obligations and
liabilities of Kidde related to the Grove Operations that were
transferred to or assumed or performed by Kidde, any Specified Grove
Corporation or any predecessor in interest pursuant to the
resolutions, instruments and other arrangements set forth in Annexes
A and B hereto."
11. Amendment to Section 2.3 (Sale and Purchase of Stock) Regarding
Grove Manlift Pty. Ltd. ("Manlift"). Notwithstanding anything to the contrary
contained in Section 2.3 or elsewhere in the Agreement, the Agreement shall not
constitute the sale, assignment, transfer, conveyance or delivery of the Shares
of Manlift until the expiration of all required waiting periods and/or receipt
of all necessary approvals under the Competition Laws of Australia (the
"Australian Closing Date"). Paul, Weiss, Rifkind, Wharton & Garrison shall hold
the Shares of Manlift and the applicable portion of the Purchase Price ($1,000)
in escrow until the Australian Closing Date, at which time it may deliver the
Shares of Manlift to Purchaser and the $1,000 in cash to Hanson America without
any further action of the parties. During the period from the Closing until the
Australian Closing Date, the parties shall cooperate with each other in any
reasonable and lawful arrangements, at Purchaser's expense, to provide Purchaser
the economic benefits and liabilities of ownership of the Shares of Manlift
under Purchaser. Purchaser shall indemnify Sellers against any liabilities
arising from the operation of Manlift pursuant to such arrangements prior to the
Australian Closing Date (except to the extent Purchaser would have been entitled
to indemnification relating to Manlift under Article VII had the Australian
Closing Date occurred).
12. Amendment to Section 1.1(f) of the Disclosure Schedule. Section
1.1(f) of the Disclosure Schedule is hereby amended by deleting number 11,
entitled: "Software License Agreement dated June 30, 1997, between Grove NA
(f/k/a Grove Manufacturing Company) and Cincom Systems, Inc."
13. Continuing Effect of Purchase Agreement. This Amendment shall
not constitute a waiver, amendment or modification of any other provision of the
Purchase Agreement not expressly referred to herein and shall not be construed
as a waiver or consent to any further or future action on the part of the
Sellers that would require a waiver or consent of the Purchaser. Except as
expressly amended or modified
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herein, the provisions of the Purchase Agreement are and shall remain in full
force and effect.
14. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
this Amendment (or its signature page thereof) shall be deemed to be an executed
original thereof.
15. Effectiveness. This Amendment shall be effective upon receipt by
the Purchaser of counterparts hereof, duly executed and delivered by the
Sellers.
16. Governing Law. This Amendment shall be governed by, and
interpreted and construed in accordance with, the internal laws of the State of
New York, without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
HANSON FUNDING (G) LIMITED
By: /s/ Graham Dransfield
------------------------
Name: Graham Dransfield
Title: Director
DEUTSCHE GROVE CORPORATION
By: /s/ Robert C. Stift
------------------------
Name: Robert C. Stift
Title: Director
HANSON AMERICA HOLDINGS (4) LIMITED
By: /s/ Graham Dransfield
------------------------
Name: Graham Dransfield
Title: Director
GROVE FRANCE SA
By: /s/ Robert C. Stift
------------------------
Name: Robert C. Stift
Title: Director
KIDDE INDUSTRIES, INC.
By: /s/ Robert C. Stift
------------------------
Name: Robert C. Stift
Title: Director
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HANSON FINANCE PLC
By: /s/ Graham Dransfield
------------------------
Name: Graham Dransfield
Title: Director
GROVE WORLDWIDE LLC
By: /s/ Salvatore J. Bonanno
--------------------------
Name: Salvatore J. Bonanno
Title: Chief Executive Officer
April 29, 1998
ANNEX A
1. 5/19/48 Grove Manufacturing Company is incorporated in
Pennsylvania ("GMC1").
2. 9/18/67 Board of Directors of GMC1 meet and resolve that the
August 25, 1967 Agreement and Plan of Reorganization
between Walter Kidde & Company, Inc. (("WKC") and GMC1
is adopted and approved, such Agreement and Plan
providing for (a) the sale by GMC1, and the purchase by
WKC or a wholly owned subsidiary of WKC, of
substantially all of the assets of GMC1 in exchange for
the shares of Series Accumulative Preference Shares and
Common Shares of WKC, (b) the assumption by WKC or by a
subsidiary of WKC and guaranteed by WKC, of
substantially all the liabilities and obligations of
GMC1 existing at the time of closing, (c) the
disillusion of GMC1 and the distribution to its
shareholders of various WKC shares, and (d) the
amendment of the Articles of Incorporation of the GMC1
in order to change its name to GMC Liquidating
Corporation.
3. 9/29/67 August 25, 1967 Agreement and Plan of Reorganization
between WKC and GMC1 is approved by the shareholders of
GMC1 at its annual meeting.
4. 11/09/67 A second "Grove Manufacturing Company" is incorporated
in Pennsylvania ("GMC2") as a wholly owned subsidiary of
WKC.
5. 11/17/67 Assignment, Bill of Sale, Assumption and Guarantee,
dated November 17, 1967, are entered into between GMC1,
WKC, and GMC2 whereby, among other things, (a) GMC1
sells and transfers substantially all of its assets to
GMC2 and (b) GMC2 assumes substantially all of the
liabilities of GMC1.
6. 11/17/67 GMC1 changes its name to GMC Liquidating Corporation.
7. 5/26/69 Articles of Dissolution are approved and filed in the
Pennsylvania Department of State for the dissolution of
GMC Liquidating Corporation.
8. 10/01/71 Joint meeting between the Board of Directors of GMC2 and
WKC (GMC2's sole shareholder) is held at which meeting
the Board of Directors of GMC2 resolve that GMC2 should
be liquidated with its net assets distributed to Walter
Kidde & Company, Inc.
9. 10/01/71 Meeting of Executive Committee of the Board of Directors
of WKC is held at which WKC, the sole shareholder of
GMC2, is authorized to vote its GMC2 shares in favor of
the complete liquidation of GMC2. Further, it is
resolved
Page 2 April 29, 1998
that WKC is authorized to assume and unconditionally pay
and discharge all the liabilities and obligations of
GMC2.
10. 10/01/71 WKC and GMC2 enter into (a) an Agreement and Plan of
Liquidation for the liquidation of GMC2 and (b) a Bill
of Sale and Assignment Transferring All Assets to Walter
Kidde & Company, Inc. transferring GMC2's assets to WKC.
11. 4/16/80 WKC changes its name to Kidde, Inc.
12. 3/31/88 Pursuant to its plan of liquidation and dissolution,
Kidde, Inc. merges with and into Bloom-1 Inc. which
assumes the liabilities of Kidde, Inc. Bloom-1 Inc. is
the surviving corporation and thereafter changes its
name to Kidde, Inc.
13. 3/31/88 Pursuant to its plan of liquidation and dissolution,
Kidde, Inc. (formerly Bloom-1 Inc.) merges with and into
HIMP-2 Inc. which assumes all the liabilities of
Kidde, Inc. HIMP-2 Inc. is the surviving corporation and
thereafter changes its name to Kidde, Inc.
14. 4/02/88 By Memorandum of Distribution and Liquidation, all of
the assets and liabilities of the Grove Manufacturing
Company division of Kidde, Inc. are distributed and
assigned to HKID-45 Inc.
15. 4/04/88 Pursuant to its plan of liquidation and dissolution,
Kidde, Inc. (formerly HIMP-2 Inc.) merges with and
into HKID-45 Inc. which assumes all the liabilities of
Kidde, Inc. HKID-45 Inc. is the surviving corporation
and thereafter changes its name to Kidde Industries,
Inc. As a result, Kidde Industries, Inc. then includes
as one of its divisions Grove Manufacturing Company.
16. 2/02/90 The divisional name of Grove Manufacturing Company is
redesignated as Grove North America, Division of Kidde
Industries, Inc.
ANNEX B
ASSIGNMENT OF INTERNATIONAL
DISTRIBUTOR SALES AND SERVICE AGREEMENTS
THIS ASSIGNMENT OF INTERNATIONAL DISTRIBUTOR SALES AND SERVICE
AGREEMENTS is being made as of this 29th day of April 1998 among Grove
International Corporation, a Delaware corporation having its principal place of
business at 1565 Buchanan Trail East, Shady Grove, Pennsylvania 17256 (the
"Assignor"), and Grove North America, Division of Kidde Industries, Inc., a
Delaware corporation having its principal place of business at 1565 Buchanan
Trail East, Shady Grove, Pennsylvania 17256 (and "Assignee"), and Grove Europe
Limited, a limited company organized under the laws of England and Wales having
its principal office at Crown Works, Pallion, Sunderland SR4 6TT, United Kingdom
(an "Assignee"), with Kidde Industries, Inc. and Grove Europe Limited
collectively referred to as "Assignees").
W I T N E S S E T H
Recitals.
A. Assignor has entered into International Distributor Sales and Service
Agreements and related distributor documentation (collectively, "Distributor
Agreements") with various entities which have been or are distributors of Grove
Worldwide crane and aerial work platform products and parts.
B. The Assignees have administered and continue to administer the
Distributor Agreements with each Assignee specifically having administered and
administering those Distributor Agreements covering geographical areas within
each Assignee's geographical area of responsibility.
C. Assignor desires to assign to Assignees, and Assignees desire to accept
an assignment from Assignor of, all rights, title, and interest of the Assignor
to, and all liabilities and obligations of the Assignor under the Distributor
Agreements.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
promises, covenants, and conditions hereinafter contained, the parties hereto
agree as follows:
1. Assignment. Assignor does hereby sell, and transfer unto each
respective Assignee all of Assignor's right, title and interest in, to and under
the Distributor Agreements.
2. Assumption by Assignees. The Assignees hereby jointly and severally
assume and agree to perform all of the terms, covenants, and conditions which
are to be carried out and performed by "Grove" (as that term is defined in the
Distributor Agreements) under the Distributor Agreements which are transferred
to each of the respective Assignees and to defend, hold harmless and indemnify
the Assignor (including but not limited to its employees, agents, officers,
directors, successors and assigns) from and against any and all claims, demands,
actions, losses, and costs and expenses (including, but not limited to,
attorneys' fees) arising out of or pertaining in any way to the Distributor
Agreements upon and after the date of this Assignment.
3. Indemnification. The Assignees hereby agree jointly and severally to
defend, hold harmless, indemnify and release the Assignor (including, but not
limited to, its employees, agents, officers, directors, successors, and assigns)
from and against any and all claims, demands, actions, losses, and costs and
expenses (including, but not limited to, attorneys' fees) arising out of or
pertaining in any way to the Distributor Agreements prior to the date of this
Assignment but only to the same extent Purchaser would be obligated to indemnify
Sellers for an Assumed Liability under, and as such terms are defined in, the
Stock and Asset Purchase Agreement dated as of March 10, 1998, as amended, among
Hanson Funding (G) Limited, a limited company organized under the Laws of
England and Wales, Deutsche Grove Corporation, a Delaware corporation, Hanson
America Holdings (4) Limited, a limited company organized under the laws of
England and Wales, Grove France SA, a societe anonyme organized under the laws
of France, Kidde Industries, Inc., a Delaware corporation, Hanson Finance PLC, a
public limited company organized under the laws of England and Wales, and Grove
Worldwide LLC, a Delaware limited liability company.
4. Successors. This Assignment shall be binding upon and shall inure to
the benefit of the Assignor and the Assignees and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed by their duly authorized officers as of the day and year first
written above.
ASSIGNEE
Grove North America,
Division of Kidde Industries, Inc.
By: /s/ Keith R. Simmons
-----------------------------------
Name: Keith R. Simmons
---------------------------------
Title: Vice President
--------------------------------
ASSIGNEE
Grove Europe Limited
By:____________________________________
Name:__________________________________
Title:_________________________________
ASSIGNOR
Grove International Corporation
By: /s/ Keith R. Simmons
-----------------------------------
Name: Keith R. Simmons
---------------------------------
Title: Vice President
--------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed by their duly authorized officers as of the day and year first
written above.
ASSIGNEE
Grove North America,
Division of Kidde Industries, Inc.
By:____________________________________
Name:__________________________________
Title:_________________________________
ASSIGNEE
Grove Europe Limited
By: /s/ G. Fred Heidinger
-----------------------------------
Name: G. Fred Heidinger
---------------------------------
Title: Director
--------------------------------
ASSIGNOR
Grove International Corporation
By:____________________________________
Name:__________________________________
Title:_________________________________
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