FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made and
entered into as of October 26, 2005 by and among AT HOLDINGS CORPORATION, a Delaware corporation
(the “Company”), ARGO-TECH CORPORATION, a Delaware corporation (“Argo-Tech”),
GREATBANC TRUST COMPANY, an Illinois corporation (the “Trustee”), in its capacity as
trustee for The Argo-Tech Corporation Employee Stock Ownership Plan, V.G.A.T. INVESTORS, LLC, a
Delaware limited liability company (“Parent”), and XXXXXX MERGER SUB, INC., a Delaware
corporation (“Acquisition Sub”).
WHEREAS, the Company, Argo-Tech, the Trustee, Parent and Acquisition Sub are parties to that
certain Agreement and Plan of Merger, dated as of September 13, 2005 (the “Original
Agreement,” and, as modified by this Amendment, the “Agreement”), pursuant to which
Parent is to acquire the Company through the merger of Acquisition Sub with and into the Company;
and
WHEREAS, the parties wish to amend the Original Agreement in the respects, and only in the
respects, set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. Defined Terms. Capitalized terms used herein and not defined shall have
the respective meanings given to such terms in the Original Agreement.
ARTICLE 2. Amendments to Original Agreement and Disclosure Schedules.
2.1 Amendment to Section 1.1. Section 1.1 of the Original Agreement is hereby amended
by inserting therein the following definition immediately prior to the definition of “Rollover
Amount”:
“Restricted Subsidiary” shall have the meaning set forth in the Indenture.”
2.2 Amendment to Section 2.3. Section 2.3 of the Original Agreement is hereby amended
by deleting clauses (i) and (ii) in the first sentence of paragraph (c) thereof and replacing such
clauses with the following in substitution therefor:
“(i) a certificate, duly executed by an authorized executive officer of the Company,
dated the Closing Date, certifying that the conditions specified in Sections
7.1(c) through (f) and Sections 7.3(a) through (t) (in
each case, to the extent such conditions relate to the Company) have been fulfilled;
(ii) a certificate, duly executed by the Trustee, dated the Closing Date, certifying
that the conditions specified in Sections 7.1(c) through (f) and
Sections 7.3(a) through (t) (in each case, to the extent such
conditions relate to the ESOP) have been fulfilled;”
2.3 Amendments to Section 2.8.
(a) Paragraph (b) of Section 2.8 of the Original Agreement is hereby amended by
deleting the second sentence thereof in its entirety and replacing it with the following in
substitution therefor:
“Such contribution and issuance is intended to qualify as a tax free contribution
pursuant to Section 721 of the Code.”
(b) Paragraph (c) of Section 2.8 of the Original Agreement is hereby further amended by
adding a new subparagraph (viii) at the end thereof, which shall read as follows:
“(viii) Notwithstanding the foregoing provisions of this paragraph (c) and the
provisions of subparagraphs (b)(i) and (b)(iii) of Section 2.10(b), the Company may,
prior to the Closing and in lieu of appointment of a Paying Agent as provided for
herein, distribute the Letters of Transmittal directly to the holders of Common
Stock and the Warrant and, in such event, the Company, as agent for Parent,
following receipt by the Company of such portion of the Merger Consideration from
Parent, shall cause the portion of the Merger Consideration payable to each such
Equity Holder at the Effective Time to be transmitted to such Equity Holder promptly
following the later of the Effective Time and receipt by the Company of an executed
Letter of Transmittal from such Equity Holder, in each case, in accordance with the
delivery instructions provided by the Equity Holders with such Letters of
Transmittal.”
2.4 Amendments to Section 2.12.
(a) Paragraph (a) of Section 2.12 of the Original Agreement is hereby amended by
deleting the first four lines thereof in their entirety and replacing them with the
following:
“(a) Promptly following the consummation of any Argo-Tracker Disposition or
liquidation of Argo-Tracker Corporation pursuant to Section 6.7(c), the
Surviving Corporation shall distribute any proceeds of such disposition or
liquidation, net of all Taxes and transaction expenses (“Argo-Tracker
Proceeds”), as follows:”
(b) Paragraph (a) of Section 2.12 of the Original Agreement is hereby further amended
by adding the phrase “, less applicable withholding of Tax,” immediately following the
phrase “20% of all Excess Proceeds” in the first line of subparagraph (iii)(A) thereof.
(c) Paragraph (b) of Section 2.12 of the Original Agreement is hereby deleted in its
entirety and replaced with the following in substitution therefor:
“(b) With respect to Equity Holders that hold shares of Common Stock or the Warrant,
the aggregate Proportionate Share of all Argo-Tracker Proceeds payable
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pursuant to Section 2.12(a) above in respect of such holders’ Common Stock
and Warrants shall, if a Paying Agent is appointed by the Company pursuant to
Section 2.8 above, be delivered to the Paying Agent by wire transfer
pursuant to the Wire Transfer Instructions for the benefit of such Equity Holders
(and the Paying Agent will promptly pay to each such holder the amount to which it
is entitled pursuant to Section 2.12(a) above with respect to such holder’s
Common Stock and the Warrant) and, if a Paying Agent is not so appointed, then the
respective Proportionate Shares of Argo-Tracker Proceeds payable in respect of
Common Stock and Warrants shall be paid by the Surviving Corporation directly to
such Equity Holders in accordance with the wire transfer instructions provided by
such Equity Holders with their respective Letters of Transmittal. With respect to
Equity Holders that hold In-the-Money Options, SARs, or SERP Awards, the
Proportionate Share of all Argo-Tracker Proceeds payable pursuant to Section 2.12(a)
above in respect of such holder’s In-the-Money Options, SARs or SERP Awards will be
paid by check through the Surviving Corporation’s payroll system. In addition, all
Argo-Tracker Proceeds distributed to officers of Argo-Tracker Corporation pursuant
to Sections 2.12(a)(iii)(A) and (B) above will be paid by check through the
Surviving Corporation’s payroll system. For the avoidance of doubt, Equity Holders
shall have no rights with respect to Argo-Tracker other than the right to receive a
portion of the Argo-Tracer Proceeds upon the disposition or liquidation of
Argo-Tracker as described in this Section 2.12, and under no circumstances will any
Equity Holder be deemed to own, have any interest in or other rights with respect to
(including rights to vote or receive dividends), any shares of capital stock of
Argo-Tracker.”
2.5 Amendments to Section 6.1.
(a) Paragraph (b) of Section 6.1 of the Original Agreement is hereby deleted in its
entirety and replaced with the following in substitution therefor:
“(b) declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property) on any class of Capital Stock of the Company or its Subsidiaries,
or redeem or repurchase any shares of Capital Stock of the Company or its
Subsidiaries, provided that Restricted Subsidiaries shall be permitted to
declare, set aside and pay dividends or other distributions on shares of their
Capital Stock to Argo-Tech and to other Restricted Subsidiaries;”
(b) Paragraph (d) of Section 6.1 is hereby deleted in its entirety and replaced with
the following in substitution therefor:
“(d) sell, transfer, license, assign, pledge or otherwise dispose of any material
assets of the Company and its Subsidiaries or create an Encumbrance (other than a
Permitted Encumbrance) with respect to any of its material assets, or fail to
maintain, or permit the loss, lapse or abandonment of, any material Company
Intellectual Property, provided that Restricted Subsidiaries shall be
permitted to make transfers of their respective property or assets to Argo-Tech or
to other Restricted Subsidiaries;”
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(c) Paragraph (n) of Section 6.1 is hereby amended by deleting clause (iii) thereof and
replacing it with the following in substitution therefor:
“(iii) make any loans, advances or capital contributions to or investments in any
other Person, except for loans or advances to employees, in each case in the
Ordinary Course, and except for loans or advances made by Restricted Subsidiaries to
Argo-Tech or to other Restricted Subsidiaries, provided that the Company may
make investments in Argo-Tracker Corporation (and for the avoidance of doubt, to the
extent such investments exceed $1,000,000, they will be deemed Closing
Dividends/Investments hereunder);”
(d) Paragraph (p) of Section 6.1 is hereby deleted in its entirety and replaced with
the following in substitution therefor:
“(p) discharge or satisfy any material Encumbrance, or obligation or liability in
excess of $250,000, other than current liabilities payable in the Ordinary Course,
and other than obligations owed by a Restricted Subsidiary to Argo-Tech or to
another Restricted Subsidiary;”
2.6 Amendment to Section 7.1. Section 7.1 of the Original Agreement is hereby amended
by deleting paragraph (g) thereof in its entirety.
2.7 Amendment to Section 8.5. Section 8.5 of the Original Agreement is hereby amended
by deleting paragraph (b) thereof in its entirety and replacing it with the following in
substitution therefor:
“On such date as is the 12-month anniversary of the Closing Date, all amounts held
in escrow, less any portion of such amounts subject to any outstanding unresolved
Claim Notice delivered on or prior to such date, shall be disbursed in accordance
with the terms of the Escrow Agreement.”
ARTICLE 3. Miscellaneous.
3.1 Governing Law. This Amendment, and all claims arising in whole or in part out of,
related to, based upon, or in connection herewith or the subject matter hereof will be governed by
and construed and enforced in accordance with the domestic substantive laws of the State of New
York for contracts made and to be performed solely within such state, without giving effect to any
choice or conflict of law provision or rule that would cause the application of the laws of any
other jurisdiction.
3.2 Consent to Jurisdiction. Each party to this Amendment, by its execution hereof,
hereby (a) irrevocably submits to the exclusive jurisdiction of the United States District Court
located in the State of New York, County of New York for the purpose of any and all actions, suits
or proceedings arising in whole or in part out of, related to, based upon or in connection with
this Amendment or the subject matter hereof, (b) waives to the extent not prohibited by applicable
law, and agrees not to assert, by way of motion, as a defense or
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otherwise, in any such action, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that any such action brought in one of the above-named courts should be
dismissed on grounds of forum non conveniens, should be transferred to any court other than one of
the above-named courts, or should be stayed by reason of the pendency of some other proceeding in
any other court other than one of the above-named courts, or that this Amendment or the subject
matter hereof may not be enforced in or by such court, and (c) agrees not to commence any such
action other than before one of the above-named courts nor to make any motion or take any other
action seeking or intending to cause the transfer or removal of any such action to any court other
than one of the above-named courts, whether on the grounds of forum non conveniens or otherwise.
Each party hereby (x) consents to service of process in any such action in any manner
permitted by New York law; (y) agrees that service of process made in accordance with
clause (x) or made by registered or certified mail, return receipt requested, at its
address specified pursuant to Section 11.3 of the Agreement, will constitute good and valid
service of process in any such action; and (z) waives and agrees not to assert (by way of motion,
as a defense, or otherwise) in any such action any claim that service of process made in accordance
with clause (x) or (y) does not constitute good and valid service of process.
3.3 WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT
BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED ON OR IN
CONNECTION WITH THIS AMENDMENT OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE. ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 3.3 WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
3.4 Headings. The section headings hereof are for convenience of reference only and
are to be given no effect in the construction, interpretation or effect hereof.
3.5 Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
3.6 Notices. Any notices to be given under this Amendment shall be given pursuant to
Section 11.3 of the Agreement, which is hereby incorporated by reference.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the undersigned have caused this First Amendment to Agreement and Plan of
Merger to be duly executed and delivered as of the date first above written.
AT HOLDINGS CORPORATION |
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By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | President and CEO | |||
ARGO-TECH CORPORATION |
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By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | President and CEO | |||
GREATBANC TRUST COMPANY, IN ITS CAPACITY AS TRUSTEE OF THE ARGO- TECH CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN |
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By: | /s/ Xxxxxxx Xxxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxxx | |||
Title: | Senior Vice President | |||
V.G.A.T. INVESTORS, LLC |
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By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Vice President | |||
XXXXXX MERGER SUB, INC. |
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By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Vice President | |||
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