1
Exhibit 2.3
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 2 to Agreement and Plan of Merger ("Amendment No.
2") is entered into as of October 26, 1998, by and among Xxxxxxx Company, a
Delaware corporation (the "Company"), Xxxxxxx Holdings, Inc., a Delaware
corporation ("Holdings") and REM Acquisition, Inc., a Delaware corporation
("MergerCo").
W I T N E S S E T H
WHEREAS, the Company, Holdings and MergerCo are parties to an Agreement
and Plan of Merger dated as of July 16, 1998 (the "Merger Agreement");
WHEREAS, the Merger Agreement was amended by Amendment No. 1 to
Agreement and plan of Merger dated as of September 22, 1998, by and among the
Company, Holdings and MergerCo; and
WHEREAS, the parties hereto desire to amend the Merger Agreement to
reflect the elections made by such Electing Stockholders;
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto do hereby agree as follows:
1. Article I of the Merger Agreement is hereby amended as
follows:
"ELECTION MEMORANDUM" has the meaning specified in Section
3.1(c)(i).
"MANAGEMENT CASHED SHARES" has the meaning specified in
Section 3.1(c)(i).
"MANAGEMENT ROLLOVER SHARES" has the meaning specified in
Section 3.1(c)(i).
"MANAGEMENT STOCKHOLDER" has the meaning specified in Section
3.1(c)(i).
"NON-MANAGEMENT CASHED SHARES" has the meaning specified in
Section 3.1(c)(i).
"NON-MANAGEMENT ROLLOVER SHARES" has the meaning specified in
Section
3.1(c)(i).
-1-
2
2. Section 3.1(c) of the Merger Agreement is amended and restated in
its entirety to read as follows:
"(c) CONVERSION (OR EXCHANGE) OF SHARES. Except as otherwise
provided in Section 3.1(d), all other issued and outstanding Shares of
Holdings shall be converted into the following:
(i) any holder of Shares of Holdings who is a member of
management of Holdings or the Company (each, a "MANAGEMENT
STOCKHOLDER"; collectively, the "MANAGEMENT STOCKHOLDERS") may elect to
receive shares of Merger Common Stock ("MANAGEMENT ROLLOVER SHARES"),
cash in lieu of shares of Merger Common Stock ("MANAGEMENT CASHED
SHARES"), or a combination of cash and Merger Common Stock. Management
Stockholders shall make such election by having completed and returned
the Election Memorandum dated October 16, 1998 (the "ELECTION
MEMORANDUM") to Xxxxxxx Company, Xxx Xxxxxxxxx Xxxxxxx Xxxxx 000,
Xxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxx, on or prior to 5:00 p.m.
on Thursday, October 22, 1998. All other holders of Shares have elected
(i) to receive the shares of Merger Common Stock (the "NON-MANAGEMENT
ROLLOVER SHARES"; together with the Management Rollover Shares, the
"ROLLOVER SHARES") as indicated on Schedule 3.1(c) hereto and (ii) to
receive cash in lieu of shares of Merger Common Stock (the
"NON-MANAGEMENT CASHED SHARES"; together with the Management Cashed
Shares, the "CASHED SHARES") for the balance of such stockholders'
Shares. The consideration set forth in this clause (i) is referred to
as the "MERGER CONSIDERATION".
(ii) The Rollover Shares of Management Stockholders pursuant
to (i) above are as indicated on Schedule 3.1(c)."
-2-
3
3. Section 3.2(a)(ii) is hereby amended and restated in its entirety to
read as follows:
"(A) In respect of the number of Management Options listed
next to the names of those Persons identified on Schedule 3.2(a)
hereto, each Management Stockholder may elect to receive an amount in
cash equal to the product of (1) the number of Option Shares subject to
such Management Options immediately prior to the Effective Time and (2)
the excess, if any, of the Cash Price over the per share exercise price
of such Management Options, to be delivered by the Surviving
Corporation immediately following the Effective Time. All applicable
withholdings taxes attributable to the payments made hereunder or to
distributions contemplated hereby shall be deducted from the amounts
payable under this Section 3.2 and all such taxes attributable to the
exercise of Management Options shall be withheld from the proceeds
received in respect of the Option Shares issuable upon such exercise.
(B) For all Management Options for which elections pursuant to
Section 3.2(a)(ii)(A) were not made, and for any other Management
Options, holders thereof shall be deemed to have elected to receive the
same number of options (each, a "CONTINUING MANAGEMENT OPTION")
entitling the holder thereof to purchase the number of shares of Merger
Common Stock equal to the number of Option Shares subject to such
Management Options immediately prior to the Effective Time, at an
exercise price per share equal to the exercise price per Option Share
of such Management Options immediately prior to the Effective Time.
After the Effective Time, each Continuing Management Option shall
(unless otherwise agreed by Holdings and the holder of such Continuing
Management Option) be subject to the same, terms and conditions as were
applicable to the related Management Option immediately prior to the
Effective Time, provided that all such Continuing Management Option
shall as of the Effective Time be immediately fully vested and
exercisable.
(C) The election referred to in Section 3.2(a)(ii)(A) above
shall be made by each Management Option holder's completing and
returning the Election Memorandum to Xxxxxxx Company on or prior to
October 22, 1998."
4. Section 3.2(b)(ii) is hereby amended and restated in its entirety to
read as follows:
"(A) In respect of the number of Anti-Dilution Options listed
next to the names of those Persons identified on Schedule 3.2(b)
hereto, each Management Stockholder may elect to receive an amount in
cash equal to the product of (1) the number of Option Shares subject to
such Anti-Dilution Options immediately prior to the Effective Time and
(2) the excess, if any, of the Cash Price over the per share exercise
price of such Management Options, to be delivered by the Surviving
Corporation immediately following the Effective Time. All applicable
withholdings taxes attributable to the payments made hereunder or to
distributions contemplated hereby shall be deducted from the amounts
payable under this Section 3.2 and all such taxes attributable to the
exercise of Anti-Dilution Options shall be withheld from the proceeds
received in respect of the Option Shares issuable upon such exercise.
-3-
4
(B) For all Anti-Dilution Options for which elections pursuant
to Section 3.2(b)(ii)(A) were not made, and for any other anti-Dilution
Options, holders thereof shall be deemed to have elected to receive the
same number of options (each, a "CONTINUING ANTI-DILUTION OPTION")
entitling the holder thereof to purchase the number of shares of Merger
Common Stock equal to the number of Option Shares subject to such Anti-
Dilution Options immediately prior to the Effective Time, at an
exercise price per share equal to the exercise price per Option Share
subject to such Anti-Dilution Options immediately prior to the
Effective Time. After the Effective Time, each Continuing Anti-
Dilution Option shall (unless otherwise agreed by Holdings and the
holder of such Continuing Anti-Dilution Option) be subject to the same
terms and conditions as were applicable to the related Anti-Dilution
Option immediately prior to the Effective Time, provided that all such
Continuing Anti-Dilution Options shall as of the Effective Time be
immediately fully vested and exercisable.
(C) The election referred to in Section 3.2(a)(ii)(A) above
shall have been made by each Anti-Dilution Option holder's completing
and returning the Election Memorandum to Xxxxxxx Company on or prior to
October 22, 1998."
5. Schedules 3.1(c), 3.2(a) and 3.2(b) to the Merger Agreement are each
hereby amended and restated in their entirety by replacing each of such
Schedules with those Schedules attached hereto as Exhibits A, B and C,
respectively.
6. This Amendment shall be effective immediately upon execution by the
parties hereto and upon consent by the ESOP Trustee to the terms and conditions
hereof.
7. The Merger Agreement remains in full force and effect in all other
respects.
[remainder of page intentionally left blank]
-4-
5
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the day and year first written above.
REM ACQUISITION, INC.
XXXXXXX HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Chief Executive Officer
XXXXXXX COMPANY, a Delaware
corporation
By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Chief Executive Officer
-5-
6
EXHIBIT A
---------
Schedule 3.1(c)
ROLLOVER SHARES
---------------
Common Rollover Rollover
Stock % Shares
------ -------- --------
Xxxxx 154,716 70% 108,301
Xxxxxx 215,663 65% 140,181
Xxxxxxx 171,928 23% 39,543
Xxxxxx 54,162 75% 40,622
Franklin 135,000 60% 81,000
Maher 123,516 60% 74,110
Xxxxxx 39,344 60% 23,606
Nie 700,000 40% 280,000
Xxxxxxxxx 285,763 60% 171,458
Pleasant 129,716 60% 77,830
Xxxxxx 126,146 60% 75,688
--------- ---------
Senior Management 2,135,954 1,112,339
--------------------------------------------------------
Applegate 5,639 100% 5,639
Xxxxxxxx 15,535 100% 15,535
Xxxxxx 15,535 60% 9,321
Xxxxxxxx 20,944 80% 16,755
Xxxxxxxxxx 10,000 100% 10,000
Xxxxxxxxx 80% 0
Xxxxxxx 10,000 100% 10,000
Cowie 23,302 60% 13,981
Cuppia 15,535 100% 15,535
7
Common Rollover Rollover
Stock % Shares
------ -------- --------
Xxxxx (retiring) 38,836 0% 0
Xxxx 4,710 60% 2,826
Xxxxxxx 3,000 100% 3,000
Fettner (resigned) 0% 0
Giambalo 100% 0
Xxxxxx 5,000 100% 5,000
Xxxxxxxxx 5,000 100% 5,000
Hellyer 19,470 70% 13,629
Xxxxxxxx 10,000 100% 10,000
Xxxxxxxxxx 15,535 100% 15,535
Xxxx 11,279 60% 6,767
Xxxxxxx 5,000 60% 3,000
Xxxxxxxxxxx 4,000 100% 4,000
Xxxxx 38,836 100% 38,836
Messershmitt 39,083 60% 23,450
Messner 2,000 100% 2,000
Xxxxxx 5,000 75% 3,750
Xxxxxx 38,836 60% 23,302
Xxxxxx 10,000 100% 10,000
Xxxx (retiring) 4,710 0% 0
X'xxxxx 80% 0
Xxxxxxx 46,605 90% 41,944
Peterken 100% 0
Xxxxxxx 25,802 75% 19,352
Xxxxxxxx 30,002 100% 30,002
Xxxxxx 5,000 100% 5,000
-7-
8
Common Rollover Rollover
Stock % Shares
------ -------- --------
Silverstone 5,000 85% 4,250
Xxxxxxxx 5,000 100% 5,000
Xxxxx 15,272 60% 9,163
Woodhead 80% 0
-------- --------- ---------
Other Management 509,465 381,572
---------------- --------- ---------
Subtotal - Xxxxxxx 2,645,419 1,493,911
-8-
9
EXHIBIT A
Schedule 3.1(c)
ROLLOVER SHARES
Common Stock
--------------------------------------------------------------
Common Rollover Rollover
Investcorp Shares % Shares
---------- ---------------- --------- -----------
Connoissour Equity Limited 1,962,692.5 4.6% 89,711.57
Equity SIMA Limited 2,589,315.8 4.6% 118,079.28
Equity SIMB Limited 2,452,515.0 4.6% 112,100.59
Foundation Equity Limited 1,962,692.5 4.6% 89,711.57
Foundation Holdings Ltd. 1,962,692.5 4.6% 89,711.57
Xxxxxxx Equity Limited 1,962,692.5 4.6% 89,711.57
Xxxxxxx Holdings Limited 1,962,692.5 4.6% 89,711.57
Xxxxxxx Investments Ltd. 1,962,692.5 4.6% 89,711.57
Spring Equity Limited 1,962,692.5 4.6% 89,711.57
Spring International Limited 1,962,692.5 4.6% 89,711.57
Spring Investments Limited 1,962,692.5 4.6% 89,711.57
Connoisseur Holdings Ltd. 2,831,886.0 4.6% 129,441.03
Ashford Limited 8,962.7 4.6% 409.67
Xxxxxxxx Limited 8,962.7 4.6% 409.67
Fairburn Limited 8,962.7 4.6% 409.67
Peach Limited 8,962.7 4.6% 409.67
--------------- -----------------
Total Class A 25,567,800.0 1,168,663.73
-9-
10
Common Rollover Rollover
Investcorp Shares % Shares
---------- ---------------- --------- -----------
Chemical Norm. (Guernsey) 797,607 4.6% 36,457.36
Investcorp Xxxxxxx Hold. 2,685,171 4.6% 122,734.92
------------ ----------------
Investcorp Class C 3,482,778 4.6% 159,192
Ballet Limited 18,400 4.6% 841.03
Denary Limited 18,400 4.6% 841.03
Gleam Limited 18,400 4.6% 841.03
Highlands Limited 18,400 4.6% 841.03
Noble Limited 18,400 4.6% 841.03
Outrigger Limited 18,400 4.6% 841.03
Quill Limited 18,400 4.6% 841.03
Radial Limited 18,400 4.6% 841.03
Shoreline Limited 18,400 4.6% 841.03
Zinnia Limited 18,400 4.6% 841.03
Investcorp Investment Equity
Limited 16,000 4.6% 731.33
-------------- ----------------
Investcorp Class D 200,000 4.6% 9,141.68
Subtotal Investcorp 29,250,578 1,336,997.70
-10-
11
EXHIBIT B
---------
Schedule 3.2(a)
CONTINUING MANAGEMENT OPTIONS
-----------------------------
Common Rollover Rollover
Stock % Option Shares
Xxxxx 45,284 70% 31,699
Xxxxxx 63,667 65% 41,384
Xxxxxxx 50,000 23% 11,500
Xxxxxx 156,338 75% 117,254
Franklin 20,000 60% 12,000
Maher 45,284 60% 27,170
Xxxxxx 120,656 60% 72,394
Nie 1,800,000 40% 720,000
Xxxxxxxxx 64,237 60% 38,542
Pleasant 45,284 60% 27,170
Xxxxxx 30,000 60% 18,000
------ --------- ---------
Senior Management 2,440,750 1,117,113
-------------------------------------------------------
Applegate 100% 0
Xxxxxxxx 100% 0
Xxxxxx 14,465 60% 8,679
Xxxxxxxx 21,056 80% 16,845
Xxxxxxxxxx 100% 0
Xxxxxxxxx 30,000 80% 24,000
Xxxxxxx 100% 0
Cowie 6,698 60% 4,019
Cuppia 100% 0
-11-
12
Common Rollover Rollover
Stock % Option Shares
------- -------- -------------
Xxxxx (retiring) 0% 0
Xxxx 45,290 60% 27,174
Xxxxxxx 100% 0
Fettner (resigned) 10,000 0% 0
Giambalo 30,000 100% 30,000
Xxxxxx 100% 0
Xxxxxxxxx 100% 0
Xxxxxxx 38,048 70% 26,634
Xxxxxxxx 100% 0
Xxxxxxxxxx 14,465 100% 14,465
Xxxx 23,721 60% 14,233
Xxxxxxx 25,000 60% 15,000
Xxxxxxxxxxx 16,000 100% 16,000
Xxxxx 41,164 100% 41,164
Messershmitt 11,234 60% 6,740
Messner 8,000 100% 8,000
Xxxxxx 25,000 75% 18,750
Xxxxxx 11,164 60% 6,698
Xxxxxx 100% 0
Xxxx (retiring) 25,290 0% 0
X'xxxxx 20,000 80% 16,000
Xxxxxxx 90% 0
Peterken 30,000 100% 30,000
Xxxxxxx 6,698 75% 5,024
Xxxxxxxx 100% 0
Senese 10,000 100% 10,000
-12-
13
Common Rollover Rollover
Stock % Option Shares
------- -------- -------------
Silverstone 25,000 85% 21,250
Xxxxxxxx 100% 0
Xxxxx 14,728 60% 8,837
Woodhead 20,000 80% 16,000
-------- --------- ------
Other Management 523,021 385,512
---------------- --------- ---------
Subtotal - Xxxxxxx 2,963,771 1,502,625
-13-
14
EXHIBIT C
---------
Schedule 3.2(b)
CONTINUING ANTI-DILUTION OPTIONS
--------------------------------
Anti-Dilution Rollover Rollover
Stock Options % Option Shares
Xxxxx 14,123 70% 9,886
Xxxxxx 19,436 65% 12,633
Xxxxxxx 9,552 23% 2,197
Xxxxxx 5,580 75% 4,185
Franklin 15,417 60% 9,250
Xxxxx 13,065 60% 7,839
Xxxxxx 3,821 60% 2,293
Nie 81,519 40% 32,608
Xxxxxxxxx 21,834 60% 13,100
Pleasant 13,275 60% 7,965
Xxxxxx 14,122 60% 8,473
------ ------- -------
Senior Management 211,744 110,429
-----------------------------------------------------------------
Applegate 191 100% 191
Xxxxxxxx 527 100% 527
Xxxxxx 1,018 60% 611
Xxxxxxxx 1,425 80% 1,140
Xxxxxxxxxx 339 100% 339
Xxxxxxxxx 1,018 80% 814
Xxxxxxx 339 100% 339
Cowie 1,018 60% 611
Cuppia 527 100% 527
-14-
15
Anti-Dilution Rollover Rollover
Stock Options % Option Shares
Xxxxx (retiring) 1,317 0% 0
Xxxx 1,696 60% 1,018
Xxxxxxx 102 100% 102
Fettner (resigned) 339 0% 0
Giambalo 1,018 100% 1,018
Xxxxxx 170 100% 170
Xxxxxxxxx 170 100% 170
Xxxxxxx 1,951 70% 1,366
Xxxxxxxx 339 100% 339
Xxxxxxxxxx 1,018 100% 1,018
Xxxx 1,187 60% 712
Xxxxxxx 1,018 60% 611
Xxxxxxxxxxx 678 100% 678
Xxxxx 2,714 100% 2,714
Messershmitt 1,707 60% 1,024
Xxxxxxx 339 100% 339
Xxxxxx 1,018 75% 764
Xxxxxx 1,696 60% 1,018
Xxxxxx 339 100% 339
Xxxx (retiring) 1,018 0% 0
X'xxxxx 678 80% 542
Xxxxxxx 1,581 90% 1,423
Peterken 1,018 100% 1,018
Xxxxxxx 1,102 75% 827
Xxxxxxxx 1,018 100% 1,018
Xxxxxx 508 100% 508
-15-
16
Anti-Dilution Rollover Rollover
Stock Options % Option Shares
------------- -------- --------
Silverstone 1,018 85% 865
Xxxxxxxx 170 100% 170
Xxxxx 1,018 60% 611
Woodhead 678 80% 542
------- ------- -------
Other Management 35,025 26,023
------- ------- -------
Subtotal - Xxxxxxx 246,769 136,452
-16-