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 determined by Buyer
in its discretion, such segregated portion to the trust or other funding
vehicle under Buyer’s 401(k) Plan. 
The parties shall comply with all provisions of the Code and ERISA
applicable to such transfer, including Sections 414(l) and 411(d)(6) of
the Code and the corresponding provisions of ERISA.”


 


(i)            Section 4.6(a)(ii) of
the Agreement is hereby deleted in its entirety and replaced with the following
new Section 4.6(a)(ii):


 


“(ii)  MMG is a
limited liability company duly organized, validly existing and in good standing
under the Laws of the State of Nevada, and each Subsidiary is an entity duly
organized, validly existing and in active status under the Laws of the state of
its organization.  MMG is not in default
under any provision of its Articles of Organization or the MMG Operating
Agreement, and neither Subsidiary is in default under any provision of its
articles of incorporation or organization, as the case may be, or its bylaws or
operating agreement, as the case may be.”


 


(j)            “Corporate
power” wherever it appears in Section 4.6(b) of the Agreement is
hereby deleted and replaced with “corporate or limited liability company power.”


 


(k)           Section 4.7(b) of
the Agreement is hereby amended as follows:


 


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(i)            “The Subsidiary”
wherever it appears in Section 4.7(b), other than in the sentence to be
added to Section 4.7(b) pursuant to this Amendment, is hereby deleted
and replaced with “MMC.”


 


(ii)           The following new
sentence is added to the end of Section 4.7(b):


 


“Schedule 4.7(b) to
the Disclosure Schedules also sets forth, as applicable (i) the authorized
capital of the Subsidiary (other than MMC), including the identification of
each authorized class of capital stock or limited liability company membership
interests, the number of authorized shares of each class, the number of issued
and outstanding shares of each class, the number of treasury shares of each
class, and the holders of any outstanding shares or limited liability company
membership interests and (ii) the holders and percentages of limited
liability company membership interests of the Subsidiary (other than MMC) held.


 


(l)            Section 7.6(c) of
the Agreement is hereby deleted in its entirety and replaced with the following
new Section 7.6(c):


 


“(c)  A Certificate
of the Secretary of each Subsidiary certifying to an attached copy of the
articles of incorporation or organization and bylaws or operating agreement, as
applicable.”


 


(m)          Section 11.1
of the Agreement is hereby amended as follows:


 


(i)            “December 30,
2008” wherever it appears in Section 11.1 is hereby deleted and replaced
with “December 31, 2008.”


 


(ii)           The following new
sentence is added to the end of Section 11.1:


 


“Notwithstanding anything
in this Section 11.1 to the contrary, neither Buyer nor Seller may
terminate this Agreement on or prior to January 15, 2009 if (x) the
only condition to closing set forth in Article VIII (if Seller is the
party desiring to terminate) or Article VII (if Buyer is the party
desiring to terminate) that has not been fulfilled is the receipt of
Exon-Florio Clearance and (y) the reason that the Exon-Florio Clearance
has not been received is solely due to administrative constraints (such as any
administrative delay by CFIUS in issuing a letter confirming that its 45-day
investigation has revealed no issue of material security concern) and not for
any substantive reason.”


 


3.             Waivers.  The parties hereto hereby waive the
obligation arising under Section 3.3(a) of the Agreement of Seller to
deliver, together with the Disclosure Schedule, a certificate signed by an
officer of Seller, stating that the Disclosure Schedule is being delivered
pursuant to the Agreement and is the Disclosure Schedule referred to in the
Agreement.  Notwithstanding such waiver,
the parties hereto confirm and agree that the Disclosure Schedule attached to
the executed Agreement and initialed by the parties is the Disclosure Schedule
referred to in the Agreement.


 


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4.             Full
Force and Effect.  Except as
expressly amended hereby, the Agreement shall continue unmodified and in full
force and effect in accordance with the provisions thereof on the date
hereof.  As used in the Agreement, the
terms “Agreement,” “this Agreement,” “this Purchase Agreement,” “herein,” “hereafter,”
“hereto,” “hereof” and words of similar import shall mean, unless the context
otherwise requires, the Agreement as amended by this Amendment.


 


5.             Governing
Law.  This Amendment shall be
construed and interpreted according to the internal Laws of the State of New
York without regard to the conflicts of Laws principles thereof.


 


6.             Counterparts;
Headings.  This Amendment may be
executed in several counterparts, each of which shall be deemed an original,
but such counterparts shall together constitute but one and the same
Amendment.  The headings in this
Amendment are inserted for convenience of reference only and shall not
constitute a part hereof.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the day and year first above written.


 


	
   

  	
  THE
  MANITOWOC COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Maurice
  D. Jones

  
	
   

  	
  Name:

  	
  Maurice D. Jones

  
	
   

  	
  Title:

  	
  Senior Vice
  President, General Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MMG
  HOLDING CO., LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  THE MANITOWOC COMPANY, INC.,

  
	
   

  	
   

  	
  SOLE
  MEMBER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Maurice
  D. Jones

  
	
   

  	
   

  	
  Name: Maurice D.
  Jones

  
	
   

  	
   

  	
  Title:  
  Senior Vice President, General Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FINCANTIERI-CANTIERI
  NAVALI ITALIANI S.p.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Giuseppe
  Bono

  
	
   

  	
  Name:

  	
  Giuseppe Bono

  
	
   

  	
  Title:

  	
  Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FINCANTIERI
  MARINE GROUP HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Pier
  Francesco Ragni

  
	
   

  	
  Name:

  	
  Pier Francesco
  Ragni

  
	
   

  	
  Title:

  	
  President

  
					



 


Signature Page to Amendment No. 1
to Purchase Agreement