AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
Execution Version
Execution Version
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment”), dated as of
December 23, 2008, made and entered into by and among KPLT Holdings, Inc., a Delaware Corporation
(“Parent”), KPLT Mergerco, Inc., a Delaware corporation and a wholly owned Subsidiary of
Parent (“Merger Sub”), and Centerplate, Inc., a Delaware corporation (the
“Company”), shall constitute the first amendment to the Agreement and Plan of Merger, dated
as of September 18, 2008, by and among Parent, Merger Sub and the Company (the “Merger
Agreement”). Capitalized terms used but not defined herein shall have the meanings ascribed to
such terms in the Merger Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
| 1. | Section 2.05 of the Merger Agreement is hereby amended and restated as follows: |
“Section 2.05 Effect on Units
(a) As of the Effective Time, by virtue of the Debt Tender Offer, the Consent
Solicitation and the Merger, each IDS shall be automatically separated and shall entitle the
holder thereof to receive (i) for the underlying Company Common Share, the Merger
Consideration as provided in Section 2.01(c), (ii) for the underlying Note (or portion
thereof) accepted for payment in the Debt Tender Offer, the Debt Tender Consideration and
(iii) for the underlying Note (or portion thereof) not accepted for payment in the Debt
Tender Offer, a new Subordinated Note of the Surviving Corporation representing the amount
thereof which will remain outstanding.
(b) [Reserved].
2. Article III of the Merger Agreement is hereby amended to include the following provisions as new
Sections 3.20 and 3.21:
“Section 3.20 Credit Agreement. A true and complete copy of the Credit
Agreement, dated as of April 1, 2005, made and entered into by and among Volume Services
America, Inc., a Delaware corporation, Volume Services, Inc., a Delaware corporation,
Service America Corporation, a Delaware corporation, as the Borrowers, the Company, the
Lenders (as defined therein), GECC Capital Markets Group, Inc., as Lead Arranger (as defined
therein) and General Electric Capital Corporation as a Lender and as the Administrative
Agent (as defined therein) (the “Existing Credit Agreement”), including all
amendments and supplements thereto, has been made available to Parent. The Existing Credit
Agreement is in full force and effect and, as of the Closing Date, as amended by the Amended
and Restated Credit Agreement dated as of December 23, 2008, by and among the Company and
the other parties to the Existing Credit Agreement (the “Restated Credit
Agreement”), no breach or default, alleged breach or default, or event which would (with
the passage of time, notice or both) constitute a breach or default thereunder by the
Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party or
obligor with respect thereto, has occurred and is continuing.
Section 3.21 Updated Opinion. The Board of Directors of the Company has
received the written opinion of Evercore Group L.L.C., dated the date of this Amendment, in
the form attached hereto as Exhibit I.”
| 3. | Section 4.05 of the Merger Agreement is hereby amended and restated as follows: |
“Section 4.05 Financing. Parent has delivered to the Company a true and
complete copy of the equity commitment letter, dated as of September 18, 2008, as amended by
the Amendment to the Equity Commitment Letter dated as of December 23, 2008 (the “Equity
Commitment Letter”), by and between Parent and Kohlberg Investors VI, L.P.
(“Sponsor”), pursuant to which Sponsor has committed to provide the cash equity
financing to Parent in connection with the transactions contemplated hereby, such Equity
Commitment Letter and the amount committed pursuant thereto being the “Financing.”
As of the date of this Amendment, the commitment contained in the Equity Commitment Letter
has not been withdrawn or rescinded in any respect and the Equity Commitment Letter has not
been amended or modified. As of the date of this Amendment, the Equity Commitment Letter is
in full force and effect in the form delivered to the Company and the Equity Commitment
Letter constitutes a valid and binding obligation of the Parent and, to the Knowledge of the
Parent, the Sponsor. There are no conditions precedent or other contingencies or agreements
related to the funding of the full amount of the Financing or, to the Knowledge of Parent or
Merger Sub, the effectiveness of the Restated Credit Agreement, other than as set forth in
the Equity Commitment Letter or Section 4.2 of the Restated Credit Agreement (the
“Disclosed Conditions”) and, to the Knowledge of Parent or Merger Sub no Person has
any right to impose, and Parent has no obligation to accept, any condition precedent to such
funding or effectiveness other than the Disclosed Conditions. Assuming the accuracy of the
representations and warranties in Article III hereof and those specified in Section 4.2(l)
of the Restated Credit Agreement and compliance by the Company with its covenants set forth
herein, (i) the Financing and the Restated Credit Agreement, together with any cash or cash
equivalents available to the Company, would provide Parent and Merger Sub with acquisition
financing at the Effective Time sufficient for Parent and the Surviving Corporation to pay
the aggregate Merger Consideration and Debt Tender Consideration and any other payments
contemplated in this Agreement and to pay all fees and expenses related to the Financing and
the Restated Credit Agreement, the Merger, the Debt Tender Offer or any other transactions
contemplated by this Agreement and (ii) the Restated Credit Agreement shall become
effective. As of the date of this Agreement, assuming the accuracy of the representations
and warranties in Article III hereof and those specified in Section 4.2(l) of the Restated
Credit Agreement and compliance by the Company with its covenants set forth herein, Parent
does not have any reason to believe that any of the conditions to the Financing or the
effectiveness of the Restated Credit Agreement will not be satisfied or that the Financing
will not be available to Merger Sub or that the Restated Credit Agreement will not become
effective on the Closing Date.”
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| 4. | Section 6.08 of the Merger Agreement is hereby amended and restated as follows: |
“Section 6.08 Financing for Parent and Merger Sub.
(a) Parent and Merger Sub shall use their reasonable best efforts to take, or cause to
be taken, all actions and do, or cause to be done, all things necessary, proper or advisable
to arrange the Financing on the terms and conditions described in the Equity Commitment
Letter and to satisfy the conditions to effectiveness of the Restated Credit Agreement
(other than the condition regarding the accuracy of the Company’s representations and
warranties and there being no Material Adverse Change in the business), including using
their reasonable best efforts to: (i) satisfy, on a timely basis, all conditions within
their control or applicable to Parent and Merger Sub to obtaining the Financing, (ii) comply
with all obligations applicable to Parent and Merger Sub, (iii) negotiate and enter into
definitive agreements with respect to the Financing on the terms and conditions contemplated
by the Equity Commitment Letter and finalize and deliver all documents contemplated by the
Restated Credit Agreement, (iv) consummate the Financing at or prior to Closing, (v) seek to
enforce their rights under the Equity Commitment Letter or assist the Company, at Parent’s
expense, in enforcing its rights under the Restated Credit Agreement and (vi) pay at the
Closing all fees and expenses due on or prior to the Closing pursuant to the Restated Credit
Agreement. Parent and Merger Sub shall be permitted, upon prior written notice to the
Company, to amend, supplement, modify or waive any provision or remedy under the Equity
Commitment Letter; provided that (x) no such amendment, supplement, modification or waiver
shall add or make more onerous any conditions to the funding of the Financing on the Closing
Date and (y) any amendment, supplement, modification or waiver that could reasonably be
expected to materially impede, delay or prevent the consummation of the Merger shall require
the prior written consent of the Company. The Restated Credit Agreement shall not be
amended prior to the Closing Date without the prior written consent of the Company, Parent
and Merger Sub. In the event that the Lenders under the Restated Credit Agreement notify
the Company or Parent that they no longer intend for the Restated Credit Agreement to become
effective or challenge its effectiveness, the party receiving such notice shall notify the
other parties hereto and Parent shall use its reasonable best efforts to obtain funds from
alternative sources (such portion from alternative sources the “Alternative
Financing”) or replace such Restated Credit Agreement with equity financing in an amount
sufficient, when combined with the funds under the Equity Commitment Letter to consummate
the transactions contemplated by this Agreement on (A) terms and conditions (other than
those relating to conditions to the funding thereof), not materially less favorable to
Parent or Merger Sub (as determined in the reasonable judgment of Parent and Merger Sub) and
(B) terms and conditions relating to conditions to the funding thereof, not materially more
onerous to Parent or Merger Sub (as determined in the reasonable judgment of the Company),
in each case, in the aggregate than those contained in the Restated Credit Agreement as
promptly as practicable following the occurrence of such event but in all cases at or prior
to Closing. Parent shall provide to the Company executed copies of the definitive documents
related to any Alternative Financing. Parent shall keep the Company informed with respect
to all
material activity concerning the status of the Financing contemplated by the Equity
Commitment Letter and the Restated Credit Agreement and shall give the Company
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prompt notice
of any material adverse change with respect thereto. Without limiting the foregoing, Parent
agrees to notify the Company promptly, and in any event within two Business Days, if at any
time (i) Parent learns that the Equity Commitment Letter or the Restated Credit Agreement
shall expire or be terminated for any reason, (ii) the Sponsor as a party to the Equity
Commitment Letter or the Agent or Lenders under the Restated Credit Agreement notify Parent
that such source no longer intends to provide financing to Parent or to the Company on the
terms set forth therein, or (iii) for any reason Parent no longer believes in good faith
that it will be able to obtain all or any portion of the Financing contemplated by the
Equity Commitment Letter on the terms described therein or that the Restated Credit
Agreement will become effective. Parent shall not, and shall not permit Merger Sub to,
without the prior written consent of the Company, take (or fail to take) any action or enter
into any transaction, including any merger, acquisition, joint venture, disposition, lease,
contract or debt or equity financing, which taking (or failure to take) could reasonably be
expected to materially impede, delay or prevent consummation of the Financing contemplated
by the Equity Commitment Letter or the effectiveness of the Restated Credit Agreement.
(b) Prior to the Effective Time, the Company shall provide, and shall cause the Company
Subsidiaries to, and shall use its reasonable best efforts to cause their Company
Representatives to provide, all cooperation reasonably requested by Parent in connection
with the Financing and the effectiveness of the Restated Credit Agreement (including,
without limitation, to satisfy the conditions precedent set forth in Section 4.2 thereof),
at Parent’s sole cost and expense, provided that none of the Company or any Company
Subsidiary shall be required to pay any commitment or other similar fee or incur any other
liability in connection with the Financing or the Restated Credit Agreement prior to the
Effective Time except for any liabilities that are conditioned on the Effective Time having
occurred. If this Agreement is terminated prior to the Effective Time, Parent and Merger
Sub shall, on a joint and several basis, indemnify and hold harmless the Company, the
Company Subsidiaries and the Company Representatives for and against any and all losses
suffered or incurred by them in connection with the Financing or any Alternative Financing
or the Restated Credit Agreement and any information utilized in connection therewith (other
than information provided by the Company or the Company Subsidiaries expressly for use in
connection therewith).
| 5. | Section 6.09(a) of the Merger Agreement is hereby amended and restated as follows: |
“(a) Simultaneously with the mailing of the Proxy Statement, the Company shall commence
a tender offer for 70% of the outstanding Subordinated Notes (a “Debt Tender Offer”),
for an amount, in cash, equal to $2.49 per Note, plus accrued and unpaid interest and
deferred interest (the “Debt Tender Consideration”), and on such other terms and
conditions as may be agreed between the Company and Merger Sub, and a solicitation of the
consents of holders of a majority in principal amount of the Subordinated Notes (a
“Consent Solicitation”) to an amendment to the indenture governing the terms of the
Subordinated Notes (the “Indenture”) in the form set forth in Exhibit A hereto, with
such
other changes as Parent and the Company may mutually agree (the “Requisite
Consents”). Any amounts payable to holders of the Subordinated Notes in the Consent
Solicitation or
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Debt Tender Offer shall be funded by Parent and Merger Sub or by the
Surviving Corporation at the direction of Parent at the Effective Time by deposit with a
designated agent of immediately available funds equal to the amount to be paid.
Notwithstanding anything herein to the contrary, the Consent Solicitation and Debt Tender
Offer shall not require any payment for the Subordinated Notes and/or the consents or waiver
or amendment under the Consent Solicitations to be made by the Company prior to the Effective
Time.”
| 6. | Section 7.02(e) of the Company Disclosure Schedule is hereby amended and restated in the form attached as Exhibit 2 hereto. | |
| 7. | Section 8.01(d) of the Merger Agreement is hereby amended and restated as follows: |
“(d) by the Company: (i) if, at any time prior to the adoption of this Agreement by the
Company’s shareholders, the Board of Directors (A) shall have made an Adverse Recommendation
Change or (B) determines to enter into an Acquisition Agreement concerning a transaction that
constitutes a Superior Proposal; provided that the Company has not willfully and
materially breached its obligations under Section 5.03; provided, further,
that the Company shall not be entitled to terminate this Agreement pursuant to this Section
8.01(d)(i)(A) other than with respect to a Company Proposal, until one Business Day following
receipt by Parent and Merger Sub of written notice thereof or, otherwise pursuant to this
Section 8.01(d)(i), until after the third Business Day following receipt by Parent and Merger
Sub of written notice (a “Notice of Superior Proposal”) from the Company advising
Parent and Merger Sub that the Board of Directors of the Company intends to take such action
and specifying the reasons therefor, including the material terms and conditions of any
Superior Proposal that is the basis of the proposed action by the Board of Directors of the
Company (including a copy thereof with all accompanying documentation and the identity of
Person making such Superior Proposal), during which three Business Day period, Parent and
Merger Sub shall have the right (in their sole discretion) to offer the Company adjustments
to the terms and conditions of this Agreement that may permit the Board of Directors of the
Company to determine that, with such adjustments, the Merger is at least as favorable to the
shareholders as such Superior Proposal, (ii) if Parent or Merger Sub shall have breached or
failed to perform any of its representations, warranties, covenants or agreements set forth
in this Agreement, which breach or failure to perform (A) would give rise to the failure of a
condition set forth in Section 7.03 and (B) is not cured by Parent or Merger Sub within 30
calendar days following receipt of written notice of such breach or failure to perform from
the Company, (iii) if no event has occurred and no condition exists that would cause any of
the conditions set forth in Sections 7.01 and 7.02 to fail to be satisfied
assuming the
Closing were to occur on the date of termination and, within five Business Days after the
Company has delivered written notice to Parent thereof, the Merger has not been consummated
or (iv) if (A) the Lenders under the Restated Credit Agreement deny their obligation to
provide on the Closing Date the credit facility as amended by the Restated Credit Agreement
or any of the Lenders are placed into receivership, conservatorship, has its bank charter
suspended or revoked or otherwise becomes unable to or prohibited from being a Lender under
the
Restated Credit Agreement, (B) no event has occurred and no condition exists that would cause
any of the conditions set forth in Sections 7.01 and 7.02 to fail to be satisfied
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assuming
the Closing were to occur on the date of termination and (C) within thirty days after the
Company has delivered written notice to Parent of the occurrence of any of any event
described in (A) above, the Merger has not been consummated.”
| 8. | Section 9.03(u) of the Merger Agreement is hereby amended and restated as follows: |
“(u) Each of the following terms is defined in the Section set forth opposite such term:
| Term | Section | |||
Acquiror Disclosure Schedule |
Article IV | |||
Acquisition Agreement |
5.03 | (b) | ||
Adverse Recommendation Change |
5.03 | (b) | ||
Agreement |
Preamble | |||
Alternative Financing |
6.08 | (a) | ||
Audited Balance Sheet Date |
3.07 | (c) | ||
Book-Entry Shares |
2.02 | (a) | ||
Canadian Securities Commissions |
3.07 | (a) | ||
Certificate |
2.02 | (a) | ||
Certificate of Merger |
1.03 | |||
Closing |
1.02 | |||
Closing Date |
1.02 | |||
Code |
2.02 | (g) | ||
Collective Bargaining Agreement |
3.13 | (a) | ||
Company |
Preamble | |||
Company Board Recommendation |
3.04 | (a) | ||
Company Common Share |
2.01 | (b) | ||
Company Common Stock |
2.01 | (b) | ||
Company Contracts |
3.10 | (a) | ||
Company Disclosure Schedule |
Article III | |||
Company Material Adverse Effect |
3.01 | (b) | ||
Company Meeting |
5.02 | (b) | ||
Company Preferred Stock |
3.03 | (a) | ||
Company Proposal |
5.03 | (a) | ||
Company Representatives |
6.06 | (a) | ||
Company SEC Documents |
3.07 | (a) | ||
Confidentiality Agreement |
9.06 | |||
Consent Solicitation |
6.09 | (a) | ||
Contract |
3.10 | (a) | ||
CSC |
3.07 | (a) | ||
Debt Tender Consideration |
6.09 | (a) | ||
Debt Tender Offer |
6.09 | (a) | ||
DGCL |
1.01 | |||
Disclosed Conditions |
4.05 | |||
Dissent Shares |
2.01 | (d) | ||
Dissenters’ Rights Statute |
2.01 | (d) | ||
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| Term | Section | |||
Effective Time |
1.03 | |||
Employee Benefit Plans |
3.12 | (a) | ||
Employees |
5.04 | (a) | ||
Environment |
3.15 | |||
Environmental Law |
3.15 | |||
Equity Commitment Letter |
4.05 | |||
ERISA |
3.12 | (a) | ||
Exchange Act |
3.07 | (a) | ||
Exchange Agent |
2.02 | (a) | ||
Existing Credit Agreement |
3.20 | |||
Expenses |
6.03 | |||
Financing |
4.05 | |||
GAAP |
3.07 | (b) | ||
Governmental Authority |
3.06 | (a) | ||
Hazardous Materials |
3.15 | |||
Indemnitees |
6.02 | (a) | ||
Indenture |
6.09 | (a) | ||
Laws |
3.11 | |||
Liabilities |
3.07 | (c) | ||
Liens |
3.02 | |||
Merger |
Preamble | |||
Merger Consideration |
2.01 | (c) | ||
Merger Sub |
Preamble | |||
New Plans |
5.04 | (c) | ||
Notice of Superior Proposal |
8.01 | (d) | ||
Offer Documents |
6.09 | (b) | ||
Old Plans |
5.04 | (c) | ||
Parent |
Preamble | |||
Parent Representatives |
6.06 | (a) | ||
Permits |
3.11 | |||
Proxy Statement |
5.02 | (a) | ||
Release |
3.15 | |||
Restated Credit Agreement |
3.20 | |||
Requisite Consents |
6.09 | (a) | ||
Restraints |
7.01 | (b) | ||
SEC |
3.07 | (a) | ||
Securities Act |
3.07 | (a) | ||
Shareholder Approval |
3.04 | (a) | ||
Significant Customer |
3.10 | (a)(i) | ||
Significant Supplier |
3.10(a)(viii) | |||
Sponsor |
4.05 | |||
Superior Proposal |
5.03 | (e) | ||
Surviving Corporation |
1.01 | |||
Termination Date |
8.01” | |||
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9. Exhibit A to the Merger Agreement is hereby amended and restated in the form attached as
Exhibit 3 hereto.
10. Each party hereto hereby acknowledges that all terms and conditions of the Merger Agreement, as
amended hereby, are and shall remain in full force and effect.
11. The invalidity or unenforceability of any one or more phrases, sentences, clauses or provisions
contained in this Amendment shall not effect the validity or enforceability of the remaining
portions of this Amendment, or any part thereof.
12. This Amendment is made pursuant to, and shall be construed, governed by and enforced in
accordance with, the Laws of the State of Delaware (and the United States federal Law, to the
extent applicable), irrespective of the principal place of business, residence or domicile of the
parties hereto, and without giving effect to otherwise applicable principles of conflicts of Laws
thereof.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment to be signed
by their respective officers thereunto duly authorized, all as of the date first written above.
| KPLT HOLDINGS, INC. |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Secretary and Treasurer | |||
| KPLT MERGERCO, INC. |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Secretary and Treasurer | |||
[Signature Pages Continue.]
| CENTERPLATE, INC. |
||||
| By: | /s/ Xxxxx X. XxXxxxxx | |||
| Name: | Xxxxx X. XxXxxxxx | |||
| Title: | Executive Vice President and CFO | |||
