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Exhibit 2.2
AMENDMENT NO. 1
TO
PURCHASE AND SALE AGREEMENT
This AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT (the "Amendment")
is entered into as of August 20, 1999, by and between EG&G, Inc., a
Massachusetts corporation (the "Seller"), and EG&G Technical Services, Inc.
(formerly known as ETS Acquisition Corporation), a Delaware corporation (the
"Buyer"). Capitalized terms used in this Amendment and not otherwise defined
herein shall have the respective meanings ascribed to them in the Purchase and
Sale Agreement dated as of July 19, 1999, between the Seller and the Buyer (the
"Agreement").
INTRODUCTION
1. The Seller and the Buyer are parties to the Agreement, pursuant to
which the Buyer has agreed to purchase from the Asset Sellers and the Seller has
agreed to cause the Asset Sellers to sell to the Buyer the Assets, subject to
the assumption by the Buyer of the Assumed Liabilities, upon the terms and
subject to the conditions set forth therein.
2. The Buyer and the Seller desire that, at the Closing, the transfer
of those Assets which on the Closing Date are held by EG&G Defense Materials,
Inc., a wholly owned subsidiary of the Seller and one of the Asset Sellers
("DMI"), and the assumption of those Assumed Liabilities which on the Closing
Date are liabilities of DMI, be accomplished by the transfer by the Seller to
the Buyer of all of the issued and outstanding shares of capital stock of DMI
(the "Shares").
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in the Agreement and this Amendment and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Parties agree as follows:
1. Sale and Transfer of Shares.
(a) The Parties agree that, notwithstanding anything in the Agreement
to the contrary, at the Closing, the Assets owned or held by DMI shall be sold,
conveyed, assigned, transferred and delivered to the Buyer, and the Assumed
Liabilities of DMI shall be assumed by the Buyer, by the transfer by the
Seller to the Buyer of the
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Shares. At the Closing, the Seller shall cause to be delivered to the Buyer
certificates representing the Shares, duly endorsed, or accompanied by stock
powers duly executed, with all necessary stock transfer stamps attached
thereto, or such other assignments, deeds, share transfer forms, endorsements,
notarial deeds of transfer or other instruments or documents, duly stamped
where necessary, as are required by the jurisdiction of organization of DMI.
(b) The Parties acknowledge and agree that the arrangements set forth
in paragraph (a) above are intended only to provide a mechanism for the transfer
of the Assets and the assumption of the Assumed Liabilities described therein.
Accordingly, notwithstanding the conveyance of the Shares in lieu of a
conveyance of the Assets and Assumed Liabilities of DMI, for all other purposes
under the Agreement the term "Asset Sellers" shall continue to include DMI
(provided that DMI shall not constitute an Asset Seller for purposes of
Sections 4.3, 6.2, 9.1, 10.7 and 10.9); the term "Assets" shall continue to
include Assets held by DMI; the term "Assumed Liabilities" shall continue to
include Assumed Liabilities that are liabilities or obligations of DMI; the term
"Excluded Assets" shall continue to include Excluded Assets that are (or prior
to Closing were) held by DMI; and the term "Excluded Liabilities" shall continue
to include Excluded Liabilities that are (or prior to Closing were) liabilities
or obligations of DMI.
2. Amendment to Section 1.1(e). Section 1.1(e) is hereby amended by
inserting the following new Section 1.1(e)(vii):
"(vii) all Taxes that arise by reason of the Election (as such term is
defined in Section 9.2)."
3. Amendment to Section 1.4(a). Section 1.4(a) of the Agreement is
hereby amended by (a) deleting the reference to "45 days" in the first sentence
and inserting "75 days" in lieu thereof and (b) inserting the following new
sentence at the end thereof:
"Within 65 days after the Closing Date, the Seller shall deliver to
the Buyer a draft, which may be a working draft subject to change and
completion, of the Closing Working Capital Statement."
4. Amendment to Section 1.6. The provisions of Section 1.6 of the
Agreement shall not apply to the Government Contracts and Government Bids of
DMI, except to the extent otherwise required or requested by the United States
Government.
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5. Additional Representations of the Seller.
(a) Article II of the Agreement is hereby amended by inserting the
following new Section 2.25 at the end thereof:
"2.25 DMI Representations. The Seller has made available to the Buyer
correct and complete copies of the charter and bylaws of DMI (each
as amended to date), the minute books (containing the records of
meetings of the stockholders, the board of directors and any
committees of the board of directors), the stock certificate books
and the stock record books of DMI. The capitalization of DMI
consists of 1,000 shares of Common Stock, $1.00 par value per share,
of which 100 shares are issued and outstanding as of the date hereof.
The Shares comprise all of the issued and outstanding shares of
capital stock of DMI, and are duly authorized, validly issued, fully
paid and nonassessable. There are no outstanding or authorized
options, warrants, rights, agreements or commitments to which DMI is
a party or which are binding upon DMI providing for the issuance,
disposition or acquisition of any shares of capital stock of DMI.
There are no outstanding or authorized stock appreciation, phantom
stock or similar rights with respect to DMI. There are no agreements,
voting trusts, proxies or understandings with respect to the voting,
or registration under the Securities Act, of shares of capital stock
of DMI. All of the Shares are owned of record and beneficially by the
Seller, and immediately prior to the Closing, the Seller will have
good title to the Shares, free and clear of any Security Interest,
contractual restriction or covenant, option or other adverse claim
(whether arising by contract or by operation of law), other than
applicable securities law restrictions."
(b) Article II of the Agreement is hereby further amended by
inserting the following in Section 2.9 thereof after the sentence "None of the
Asset Sellers is a 'foreign person' within the meaning of Section 1445 of the
Code" and before the clause "For purposes of this Agreement:"
"The Seller is and will be eligible as of the Closing Date to
make an election under Section 338(h)(10) of the Code with
respect to the Shares. The Seller will not be a target
corporation within the meaning of Section 338 of the Code for
the taxable year that includes the Closing Date. For United
States federal income tax purposes, DMI is, and on the Closing
Date will be, a member of the consolidated group of
corporations that has the Seller as its common parent."
(c) Article II of the Agreement is hereby further amended by
deleting Section 2.9(a) thereof in its entirety and inserting the following in
lieu thereof:
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"(a) "Taxes" means all taxes, including without limitation
income, gross receipts, ad valorem, value-added, excise, real
property, personal property, sales, use, transfer,
withholding, employment and franchise taxes and duties or
other taxes, fee assessments or charges of any kind whatsoever
imposed by the United States of America or any state, local or
foreign government, or any agency thereof, or other political
subdivision of the United States or any such government, and
any interest, penalties, assessments or additions to tax
resulting from, attributable to or incurred in connection with
any tax or any contest or dispute thereof, and, in the case of
DMI, shall include any taxes imposed under Treasury Regulation
Section 1.1502-6 (or any comparable or similar provision under
state, local or foreign law), as transferee or successor or
pursuant to any contractual obligation;"
6. Additional Representations of the Buyer. Article III of the Agreement
is hereby amended by inserting the following new Section 3.12 at the end
thereof:
"3.12 Investment Intent. The Buyer is acquiring the Shares for
investment for its own account and not with a view to the
distribution of any part thereof. The Buyer acknowledges that
the Shares have not been registered under U.S. federal or any
applicable state securities laws or the laws of any other
jurisdiction and cannot be resold without registration under
such laws or an exemption therefrom. The Buyer further
acknowledges that (a) it has knowledge and experience in
financial and business matters, that it is capable of
evaluating the merits and risks of an investment in the
Shares, and that it can bear the economic risk of an
investment in the Shares and (b) it has had an opportunity to
discuss the business, management and financial affairs of the
Technical Services Business with representatives of the
Seller."
7. Additional Pre-Closing Covenants. Article IV of the Agreement is
hereby amended by inserting the following new Section 4.11 at the end thereof:
"4.11 Distribution of Certain Excluded Assets and Excluded
Liabilities. Notwithstanding anything to the contrary set
forth herein, including without limitation the provisions of
Section 4.4 hereof, prior to the Closing, the Seller shall
cause DMI to distribute or otherwise transfer to the Seller or
an Affiliate thereof, without liability to DMI, any assets of
DMI that constitute Excluded Assets and any liabilities or
obligations of DMI that constitute Excluded Liabilities, which
Excluded Liabilities will be assumed by Seller."
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8. Modification of Conditions Precedent to Closing. The condition to
the obligation of the Buyer to consummate the transactions contemplated by the
Agreement set forth in Section 5.1(h) of the Agreement is hereby deleted in its
entirety.
9. Additional Tax Matters. Article IX of the Agreement is hereby amended
by inserting the following new Sections 9.2, 9.3 and 9.4 at the end thereof:
"9.2 Tax Election. At the Buyer's election, the Seller will
join with the Buyer in making an election pursuant to Section
338(h)(10) of the Code in accordance with Treasury Regulation
Section 1.338(h)(10)-1(d) on IRS Form 8023 (and to make a
joint election under any corresponding provisions of state,
local or foreign law) with respect to the acquisition of DMI
pursuant to this Amendment and the Agreement (the "Election").
Each of the Buyer and the Seller agrees to provide to the
other all necessary information to permit the Election to be
made. The Parties agree to take all actions necessary and
appropriate (including filing IRS Form 8023 and such other
forms, returns, elections, schedules and attachments and other
documents as may be required (the "Forms")) to effect and
preserve a timely Election. The Parties agree to mutually
determine (a) the amount of the modified aggregate deemed
sales price ("MADSP") of the Shares (within the meaning of
Treasury Regulation Section 1.338(h)(10)-1(f)) and (b) based
upon the allocation agreed upon by the Parties pursuant to
Section 1.2(b) of the Agreement, the proper allocation of the
MADSP among the assets of DMI in accordance with Treasury
Regulation Section 1.338(h)(10)-1(f). The allocations referred
to in the preceding sentence are referred to herein as the
"Allocations." In the event the Buyer elects to make the
Election, the Buyer shall prepare each Form based on the
Allocations, and shall, no later than thirty (30) days prior
to the latest date for the filing of each Form, deliver such
Form to the Seller for the Seller's approval, which approval
shall not be unreasonably withheld. The Buyer, DMI and the
Seller shall calculate the gain or loss, if any, in a manner
consistent with the Allocations and shall file all Tax Returns
(including amended returns and claims for refund) and
information reports in a manner consistent with the
Allocations. To the extent Section 1.2(b) of the Agreement is
inconsistent with or inapplicable to the acquisition of the
Shares, the provisions of this Section 9.2 shall control.
9.3 Preparation and Filing of Tax Returns.
(a) The Seller shall cause to be prepared and timely
filed (i) all Tax Returns of, or relating to the activities
of, DMI that are required to be filed (taking into account
extensions) prior to the Closing Date and (ii) all
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Tax Returns of, or relating to the activities of, DMI in respect
of Pre-Closing Income Taxes of DMI with respect to which the
Seller and DMI are permitted or required to file consolidated,
combined, unitary or similar Tax Returns.
(b) The Buyer shall prepare and timely file or shall
cause to be prepared and timely filed all other Tax Returns
with respect to DMI or in respect of its business, assets or
operations.
(c) Any Tax Return to be prepared and filed by the
Buyer for taxable periods beginning before the Closing Date
shall be prepared on a basis consistent with the last previous
similar Tax Return, and the Buyer shall consult with the
Seller concerning each such Tax Return. The Buyer shall cause
the Company to provide the Seller with a copy of each such
proposed Tax Return (and such additional information regarding
such Tax Return as may reasonably be requested by the Seller)
at least 30 days prior to the filing of such Tax Return,
except that (i) in the case of a Tax Return relating to a
monthly taxable period, the copy shall be provided to the
Seller at least 10 days prior to the filing of such Tax Return
and (ii) in the case of a Tax Return due within 90 days
following the Closing Date, the copy shall be provided to the
Seller in such shorter period of time prior to filing as the
Buyer shall reasonably determine to be practicable.
9.4 Assistance With Utah State Tax Matters. In the event that
the Seller is obligated to make any payments to the State of
Utah in connection with the matters disclosed in Section 2.9
of the Disclosure Schedule, the Buyer shall (and shall cause
DMI to) use commercially reasonable efforts to seek
reimbursement from the United States Government for the
benefit of the Seller with respect to such amounts under all
applicable Government Contracts and laws and regulations where
available under the terms of the applicable Government
Contracts and laws and regulations; provided, however, that
the Buyer shall not be required to take such action to the
extent that the Buyer reasonably determines that such action
would be detrimental to its relationship with its customer
under the applicable Government Contracts."
10. Amendment to Section 10.1(e). Section 10.1(e) of the Agreement is
hereby amended by inserting the following new sentence at the end thereof:
"Such accountant's work papers shall include, without
limitation, the work papers of the Seller's accountants
relating to the preparation of the audited financial
statements for the Seller's 1998 fiscal year."
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11. Additional Government Contract Matters. Section 10.7 of the Agreement
is hereby amended by inserting the following new paragraph at the end thereof:
"(e) The Seller shall be responsible for any adjustments to
workers compensation, retiree medical and savings plan charges
included in Indirect Rates for any fiscal year or partial
fiscal year prior to Closing that has not been audited by, and
reached a final close-out agreement with, the U.S. Government
as of the date of the Closing, to the extent that such charges
are not reimbursed by the U.S. Government and have a negative
impact on the overall operating profit of the Technical
Services Business for the applicable fiscal year."
12. Certain Lease Matters. Article X of the Agreement is hereby amended by
inserting the following new Section 10.11 at the end thereof:
"10.11 Certain Lease Matters. The Seller shall indemnify the
Buyer in respect of, and hold the Buyer harmless against, any
and all Damages suffered by the Buyer as a result of the
Seller's failure to obtain the Consent to the assignment to
the Buyer of the Leases for the properties located at 0000
Xxxxx Xxxx, Xxxxx Xxx Xxxxx, Xxxxxx and 0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, in each case until such time, if any, as
such Consent has been obtained; provided, however, that the
Seller shall not have any obligation pursuant to this Section
10.11 to the extent relating to (i) Damages for periods beyond
the earliest date upon which the applicable Lease may be
terminated by the tenant without penalty or premiums or (ii)
Damages that would not have been incurred or suffered but for
any modification or amendment to the applicable Lease
following the Closing."
13. Amendments to Disclosure Schedule. Section 2.13 of the Disclosure
Schedule is hereby amended by deleting the "plus" or "cross" sign (+) from the
references to the Contracts listed as Contract Numbers 69, 163, 266 and 309 in
paragraph (a)(ii) thereof.
14. Amendment to Schedule 1.4(a). Schedule 1.4(a) to the Agreement is
hereby deleted in its entirety and replaced with Schedule 1.4(a) to this
Amendment. 15. Entire Agreement . Except as otherwise expressly provided herein,
the Agreement is hereby ratified and confirmed and shall remain in full force
and effect.
16. Counterparts. This Amendment may be executed in two counterparts,
each of which shall be deemed an original but both of which together shall
constitute one and the same instrument.
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17. Headings. The section headings contained in this Amendment are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment or the Agreement.
18. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the Commonwealth of Massachusetts
without giving effect to any choice or conflict of law provision or rule
(whether of the Commonwealth of Massachusetts or any other jurisdiction) that
would cause the application of laws of any jurisdiction other than those of the
Commonwealth of Massachusetts.
19. Facsimile Signature. This Amendment may be executed by facsimile
signature.
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IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as
of the date first above written.
EG&G, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
EG&G TECHNICAL SERVICES, INC.
(formerly known as ETS Acquisition Corporation)
By:_________________________________
Name:_______________________________
Title:______________________________
[Signature Page to Amendment No. 1 to Purchase and Sale Agreement]
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