Exhibit 10.14
EXECUTION VERSION
AMENDMENT NO. 1 TO PURCHASE
AGREEMENT
This AMENDMENT NO. 1 to PURCHASE
AGREEMENT (this “ Amendment ”) is made as of
this 31st day of December, 2008 by and among THE MANITOWOC COMPANY,
INC. (“ Parent ”), MMG HOLDING CO., LLC (“
Seller ”), FINCANTIERI-CANTIERI NAVALI ITALIANI S.p.A.
(“ Fincantieri ”) and FINCANTIERI MARINE GROUP
HOLDINGS INC. (“ Buyer ”).
WHEREAS, Parent, Seller, Fincantieri
and Buyer entered into a Purchase Agreement, dated as of
August 1, 2008 (the “ Agreement ”),
pursuant to which Buyer agreed to purchase from Seller, and Seller
agreed to sell to Buyer, the MMG Ownership Interest (as defined in
the Agreement) on the terms and conditions set forth in the
Agreement; and
WHEREAS, the parties hereto desire
to amend the Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of
the foregoing and of the mutual covenants, conditions and
agreements set forth in this Amendment and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed that:
1.
Defined Terms
. All terms used but not
otherwise defined herein have the meanings assigned to them in the
Agreement.
2.
Amendments to the
Agreement . The Agreement
is hereby amended as follows:
(a)
“Subsidiary’s Articles
of Incorporation” and “Articles of Incorporation of the
Subsidiary” wherever appearing in the Agreement is hereby
deleted and replaced with “Subsidiary’s articles of
incorporation or organization.”
(b)
“Subsidiary’s
Bylaws” and “Bylaws of the Subsidiary” wherever
appearing in the Agreement is hereby deleted and replaced with
“Subsidiary’s bylaws or operating
agreement.”
(c)
“Subsidiary’s Articles
of Incorporation and Bylaws” and “Articles of
Incorporation and Bylaws of the Subsidiary” wherever
appearing in the Agreement is hereby deleted and replaced with
“Subsidiary’s articles of incorporation or organization
and bylaws or operating agreement.”
(d)
“Subsidiary’s capital
stock” and “capital stock of the Subsidiary”
wherever appearing in the Agreement is hereby deleted and replaced
with “Subsidiary’s limited liability company membership
interests or capital stock.”
(e)
The words “the
Subsidiary” in the first clause of the Recitals to the
Agreement are hereby deleted and replaced with the
following:
“Marinette Marine Corporation,
a Wisconsin corporation that is a wholly owned subsidiary of MMG
(“MMC”),
(f)
The words “the
Subsidiary” in the third clause of the Recitals to the
Agreement are hereby deleted and replaced with
“MMC.”
(g)
Section 1.64 of the Agreement
is hereby deleted in its entirety and replaced with the following
new Section 1.64:
“ Subsidiary .
“Subsidiary” shall mean,
collectively or individually, as the context requires, MMC, ACE
Marine LLC, a Wisconsin limited liability company which is a wholly
owned subsidiary of MMG, and any other subsidiary of MMG, MMC or
ACE Marine LLC that is formed prior to the Closing Date.
Unless otherwise explicitly stated herein, each representation,
warranty, covenant, obligation or agreement contained in this
Agreement that is claimed to be made by “the
Subsidiary” shall be deemed to be made by each of MMC, ACE
Marine LLC, and any other subsidiary of MMG, MMC or ACE Marine LLC
that is formed prior to the Closing Date.”
(h)
The last two sentences of
Section 3.17(f) of the Agreement are hereby deleted in
their entirety and replaced with the following new
sentences:
“As soon as practicable after
Buyer establishes or maintains Buyer’s 401(k) Plan,
Seller or the Parent shall direct the trustee of each Seller
401(k) Plan to segregate the portion of each investment fund
thereunder attributable to the aggregate individual account
balances (whether vested or unvested) of such Affected Employees,
and to transfer in cash or in kind, as determine
