Exhibit 10.1
THIRD AMENDMENT TO STOCK
PURCHASE AGREEMENT
This Third Amendment to Stock
Purchase Agreement (“ Amendment ”) is made as of
June 1, 2009, 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 and
further on December 16, 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 1.2 of the Agreement
is hereby amended as follows:
The term “ Substitute
Escrowed Funds ” is added to the glossary of defined
terms between the term “Stub Period Return” and the
term “Survival Period” and the location of such term is
Section 2.3(b).
3. Notwithstanding the amount of
Escrow Shares determined at Closing pursuant to the Agreement, the
Agreement is hereby amended to revise the definition of “
Escrow Shares ” to be 776,699 MasTec Shares to be held
in the Escrow Account following the date hereof in accordance with
the Escrow Agreement. Upon execution and delivery of this
Amendment, the Parties will execute and deliver to the Escrow Agent
all documents required by the Escrow Agent to release from the
Escrow Account all MasTec Shares in excess of the Escrow Shares (as
defined in this Amendment).
4. Immediately following
Section 2.3(b) of the Agreement, the following
Section 2.3(c) is added:
“(c) Substitution of
Collateral . The Sellers’ Representative shall have the
right, but not the obligation, to deliver Ten Million Dollars
($10,000,000) in cash (the “ Substitute Escrowed Funds
”) to the Escrow Agent to be held in the Escrow Account in
substitution for the Escrow Shares. If Sellers’
Representative exercises such right, then the Parties shall execute
such additional agreements with the Escrow Agent as the Escrow
Agent may require to (i) release the Escrow Shares to the
Sellers’ Representative and (ii) take possession of the
Substitute Escrowed Funds.”
The existing Sections 2.3(c) and 2.3(d) shall be
renumbered 2.3(d) and 2.3(e), respectively.
5. The parties acknowledge that the
Final Closing Statement is attached hereto as Exhibit A and agree
that the Final Closing Adjustment is a positive Two Million Two
Hundred Ninety-Eight Thousand Two Hundred Twenty-Seven and
No/100ths Dollars ($2,298,227.00) all pursuant to Section 2.5.
The Final Closing Adjustment shall be paid by Buyer to the
Sellers’ Representative seven (7) days from the date
hereof and shall include interest thereon from the Closing Date
until the Closing Adjustment Payment Date at an annual interest
rate of five percent (5%).
6. In calculating
the Final Closing Adjustment, the parties classified the Seaboard
Receivable as set forth on Schedule 4.8, but in an updated amount
of $2,480,650 (the “ Seaboard Receivable ”), as
an Excluded Accounts Receivable because it was more than 120 days
old as of the Closing Date. In addition, the parties removed from
current liabilities included in Actual Net Working Capital
$1,961,445 of accounts payable to subcontractors related to the
Seaboard Receivable (the “ Seaboard Related Payables
”). The Buyer agreed not to include the Seaboard Related
Payables in current liabilities for purposes of Actual Net Working
Capital used to determine the Final Closing Adjustment based upon
the assumption that no amounts will be payable with respect to the
Seaboard Related Payables unless the Company is able to collect on
the Seaboard Receivable. Accordingly, the Company shall retain all
rights to the Seaboard Receivable and the parties agree that
pursuant to Section 2.7(a), (a) upon the Company’s
collection of all or any portion of the Seaboard Receivable,
Sellers shall no longer have any right to receive payment and
(b) the Company shall not be required to assign such
receivable (nor shall the Sellers be entitled to such assignment);
provided, however, that should Buyer collect on the Seaboard
Receivable an amount in excess of the sum of (x) the amount
due to be paid on the Seaboard Related Payables, plus
(y) all costs and expenses related to such collection, and
plus (z) the amount of any other Adverse Consequences
in conne
