Exhibit 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment"), is
entered into and effective as of June 15, 2005, by and between The Boeing
Company, a Delaware corporation ("Seller"), and Mid-Western Aircraft Systems,
Inc., a Delaware corporation ("Buyer"), with respect to the following facts:
WITNESSETH
A. Seller and Buyer are parties to that certain Asset Purchase
Agreement dated as of February 22, 2005 (the "Asset Purchase Agreement"). All
capitalized terms used herein shall have the meanings ascribed to such terms in
the Asset Purchase Agreement, unless otherwise defined herein.
B. Section 11.8 of the Asset Purchase Agreement provides that the
Asset Purchase Agreement may be amended only by a written instrument signed by
each of the parties thereto.
C. Pursuant to the terms of Section 11.8 of the Asset Purchase
Agreement, Seller and Buyer now desire to amend the Asset Purchase Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
covenants and agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, it is
hereby agreed between Buyer and Seller as follows:
1. List of Schedules and Exhibits. The list of Schedules and Exhibit
is hereby amended by deleting the reference to Schedule 1.1(a)(xvi) - Included
Spares Inventory.
2. Section 1.1(a)(ii). Section 1.1(a)(ii) is hereby deleted in its
entirety and is replaced with the following:
"The entire inventory of the Business, including, but not limited
to, all materials and supplies, all work in process and all finished
products primarily related to the Business, but excluding any
inventory that has been delivered FOB the Facilities or is in transit
to another business unit of Seller on or prior to the Closing Date
that is not part of the Business and excluding Spares Inventory (the
"Inventory");"
3. Section 1.1(a)(xvi). Section 1.1(a)(xvi) is hereby deleted in its
entirety.
4. Section 1.1(b)(xix). The parenthetical in Section 1.1(b)(xix) is
hereby deleted.
5. New Section 1.1(b)(xxix). A new Section 1.1(b)(xxix) of the Asset
Purchase Agreement will be added to read as follows:
"1.1(b)(xxix) The Spares Inventory."
6. Amendment to Section 1.3(c). The second sentence of Section 1.3(c)
is hereby deleted in its entirety to delete the reference to Spares Inventory
and is replaced with the following:
"The Tentative Purchase Price shall be the sum of (x) the book
value of the Assets as reflected on the Audited Interim Financial
Statements (reduced by the amount of capitalized interest reflected
therein) plus (y) One Hundred Ninety-Two Million Four Hundred Thousand
($192,400,000), as adjusted as follows:"
7. Amendment to Section 3.3(a). The first sentence of Section 3.3(a)
of the Asset Purchase Agreement is hereby amended and restated in its entirety
as follows:
"(a) Schedule 3.3(a) sets forth (i) an unaudited statement of
assets to be acquired and liabilities to be assumed of the Business as
of December 31, 2001, 2002, 2003 and 2004, and the related statement
of products shipped and operating expenses of the Business for the
fiscal years then ended (the "Unaudited Annual Financial Statements")
and (ii) an unaudited statement of assets to be acquired and
liabilities to be assumed of the Business as of the Interim Date and
related statement of products shipped and operating expenses of the
Business for the nine (9) month period then ended (the "Unaudited
Interim Financial Statements" and, collectively, with the Unaudited
Annual Financial Statements, the "Unaudited Financial Statements")."
8. Amendment to Section 3.24. The second sentence of Section 3.24 is
hereby deleted in its entirety to delete the reference to Spares Inventory and
is replaced with the following:
"All Inventory is in the possession or control of Seller at the
locations listed under paragraph (a) of Schedule 3.24 except for items
that are in the possession or control of suppliers set forth on
Schedule 3.23(c)."
9. Section 5.11. The third and fourth sentences of Section 5.11 are
hereby deleted in their entirety.
10. Amendment to Section 6.2 (f). The first two paragraphs of Section
6.2(f) of the Asset Purchase Agreement are hereby amended and restated in their
entirety as follows:
"(f) Pension Benefits. Effective immediately following the
Closing Date, Buyer shall establish or maintain (i) a defined benefit
pension plan ("Buyer's Union Pension Plan I") for the benefit of Hired
Employees who are covered by the collective bargaining agreements
listed
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in Schedule 6.2(f) (other than those employees represented by the
International Association of Machinists and Aerospace Workers) as
participating groups in The Boeing Company Employee Retirement Plan
("Seller's Union Pension Plan I") on the Closing Date ("Buyer's Hired
Union Employees I"), (ii) a defined benefit plan ("Buyer's Union
Pension Plan II") for the benefit of Hired Employees who are
represented by the International Association of Machinists and
Aerospace Workers and who participate in Seller's Union Pension Plan I
("Buyer's Hired Union Employees II"), (iii) a defined benefit pension
plan ("Buyer's Union Pension Plan III") for the benefit of Hired
Employees who are covered by the collective bargaining agreements
listed in Schedule 6.2(f) as participating groups in the Boeing North
American Retirement Plan for Eligible Employees on the Hourly Payroll
(a component of the Boeing North American Retirement Plan) ("Seller's
Union Pension Plan II") on the Closing Date ("Buyer's Hired Union
Employees III" and together with Buyer's Hired Union Employees I and
Buyer's Hired Union Employees II, "Hired Union Employees"), and (iv) a
defined benefit pension plan ("Buyer's Non-Union Pension Plan") for
the benefit of Hired Employees ("Hired Non-Union Employees") who are
covered by The Pension Value Plan for Employees of The Boeing Company
("Seller's Non-Union Pension Plan" and collectively with Seller's
Union Pension Plan I and Seller's Union Pension Plan II the "Seller's
Pension Plans") (Buyer's Union Pension Plan I, Buyer's Union Pension
Plan II, Buyer's Union Pension Plan III and Buyer's Non-Union Pension
Plan are collectively referred to as "Buyer's Pension Plans"). Buyer's
Pension Plans shall include credit for Hired Union Employees and Hired
Non-Union Employees' past service with Seller for eligibility and
vesting and, contingent upon the transfers of assets in accordance
with this Section 6.2(f), early retirement benefits and benefit
accrual previously recognized under Seller's Pension Plans, except as
otherwise provided in Schedule 6.2(f), including paragraph 1(a)
thereof. Buyer's Pension Plans shall further include, indefinitely,
credit for Hired Union Employees' and Hired Non-Union Employees'
service with Buyer for eligibility, vesting, and early retirement.
Subject to Schedule 6.2(f), Seller shall cause assets to be
transferred from each of Seller's Pension Plans to the respective
Buyer's Pension Plans in accordance with Schedule 6.2(f), provided
that Seller's Union Pension Plan I shall simultaneously make such a
transfer to Buyer's Union Pension Plan I with respect to Buyer's Hired
Union Employees I and to Buyer's Union Pension Plan II with respect to
Buyer's Hired Union Employees II. All transfers shall be in accordance
with the requirements of Section 414(1) of the Code."
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11. Section 6.17. Section 6.17 is hereby deleted in its entirety to
delete the reference to Spares Inventory and is replaced with the following:
"Promptly after the Closing, Seller shall deliver to Buyer (at
Seller's sole expense) an audited statement of assets to be acquired
and liabilities to be assumed of the Business as of December 31, 2001,
and the related statement of products shipped and operating expenses
of the Business for the fiscal year then ended, together with the
report thereon of Deloitte & Touche, LLP, Seller's independent
certified public accountants, which report shall contain no
limitations or qualifications as to scope or otherwise and no
exceptions and shall state specifically that such statements fairly
present in all material respects the financial condition of the
Business in accordance with GAAP."
12. New Section 6.22. A new Section 6.22 of the Asset Purchase
Agreement will be added to read as follows:
"6.22 Seller Policies and Procedures. Seller grants Buyer access
to and the use of certain of Seller's policies and procedures set
forth on Schedule 6.22 ("Seller Policies and Procedures"). Buyer shall
have the right to utilize the Seller Policies and Procedures for six
(6) months after the Closing Date with respect to its operation of the
Business, provided that Buyer and its employees, agents,
representatives or Affiliates will not disclose its use of such Seller
Policies and Procedures to any third party. As a result of Buyer's use
of the Seller Policies and Procedures for its operation for the
Business after the Closing, regardless of whether the Seller Policies
and Procedures are in compliance with Law or are invalid in any
manner, Buyer hereby agrees to indemnify, defend and hold harmless
Seller for Buyer's use thereof, pursuant to Section 9.2(a)(iv) of the
Asset Purchase Agreement."
13. Section 12.1. The second sentence of the defined term "Net Working
Capital" in Section 12.1 is hereby deleted in its entirety.
14. Section 12.1. The definition of the defined term "Target Net
Working Capital" in Section 12.1 is hereby deleted in its entirety to delete the
reference to Spares Inventory and is replaced with the following:
"Target Net Working Capital Amount" means the Net Working Capital of
the Business as set forth in the Audited Interim Financial Statements."
15. Exhibit N. Exhibit N to the Asset Purchase Agreement hereby
deleted and replaced with Exhibit N attached hereto.
16. Amendments to Schedules.
(a) Schedule 1.1(a)(xvi) to the Asset Purchase Agreement is
hereby deleted in its entirety.
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(b) Schedules 1.6(b), 3.3(a) and 3.8 to the Asset Purchase
Agreement are hereby deleted in their entirety and replaced by
Schedules 1.6(b), 3.3(a) and 3.8, hereto, respectively.
(c) Paragraph (b) of Schedule 3.24 is hereby deleted in its
entirety.
(d) Section 2 of Schedule 6.2(f) to the Asset Purchase Agreement
is amended by the addition of a new sentence immediately prior to
paragraph (a), to read as follows:
"It is expressly understood that Seller's Union Pension Plan I
shall simultaneously transfer assets and liabilities to Buyer's Union
Pension Plan I with respect to Buyer's Hired Union Employees I and to
Buyer's Union Pension Plan II with respect to Buyer's Hired Union
Employees II."
17. Miscellaneous. This Amendment (i) may not be amended or modified
except in writing and (ii) may be executed in separate counterparts and by
facsimile, each of which shall be deemed an original but all such counterparts
shall together constitute one and the same instrument. Other than provided
herein, the provisions of the Asset Purchase Agreement shall remain in full
force and effect; provided that, in the event of any conflict between the Asset
Purchase Agreement or any Seller Transaction Agreements and this Amendment, the
provisions of this Amendment shall govern. In particular, Buyer and Seller
hereby agree that Seller shall be entitled to sell or utilize the Spares
Inventory in any manner it deems appropriate and that any provision of the Asset
Purchase Agreement or the Seller Transaction Agreements that conflicts in any
manner with the foregoing shall no longer be applicable.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Asset Purchase Agreement to be executed as of the day and year
first above written.
THE BOEING COMPANY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Director-New Business Ventures
MID-WESTERN AIRCRAFT SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: VP, Secretary & Treasurer
