Exhibit 2.3
AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF MERGER
Dated as of November 24, 1998
TM Transitory Merger Corporation, a Michigan corporation ("BUYER"), TISM,
Inc., a Michigan corporation ("TISM") and Xx. Xxxxxx X. Xxxxxxxx (the "PRINCIPAL
STOCKHOLDER"), individually and as trustee of The Xxxxxx X. Xxxxxxxx Living
Trust, hereby agree as follows:
1. Reference to the Merger Agreement: Definitions. Reference is made to the
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Agreement and Plan of Merger dated as of September 25, 1998 (as amended by
Amendment No. 1 thereto dated November 24, 1998, the "MERGER AGREEMENT"),
among Buyer, TISM and the Principal Stockholder. Terms defined in the
Merger Agreement and not otherwise defined herein are used herein as so
defined.
2. Amendments to Merger Agreement. The Merger Agreement is hereby amended as
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follows:
(a) Section 1.01(a) is hereby amended to include the following after the
definition of "CONTINGENT NOTE": "'DEFERRED AMOUNTS' shall mean the
aggregate Deferred Amounts as defined in the Amendments to Bonus
Agreements dated as November 23, 1998 between the Company and each of
Xxx Xxxxx, Xxxxxx Xxxxxx, Xxxx XxXxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx
Xxxxxxx."
(b) Section 1.01(a) is hereby amended by replacing the definition of "NET
PURCHASE PRICE" with the following: "'NET PURCHASE PRICE' means (i)
the Purchase Price minus (ii) (A) the total Indebtedness of TISM, the
Company and the Subsidiaries immediately prior to the Effective Time
and (B) the Deferred Amounts."
(c) Section 2.05 is hereby amended to add the following sentence following
the last sentence of Section 2.05(a). "Notwithstanding anything herein
to the contrary, the Closing Capitalization Amount shall not reflect
any liabilities in connection with the Company Transaction Expenses or
Deferred Amounts."
(d) Section 9.03(e) is amended by replacing the first sentence of such
Section 9.03(e) with the following sentence:
"Buyer shall promptly pay, upon actual realization, to the Principal
Stockholder for distribution to the former stockholders of TISM as
part of the Merger Consideration amounts equal to the amounts by
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which the total Tax liability of TISM, the Surviving Corporation, the
Company or any Subsidiary is reduced as a result of Tax deductions or
other Tax benefits resulting from (i) payments made on the Closing
Date of Company Transaction Expenses and (ii) payments, whenever made,
of the Deferred Amounts."
3. Waiver under Merger Agreement. Reference is made to the attached form of
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Agreements among Domino's Pizza, Inc. and each of Xxx Xxxxx, Xxxxxx Xxxxxx,
Xxxx XxXxxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxx (the "AMENDED SALE
BONUS AGREEMENTS"). Buyer hereby waives the provisions of the Merger
Agreement solely to the extent necessary to permit the execution and
delivery of the Amended Sale Bonus Agreements.
4. Miscellaneous. Except to the extent specifically amended or waived hereby,
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the provisions of the Merger Agreement have not been otherwise amended or
waived, and the Merger Agreement as amended and waived hereby is hereby
confirmed as being in full force and effect. This Amendment may be
executed in number of counterparts which together shall constitute one
instrument, and shall be governed by and construed in accordance with the
law of the State of New York, without regard to the conflict of law rules
of such state. This Agreement shall become effective when each party
hereby shall have received a counterpart hereof signed by each other party
hereto.
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In WITNESS WHEREOF, the parties have executed and delivered this Amendment
No. 2 to the Merger Agreement or caused this Amendment No. 2 to the Merger
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
TM TRANSITORY MERGER CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President, Secretary and
Treasurer
TISM, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and CEO
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX,
Individually and as Trustee
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