EXHIBIT 2.1
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SECOND AMENDMENT
TO THE
AGREEMENT AND PLAN OF MERGER
AND EXCHANGE AGREEMENT
AMONG
PETROLEUM GEO-SERVICES ASA,
VERITAS DGC INC.,
VGS INC.,
NEPTUNE HOLDCO LLC
AND
NEPTUNE MERGERCO INC.
DATED EFFECTIVE AS OF JULY 22, 2002
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SECOND AMENDMENT
TO THE
AGREEMENT AND PLAN OF MERGER
AND EXCHANGE AGREEMENT
THIS SECOND AMENDMENT, DATED EFFECTIVE AS OF JULY 22, 2002
(this "Amendment"), TO THE AGREEMENT AND PLAN OF MERGER AND EXCHANGE AGREEMENT,
dated as of November 26, 2001, as amended by the FIRST AMENDMENT dated June 21,
2002 (as so amended, the "Agreement"), is among Petroleum Geo-Services ASA, a
Norwegian public limited liability company ("PGS"), Veritas DGC Inc., a Delaware
corporation ("Veritas"), VGS Inc. (formerly named Neptune I, Inc.), a Cayman
Islands exempted company and a direct, wholly owned subsidiary of Veritas,
Neptune Holdco LLC, a Delaware limited liability company and an indirect, wholly
owned subsidiary of VGS Inc., and Neptune Mergerco Inc., a Delaware corporation
and a direct, wholly owned subsidiary of Neptune Holdco LLC. Capitalized terms
not otherwise defined herein shall have the meanings given to them in the
Agreement.
RECITALS
WHEREAS, certain parties thereto wish to amend the Agreement
in certain respects;
WHEREAS, the Boards of Directors of each of PGS, Veritas, VGS
Inc., Neptune Holdco LLC and Neptune Mergerco Inc. have determined this
Amendment amending and supplementing the Agreement to be advisable and in the
best interests of their respective corporations, stockholders and shareholders
and to be consistent with, and in furtherance of, their respective business
strategies and goals, and by resolutions duly adopted, have approved and adopted
this Amendment;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein and in
the Agreement, the parties hereto hereby agree as follows:
1. SECTION 8.8(a) OF THE AGREEMENT
The following proviso is hereby added to the end of the third sentence
of Section 8.8(a) of the Agreement:
"; provided, however, that in no event shall Caymanco request that the
staff of the SEC accelerate the effectiveness of the Form S-4 to any
date and time occurring prior to the expiration of the Pre-Mailing
Determination Period (as defined in Section 10.7)."
2. SECTION 10.7 OF THE AGREEMENT
Section 10.7 of the Agreement is hereby amended and restated to provide
as follows:
"Section 10.7. Additional Right of Termination by PGS or
Veritas. This Agreement may be terminated by PGS or Veritas at any time
during the five business day
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period ending August 15, 2002 (the "Pre-Mailing Determination Period"),
by action of the Board of Directors of PGS or Veritas, unless, by the
date of such termination:
(a) Caymanco shall have received commitments for the
placement or sale on market terms satisfactory to both Veritas
and PGS of equity or equity-linked securities of Caymanco that
shall be expected to yield net cash proceeds to Caymanco of
not less than $200 million; or
(b) PGS shall have consummated the sale of its
Atlantis Subsidiary for gross proceeds (including cash
proceeds and the assumption of debt) of not less than $195
million; or
(c) PGS shall have consummated the sale of assets,
which may include but not be limited to its Atlantis
Subsidiary, generating gross proceeds (including cash proceeds
and the assumption of debt) of not less than $200 million;
provided that no such sale of assets, except for those sales
disclosed in the PGS Disclosure Letter or the PGS Supplemental
Disclosure Letter, may be consummated without Veritas' prior
written consent; or
(d) any combination of the events referred to in
clauses (a) through (c) of this Section 10.7 shall have
occurred in such amounts that, when aggregated together, yield
(or, in the case of clause (a), are expected to yield) gross
proceeds (including cash proceeds and, in the case of asset
sales, the assumption of debt) of not less than $200 million.
If this Agreement is terminated pursuant to this Section 10.7,
the party terminating this Agreement shall pay the other party $7.5
million at the time of such termination to reimburse such party for a
portion of its costs and expenses incurred in connection with this
transaction."
3. OTHER TERMS OF THE AGREEMENT
Except as otherwise provided in this Amendment, all other terms of the
Agreement shall remain in full force and effect. All references in the Agreement
to "this Agreement" shall be read as references to the Agreement, as amended by
this Amendment, but references to the date of the Agreement shall remain
references to November 26, 2001.
4. COUNTERPARTS
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
5. HEADINGS
Headings of the Sections of this Amendment are for the convenience of
the parties only and shall be given no substantive or interpretative effect
whatsoever.
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6. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its rules of conflict of
laws.
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IN WITNESS WHEREOF, the parties have executed this Amendment
and caused the same to be duly delivered on their behalf on the day and year
first written above.
PETROLEUM GEO-SERVICES ASA
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Chairman of the Board
VERITAS DGC INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
VGS INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Vice President
NEPTUNE HOLDCO LLC
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President
NEPTUNE MERGERCO INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President
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