Exhibit 10.1
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment") is
dated as of December 28, 2007, by and between Nova Holdings, LLC, a limited
liability company organized under the laws of the State of Delaware
("Seller"), and IDEX Corporation, a corporation organized under the laws of
the State of Delaware ("Buyer"). Certain terms used but not defined in this
Amendment have the respective meanings ascribed to such terms in the
Agreement (as defined below).
WHEREAS, Seller and Buyer entered into a Stock Purchase Agreement on
November 13, 2007 (the "Agreement") pursuant to which Seller desires to
sell to Buyer and Buyer desires to purchase from Seller all the issued and
outstanding capital stock of Nova Technologies Corporation, a corporation
organized under the laws of the State of Delaware; and
WHEREAS, Seller and Buyer desire to amend certain aspects of the
Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual agreements and covenants
herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
SECTION 1.1. BASE WORKING CAPITAL. The definition of "Base Working Capital"
set forth in the Agreement is hereby amended and restated in its entirety to
read as follows:
"(a) "Base Working Capital" means $ 19,200,000."
SECTION 1.2. CASH. The definition of "Cash" set forth in the Agreement is
hereby amended and restated in its entirety to read as follows:
"(o) "Cash" means (i) the cash held in deposit accounts,
including money market accounts (plus an amount equal to the aggregate
sum of any uncashed checks or EFT transfers to be deposited in such
deposit accounts and less an amount equal to the aggregate sum of any
outstanding uncashed checks or EFT transfers drawn on all such deposit
accounts), of the Company and its Subsidiaries, (ii) cash equivalents
(including marketable securities) held by the Company and its
Subsidiaries, (iii) any "restricted" cash or cash deposits held by
third parties in support of obligations comprising Indebtedness for
purposes of this Agreement and (iv) any "restricted" cash supporting
undrawn letters of credit issued in connection with payment,
performance or other similar bonds."
SECTION 1.3. PERMITTED ENCUMBRANCES. The definition of "Permitted
Encumbrances" set forth in the Agreement is hereby amended and restated in its
entirety to read as follows:
"(eeee)" "Permitted Encumbrances" means (i) liens for Taxes or
other governmental charges, assessments or levies that are not
delinquent or are being disputed in good faith, (ii) landlord's,
mechanic's, carrier's, workmen's, repairmen's or other similar liens
arising or incurred in the ordinary course of business that do not
materially detract from the value of the property encumbered thereby,
but solely to the extent there exists an accrual therefore on the Base
Balance Sheet or, if incurred after the date of the Base Balance
Sheet, there exists an accrual therefore in the determination of
Current Liabilities in connection with the final resolution of Closing
Net Working Capital pursuant to Section 1.6 hereof, (iii) with respect
to real property only, minor imperfections of title, conditions,
easements and reservations of rights, including easements and
reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar
purposes, encroachments, covenants and restrictions and (iv) any liens
or security interests securing Closing Indebtedness to the extent such
Closing Indebtedness will be repaid by Buyer on the Business Day
immediately following the Closing pursuant to Section 1.5. Except as
expressly provided in the preceding clause (iv), any lien for
Indebtedness as of the Closing will not be deemed to be a Permitted
Encumbrance."
SECTION 1.4. ESCROW AMOUNT. The definition of "Escrow Amount" set forth in
the Agreement is hereby amended and restated in its entirety to read as follows:
"(ww) "Escrow Amount" means $12,500,000."
SECTION 1.5. ESCROW AGREEMENT. Exhibit A to the Agreement is hereby amended
and restated by substituting Attachment A to this Amendment for the existing
Exhibit A to the Agreement.
SECTION 1.6. PROMISSORY Note. The Agreement is hereby amended to attach as
Exhibit A-1 thereto the form of promissory note attached hereto as Attachment B.
SECTION 1.7. CLOSING. Sections 1.4 and 1.5 of the Agreement are amended and
restated in their entirety to read as follows:
"SECTION 1.4 CLOSING. The Closing shall be held at the offices of
Xxxxxxx Procter LLP, Exchange Place, Boston, Massachusetts, at, and shall
be deemed to be effective as of, 4:00 a.m. local time on January 1, 2008 if
all of the conditions set forth in Article V have been satisfied or waived
(other than those conditions which by their nature are to be satisfied at
the Closing). The effective date of the Closing is referred to herein as
the "Closing Date." On the day immediately prior to the Closing Date, Buyer
shall deposit with Xxxxx Fargo Bank, N.A. (the "Escrow Agent"), as the
escrow agent under the Escrow Agreement, the Estimated Purchase Price, by
wire transfer of immediately available funds to the account or accounts
previously specified in writing by the Escrow Agent, such amount to be held
by the Escrow Agent in accordance with the terms of the Escrow Agreement."
"SECTION 1.5 CERTAIN PAYMENTS AND DELIVERABLES.
(a) At the Closing, Seller and Buyer will deliver to one another
letters of direction acknowledging the effective date of the Closing and
directing that any documents to be delivered to the other party and held in
escrow be released.
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(b) At the Closing, (i) Buyer shall deliver to Seller a
promissory note in the form of Exhibit A-1 in a principal amount equal to
(A) the Estimated Purchase Price less (B) the Escrow Amount, and (ii)
Seller shall deliver stock powers duly executed in blank, and permitting
Buyer to record the transfer of the Subject Shares to Buyer or its nominee
upon receipt of the stock certificate(s) evidencing the Subject Shares (it
being understood that such certificate(s) are currently held by Seller's
lender).
(c) On the first Business Day after the Closing, Buyer shall:
(i) pay to each Creditor, an amount equal to such
Creditor's respective portion of the Closing Indebtedness (and in
the event that the Closing is effective as of 4:00 a.m. (Boston,
Massachusetts time) on January 1, 2008 plus any accrued interest
from and after the close of business on the day immediately
preceding the Closing until such amount is actually paid) in full
satisfaction thereof and as necessary to cause the release, in
connection with such repayment, of any security interest,
mortgage, pledge, lien, conditional sale agreement, security
title, right of first refusal, right of first offer, preemptive
right or other encumbrance, restriction or charge of any nature
(collectively, "Encumbrances") securing such Indebtedness as set
forth in such Creditor's Payoff Letter; and
(iii) pay to each Person to whom the Company or any of
its Subsidiaries owes a Company Transaction Expense the amount of
such Company Transaction Expense as set forth in such Person's
Invoice."
(d) On the first Business Day after Closing, Seller shall deliver
or cause to be delivered to Buyer or its Representatives stock
certificate(s) evidencing all of the Subject Shares.
SECTION 1.8. AUDITED CLOSING FINANCIAL STATEMENTS. Section 4.13 of the
Agreement is hereby amended and restated in its entirety to read as follows:
"SECTION 4.13. AUDITED CLOSING FINANCIAL STATEMENTS. As soon as
reasonably practicable following the Closing Date, but in no event later
than ninety (90) days following the Closing Date, Seller shall cause, at
its expense, to have prepared and delivered to Buyer an audited
consolidated balance sheet of the Company as of the close of business on
the day immediately prior to the Closing Date, as well as audited
consolidated statements of operations, cash flows and stockholders' equity
for the period beginning January 1, 2007 and ending on the close of
business on the day immediately prior to the Closing Date (the "Audited
Closing Financial Statements"), accompanied by an audit opinion of KPMG
LLP. Buyer shall use commercially reasonable efforts to assist Seller and
KPMG LLP and shall cooperate fully and promptly with Seller and KPMG LLP by
providing information and providing assistance as Seller or KPMG LLP may
reasonably request in connection with the preparation of the Audited
Closing Financial Statements. Seller shall permit KPMG LLP to consult with
the independent auditors of Buyer in the preparation of the Audited Closing
Financial Statements and to consider in good faith any recommendations made
by Buyer's independent auditors in respect thereto. The Audited Closing
Financial Statements shall fairly present, in conformity with GAAP applied
on a consistent basis, the consolidated financial position of the Company
and its Subsidiaries as of the date thereof and the consolidated results of
operations, cash flows and stockholders' equity
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of the Company and its Subsidiaries for the periods then ended (subject to
normal and recurring year-end adjustments that are not, individually or in
the aggregate, material in magnitude) and shall comply with the applicable
requirements of the Securities Act (and the related rules and regulations)
and the applicable requirements of the Exchange Act (and the related rules
and regulations). At such time as KPMG LLP delivers the Audited Closing
Financial Statements and its work papers with respect thereto to Seller,
Seller shall provide copies of such Audited Closing Financial Statements
and work papers to Buyer."
SECTION 1.9. CLOSING CONDITIONS. Section 5.2 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"SECTION 5.2. CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer
to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction or waiver, at or prior to the Closing, of each
of the following conditions (each of which is provided for the exclusive
benefit of Buyer and may be waived by it in whole or in part in its sole
discretion):
(a) All covenants contained in this Agreement to be complied with
by Seller on or before the Closing shall have been complied with in all
material respects.
(b) Subject to Section 4.8, (i) each of the representations and
warranties of Seller contained in Article II that is qualified by
"materiality" or "Material Adverse Effect" or other similar materiality
qualifications shall be true and correct in all respects as of the date of
this Agreement and as of December 26, 2007 as though made on and as of
December 26, 2007 (except for those representations and warranties set
forth in Sections 2.1, 2.2 and 2.3, which shall be true and correct in all
respects as of the Closing Date as though made on and as of the Closing
Date), except for such representations and warranties that address matters
only as of a particular date, which shall remain true and correct in all
respects as of such date, and (ii) each of the representations and
warranties of Seller contained in Article II that is not qualified by
"materiality" or "Material Adverse Effect" or other similar materiality
qualifications shall be true and correct in all material respects as of the
date of this Agreement and as of December 26, 2007 as though made on and as
of December 26, 2007 (except for those representations and warranties set
forth in Sections 2.1, 2.2 and 2.3, which shall be true and correct in all
respects as of the Closing Date as though made on and as of the Closing
Date), except for such representations and warranties that address matters
only as of a particular date, which shall remain true and correct in all
material respects as of such date.
(c) No Governmental Authority or court of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, writ, decree, judgment, injunction or other order
(whether temporary, preliminary or permanent) which is in effect and has
the effect of making the sale and purchase of the Subject Shares pursuant
to the terms of this Agreement illegal or otherwise prohibiting
consummation of the sale and purchase of the Subject Shares.
(d) The waiting period (and any extension thereof) applicable to
the consummation of the transactions contemplated by this Agreement under
the HSR Act shall have expired or been terminated (and there shall not be
in effect any voluntary agreement between Buyer and the FTC or the DOJ
pursuant to which Buyer has agreed not to consummate the
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transactions contemplated by this Agreement for any period of time), and
any similar waiting period under any applicable foreign antitrust law or
regulation or other Legal Requirement shall have expired or been
terminated.
(e) Subject to Section 4.8, since the date of this Agreement and
through December 26, 2007, there shall not have occurred any Material
Adverse Effect.
(f) Each of the Consents set forth in Schedule 5.2(f) shall have
been obtained in form and substance reasonably satisfactory to Buyer and
shall be in full force and effect.
(g) There shall not be pending or threatened any Legal Proceeding
by any Governmental Authority: (a) challenging or seeking to restrain or
prohibit the consummation of the sale and purchase of the Subject Shares;
(b) relating to the transactions contemplated by this Agreement and seeking
to obtain from Buyer, the Company or any of its Subsidiaries, any damages
or other relief that may be material to Buyer, the Company or any of its
Subsidiaries; (c) seeking to prohibit or limit in any material respect
Buyer's ability to vote, receive dividends with respect to or otherwise
exercise ownership rights with respect to any of the Subject Shares; (d)
that has had or would reasonably be expected to have a material adverse
effect on the right of Buyer, the Company or any of its Subsidiaries to own
the assets or operate the business of the Company or any of its
Subsidiaries; or (e) seeking to compel Buyer, the Company or any of its
Subsidiaries to dispose of or hold separate any material assets as a result
of any of the transactions contemplated by this Agreement.
(h) All Contracts between the Company or any of its Subsidiaries,
on the one hand, and Seller or any of its Affiliates or Subsidiaries (other
than the Company and its Subsidiaries and their respective employees in
their capacity as such), on the other hand, shall have been terminated.
(i) Buyer shall have received the following agreements and
documents, each of which shall be in full force and effect (subject to
Buyer's execution and delivery of the same, to the extent applicable):
(i) the Escrow Agreement, executed by Seller and the
Escrow Agent;
(ii) the Condor Agreements, executed by Condor and Xxxx
Xxxxxxx, as applicable;
(iii) a consulting agreement, in the form attached
hereto as Exhibit C, executed by Xxx Xxxxxxxxxx;
(iv) employment agreements, in the form attached hereto
as Exhibit D, executed by each of the individuals identified on
Schedule 5.2(i)(iv) (the "Key Employees");
(v) general releases, in the form attached hereto as
Exhibit E, executed by each of the Persons identified on Schedule
5.2(i)(v);
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(vi) noncompetition agreements, in the form attached
hereto as Exhibit F, executed by each of the Persons identified
on Schedule 5.2(i)(vi);
(vii) noncompetition agreements, in the form attached
hereto as Exhibit G, executed by each of the Persons identified
on Schedule 5.2(i)(vii);
(viii) written resignations of each of the members of
the board of directors of the Company, each such resignation to
be effective as of the Closing;
(ix) a legal opinion, in the form attached hereto as
Exhibit H, from Xxxxxxx Procter LLP, legal counsel to Seller;
(x) a certificate executed on behalf of Seller by its
Chief Executive Officer and its Chief Financial Officer (the
"Seller Closing Certificate") and containing representations and
warranties of Seller (A) to the effect that the conditions set
forth in Sections 5.2(a), 5.2(b), 5.2(e) and 5.2(j) have been
duly satisfied, (B) specifying the total amount of the Closing
Indebtedness (and attaching thereto an accurate and complete copy
of each Payoff Letter not previously delivered to Buyer), and (C)
specifying the total amount of the Company Transaction Expenses
(and attaching thereto an accurate and complete copy of each
Invoice not previously delivered to Buyer); and
(xi) such forms and certificates, duly executed and
acknowledged, in form and substance reasonably satisfactory to
Buyer, certifying that the transactions contemplated by this
Agreement are exempt from withholding under Section 1445 of the
Code.
(j) As of immediately prior to the Closing, each of the Key
Employees shall remain employed by the Company or one of its Subsidiaries
and shall not have provided any notice of such Key Employee's intention to
terminate such employment following the Closing."
SECTION 1.10. TERMINATION. Section 7.1(d) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(d) subject to Section 4.8, by Buyer, upon written notice to
Seller, if there has occurred a Material Adverse Effect on or prior to
December 26, 2007;"
SECTION 1.11. MISCELLANEOUS.
(a) Except as specifically provided for in this Amendment, the
terms of Purchase Agreement shall be unmodified and shall remain in full
force and effect.
(b) This Amendment, together with the Attachments hereto
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and
understandings, written and oral, among the parties with respect to the
subject matter hereof, other than the Agreement.
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(c) Except as expressly permitted by the terms hereof, neither
this Amendment nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the prior written
consent of the other parties, except that Buyer may transfer or assign its
rights and obligations under this Amendment, in whole or from time to time
in part, to (i) one or more of its Affiliates at any time and (ii) after
the Closing Date, to any Person; provided that such transfer or assignment
shall not relieve Buyer of its obligations hereunder or enlarge, alter or
change any obligation of any other party hereto or due to Buyer.
(d) This Amendment will be governed by, and construed in
accordance with, the internal laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of
conflict of laws.
(e) The parties hereto are sophisticated and have been
represented by attorneys throughout the transactions contemplated hereby
who have carefully negotiated the provisions hereof. As a consequence, the
parties do not intend that the presumptions of laws or rules relating to
the interpretation of contracts against the drafter of any particular
clause should be applied to this Amendment or any agreement or instrument
executed in connection herewith, and therefore waive their effects.
(f) This Amendment (a) shall be binding upon and inure to the
benefits of the parties hereto and their respective successors and assigns
and is not intended to confer upon any other Person any rights or remedies
hereunder and (b) may be executed in two or more counterparts which
together shall constitute a single agreement. This Amendment shall become
effective when each party hereto shall have received a counterpart hereof
signed by the other party hereto. Until and unless each party has received
a counterpart hereof signed by the other party hereto, this Amendment shall
have no effect, and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other
communication). The parties hereto agree that irreparable damage would
occur in the event that any of the provisions of this Amendment were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Amendment and to
enforce specifically the terms and provisions hereof in the Chosen Courts,
this being in addition to any other remedy to which they are entitled at
law or in equity. Time is of the essence with respect to the performance of
this Amendment.
(g) If any provision of this Amendment or the application thereof
to any Person or circumstance is held invalid or unenforceable, the
remainder of this Amendment, and the application of such provision to other
Persons or circumstances, shall not be affected thereby, and to such end,
the provisions of this Amendment are agreed to be severable.
(h) Notwithstanding anything contained herein to the contrary, in
the event that the Closing does not occur effective as of 4:00 a.m.
(Boston, Massachusetts time) on January 1, 2008, Sections 1.3, 1.4, 1.5,
1.6, 1.7, 1.9 and 1.10 of this Amendment shall be deemed null and void,
such that the provisions of the Agreement proposed to be amended by such
Sections shall not be so amended and with such provisions being restored as
originally set forth in the Agreement, unmodified and in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Stock Purchase Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
BUYER:
IDEX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SELLER:
NOVA HOLDINGS, LLC
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Stock Purchase Agreement to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
BUYER:
IDEX CORPORATION
By:
------------------------------------
Name:
Title:
SELLER:
NOVA HOLDINGS, LLC
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: CHAIRMAN /CEO
ATTACHMENT A
ESCROW AGREEMENT
ATTACHMENT B
PROMISSORY NOTE
