EXHIBIT 2.2
SECOND AMENDMENT TO
PURCHASE AGREEMENT
This Second Amendment to Purchase Agreement (this "Second Amendment") is
made and entered into this 30th day of September 2003 by and between
Aerojet-General Corporation, an Ohio corporation ("Purchaser"), and Atlantic
Research Corporation, a Delaware corporation ("Seller").
RECITALS
A. Seller and Purchaser entered into that certain Purchase Agreement
dated as of May 2, 2003 and that certain First Amendment to Purchase
Agreement dated August 29, 2003 (collectively, the "Purchase
Agreement").
B. Pursuant to Section 10.14 of the Purchase Agreement, Seller and
Purchaser have agreed to amend the Purchase Agreement as set forth
herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants and agreements hereinafter set forth, and intending to be
legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINITIONS. Unless otherwise defined herein, all capitalized
terms used herein have the meanings given to them in the Purchase Agreement.
ARTICLE II
AMENDMENTS TO THE PURCHASE AGREEMENT
2.01 SECTION 3.02(z). Section 3.02(z) of the Purchase Agreement is hereby
amended and superseded in all respects by the provisions of this
Second Amendment. As amended and restated, Section 3.02(z) reads in
its entirety:
"NO KNOWLEDGE OF PURCHASER'S DEFAULT. As of the date of this
Agreement and as of September 30, 2003, Seller has no Knowledge that
any of Purchaser's representations and warranties contained in this
Agreement or in the Other Agreements are untrue, inaccurate or
incomplete or that Purchaser is in default under any term or
provision of this Agreement."
2.02 SECTION 3.04(j). Section 3.04(j) of the Purchase Agreement is hereby
amended and superseded in all respects by the provisions of this
Second Amendment. As amended and restated, Section 3.04(j) reads in
its entirety:
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"NO KNOWLEDGE OF SELLER'S DEFAULT. As of the date of this Agreement
and as of September 30, 2003, Purchaser has no Knowledge that any of
Seller's representations and warranties contained in this Agreement
or in the Other Agreements are untrue, inaccurate or incomplete or
that Seller is in default under any term or provision of this
Agreement."
2.03 SECTION 5.02. Section 5.02 of the Purchase Agreement is hereby
amended by adding clause (g). Section 5.02(g) reads in its entirety:
"FINANCIAL ASSURANCES. Purchaser and Seller shall have entered into
an agreement satisfactory to Purchaser and Seller in their
respective sole discretions with respect to the provision of
financial assurances by Purchaser to replace certain hazardous waste
- Closure/Post Closure insurance policies of Seller pertaining to
Camden, Arkansas and Orange, Virginia."
2.04 SECTION 6.02. The first sentence of Section 6.02 of the Purchase
Agreement is hereby amended and superseded in all respects by the
provisions of this Second Amendment. As amended and restated, the
first sentence of Section 6.02 reads in its entirety:
"Unless extended by the Parties by mutual agreement, the Closing
will occur and be effective as of 11:59 p.m. (Eastern Daylight Time)
on the date that is five (5) Business Days following satisfaction of
all of the conditions referred to in Section 5.01 and Section 5.02
(the "Closing Date"), but in no event whatsoever later than October
21, 2003 (the "Drop Dead Date")."
2.05 To Seller's knowledge, Purchaser is in compliance with the terms and
covenants of the Purchase Agreement required to be performed prior
to the date hereof. To Purchaser's knowledge, Seller is in
compliance with the terms and covenants of the Purchase Agreement
required to be performed prior to the date hereof.
2.06 Purchaser accepts the Supplemental Disclosure Package attached
hereto as EXHIBIT A.
2.07 Purchaser confirms that none of the written disclosures that have
been delivered by Seller, Sequa or both to Purchaser subsequent to
August 29, 2003 and through September 30, 2003, all as attached
hereto as EXHIBIT B, disclosed facts, conditions or events
constituting a "material adverse change" for purposes of the
Purchase Agreement, including Section 5.01(f) thereof.
2.08 Seller and Purchaser confirm to each other that the Closing was not
consummated on or prior to September 30, 2003 through no fault of
either of the Parties or because of any breach of any provision of
the Purchase Agreement by either of the Parties.
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ARTICLE III
MISCELLANEOUS
3.01 EFFECT OF SECOND AMENDMENT. On and after the date hereof, each
reference in the Purchase Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import referring to
the Purchase Agreement, and each reference in the Other Agreements
to the "Purchase Agreement," "thereunder," "thereof" or words of
like import referring to the Purchase Agreement, shall mean and be a
reference to the Purchase Agreement as amended by this Second
Amendment.
This Second Amendment constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings,
representations or other arrangements, whether express or implied,
written or oral, of the parties in connection therewith except to
the extent expressly incorporated or specifically referred to
herein. In the event of a conflict between the respective provisions
of the Purchase Agreement and this Second Amendment, the terms of
this Second Amendment shall control.
Except as specifically amended by the terms of this Second
Amendment, the terms and conditions of the Purchase Agreement are
and shall remain in full force and effect for all purposes.
3.02 COUNTERPARTS. Two original counterparts of this Second Amendment are
being executed by the parties hereto, and each fully executed
counterpart shall be deemed an original without production of the
others and will constitute one and the same instrument.
3.03 GOVERNING LAW. This Second Amendment will be governed by and
construed and interpreted in accordance with the internal
substantive laws of the State of New York, applicable to contracts
made and to be performed wholly within such state, and without
regard to the conflicts of law principles thereof.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Second
Amendment to be executed by its duly authorized officers, as of the date first
above written.
AEROJET-GENERAL CORPORATION
By: /s/ Brian E. Sweeney
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Name: Brian E. Sweeney
Title: VP Legal & Contracts
ATLANTIC RESEARCH CORPORATION
By: /s/ Patrick J. Jenkins
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Name: Patrick J. Jenkins
Title: VP - Chief Financial Officer