Exhibit 2.3
SECOND AMENDMENT dated as of September 29,
1997, to the Asset Purchase Agreement dated as of
August 25, 1997, as amended by the Amendment dated as
of August 28, 1997 (the "Asset Purchase Agreement"),
by and among Fiberite, Inc., a Delaware corporation
("Fiberite"), Fiberite Holdings, Inc., a Delaware
corporation ("Fiberite Holdings"), Stamford FHI
Acquisition Corp., a Delaware corporation
("Stamford"), and Cytec Industries Inc., a Delaware
corporation ("Buyer", and together with Fiberite,
Fiberite Holdings and Stamford, the "Parties").
WHEREAS the Parties have previously entered into the Asset
Purchase Agreement;
WHEREAS on August 29, 1997, Stamford merged with and into
Fiberite Holdings, with Fiberite Holdings as the surviving corporation, and
Fiberite Holdings merged with and into Fiberite, with Fiberite as the surviving
corporation (accordingly, and for avoidance of doubt, references herein to
Fiberite shall include the foregoing parties);
WHEREAS the Parties desire to amend the Asset Purchase
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Amendments. (a) Section 1.1(f) of the Asset
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
"(f) Buyer's assumption of the Assumed Liabilities hereunder,
including any loss, liability, cost, expense or claim in respect
thereof directly against Buyer or one or more of its subsidiaries or
Affiliates based on any legal theory (such as successor liability) is
an indemnity and accordingly, upon any payment by Buyer (or any such
subsidiary or Affiliate) in respect thereof Buyer (and/or such
subsidiary or Affiliate, as the case may be) shall have the right by
way of subrogation to pursue any and all claims that Fiberite Holdings
or Fiberite may assert against any third party for indemnification or
insurance in respect thereof, and Buyer (and/or such subsidiary or
Affiliate, as the case may be) shall be entitled to pursue any such
claim, in the name and on behalf of Stamford, Fiberite Holdings or
Fiberite, as the case may be, and to retain any recovery in respect
thereof. To the extent, if any, that Fiberite Holdings or Fiberite has
a claim against a third party in respect of an Assumed Liability, then,
notwithstanding payment by Buyer (or any such subsidiary or Affiliate)
in respect of such Assumed Liability, (i) Buyer's liability (or such
subsidiary's or Affiliate's liability, as the case may be) shall be
secondary to the primary obligation of said third party and,
accordingly, (ii) Buyer (or any such subsidiary or Affiliate) shall be
entitled to reimbursement from Fiberite Holdings or Fiberite, as the
case may be, to the extent that such indemnitee recovers from the third
party, in respect of the Assumed Liability, any amount in excess of its
costs and expenses; provided that nothing in this sentence shall impair
Buyer's obligations pursuant to Section 6.3 hereof."
(b) Section 1.1(e)(iv) of the Asset Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
"(iv) the settlement agreement between Fiberite and XXsys/Xxxxxxx dated
October 5, 1995 attached hereto as Exhibit D (the "Settlement
Agreement"), other than obligations under (A) Paragraph 4 thereof and
(B) the letter dated October 5, 1995 supplementing Paragraph 4 of the
Settlement Agreement and attached hereto as Exhibit E (the "Letter");"
(c) Clause (ix) of Section 1.1(e) of the Asset Purchase
Agreement is hereby amended by deleting "arising" in the second line thereof and
replacing it with "to be performed".
(d) Section 4.1(c)(A) of the Asset Purchase Agreement is
hereby amended by deleting "$200,000" therein and replacing it with "$50,000".
(e) Section 1.1(d) of the Asset Purchase Agreement is hereby
amended by adding a new clause (vii) to read as follows:
"(vii) all obligations under (A) Paragraph 4 of the Settlement
Agreement (as defined below) and (B) the Letter (as defined below)".
(f) The Asset Purchase Agreement is hereby amended by adding
Exhibits A and B attached hereto as Exhibits D and E of the Asset Purchase
Agreement.
SECTION 2. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 3. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York (regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
SECTION 4. Full Force and Effect. Except as specifically
amended hereby, the Asset Purchase Agreement shall continue in full force and
effect in accordance with the provisions thereof. As used therein, the terms
"Agreement", "herein", "hereunder", "hereinafter", "hereto", "hereof", and words
of similar import shall, unless the context otherwise requires, refer to the
Asset Purchase Agreement as amended hereby. Any reference in any document to the
Asset Purchase Agreement shall be deemed to be a reference to the Asset Purchase
Agreement as amended hereby.
IN WITNESS WHEREOF, this Second Amendment has been duly
executed and delivered by the duly authorized officers of the parties hereto as
of the date first above written.
FIBERITE, INC.,
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Assistant Secretary
CYTEC INDUSTRIES INC.,
By: /s/ X.X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: Vice President
The foregoing Amendment is hereby acknowledged and consented to as of the date
first above written:
HEXCEL CORPORATION,
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Senior Vice President
The Company agrees to furnish supplementally to the Commission upon its request,
any and all of the exhibits referred to in this Second Amendment.
