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Exhibit 10.1 SECOND AMENDMENT TO STOCK PURCHASE
AGREEMENT This Second
Amendment to Stock Purchase Agreement (" Amendment ") is
made as of December 16, 2008, by and among MasTec North
America, Inc., a Florida corporation (" Buyer "), MasTec,
Inc., a Florida corporation (the " Guarantor "), Wanzek
Construction, Inc., a North Dakota corporation (the "
Company "), Trust B under the Amended and Restated Living
Trust of Leo Wanzek dated February 2, 2000, a North Dakota
trust (" QTIP "), Janet L. Wanzek, a North Dakota resident
(" Janet "), Wanzek Construction 2008 Irrevocable Trust, a
North Dakota trust (" IDIT "), Jon L. Wanzek, a North Dakota
resident (" Jon ") and Jon L. Wanzek 2008 Two-Year
Irrevocable Annuity Trust, a North Dakota trust (" GRAT ")
(QTIP, Janet, IDIT, Jon and GRAT taken together are the "
Sellers "), and Jon, as Sellers’ Representative (the "
Sellers’ Representative "). Each of Buyer, Guarantor,
Company, Sellers, and Sellers’ Representative is a "
Party " and together, the " Parties ." R E C I T A
L S A. The Parties entered
into a Stock Purchase Agreement dated October 4, 2008 and
subsequently amended such Stock Purchase Agreement on
December 2, 2008 (the " Agreement ").
B. The Parties wish to further
amend the Agreement as set forth herein. AGREEMENT
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants contained herein, the
Parties agree as follows:
1. Capitalized terms used but
not defined in this Amendment have the respective meanings set
forth in the Agreement.
2. Section 1.1 of the
Agreement is hereby amended as follows:
a. The
following definition shall be inserted between the definition of
"Actual Excess Indebtedness" and the definition of "Adverse
Consequence":
"
Additional Indebtedness " means all obligations and
Indebtedness incurred by the Company pursuant to that Business Loan
Agreement (Loan No. 1719128), dated December 10, 2008, by
and between the Company and State Bank and Trust."
b. The
definition of "Convertible Note" is deleted in its entirety and
replaced with the following:
"
Convertible Notes " means those certain negotiable
subordinated convertible notes, a form of which is attached as
Exhibit I , the first of which is made by Buyer and
payable to the Sellers’ Representative on behalf of Sellers
in a principal amount of Forty-Seven Million Five Hundred Thousand
and NO/100ths Dollars ($47,500,000) and the second of which is made
by Buyer and payable to the Wanzek Foundation in a principal amount
of Seven Million Five Hundred Thousand and NO/100ths Dollars
($7,500,000)."
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c. The
following definition shall be inserted between the definition of
"Exclusivity Agreement" and the definition of "Facilities":
"
Extraordinary Transactions " means a transaction other than
in the Ordinary Course of Business, including, without limitation
the assignment of NetJets Agreements, the assignment of
Sellers’ Life Insurance Policies and the assignment of the
Headquarters Property, each occurring after the Effective Closing
Date and on or before the Closing Date."
d. The
definition of "Net Working Capital" is deleted in its entirety and
replaced with the following:
"
Net Working Capital " means as of any particular date
(a) the value of all current assets, excluding Cash, Cash
Equivalents, Equipment Deposits, accounts receivable from any
Seller or any Related Person of any Seller, accounts receivable
that are delinquent or older than one-hundred and twenty
(120) days, and all "other receivables" which were in an
amount of approximately $189,000 on the Company’s balance
sheet as of June 30, 2008 of the Company less (b) the
amount of all current Liabilities, including accrued current
Liabilities not yet due, but excluding (i) the Eide Bailey
Expenses, (ii) Employee Obligations which are satisfied by the
Post Effective Closing Date Payments and (iii) all
Indebtedness and Taxes of the Company determined in each case in
accordance with GAAP; provided that and regardless of whether such
accruals were included in the Financial Statements, except to the
extent satisfied by the Post Effective Closing Date Payments
current Liabilities shall include (x) employee bonus accruals for
2008 based upon a total bonus pool of $1,900,000 and the percentage
of calendar year 2008 elapsed prior to the Effective Closing Date
and (y) accruals for profit sharing under the Wanzek Construction,
Inc. 401(k) Plan as set forth in Company’s books and records,
as updated ratably for the portion of calendar year 2008 which
elapses prior to the Effective Closing Date. For purposes of
clarity, as of any particular date, current assets includes all
retainage projected to be collected within one (1) year
following such date, and excludes all retainage projected to be
collected more than one (1) year following such date."
e. The
following definition shall be inserted between the definition of
"Organizational Documents" and the definition of "Permitted
Encumbrances":
"
Permitted Cash Distribution " means the Permitted Cash
Distribution set forth on the Permitted Cash Distribution Schedule,
attached as Exhibit K."
f. The
definition of "Target Net Working Capital" is deleted in its
entirety and replaced with the following:
"
Target Net Working Capital " means $12,800,000."
g. The
definition of "Tax Obligations" is deleted in its entirety and
replaced with the following:
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"
Tax Obligations " means to the extent not previously paid
whether by estimated Tax payments or otherwise, obligations or
Liabilities of the Company in respect of all Taxes for the period
prior to the Effective Closing Date, which are defined as "Income
Tax Liabilities" in accordance with GAAP, including accruals
regardless of whether such Taxes are due and payable prior to the
Effective Closing Date; provided, however, that long-term deferred
tax liabilities shall not be included."
h. The
following definition shall be inserted between the definition of
"Threshold Amount" and the definition of "WARN":
"
Wanzek Foundation " means the Wanzek Family Foundation, a
Minnesota nonprofit corporation."
3. Section 1.2 of the
Agreement is hereby amended as follows:
a. The
term "Effective Closing Date" is added to the glossary of defined
terms between the term "EBITDA" and the term "Effective Date" and
the location of such term is Section 3.1.
b. The
term "Pre-Closing Period Return" and the location of such term is
removed from the glossary of defined terms.
c. The
term "Post Effective Closing Date Payments" is added to the
glossary of defined terms between the term "Post-Closing
Certificate" and the term "Purchase Price" and the location of such
term is Section 2.4(d).
d. The
term "Pre-Effective Closing Date Period Return" is added to the
glossary of defined terms between the term "Pre-Closing Period" and
the term "Post-Closing Adjustment" and the location of such term is
Section 7.3(a).
e. The
term "Retained Cash and Cash Equivalents" is added to the glossary
of defined terms between the term "Restricted Period" and the term
"Reviewed Financial Statements" and the location of such term is
Section 8.10.
4. Section 2.2(a) of the
Agreement is deleted in its entirety and replaced with the
following: "(a) The Cash Consideration; minus the Estimated
Excess Indebtedness; minus the Estimated Employee
Obligations; minus the Estimated Tax Obligations;
plus the Post Effective Closing Date Payments; subject to
adjustment as provided in Section 2.5 below; plus "
5. Section 2.2(c) of the
Agreement is deleted in its entirety and replaced with the
following: "(c) The Convertible Notes; plus "
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6. Section 2.3(a)(iii)
of the Agreement is deleted in its entirety and replaced with the
following: "(iii) issue the Convertible Notes."
7. Section 2.4 of the
Agreement is deleted in its entirety and replaced with the
following:
"2.4.
Estimate of Purchase Price . At least three
(3) Business Days prior to the Closing Date, the Sellers shall
deliver to Buyer a balance sheet of the Company prepared by the
Company and the Sellers that reflects the Company’s and the
Sellers’ good faith reasonable estimate of the
Company’s balance sheet as of the Effective Closing Date (the
" Estimated Closing Balance Sheet ") and a certificate
(substantially in the form attached hereto as Exhibit B)
executed by the chief financial officer of the Company (the "
Closing Certificate ") setting forth:
(a) all
Indebtedness as set forth in the Estimated Closing Balance Sheet
plus the Additional Indebtedness as of the Closing Date (such sum,
the " Estimated Indebtedness ");
(b) all
Employee Obligations as set forth in the Estimated Closing Balance
Sheet (the " Estimated Employee Obligations ");
(c) all
Tax Obligations as set forth in the Estimated Closing Balance Sheet
(the " Estimated Tax Obligations "); and
(d) all
payments made by the Company after the Effective Closing Date of
Employee Obligations and Tax Obligations, in each case that were
included in the Estimated Employee Obligations and the Estimated
Tax Obligations, respectively (the " Post Effective Closing Date
Payments "). The Closing Certificate shall also include Net
Working Capital as set forth in the Estimated Closing Balance Sheet
(the " Estimated Net Working Capital ") for purposes of
determining whether the condition set forth in Section 8.10
has been met. Following receipt of the Closing Certificate, Sellers
shall permit Buyer and its Representatives at all reasonable times
and upon reasonable notice to review the Sellers’ and the
Company’s working papers relating to the Estimated Closing
Balance Sheet and Closing Certificate as well as the Sellers’
and the Company’s accounting books and records relating to
the determination of the Estimated Closing Balance Sheet and
Closing Certificate, and Sellers shall make reasonably available
their Representatives responsible for the preparation of the
Estimated Closing Balance Sheet and the Closing Certificate in
order to respond to the inquiries of the Buyer. Prior to the
Closing, the Parties shall act reasonably in resolving in good
faith any disagreements concerning the computation of any of the
items on the Estimated Closing Balance Sheet and Closing
Certificate; provided that it is acknowledged and agreed that if
any disagreements cannot be resolved, then the Closing shall occur
on the basis of the Closing Certificate provided by Sellers with
such changes as have been agreed upon by the Parties, and that any
unresolved disagreements shall be deferred for resolution pursuant
to the post-closing purchase price adjustment process described in
Section 2.5 of this Agreement."
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8. Section 2.5(a) of the
Agreement is deleted in its entirety and replaced with the
following:
"(a) Buyer
shall prepare and on no later than the one-hundred and twenty-fifth
(125th) day following the Closing Date deliver to the
Sellers’ Representative an unaudited balance sheet of the
Company as of the Effective Closing Date (the " Closing Balance
Sheet ") prepared in accordance with GAAP together with a
certificate (substantially in the form attached hereto as
Exhibit C) executed by the chief financial officer of the
Buyer (the " Post-Closing Certificate ") setting forth:
(i) The
actual amount of (1) Net Working Capital (the " Actual Net
Working Capital "), (2) the aggregate amount of all Cash,
Cash Equivalents and Equipment Deposits minus the Permitted Cash
Distribution and minus the Post Effective Closing Date Payments
(the " Actual Cash, Cash Equivalents and Equipment Deposits
"), (3) the aggregate amount of Indebtedness as set forth in
the Closing Balance Sheet plus the Additional Indebtedness as of
the Closing Date (such sum, the " Actual Indebtedness "),
(4) the aggregate amount of Employee Obligations (the "
Actual Employee Obligations ") and (5) the aggregate
amount of Tax Obligations (the " Actual Tax Obligations "),
except (x) the Permitted Cash Distribution, (y) the Post
Effective Closing Date Payments, and (z) as set forth in
Section 2.5(a)(i)(3), in each case as set forth in the Closing
Balance Sheet;
(ii)
The amount of all accounts receivable included in Actual Net
Working Capital included in the Closing Balance Sheet which were
not collected on or prior to the one-hundred and twentieth (120th)
day after the Effective Closing Date (the " Actual Uncollected
Accounts Receivable "); and
(iii) A
calculation of the Post-Closing Adjustment calculated in accordance
with Section 2.5(b)."
9. Section 2.5(b)(ii) of
the Agreement is deleted in its entirety and replaced with the
following:
"(ii)
(1) the Actual Cash, Cash Equivalents and Equipment Deposits
set forth on the Post-Closing Certificate minus
(2) Retained Cash and Cash Equivalents; plus "
10. Section 2.7 of the
Agreement is deleted in its entirety and replaced with the
following:
"2.7
Collection and Assignment of Excluded Accounts Receivable and
Actual Uncollected Accounts Receivable; and Payment for Reduction
to Related Accounts Payable .
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(a)
If at any time prior to the one (1) year anniversary of the
Effective Closing Date any Excluded Accounts Receivable or Actual
Uncollected Accounts Receivable shall be collected by the Company,
then the Company shall pay to Sellers an amount equal to such
collections less all reasonable collection costs related to all
Excluded Accounts Receivable or Actual Uncollected Accounts
Receivable which have not been previously deducted from any payment
pursuant to this Section 2.7(a). If upon the one (1) year
anniversary of the Effective Closing Date any Excluded Accounts
Receivable or Actual Uncollected Accounts Receivable remain
uncollected and Jon continues to be employed by the Company on such
date, then the Company shall assign all of its rights to such
Excluded Accounts Receivable and Actual Uncollected Accounts
Receivable to the Sellers. If Jon is not employed by the Company at
such time, then the Company shall hold such Excluded Accounts
Receivable and Actual Uncollected Accounts Receivable and if
collected will pay Sellers such
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