SECOND AMENDMENT TO STOCK OPTION AGREEMENT
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SECOND AMENDMENT TO STOCK OPTION AGREEMENT
This SECOND AMENDMENT TO STOCK OPTION AGREEMENT (this "Second Amendment") is made this 23rd day of April, 2003 by and between Xxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxx X. Xxxxx ("Xxxxx") and is to be effective when, and only when, RDO Tender Co. ("RDO Tender") in connection with its offer to purchase all of the outstanding shares of Class A common stock (the "Class A Shares") of RDO Equipment Co. ("RDO Equipment") has accepted for payment all of the Class A Shares that have been tendered prior to the expiration date of the offer.
RECITALS
WHEREAS, RDO Tender is a wholly owned subsidiary of RDO Holdings Co. ("RDO Holdings"), which is owned by Xxxxxx, and Xxxxx and Xxxxx Xxx Xxxxx.
WHEREAS, RDO Tender is or will be commencing an offer to purchase all of the outstanding Class A Shares not owned by RDO Tender, RDO Holdings and their affiliates (the "Offer").
WHEREAS, if all conditions to the Offer are met or waived, immediately prior to the closing of the Offer, Xxxxxx and Mr. and Xxx. Xxxxx will transfer all of their outstanding Class A Shares to RDO Holdings, and Xxxxxx, who owns all of the outstanding shares of Class B common stock of RDO Equipment (the "Class B Shares"), will transfer all of his Class B Shares to RDO Holdings. RDO Holdings will then transfer these shares to RDO Tender. Upon Xxxxxx'x transfer of his Class B Shares, these shares will automatically convert into Class A Shares.
WHEREAS, if after the completion of the Offer, RDO Tender owns at least 90% of the outstanding Class A Shares, RDO Tender will then be permitted under Delaware law to effect a "short-form" merger with RDO Equipment without the approval of RDO Equipment's board of directors or the remaining holders of the Class A Shares (the "Merger"), which Merger RDO Tender intends to effect as soon as possible after it completes the Offer, unless a court prevents it from doing so.
WHEREAS, in connection with the Merger, each Class A Share that RDO Tender does not acquire in the Offer will be converted in the Merger into the right to receive $6.01 in cash, unless the holder of the Class A Share properly perfects appraisal rights under Delaware law. After completion of the Merger, RDO Equipment will be a wholly owned subsidiary of RDO Holdings.
WHEREAS, Xxxxxx and Xxxxx entered into a Stock Option Agreement effective February 1, 1994, whereby Xxxxxx granted Xxxxx an option to acquire a specified number of Class A Shares of RDO Equipment owned by Xxxxxx (the "Option"); and
WHEREAS, Xxxxxx and Xxxxx entered into an Amendment to Stock Option Agreement on January 10, 1997, which was acknowledged by RDO Equipment, which increased to 608,595 the number of Class A Shares subject to the Option, which Xxxxx had a right to acquire from Xxxxxx at a predetermined price of $3.03 per share; and
WHEREAS, the parties desire to further amend the Stock Option Agreement in the event RDO Tender accepts for payment all of the Class A Shares that have been tendered prior to the expiration date of the Offer.
IN CONSIDERATION of and subject to the mutual covenants and conditions contained herein and in the event RDO Tender accepts for payment all of the Class A Shares that have been tendered prior to the expiration date of the Offer, Xxxxxx and Xxxxx hereby agree to the following terms:
RDO Holdings Co. shall replace RDO Equipment Co. in the Stock Option Agreement, the Amendment to Stock Option Agreement, and the Addendum to Stock Option Agreement such that Xxxxx shall have the option to purchase the exact same specified number of shares of common stock of RDO Holdings Co. at the agreed price from Xxxxxx as Xxxxx previously had with regard to the purchase of RDO Equipment Co. shares from Xxxxxx.
This Amendment, together with the Stock Option Agreement, and the Amendment to Stock Option Agreement referred to herein, contain the entire agreement of the parties. No variations, modifications or changes to the Agreement shall be binding or enforceable upon either party unless reduced to writing and signed by or on behalf of each party.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the above written date.
By: | /s/ XXXXXX X. XXXXXX Xxxxxx X. Xxxxxx |
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By: |
/s/ XXXXX X. XXXXX Xxxxx X. Xxxxx |
SECOND AMENDMENT TO STOCK OPTION AGREEMENT