Fill and Sign the Stock Purchase Agreement 497336515 Form

AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT This AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is dated as of December 17, 1999, among WYNN'S INTERNATIONAL, INC., a Delaware corporation ("Buyer"), GOSHEN RUBBER COMPANIES, INC., an Indiana corporation (the "Company"), WILLIAM P. JOHNSON ("Johnson") and each of the other shareholders of the Company listed on the signature pages hereto (collectively with Johnson, the "Existing Shareholders") and Berkshire Taconic Community Foundation, Inc. (the "New Shareholder," and together with the Existing Shareholders, the "Shareholders"). WHEREAS, the parties (other than the New Shareholder) previously entered into that certain Stock Purchase Agreement, dated October 20, 1999 (the "Original Stock Purchase Agreement") pursuant to which Buyer agreed to purchase all of the outstanding capital stock of the Company and the Company would become a wholly owned subsidiary of Buyer; and WHEREAS, Maureen Hickey, one of the Existing Shareholders, desires to transfer certain of the Shares owned by her to the New Shareholder, and to have the New Shareholder become a party to, and be bound by, the Original Stock Purchase Agreement; and WHEREAS, in connection with the transfer of the Shares to the New Shareholder, the New Shareholder has agreed to become a party to, and to be bound by, all of the terms and provisions of the Original Stock Purchase Agreement, and the amendments thereof set forth herein, by the execution and delivery of this Amendment; and WHEREAS, the parties desire to amend the Original Stock Purchase Agreement to provide for the delivery of a promissory note for a portion of the purchase price otherwise payable at the Closing; and WHEREAS, Buyer has consented to the payment of cash bonuses to Steve Budde in an amount not to exceed $112,000 and to Jim Hartings in an amount not to exceed $75,000, and in connection with such bonus payments has agreed that the purchase price for the Shares need not be reduced by the amount of any such payments, net of the Company's expected effective tax rate for the tax period July 1, 1999 through December 31, 1999; and WHEREAS, the parties desire to provide a clean cut-off date for financial, accounting and tax purposes by providing that the results of operations through December 31, 1999 will be for the account of the Shareholders; and 52 WHEREAS, the parties desire to amend the method of determining the final purchase price under the Original Stock Purchase Agreement to use a balance sheet date of December 31, 1999 for purposes of calculating the final purchase price; and WHEREAS, the parties desire to amend certain other provisions of the Original Stock Purchase Agreement as set forth herein; NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which the parties hereby acknowledge, the parties agree as follows: 1. The Existing Shareholders to the Original Stock Purchase Agreement hereby consent to the transfer of 490 Shares by Maureen Hickey to the New Shareholder, and to the New Shareholder becoming a party to the Original Stock Purchase Agreement. 2. The New Shareholder hereby becomes a party to, and agrees to be bound by, the Original Stock Purchase Agreement, as amended herein, including for such purposes making all of the representations, warranties and covenants to and for the benefit of Buyer set forth therein. 3. The parties acknowledge and agree that the New Shareholder shall be deemed for all purposes to be a Charitable Shareholder within the meaning of the third paragraph of Article II of the Original Stock Purchase Agreement. The Existing Shareholders acknowledge and agree that Schedule 6.1 to the Original Stock Purchase Agreement shall not be changed or amended as a result of the transfer of Shares to the New Shareholder. 4. The parties agree that Schedule A to the Original Stock Purchase Agreement is hereby amended and restated in its entirety as attached to this Amendment. 5. Section 1.2 of the Original Stock Purchase Agreement is hereby amended and restated to read in its entirety as follows: "1.2 PURCHASE OF THE SHARES BY BUYER. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties and agreements herein contained, Buyer shall acquire the Shares from the Shareholders on the Closing Date. The aggregate consideration payable for all of the Shares is an amount equal to the Net Worth (as defined below) of the Company as of December 31, 1999 plus the sum of (i) $24.0 million and (ii) the adjustments set forth in this Section, if any, and in Section 1.5(c) below (the "Purchase Price"). "Net Worth" means the book value of the Company's assets less its liabilities as reflected in the Year-End Balance Sheet (as defined in Section 1.5) as determined in conformity with generally accepted accounting principles consistently applied ("GAAP"); provided, that for calculation of the purchase price for the Shares the Company shall not be required to reduce the Net Worth for the following items (except to the extent of normal amortization of 2 53 such items in the ordinary course of business up to June 30, 1999 and for the period between July 1, 1999 and December 31, 1999) regardless of whether Net Worth is required to be so reduced by GAAP, as of December 31, 1999: (a) any unamortized balance of capitalized loan and credit facility costs relating to the current and prior credit facilities of the Company reflected on the Balance Sheet (as defined in Section 2.8) as of the Balance Sheet Date; (b) any capitalized software costs reflected on the Balance Sheet as of the Balance Sheet Date; (c) capitalized leased property under lease obligations with respect to the Company's South Carolina leased facility reflected on the Balance Sheet as of the Balance Sheet Date; (d) any adjustments to the book value of the leased assets reflected on the Balance Sheet as of the Balance Sheet Date leased from Amplicon, Inc. under that certain Lease Agreement dated October 28, 1994, as amended March 23, 1995, as a result of the termination of that lease; and (e) any adjustments to the accounts receivable reflected in the Balance Sheet as of the Balance Sheet Date or the reserves therefor based on the account receivable and note receivable in the aggregate amount of $631,000 from Advanced Performance Technology, Inc. All costs, expenses and fees of the Company (or to be paid by the Company) related to the transactions contemplated by this Agreement incurred prior to the Closing shall have been expensed as of the Closing Date, and the effect of such expensing shall be reflected in the Year-End Balance Sheet." 6. Section 1.3 of the Original Stock Purchase Agreement is hereby amended and restated to read in its entirety as follows: "1.3 PAYMENT FOR SHARES. In full consideration of the purchase by Buyer of the Shares, Buyer shall make the following payments: (a) Buyer shall pay to Shareholders' Agent (as defined in Section 1.5) at the Closing (as defined in Section 1.7) the Closing Payment Amount (as defined in Section 1.4) by delivery of (i) the Promissory Note, for the account of the Shareholders (as defined in Section 1.3(b) below), and (ii) payment of the balance of the Closing Payment Amount, for the account of the Shareholders, by wire transfer of immediately available funds to a custodial account (the "Account") to be designated by the Shareholders' Agent in writing not later than three business days prior to the Closing. (b) Buyer shall deliver to Shareholders' Agent, for the account of the Shareholders, at the Closing a promissory note of Buyer payable to the Shareholders' Agent for the account of the Shareholders in the principal amount of $6.2 million, such promissory note to be due and payable on January 3, 2000 and to otherwise be in the form of Exhibit D hereto (the "Promissory Note"). 3 54 (c) Buyer shall pay the Deferred Purchase Price (as defined in Section 1.4) in accordance with the provisions of Section 1.6 below." 7. Section 1.4 of the Original Stock Purchase Agreement is hereby amended and restated in its entirety as follows: "1.4. DETERMINATION OF THE CLOSING PAYMENT AMOUNT AND DEFERRED PURCHASE PRICE. At least five business days prior to the Closing Date, the Company shall submit to Buyer a calculation setting forth the estimated closing payment amount (the "Estimated Closing Payment Amount"), together with supporting documents used by the Company in calculating the Estimated Closing Payment Amount and such other documents reasonably requested by Buyer to support the calculation. The Estimated Closing Payment Amount shall be an amount equal to the estimated Net Worth of the Company as of December 31, 1999 plus (i) Nineteen Million Five Hundred Thousand Dollars ($19,500,000) and (ii) good faith estimates of the adjustments specified in Section 1.5(c) hereof (other than with respect to Section 1.5(c)(iv) for which no estimate shall be made), but in no event shall the Estimated Closing Payment Amount exceed Forty-Two Million Dollars ($42,000,000). Unless Buyer shall object at least one day prior to the Closing Date in writing to the Estimated Closing Payment Amount, the payments contemplated by Sections 1.3(a) and 1.3(b) to be made on the Closing Date shall be based on the Estimated Closing Payment Amount, and the same shall hereafter be referred to as the "Closing Payment Amount." The difference between the Purchase Price and the Closing Payment Amount shall be deferred and paid in accordance with Section 1.6 below (the "Deferred Purchase Price"). 8. Section 1.5 of the Original Stock Purchase Agreement is hereby amended and restated in its entirety as follows: "1.5 FINAL DETERMINATION OF PURCHASE PRICE. (a) As soon as practicable following the Closing Date but in any event not more than 90 days after the Closing Date, Buyer or its representative shall prepare a balance sheet of the Company, dated December 31, 1999 (the "Year-End Balance Sheet"), and statements of income and retained earnings covering the period from July 1, 1999 through December 31, 1999 (the "Year-End Financial Statements"). Buyer or its representative shall also prepare a consolidated statement of income or operations for the period from December 1, 1999 through December 31, 1999 (the "December Statement of Operations"). The Year-End Financial Statements and the December Statement of Operations each shall be prepared in conformity with GAAP, subject to the adjustments set forth in Section 1.2. 4 55 (b) The parties expect that the December Statement of Operations will include some extraordinary items which the Shareholders have agreed to bear for their own account. The December Statement of Operations shall be adjusted in the manner described on Schedule B-1 hereto (collectively, the "December Adjustments") for the purpose of approximating the true operating results of the Company in December 1999. The December Statement of Operations as adjusted by the December Adjustments shall be referred to as the "Adjusted December Statement of Operations." (c) The Purchase Price as set forth in Section 1.2 shall be adjusted as follows: (i) if the Adjusted December Statement of Operations shows an aftertax loss, fifty-five percent (55%) of the aftertax loss shall be added to the Purchase Price; (ii) if the Adjusted December Statement of Operations shows aftertax income, fifty-five percent (55%) of the aftertax income shall be deducted from the Purchase Price; (iii) the amount of special cash bonuses, net of the Company's expected 38% effective tax rate for the tax period July 1, 1999 through December 31, 1999, paid by the Company on or about the Closing Date to Steve Budde in an amount not to exceed $112,000 and to Jim Hartings in an amount not to exceed $75,000 shall be added to the Purchase Price; and (iv) if Buyer establishes any special reserves on the books of the Company as of December 31, 1999 related to the acquisition of the Company by Buyer, the amount of any such reserves, net of the related tax effect, shall be added to the Purchase Price. Exhibit B-2 hereto sets forth the calculation of the Purchase Price, as so finally adjusted. (d) The parties hereto acknowledge and agree that while any special reserves recorded by Buyer, net of the related tax effect, recorded on the books of the Company as of December 31, 1999 related to the acquisition of the Company by Buyer shall be added back to the Purchase Price, it is not the intention of the parties that doing so shall in any way diminish or alter the indemnification obligations of the Shareholders specified in this Agreement with respect to, among other things, any inaccuracy in or breach or nonperformance of any of the representations, warranties, covenants or agreements made by such shareholder in or pursuant to this Agreement. (e) Based upon the Year-End Financial Statements and the Adjusted December Statement of Operations, Buyer shall prepare a statement (the "Purchase Price Statement") setting forth the calculation of the Purchase Price and the Deferred Purchase Price and deliver the Purchase Price Statement to William P. Johnson, in his capacity as representative of each of and for the accounts of the Shareholders (the "Shareholders' Agent"). Shareholders' Agent will then have fifteen (15) business days from the date of receipt of the Purchase Price Statement to object to any items or calculations on the Purchase Price Statement. If Shareholders' Agent does not object to the Purchase Price Statement within such 15-day period, such Purchase Price Statement shall be 5 56 deemed final and conclusive with respect to the determination of the Purchase Price and the Deferred Purchase Price and shall be binding on all parties hereto, including all Shareholders, for such purpose. In the event that Shareholders' Agent objects to any item or calculation on the Purchase Price Statement and such objection cannot be resolved by the parties hereto within twenty business days following such objection, such objection shall be resolved by Arthur Andersen LLP (the "Arbitrating Accountant"), who shall resolve all such objections as soon as practicable and make any necessary changes or revisions to the Purchase Price Statement. In resolving such objections, the Arbitrating Accountant shall determined whether the Purchase Price Statement was prepared in accordance with this Agreement and whether the Year-End Financial Statements upon which the Purchase Price Statement was based were prepared in conformity with GAAP, subject to the adjustments set forth in Section 1.2. Within five days of completion, the Arbitrating Accountant shall deliver the Purchase Price Statement to Buyer and Shareholders' Agent. The Purchase Price Statement as finalized by the Arbitrating Accountant shall be deemed final and conclusive with respect to the determination of the Purchase Price and the Deferred Purchase Price and shall be binding on all the parties hereto, including all Shareholders, for such purposes. The fees and expenses of the Arbitrating Accountant in resolving all such objections shall be borne one-half by Buyer, on the one hand, and one-half by the Shareholders on the other hand, and such one-half may be deducted by Buyer pro rata based on the percentage interests in the Company from the Deferred Purchase Price remaining payable to all Shareholders." 9. Section 6.1 (c) of the Original Stock Purchase Agreement is hereby amended to read in its entirety as follows: "(c) any tax liability of the Company or any subsidiary for any tax period ending on or prior to December 31, 1999 to the extent not reserved or provided for on the Year-End Balance Sheet;" 10. Section 9.1 of the Original Stock Purchase Agreement is hereby modified by deleting the date "November 30, 1999" in the first sentence of such section and replacing such date with the date "December 31, 1999." 11. A new Section 10.17 is hereby added to the Original Stock Purchase Agreement which reads in its entirety as follows: "10.17. December 1999 Results. The Shareholders and Buyer agree that the results of operations of the Company up to and including December 31, 1999 shall be for the account of the Shareholders." 12. All terms used in this Amendment without definition shall have the meanings given those terms in the Original Stock Purchase Agreement. 6 57 13. Except as expressly modified herein, the Original Stock Purchase Agreement shall remain in full force and effect in accordance with its original terms. 14. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 15. This Amendment shall be governed by the laws of the State of Indiana. 7 58 IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed on the date first written above. GOSHEN RUBBER COMPANIES, INC., an Indiana corporation By: /s/ WILLIAM P. JOHNSON ------------------------------------------ Name: William P. Johnson Title: President and Chief Executive Officer WYNN'S INTERNATIONAL, INC., a Delaware corporation By: /s/ SEYMOUR A. SCHLOSSER ------------------------------------------ Name: Seymour A. Schlosser Title: Vice President - Finance - And Chief Financial Officer NEW SHAREHOLDER Berkshire Taconic Community Foundation, Inc. By: /s/ JENNIFER DOUSKY ------------------------------------------ Name: Jennifer Dousky Title: President /s/ WILLIAM P. JOHNSON ------------------------------------------ William P. Johnson /s/ TONI T. JOHNSON ------------------------------------------ Toni T. Johnson Flying J. Company, LLP By: /s/ WILLIAM P. JOHNSON ------------------------------------------ Name: William P. Johnson Title: Partner S-1 59 Randall Delron & Margaret Ann Shirley Family Limited Partnership By: /s/ MARGARET ANN SHIRLEY ------------------------------------------ Name: Margaret Ann Shirley Title: Partner The Mennonite Foundation By: /s/ RANDALL M. JACOBS/ /s/ DELMAR KING ------------------------------------------ Name: Randall M. Jacobs/Delmar King Title: Asst. Secretary/Asst. Treasurer /s/ MARGARET JOHNSON SHIRLEY ------------------------------------------ Margaret Johnson Shirley /s/ PHILLIP JOHNSON ------------------------------------------ Phillip Johnson /s/ PHILLIP JOHNSON ------------------------------------------ Phillip Johnson, as custodian /s/ MAUREEN J. HICKEY ------------------------------------------ Maureen J. Hickey /s/ PAUL J. HICKEY ------------------------------------------ Paul J. Hickey /s/ WILLIAM J. HICKEY ------------------------------------------ William J. Hickey /s/ ELIZABETH M. HICKEY ------------------------------------------ Elizabeth M. Hickey /s/ JOHN P. HICKEY ------------------------------------------ John P. Hickey S-2 60 /s/ MARGARET HICKEY (GRANT) ------------------------------------------ Margaret Hickey (Grant) University of Notre Dame By: /s/ E. WILLIAM BEAUCHAMP, C.S.C. ------------------------------------------ Name: E. William Beauchamp, C.S.C. Title: Executive Vice President St. John the Evangelist Catholic Church By: /s/ REV. JOHN H. DELANEY ------------------------------------------ Name: Rev. John H. Delaney Title: Pastor Ducks Unlimited By: /s/ DELBERT W. CASE ------------------------------------------ Name: Delbert W. Case Title: National Director of Development