FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT




FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT

 

RECITALS


This First Amendment to Stock Purchase Agreement (the "Amendment")
is made as of this 21st day of June, 2002.

Reference is made to that certain Stock Purchase Agreement (the
"Agreement") dated as of February 21, 2002, by and among Capital
Growth Partners, LLC, a Utah limited liability company ("Purchaser"),
United Park City Mines Company, a Delaware corporation (together, with its
Subsidiaries, the "Company"), and those parties set forth on Schedule
A attached thereto (such entities are hereinafter collectively referred to
as "Sellers" and each individually as a "Seller"). All
references herein or in the Agreement to the term "Agreement" shall be
deemed to refer to the "Agreement, as amended".

The parties to the Agreement now seek to amend the Agreement as provided
herein. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Agreement, as amended herein.


AGREEMENT


Purchaser, Sellers and the Company, intending to be legally bound, for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and agree as follows:

1. The obligation in Section 7 of the Agreement of the Purchaser to make the
Offer and all provisions in the Agreement that pertain to the Offer are hereby
suspended, subject to the provisions of paragraph 5 below.

2. The definition of "Contemplated Transactions" in Section 13.17
of the Agreement is deleted in its entirety and replaced with the following:
"all of the transactions contemplated by this Agreement, including the
Merger".

3. On the Closing Date (as such date may be extended as provided herein) and
immediately following the Closing, Purchaser will (a) vote the Shares acquired
at the Closing by "Consent" under applicable Delaware law to effect a
statutory merger (the "Merger") pursuant to which (i) the Company
would be the surviving entity and (ii) upon the effective date of the Merger,
the Remaining Shareholders of the Company (other than Purchaser) would receive
"Merger Consideration" defined as an amount equal to $25 per share
minus the "Per Share Expense Reimbursement" which equals (i) the total
fees and expenses paid by Sellers in connection with the Contemplated
Transactions, including, without limitation, all reasonable legal fees and one
half of the Dresdner Fee (as defined in the Agreement) contemplated by Section
13.11(c) of the Agreement, divided by (ii) the total number of shares of the
Company outstanding on the Closing Date (provided that if any Remaining
Shareholder dissents to the Merger, such remaining shareholder shall receive
merger consideration determined pursuant to his or her appraisal rights under
Delaware law); and (b) cause the Company to file with the SEC, pursuant to
applicable securities laws an information statement (the "Information
Statement") and, as soon as practicable after approval by the SEC, to
distribute the definitive Information Statement to the Shareholders of the
Company. The Information Statement will provide that the Merger will become
effective 20 days after the definitive Information Statement is distributed to
the Remaining Shareholders. Any terms defined in this paragraph 3, if used in
the Agreement, shall be deemed to be defined terms in the Agreement.

4. (a) Purchaser shall be responsible for all of its fees and expenses
incurred in connection with the Merger, including any filing fees to the SEC and
all costs associated with such filings, including preparation and dissemination
of the Information Statement. Seller shall be responsible for all fees and
expenses incurred by it (if any), including without limitation Sellers' legal
counsel's review of documentation, in connection with the Merger;

(b) As promptly as practicable on the earliest date following the completion
of the Merger as of which Purchaser is permitted under applicable law to pay the
Merger Consideration to the holders of the Remaining Shares pursuant to the
Merger, Purchaser shall pay such Merger Consideration; and

(c) Notwithstanding anything to the contrary contained in the Agreement,
Purchaser shall not (without the prior written consent of Sellers and the
Company): (i) fail to consummate the Merger; (ii) reduce the number of Remaining
Shares subject to the Merger; (iii) reduce the Merger Consideration to be paid
pursuant to the Merger; (iv) change the form of consideration payable in the
Merger; or (v) amend, modify or supplement any of the terms of the Merger in any
manner adversely affecting any of the holders of Remaining Shares.

5. If for any reason the Merger is not consummated, and the Remaining
Shareholders do not receive the Merger Consideration (other than dissenting
shareholders who will receive merger consideration determined pursuant to their
appraisal rights under Delaware law), by the date which is 45 days after the
Closing Date (the "Merger Completion Date"), all provisions in the
Agreement pertaining to the Offer shall be reinstated as of the Merger
Completion Date and the Offer shall be commenced (and the terms of paragraphs 2,
3, 4 (but not paragraph 4(a)), 7, 8 and 9 herein shall be null and void) in
accordance with the terms hereof. If such Offer required to be commenced by the
preceding sentence herein is not commenced within 20 days of the Merger
Completion Date or if the Purchaser does not purchase at the conclusion of the
Offer all shares validly tendered (and not validly withdrawn by the holders of
such shares) in accordance with the terms of the Offer, unless the Purchaser is
prevented from doing so as a result of a Proceeding, then Loeb acting in its
discretion on behalf of Sellers, shall be entitled to the rescission rights set
forth in, and subject to the terms and conditions of, Section 7.6 of the
Agreement.

6. The first two sentences of Section 6.4(a) of the Agreement are hereby
deleted, except that the definition of Acquisition Proposal shall remain solely
for the purposes of using such defined term in the remainder of Section 6.4(a)
of the Agreement and other places where it may appear in the Agreement.

7. In the first sentence of Section 7.2 of the Agreement, the word
"Offer" is deleted and replaced by the word "Merger". The
last two sentences of Section 7.2 are hereby deleted.

8. The first sentence of Section 7.5 is deleted and replaced with the
following: "Upon the completion of the Merger, Purchaser shall pay to
Sellers an amount in cash equal to (i) the Per Share Expense Reimbursement,
multiplied by (ii) the number of Remaining Shares." The last sentence of
Section 7.5 of the Agreement is deleted and replaced with the following:
"Such payment shall be made by Purchaser promptly upon completion of the
Merger."

9. In section 13.11(c), the phrase "tendered pursuant to the Offer"
is deleted and replaced with the phrase "extinguished in the Merger in
exchange for the Merger Consideration".

10. Section 2 of the Agreement is deleted and hereby replaced with the
following, subject to the provisions of Section 12 herein:


  
    "The closing of the transactions contemplated by
    Sections 1 and 3 (the "Closing") shall be held at the
    offices of Holme Roberts & Owen LLP, 111 East Broadway, Suite 1100 in
    Salt Lake City, Utah, or at such other place as may be jointly designated by
    Purchaser and Sellers, which Closing shall be held on the date (the "Closing
    Date") which is the date which is the later of (a) the date that is
    July 19, 2002 or (b) if a Proceeding is initiated as described in Section
    8.4 (an "Extension Event") prior to or on July 19, 2002,
    the date that is the earlier of (i) ten business days following the date of
    the final disposition of the Extension Event, (ii) 90 days after the date of
    initiation of the Extension Event, or (iii) 238 days after the date of this
    Agreement (both (a) and (b), the "Initial Closing Date Deadline");
    provided, however, that Purchaser may, at its election, postpone the
    Closing Date (a "Postponement") by 30 days after the
    Initial Closing Deadline (the "Postponement Period") upon
    written notice to Sellers and further provided that Purchaser may,
    further postpone the Closing Date by electing a Second Postponement and a
    Third Postponement, both as defined in the First Amendment to Stock Purchase
    Agreement dated as of June 21, 2002, pursuant to the terms of such First
    Amendment. If an Extension Event is initiated within the Postponement
    Period, the Closing Date shall be postponed until the earlier of (a) 268
    days after the date of this Agreement or (b) the later of (i) 30 days after
    the beginning of the Postponement Period, (ii) 10 days after the final
    disposition of the Extension Event or (iii) 90 days after the date of
    initiation of the Extension Event. If an Extension Event is initiated within
    the period of the Second Postponement, the Closing Date shall be postponed
    until the earlier of (a) 270 days after the date of this Agreement or (b)
    the later of (i) 15 days after the beginning of the period of the Second
    Postponement, (ii) 10 days after the final disposition of the Extension
    Event or (iii) 90 days after the date of initiation of the Extension Event.
    If an Extension Event is initiated within the period of the Third
    Postponement, the Closing Date shall be postponed until the earlier of (a)
    270 days after the date of this Agreement or (b) the later of (i) 15 days
    after the beginning of the period of the Third Postponement, (ii) 10 days
    after the final disposition of the Extension Event or (iii) 90 days after
    the date of initiation of the Extension Event."

     

     

  



Section 2, as amended, is intended to be interpreted
consistent with the provisions of Section 12 hereof.

 

11. All other dates in the Agreement are hereby amended to
conform to the changes set forth in Section 10 above and Section 12 below. All
references to "the Postponement Period" in Section 3 shall be deleted
and replaced with "the Postponement Period (including the period of the
Second Postponement, if such Second Postponement has been elected and the period
of the Third Postponement, if such Third Postponement has been elected)".

 

12. A. Upon execution of this Amendment by all parties hereto, Purchaser
agrees that:

(i) Sellers' Representative (as defined in the Deposit Agent Agreement
dated as of February 21, 2002 (the "Deposit Agreement") among the
Purchaser (as defined in the Deposit Agreement), the Sellers (as defined in the
Deposit Agreement), the Sellers' Representative (as defined in the Deposit
Agreement) and the Deposit Agent (as defined in the Deposit Agreement)) may
submit a Sellers' Disbursement Notice (as defined in the Deposit Agreement) in
the amount of $250,000 (the "Initial Deposit") and that Purchaser will
not file an Objection Notice to such Sellers' Disbursement Notice, thereby
allowing said Initial Deposit to be distributed to Sellers, which Initial
Deposit shall be nonrefundable as provided in Section 12(B) herein. In
furthering the provisions of this subsection, such Deposit Agent shall promptly
disburse such $250,000 to Seller's Representative on behalf of the Sellers and
the parties shall execute any documentation necessary to accomplish the
foregoing, including a notice from Purchaser to the Deposit Agent waiving the
7-day waiting period in relation to this $250,000, and the Deposit Agent shall
distribute such $250,000 as soon as practicable. Purchaser will countersign
Sellers' Disbursement Notice with respect to such $250,000 and will confirm in
writing that it will not file an Objection Notice with respect to such $250,000.

(ii) the Deposit (as defined in the Agreement) shall be reduced by the amount
of the Initial Deposit to the amount of $1,250,000, plus interest, and shall be
governed by the provisions of the Agreement (as amended by this Amendment);

B. The Initial Deposit (of $250,000) shall be nonrefundable and shall be the
property of the Sellers; provided, however, if a Closing occurs and Purchaser
(or an affiliate of Purchaser) purchases the Shares from Sellers, the Initial
Deposit shall be applied to the Purchase Price.

C. If a Postponement has been elected by Purchaser, Purchaser may, on or
before August 19, 2002, elect a further postponement of the Closing Date for an
additional 15 days (the "Second Postponement") by paying Seller's
Representative on behalf of Sellers an additional deposit (the "Second
Postponement Deposit") in the amount of $250,000. If no Closing occurs
within the period of the Second Postponement (unless a Third Postponement,
defined below, is taken), the Second Postponement Deposit shall be nonrefundable
and shall be the property of the Sellers. If a Closing occurs and Purchaser (or
an affiliate of Purchaser) purchases the Shares from Sellers, the Second
Postponement Deposit shall be applied to the Purchase Price.

D. If the Second Postponement has been taken and the Second Postponement
Deposit has been paid, Purchaser may, on or before September 3, 2002, elect a
further postponement of the Closing Date for an additional 15 days (the
"Third Postponement") by paying Seller's Representative on behalf of
Sellers an additional deposit (the "Third Postponement Deposit") in
the amount of $250,000. If no Closing occurs within the period of the Third
Postponement, the Third Postponement Deposit shall be nonrefundable and shall be
the property of the Sellers. If a Closing occurs and Purchaser (or an affiliate)
purchases the Shares from Sellers, the Third Postponement Deposit shall be
applied to the Purchase Price.

13. Section 9 is hereby amended by adding the following subsection 9.5
("Merger"): "On or before the Closing Date, Purchaser will
demonstrate to Sellers that there are sufficient moneys in escrow (the
"Escrow"), with an independent institutional escrow agent, (either in
the form of cash or in the form of a letter of credit) to pay the Merger
Consideration to the Remaining Shareholders upon the closing of the Merger, with
an escrow agreement that has been executed which provides that upon the closing
of the Merger, the Merger Consideration will be released from the Escrow and
paid to the Remaining Shareholders (or set aside for dissenting shareholders)
and that the deed to certain lands (the "Lands") being purchased by
EWRD IX, LLP will be released to such partnership and that there are no other
conditions to the release of the Merger Consideration. As of the Closing Date,
all conditions for the delivery of the deed pertaining to the Lands and the
related sale of the Lands shall have been satisfied other than the closing of
the Merger, and the deed shall be placed in the Escrow on the Closing Date
(simultaneous with the Closing). If the Merger does not close and the Purchaser
makes an Offer, as set forth in Section 5 herein, monies in the Escrow shall be
applied to the Offer."

14. Subsection 11.2(a) is hereby amended (a) by inserting after the words
"cause to be returned" the words "or provided, as
applicable" and (b) by inserting after the word "information" at
the end of the subsection, the words: "and any informational projections or
reports prepared by or for Purchaser or its professionals relating to its due
diligence (other than informational projections or reports that are subject to
the attorney/client privilege or the work product privilege and other than
communications among Purchaser's members.)."

15. Except as the provisions thereof may be amended or suspended hereby, the
Agreement shall remain in full force and effect. Except as otherwise provided
herein, the obligations set forth herein shall survive and remain in effect at
the time of and after the Closing.

16. This Amendment shall be construed in accordance with, and governed in all
respects by, the laws of the State of Delaware (without giving effect to
principles of conflicts of law).

17. This Amendment may be signed in counterparts, all of which together shall
constitute one and the same instrument.

 

[THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]

Purchaser, Sellers and the Company have caused this Amendment to be executed
by their duly authorized representatives as of June 21, 2002.

CAPITAL GROWTH PARTNERS, LLC

By:  /s/ Gerald A. Jackson

Name: Gerald A. Jackson

Title: Manager

 

LOEB INVESTORS CO. XL

By:  /s/ Joseph S. Lesser

Name: Joseph S. Lesser

Managing Partner

 

LABRADOR PARTNERS, LP

By:  /s/ Stephen Farley

Name: Stephen Farley

Title: General Partner

 

TIVOLI PARTNERS

By:  /s/ Peter I. Kenner

 Name: Peter Kenner

Title: General Partner

 

PETER I. KENNER

By:  /s/ Peter I. Kenner

Name: Peter I. Kenner

 

PETER KENNER CUST

FBO NICHOLAS KENNER

By:  /s/ Peter Kenner

Name: Peter Kenner

Title: Custodian

 

IRA FBO PETER I. KENNER

By:   /s/ Peter I. Kenner

Name:  Peter I. Kenner

Title: Custodian

 

KATHERINE IRENE KENNER TRUST

By:  /s/  Clara Halperin

Name: Clara Halperin

Title: Successor Trustee

 

PETER KENNER CUST

FBO KATHERINE I. KENNER

By:  /s/  Peter Kenner

Name: Peter Kenner

Title: Custodian

 

P. KENNER & B. KENNER TRUST

By:  /s/ Clara  Halperin

Name: Clara Halperin,

Title: Trustee

 

 

PETER KENNER ANNUITY TRUST

By:  /s/ Clara Halperin

Name: Clara Halperin

Title: Trustee

 

UNITED PARK CITY MINES

By:  /s/ Hank Rothwell

Name: Hank Rothwell

Title: President

 

EILEEN FARLEY

/s/ Eileen Farley

Eileen Farley

 

Eileen Farley Trust

By:  /s/ Stephen Farley, Trustee

Name: Stephen Farley

Title: Trustee

 

John Farley Trust

By:  /s/ Stephen Farley, Trustee

Name: Stephen Farley

Title: Trustee

 

J. C. Walter

/s/  J. C. Walter

J. C. Walter

 

T. Y. WONG FOUNDATION

By:  /s/ Eleanor Wong

Name: Eleanor Wong

Title: ______________

 

TRUST f/b/o JOHN S. FARLEY UNDER THE UNIFORM GIFT TO MINORS ACT

By:  /s/ Stephen Farley

Name: Stephen Farley

Title: Guardian

 

TRUST f/b/o GRACE FARLEY UNDER THE UNIFORM GIFT TO MINORS ACT

By:  /s/ Stephen Farley

Name: Stephen Farley

Title: Guardian