Exhibit 2.3
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT (the "AMENDMENT") to the Agreement and Plan of
Merger dated as of April 21, 2003, by and among VERSO TECHNOLOGIES, INC., a
Minnesota corporation ("PURCHASER"), MICKEY ACQUIRING SUB, INC., a Delaware
corporation and a wholly-owned subsidiary of Purchaser ("MERGER SUB"), and MCK
COMMUNICATIONS, INC., a Delaware corporation (the "COMPANY"), as amended by the
First Amendment to the Agreement and Plan of Merger dated as of April 21, 2003
(as so amended, the "MERGER AGREEMENT;" capitalized terms used but not defined
herein shall have the meanings ascribed to them therein), is effective as of the
13th day of June, 2003 by and among Purchaser, Merger Sub, and the Company
(collectively, the "PARTIES").
W I T N E S S E T H:
WHEREAS, the Parties have entered into the Merger Agreement, which
provides, upon the terms and conditions set forth therein, for the Merger; and
WHEREAS, the Parties have determined that it is advisable to amend the
Merger Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein, the Parties do hereby agree as follows:
SECTION 1. AGREEMENT AS TO MERGER AGREEMENT. The Merger Agreement is
hereby amended as follows:
(a) AMENDMENT TO THE INDEX OF DEFINED TERMS. The Index of Defined Terms
set forth in the Merger Agreement is hereby amended to delete from page vi
thereof "Purchaser Stockholder Approval" and "Section 4.04(c)" set forth across
therefrom in their entirety.
(b) AMENDMENT TO SECTION 2.01(c)(i). Section 2.01(c)(i) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(i) the aggregate number of shares of Purchaser Common Stock
to be issued in exchange for shares of Company Common Stock in
connection with the Merger (the "Purchaser Shares") shall
equal 18,280,000;"
(c) AMENDMENT TO SECTION 4.04(c). Section 4.04(c) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(c) No vote of holders of any class or series of Purchaser
Capital Stock is necessary for Purchaser to approve and adopt
this Agreement and the Merger."
(d) AMENDMENT TO SECTION 6.01(a). The first sentence of Section 6.01(a)
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"Each of the Company and Purchaser shall cooperate and
promptly prepare under the Securities Act, with respect to the
shares of Purchaser
Common Stock issuable in the Merger, a portion of which Form
S-4 shall also serve as the proxy statement with respect to
the meeting of the stockholders of the Company in connection
with the Merger (in its entirety, the "Form S-4")."
The sixth sentence of Section 6.01(a) of the Merger Agreement is hereby amended
and restated in its entirety as follows:
"Purchaser agrees that the Form S-4 and each amendment or
supplement thereto at the time of mailing thereof and at the
time of the meeting of stockholders of the Company, will not
include an untrue statement of a material fact or omit to
state a material fact required to be stated therein, in light
of the circumstances under with they were made, not
misleading; provided, however, that the foregoing shall not
apply to the extent that any such untrue statement of a
material fact or omission to state a material fact was made by
Purchaser in reliance upon and in conformity with information
concerning the Company furnished to Purchaser by the Company
for use in the Form S-4."
The seventh sentence of Section 6.01(a) of the Merger Agreement is hereby
amended and restated in its entirety as follows:
"The Company agrees that the information provided by it for
inclusion in the Form S-4 and each amendment or supplement
thereto, at the time of mailing thereof and at the time of the
meeting of stockholders of the Company, will not include any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading."
(e) AMENDMENT TO SECTION 6.01(b). Section 6.01(b) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"STOCKHOLDERS MEETING. The Company will take all action
necessary in accordance with applicable Law, the Company's
Charter and the Company's By-laws to convene a meeting of its
stockholders as promptly as practicable to consider and vote
upon the approval of this Agreement and the transactions
contemplated hereby. The Company Board shall recommend that
its stockholders approve this Agreement and the transactions
contemplated hereby, and the Company shall use its reasonable
best efforts to obtain such approval, including, without
limitation, by timely filing and mailing the proxy
statement/prospectus contained in the Form S-4 to its
stockholders; provided, however, that nothing contained in
this Section 6.01(b) shall prohibit the Company Board from
failing to make such recommendation or using its reasonable
best efforts to obtain such approval if the Company Board has
determined in good faith, after consultation with outside
counsel, that such action is necessary for the Company Board
to comply with its fiduciary duties to its stockholders under
applicable Law. The Company and Purchaser shall coordinate and
cooperate with respect to the timing of such meeting. It shall
be a condition to mailing the Form S-4 that (i) Purchaser
shall have
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received a "comfort" letter from Ernst & Young LLP,
independent public accountants for the Company, dated as of a
date within two business days before the date on which the
Form S-4 shall become effective, with respect to the financial
statements of the Company included or incorporated in the Form
S-4, in form and substance reasonably satisfactory to
Purchaser, and customary in scope and substance for "comfort"
letters delivered by independent public accountants in
connection with registration statements and proxy statements
similar to the Form S-4, and (ii) the Company shall have
received a "comfort" letter from KPMG LLP, independent public
accountants for Purchaser, dated as of a date within two
business days before the date on which the Form S-4 shall
become effective, with respect to the financial statements of
Purchaser included or incorporated in the Form S-4, in form
and substance reasonably satisfactory to the Company, and
customary in scope and substance for "comfort" letters
delivered by independent public accountants in connection with
registration statements and proxy statements similar to the
Form S-4."
(f) AMENDMENT TO SECTION 6.07(b). The second sentence of Section
6.07(b) of the Merger Agreement is hereby amended and restated in its entirety
as follows:
"If this Agreement is terminated by Purchaser pursuant to
Section 8.01(b)(iv), then the Company shall pay to Purchaser
an amount equal to all of Purchaser's Expenses, as evidenced
by reasonable documentation, up to an aggregate of $600,000."
(g) AMENDMENT TO SECTION 7.01(a). Section 7.01(a) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(a) STOCKHOLDER APPROVAL. The Company shall have obtained the
Company Stockholder Approval."
(h) AMENDMENT TO SECTION 7.02(e). The last sentence of Section 7.02(e)
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"The opinion referred to in this Section 7.02(e) shall not be
waivable after receipt of the Company Stockholder Approval
unless further stockholder approval is obtained with
appropriate disclosure."
(i) AMENDMENT TO SECTION 7.02(h). Section 7.02(h) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(h) UNRESTRICTED CASH; RESTRICTED CASH. At the Effective
Time, (A) the sum of Unrestricted Cash and Restricted Cash
shall equal no less than $6,363,720 and (B) the Restricted
Cash shall equal no more than $2,000,000."
(j) AMENDMENT TO SECTION 7.03(g). The last sentence of Section 7.03(g)
of the Merger Agreement is hereby amended and restated in its entirety as
follows:
"The opinion referred to in this Section 7.03(g) shall not be
waivable after receipt of the Company Stockholder
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Approval unless further stockholder approval is obtained with
appropriate disclosure."
(k) AMENDMENT TO SECTION 8.01. The preamble of Section 8.01 of the
Merger Agreement is hereby amended and restated in its entirety as follows:
"SECTION 8.01. TERMINATION. This Agreement may be terminated
at any time prior to the Effective Time, whether before or
after receipt of Company Stockholder Approval:"
(l) FURTHER AMENDMENT TO SECTION 8.01. Section 8.01(b)(vi) of the
Merger Agreement is hereby deleted in its entirety and replaced with the
following:
"(vi) [Intentionally Deleted]."
(m) GLOBAL AMENDMENT. As a result of the other amendments effected
hereby, the receipt of Purchaser Stockholder Approval is no longer necessary to
complete the Merger and the Parties, therefore, intend to delete from the Merger
Agreement all references to Purchaser Stockholder Approval and all references to
any meeting of the holders of the outstanding Purchaser Common Stock or proxy
statement heretofore contemplated to be held or prepared in connection
therewith. Accordingly, all such references are hereby deleted and shall have no
force or effect.
SECTION 2. EFFECTIVENESS OF AMENDMENT. This effectiveness of this
Amendment is subject to the approval of the Board of Directors of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Purchaser and Merger Sub that (assuming the
satisfaction of the condition described in Section 2 hereof): (i) the Company
has all necessary corporate power and authority to execute and deliver this
Amendment and to perform its obligations under the Merger Agreement, as amended
hereby; (ii) the execution and delivery of this Amendment by the Company and the
consummation by the Company of the transactions contemplated by the Merger
Agreement, as amended hereby, have been duly and validly authorized by all
necessary corporate action (other than stockholder approval as described in the
Merger Agreement); and (iii) this Amendment has been duly executed and delivered
by the Company and, assuming the due authorization, execution and delivery by
Purchaser and Merger Sub, constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
(b) REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB.
Purchaser and Merger Sub hereby jointly and severally represent and warrant to
the Company that: (i) Purchaser and Merger Sub have all necessary corporate
power and authority to execute and deliver this Amendment and to perform their
respective obligations under the Merger Agreement, as amended hereby; (ii) the
execution and delivery of this Amendment by Purchaser and Merger Sub and the
consummation by Purchaser and Merger Sub of the transactions contemplated by the
Merger Agreement, as amended hereby, have been duly and validly authorized by
all necessary corporate action; and (iii) this Amendment has been duly executed
and delivered by Purchaser and Merger Sub and, assuming the due authorization,
execution and delivery by the Company, constitutes the legal, valid and binding
obligation of Purchaser and Merger Sub, enforceable against Purchaser and Merger
Sub in accordance with its terms.
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SECTION 4. EFFECT ON MERGER AGREEMENT. Except as otherwise specifically
provided herein, the Merger Agreement shall not be amended but shall remain in
full force and effect.
SECTION 5. HEADINGS. The Section headings contained in this Amendment
are for reference purposes only and will not affect in any way the meaning or
interpretation of this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
(WITHOUT REFERENCE TO CONFLICT OF LAW PRINCIPLES).
SECTION 7. COUNTERPARTS. This Amendment may be executed simultaneously
in counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Executed counterparts may
be delivered via facsimile transmission.
SECTION 8. ENTIRE AGREEMENT. This Amendment (together with the Merger
Agreement and the Exhibits thereto) constitutes the entire agreement among the
Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings among the Parties with respect thereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be executed
and delivered by its officer thereunto duly authorized, all as of the day and
year above written.
VERSO TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Its: Chief Executive Officer
MICKEY ACQUIRING SUB, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Its: Chief Executive Officer
MCK COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Its: Chief Executive Officer
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