EXHIBIT 2.2
AMENDMENT dated as of August 28, 1997, to the
Asset Purchase Agreement dated as of August 25, 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 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) Clause (i) of Section 1.1(d) of the
Asset Purchase Agreement is hereby amended by adding the phrase ",including,
without limitation, obligations and liabilities under the Working Capital Line"
to the end thereof.
(b) Clause (iii) of Section 1.1(d) of the Asset Purchase
Agreement is hereby amended by adding the phrase ", other than any such Taxes
due as a result of the Permitted Merger" to the end thereof.
(c) Clause (vi) of Section 1.1(d) of the Asset Purchase
Agreement is hereby amended by adding the phrase "and any liability for the Stay
Bonuses" to the end thereof.
(d) Clause (C) of Section 1.1(e)(ii) of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
2
"(C) notwithstanding anything in this Agreement to the
contrary, any and all liabilities and obligations, direct or
indirect, fixed or contingent, for federal, state, local or
foreign income taxes due as a result of any of the
transactions contemplated by this Agreement (including,
without limitation, the Permitted Merger) or the Hexcel
Agreement;".
(e) Clause (v) of Section 1.1(e) of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"(v) (A) all outstanding indebtedness for borrowed money of
Fiberite Holdings or Fiberite or any of their subsidiaries
(together with all interest accrued thereon) to the extent
deducted from the $360,000,000 payable under Section 1.02 of
the Stock Purchase Agreement and (B) all obligations and
liabilities in respect of the Permitted Debt (other than the
Working Capital Line);".
(f) Clause (xi) of Section 1.1(e) of the Asset Purchase
Agreement is hereby amended and restated in its entirety to read as follows:
"(xi) all obligations and liabilities (A) arising from the
Unrelated Assets or (B) of Stamford to which Fiberite succeeds
as a result of the Permitted Merger and which were not
otherwise obligations and liabilities of Fiberite or Fiberite
Holdings (other than the Stay Bonuses).".
(g) Section 1.1(f) of the Asset Purchase Agreement is hereby
amended by adding the phrase "; provided that nothing in this sentence shall
impair Buyer's obligations pursuant to Section 6.3 hereof" to the end of the
first sentence thereof.
(h) Section 1.2(a) of the Asset Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) $344,000,000 (the "Purchase Price"), payable as provided
below, by wire transfer of immediately available funds to
such bank account as shall be designated by Fiberite at least
two business days prior to the applicable payment date
provided below against delivery of a receipt duly executed by
Fiberite acknowledging receipt of the same; provided that
Fiberite hereby designates that the portions of the Purchase
Price represented by the Deposit, the 60-day Deposit and the
90-day Deposit be paid on the applicable payment dates
3
directly to the creditors in respect of the outstanding
principal amount of the Permitted Debt (in the case of the
90-day Deposit, with the excess over the outstanding principal
amount of the Permitted Debt on the payment date being
delivered to the foregoing account designated by Fiberite).
The Purchase Price shall be paid in four installments as
follows:
(i) $173,000,000 (the "Deposit") shall be paid on the
first business day after the closing of the Stock Purchase
Agreement;
(ii) $86,000,000 (the "60-day Deposit") shall be paid
on the earlier of (A) the 60th day after the closing of the
Stock Purchase Agreement and (B) the Closing Date;
(iii) $80,000,000 (the "90-day Deposit") shall be
paid on the earlier of (A) the 90th day after the closing of
the Stock Purchase Agreement and (B) the Closing Date; and
(iv) $5,000,000 (the "Remainder") shall be paid on
the Closing Date; provided, that if the Regulatory Approvals
shall not have been obtained within 180 days after the closing
of the Stock Purchase Agreement, then the Remainder shall be
paid on the first business day following the expiration of
such 180-day period.".
(i) Section 1.5(a) of the Asset Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"(a) the 60-day Deposit, the 90-day Deposit and the
Remainder;".
(j) Clause (D) of the first sentence of Section 4.1(c) of the
Asset Purchase Agreement is hereby amended and restated in its entirety to read
as follows:
"(D) dividend or otherwise distribute (i) the Management Fee,
(ii) in the case of the 90-day Deposit, the excess over the
outstanding principal amount of the Permitted Debt and (iii)
the Remainder,".
(k) Section 4.1(c) of the Asset Purchase Agreement is hereby
further amended by adding the phrase "and (G) enter into the Working Capital
Line, incur and guarantee indebtedness under the Working Capital Line in
accordance with the terms thereof,
4
and perform their respective obligations under the Working Capital Line,
including, without limitation, making any payments required pursuant thereto" to
the end of the first sentence thereof.
(l) Section 4.21 of the Asset Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"Section 4.21 Closing of Hexcel Agreement. Stamford shall not
permit the closing of the transactions contemplated by the
Hexcel Agreement to occur prior to the earlier of (x) the
Closing Date and (y) 60 days after the closing of the Stock
Purchase Agreement. Stamford shall not amend or modify any
provision of the Hexcel Agreement, the Hexcel License or the
Transition Services Agreement without the prior written
consent of Buyer. Buyer acknowledges that it has reviewed the
terms and conditions of the Hexcel Agreement, the Hexcel
License and the Transition Services Agreement. As a result,
Buyer agrees that it shall not hold Stamford, Fiberite
Holdings or Fiberite or any of their Affiliates liable or
pursue any action against any such person or entity for any
breach, violation or failure to comply with any of the terms
of this Agreement which result from the compliance or
performance by Stamford, Fiberite Holdings or Fiberite or any
of their subsidiaries with the terms and conditions of the
Hexcel Agreement, the Hexcel License and the Transition
Services Agreement.".
(m) Article IV of the Asset Purchase Agreement is amended by
adding a new Section 4.24 to read as follows:
"Section 4.24 Assumption of Defined Benefits Plans. As of the
Closing Date, Buyer shall adopt and assume sponsorship of the
Fiberite, Inc. Pension Plan and the Fiberite, Inc. Service
Related Pension Plan (together, the "Pension Plans"), all
assets, obligations and liabilities in connection therewith
and all of Fiberite's rights and duties as trustor under each
trust agreement related to the Pension Plans. Buyer and
Fiberite shall cooperate as reasonably necessary to give
effect to the provisions of this Section 4.24.".
(n) Article VIII of the Asset Purchase Agreement is hereby
amended by inserting the following definitions in the proper alphabetical order
therein:
(i) "'90-day Deposit' has the meaning assigned in
5
Section 1.2(a).";
(ii) "'60-day Deposit' has the meaning assigned in
Section 1.2(a).";
(iii) "'Stay Bonuses' means the amounts (not to
exceed $346,000 in the aggregate) payable to certain employees
of Fiberite's Orange division pursuant to the letter agreement
agreed to by Stamford on May 28, 1997."; and
(iv) "'Working Capital Line' means the credit line
under the Permitted Debt providing Fiberite with up to
$2,000,000 of available borrowings on terms approved by Buyer
in writing (for avoidance of doubt, no other borrowings in
respect of the Permitted Debt shall be included in the Working
Capital Line).".
(o) Article VIII of the Asset Purchase Agreement is hereby
further amended by deleting the definition of "Hexcel License" set forth therein
and replacing it with the following:
"'Hexcel License' means the license contemplated by
and attached as Exhibit C to, the Hexcel Agreement.".
(p) Article VIII of the Asset Purchase Agreement is hereby
further amended by deleting the definition of "Remainder" set forth therein and
replacing it with the following:
"'Remainder' has the meaning assigned in Section
1.2(a).".
(q) Article VIII of the Asset Purchase Agreement is hereby
further amended by deleting the definition of "Transition Services Agreement"
set forth therein and replacing it with the following:
"'Transition Services Agreement' means the
Transitional Services Agreement contemplated by, and on the
terms set forth in, Exhibit E to the Hexcel 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
6
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.
SECTION 5. Effective Date. This Amendment shall be deemed an
agreement between Stamford and Buyer until executed by Fiberite and Fiberite
Holdings at which time it shall be deemed to be an agreement between Buyer,
Stamford, Fiberite and Fiberite Holdings, and Stamford shall cause Fiberite and
Fiberite Holdings to execute this Agreement immediately following the closing of
the Stock Purchase Agreement.
7
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first above written.
STAMFORD FHI ACQUISITION CORP.,
by /s/Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title:Vice President
FIBERITE, INC.,
by /s/Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:Vice President
FIBERITE HOLDINGS, INC.,
by /s/Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:Vice President
CYTEC INDUSTRIES INC.,
by /s/X. X. Xxxxxxx
--------------------------------------
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/Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title:Vice President
