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Exhibit 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger ("Amendment No.
1") is entered into as of September 22, 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"); and
WHEREAS, such parties desire to amend the Merger Agreement as set forth
herein;
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:
"Agreement" shall mean this Agreement and Plan of Merger, as amended
from time to time.
"Cash Price" shall mean $6.7315 per share.
"ESOP Exchange Agreement" means the ESOP Exchange Agreement by and
among Holdings, the Company, the Trustee and MergerCo, as amended from time to
time.
2. Schedule 3.1(c) of the Merger Agreement is hereby amended in part by
replacing for each stockholder indicated the share amounts and percentages set
forth on Exhibit A hereto.
3. Section 5.5 of the Merger Agreement is hereby deleted in its
entirety. Section 5.8 of the Merger Agreement is hereby amended such that the
phrase "issued for a purchase price of $7.00 cash per share" shall instead read
"issued for a per share purchase price equal to the Cash Price."
4. Section 6.7 of the Merger Agreement is hereby amended and restated
in its entirety to read as follows:
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SECTION 6.7. PRO FORMA BALANCE SHEET; POST-ACQUISITION
CAPITALIZATION OF COMPANY. On or prior to September 23,1998, MergerCo will
provide to the Trustee and Holdings a true and complete copy of the consolidated
pro forma balance sheet of MergerCo and its subsidiaries as of June 27, 1998
giving effect to the consummation of the transactions contemplated hereby (the
"PRO FORMA BALANCE SHEET"). The Pro Forma Balance Sheet will fairly present,
based on the assumptions set forth therein, the adjustments giving effect to
such transactions and shall be accompanied by a summary of the terms of any
debt, preferred stock or other financing to be incurred or issued by MergerCo,
Holdings or the Company in connection with such transactions.
5. Section 6.9(b) of the Merger Agreement is amended and restated in
its entirety to read as follows:
"(b) At the Effective Time, MergerCo shall pay or otherwise
make such funds available to Holdings and cause Holdings to
pay (i) all of the cost and expenses of Holdings and the
Company incident to their negotiation and preparation of this
Agreement and any other related agreement contemplated hereby
and to their performance and compliance with all agreements
and conditions contained herein or therein on their part to be
performed or complied with, including the fees, expenses and
disbursements of their respective financial advisors, counsel
and accountants and (ii) the members of the Company's
management the aggregate amounts disclosed on SCHEDULE 6.9;
provided however, that the aggregate costs and expenses under
(i) and (ii) above shall not exceed $10.6 million and any
amounts in excess of such amount shall be borne by parties
that are stockholders of Holdings immediately prior to the
Effective Time."
6. SCHEDULE 6.9 of the Merger Agreement is amended and restated in its
entirety to read as set forth in Exhibit B attached hereto.
7. Section 6.11 of the Merger Agreement is hereby amended and restated
to read as follows:
SECTION 6.11. SUFFICIENT FUNDS. MergerCo covenants that at the
Effective Time (a) the Surviving Corporation will have sufficient funds to
satisfy all obligations of MergerCo and the Surviving Corporation hereunder and
(b) not less than $129.6 million in cash shall have been contributed or
otherwise made available to Holdings in the form of equity to MergerCo by its
stockholders prior to the Effective Time. In addition, MergerCo covenants that
the terms of any debt, preferred stock or other financing to be incurred or
issued by MergerCo, Holdings or the Company in connection with the transactions
contemplated hereby shall be no less favorable to MergerCo, Holdings or the
Company than the terms set forth in the summary accompanying the Pro Forma
Balance Sheet.
8. Section 7.10 of the Merger Agreement is hereby deleted in its
entirety.
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9. Section 9.1 of the Merger Agreement is hereby amended and restated
to read in its entirety as follows:
SECTION 9.1. TERMINATION. Anything contained in this Agreement
to the contrary notwithstanding, this Agreement may be terminated at any time
prior to the Effective Time: (a) by the mutual consent of MergerCo and Holdings;
(b) by MergerCo in the event that any condition set forth in Article VII shall
not be satisfied and shall not be reasonably capable of being remedied at or
prior to the October 30, 1998, (c) by Holdings in the event that any condition
set forth in Article VIII shall not be satisfied and shall not be reasonably
capable of being remedied at or prior to October 30, 1998; and (d) by MergerCo
or Holdings if the Closing shall not have occurred on or before October 30, 1998
(or, if MergerCo and Holdings shall have agreed to a later date pursuant to
Section 2.2, on or before any such later date); PROVIDED, HOWEVER, that no party
may terminate this Agreement pursuant to clause (b), (c) or (d) if the failure
of any condition in Article VII or Article VIII to be satisfied or the failure
of the Closing to occur on or before October 30, 1998 (or, if MergerCo and
Holdings shall have agreed to a later date pursuant to Section 2.2, on or before
any such later date), results from the willful and material breach by such party
of any covenant of this Agreement.
10. This Amendment shall be effective immediately; PROVIDED, HOWEVER,
that, in the event that this Amendment has not been approved in writing by the
ESOP Trustee by 3:00 p.m. New York time on September 25, 1998, then this
Amendment shall be considered void AB INITIO and the parties to the Merger
Agreement shall be bound by the terms of the original Merger Agreement.
11. The Merger Agreement remains in full force and effect in all other
respects.
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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: Managing Director 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
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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
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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
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EXHIBIT B
SCHEDULE 6.9
MERGERCO TO FUND CERTAIN OBLIGATIONS
------------------------------------
Fees of financial advisors, counsel and accountants to Holdings, the Company
and the ESOP;
and
Transaction bonuses payable to certain officers of the Company, (i) and (ii)
not to exceed $10.6 million in aggregate. Holdings and the
Company estimate these expenses (in millions) as follows:
Financial Advisory $ 4.3
Accounting / Legal 1.9
ESOP Related 1.2
Cash Management Bonus 3.2
$10.6
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FENWAY PARTNERS INC.
September 22, 1998
REM Acquisition, Inc.
c/o Fenway Partners, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger by and among REM
Acquisition, Inc. ("REM"), Xxxxxxx Holdings, Inc. and Xxxxxxx Company dated as
of July 16, 1998, as amended from time to time (the "Recapitalization
Agreement"). Upon the satisfaction or fulfillment of the conditions to closing
set forth in Section 7 of the Recapitalization Agreement, the undersigned agree
to make an equity investment on the terms contemplated thereby in an amount
equal to at least $129.6 million of equity in the aggregate in REM or its
successor by merger. The undersigned agree to cause REM to perform its
obligations and agreements under the Recapitalization Agreement. The undersigned
hereby represent and warrant that each has full partnership power and authority
to execute and deliver this Agreement and perform its obligations hereunder;
each has taken all actions necessary to authorize the execution, delivery and
performance of this Agreement; such execution, delivery and performance do not
conflict with, violate or otherwise result in a default under its respective
partnership agreement; and this Agreement is a true, legal, valid and binding
obligation of each of the undersigned, enforceable in accordance with its terms.
This letter is intended to be relied upon by REM and the other parties to the
Recapitalization Agreement.
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REM Acquisition, Inc. September 22, 1998
This Agreement shall terminate upon the earlier of the termination or closing
under the Recapitalization Agreement.
Very truly yours,
FENWAY PARTNERS CAPITAL FUND, L.P.
By: Fenway Partners, L.P.
its General Partner
By: Fenway Partners Management, Inc.
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
A Duly Authorized Officer
FENWAY PARTNERS CAPITAL FUND II, L.P.
By: Fenway Partners II, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
A Duly Authorized Officer
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