EXHIBIT 1(a)
FIRST AMENDMENT
TO THE STOCK PURCHASE AGREEMENT
This First Amendment (this "Amendment") is entered into as of September 6,
2006, by and among EDO Corporation, a New York corporation (the "Buyer"), CAS,
Inc., a corporation organized under the laws of the State of Alabama (the
"Company"), Xxxxxxx X. Xxxxxxx, Xx., an individual resident in Alabama ("WHS"),
Xxxxxxx X. Xxxxx, an individual resident in Tennessee ("FHC") and Xxxxxxxxx X.
Xxxxx, as Trustee of the Xxxxxxx X. Xxxxxxx, Xx. Estate Preservation Trust,
dated July 8, 2005 (the "Trust" and together with WHS and FHC, the "Sellers").
WITNESSETH
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WHEREAS, the Buyer, the Sellers and the Company are parties to that
certain Stock Purchase Agreement, dated as of July 26, 2006 (the "Purchase
Agreement"), pursuant to which the Sellers will sell, transfer and assign to the
Buyer, and the Buyer will purchase and acquire from the Sellers, all of the
issued and outstanding shares of capital stock of the Company on the terms and
conditions set forth therein; and
WHEREAS, in accordance with Section 11.11 of the Purchase Agreement, the
Buyer, the Sellers and the Company desire to amend certain provisions of the
Purchase Agreement in connection with the Closing of the transactions
contemplated therein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Amendment hereby agree as follows:
Section 1. Capitalized Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings given to such terms in the Purchase
Agreement.
Section 2. Amendments to Purchase Agreement.
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(a) The definition of "Net Book Value" in Article I of the Purchase
Agreement is hereby amended and restated to read in its entirety as follows:
"Net Book Value" means (i) total assets of the Company less good
will, intangible assets, notes issued by the Company to Sellers and related
party receivables minus (ii) total liabilities of the Company exclusive of any
Debt or transaction expenses of the Company paid in full by or on behalf of the
Company at or prior to the Closing as set forth in the Purchase Price flow of
funds statement, each as determined in accordance with GAAP; provided, however,
that the Company's target rates of expense for periods after March 31, 2006
rather than actual rates of expense shall be used in determining Net Book Value.
(b) Section 2.4(g) of the Purchase Agreement is hereby amended by
deleting such Section in its entirety and inserting the following new Section
2.4(g) in lieu thereof:
All of the transactions to be concluded at the Closing shall be
deemed concluded simultaneously at 11:59 p.m. Eastern Time on the Closing Date
and the Estimated Closing Balance Sheet and the Closing Financial Statements and
all components thereof shall be deemed to be prepared as of 11:59 p.m. on the
Closing Date as if all payments to be made under the Purchase Agreement were
made at 11:59 p.m. on the Closing Date. Unless waived, no transaction or
delivery to be concluded at the Closing shall be deemed finally concluded unless
and until all such transactions or deliveries are concluded.
Section 4. Net Book Value Determination. For the avoidance of doubt, the
parties acknowledge and agree that (a) the definition of Net Book Value, as
amended pursuant to this Amendment, shall have no effect on the baseline number
of $8,601,834 set forth in Section 2.6 of the Purchase Agreement for purposes of
determining the Adjustment Amount in accordance with Section 2.6 of the Purchase
Agreement and (b) the Note Principal (as defined in Exhibit 2.2 of the Purchase
Agreement) shall not be considered an asset of the Company for purposes of
determining Net Book Value with respect to the Estimated Closing Balance Sheet
and the Closing Financial Statements, since the Note Principal is being paid off
in full out of the Purchase Price.
Section 5. No Other Amendments. Except as expressly provided in this
Amendment, each of the terms and provisions of the Purchase Agreement shall
remain in full force and effect in accordance with their terms. The amendments
set forth herein are limited precisely as written and shall not be deemed to be
an amendment or waiver to any other term or condition of the Purchase Agreement
or any of the documents referred to therein. From and after the date of this
Amendment, all references in the Purchase Agreement, or in any of the schedules,
instruments or agreements executed in connection therewith, to the "Agreement"
shall be deemed to be references to the Purchase Agreement, as amended by this
Amendment.
Section 6. Amendment. This Amendment may not be amended except by a
written agreement executed by each party to this Amendment. This Amendment (i)
may not be assigned by either party without the prior written consent of the
other parties, and (ii) shall be binding upon, and inure to the benefit of, the
parties' respective successors and permitted assigns.
Section 7. Governing Law. This Amendment shall be construed and regulated
in all respects under the laws of the State of New York, without regard to its
conflicts of law principles.
Section 8. Counterparts; Facsimile Signatures. This Amendment may be
executed simultaneously 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. Facsimile signatures shall be acceptable and binding.
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first written above.
BUYER:
EDO CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
Senior Vice President - Finance,
Treasurer and Chief Financial Officer
COMPANY:
CAS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Designee of the President and CEO
of CAS, Inc.
SELLERS:
Xxxxxxx X. Xxxxxxx, Xx.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
His Attorney-in-Fact, duly authorized
Xxxxxxx X. Xxxxx
By: /s/ Xxxxxxx X.Xxxxxx
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Xxxxxxx X. Xxxxxx
His Attorney-in-Fact, duly authorized
By: /s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx, as Trustee of the
Xxxxxxx X. Xxxxxxx Estate Preservation
Trust
