1
EXHIBIT 2.3
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER, dated as of
February 12, 1999 (this "Amendment"), is entered into among XXXXXX INDUSTRIES,
INC., a Delaware corporation ("Parent"), NABORS ACQUISITION CORP. VII, a
Delaware corporation ("Merger Sub") and a wholly owned subsidiary of Parent,
and BAYARD DRILLING TECHNOLOGIES, INC., a Delaware corporation (the "Company").
WHEREAS, as of October 19, 1998, Parent, Merger Sub and the Company
entered into a certain Agreement and Plan of Merger and as of January 15, 1998
such parties entered into Amendment No. 1 to such Agreement and Plan of Merger
(such Agreement and Plan of Merger, as so amended, being hereinafter referred
to as the "Merger Agreement"); and
WHEREAS, the parties hereto desire to amend the Merger Agreement in
certain respects; and
WHEREAS, Section 8.3 of the Merger Agreement provides that the Merger
Agreement may be amended by the parties thereto by action taken by or on behalf
of their respective Boards of Directors at any time prior to the Effective
Time, if set forth in an instrument in writing signed by the parties thereto;
and
WHEREAS, the Boards of Directors of each of the parties to the Merger
Agreement have approved the execution, delivery and performance of this
Amendment;
NOW THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the
performance thereof and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
-1-
2
1. All capitalized terms used but not separately defined in this
Amendment shall have the meanings assigned to such terms in the Merger
Agreement.
2. The Merger Agreement is hereby amended as follows:
a. Section 2.1 is hereby amended by deleting the amount "0.375"
contained in paragraph (a) thereof and substituting the following in lieu
thereof:
"0.3375"
b. Section 3.1 is hereby amended by deleting the second and third
sentences thereof and substituting the following in lieu thereof:
"As used in this Agreement, any reference to a state of
facts, event, change or effect having a 'Material Adverse
Effect' on or with respect to Parent or the Company, as the
case may be, means (except as provided in the immediately
following sentence) a state of facts, event, change or
effect that has had, or would reasonably be expected to
have, a material adverse effect on the business, results of
operations or financial condition of the applicable entity
and its Subsidiaries (as defined in Section 9.3(g)), taken
as a whole, except for any such state of facts, events,
changes or effects that are attributable to changes or
developments in general economic conditions or the oil and
gas or contract drilling industries in general. In addition,
it is expressly understood and agreed that a Material
Adverse Effect shall not be deemed to include (A) any state
of facts, events, changes or effects, or any anticipated
state of facts, events, changes or effects (including, but
not limited to, any estimated or anticipated operating
losses or other adverse operating results), which prior to
or on February 12, 1999 have been disclosed to or are known
by the Company (in the case of any state of facts, events,
changes or effects affecting the Parent) or the Parent (in
the case of any state of facts, events, changes or effects
affecting the Company) or (B) any state of facts, events,
changes or effects which do not cause or are not
-2-
3
reasonably expected to cause or result in actual monetary loss
which exceeds $75.0 million (in the case of Parent), or $7.5
million (in the case of the Company).
c. Section 8.1 is hereby amended by deleting the words
"May 1, 1999" contained in subparagraph (v) of paragraph (a) thereof and
substituting the following in lieu thereof:
"September 30, 1999"
d. Section 8.5 is hereby amended by deleting the words
"a fee of $7.5 million" contained in paragraph (c) and substituting the
following in lieu thereof:
"a fee of $7.5 million (in the case of termination by Parent
pursuant to Section 8.1 (a)(ii)) or a fee of $15.0 million (in
the case of a termination by the Company pursuant to Section
8.1 (a)(iii))"
3. The Company represents that it has received an
opinion from Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation to the effect
that the consideration to be received by the stockholders of the Company
pursuant to the Merger Agreement, as amended by this Amendment, is fair to such
stockholders from a financial point of view.
4. The Merger Agreement is hereby ratified by
each of the parties hereto, and the terms and provisions of the Merger Agreement
as amended pursuant to Section 2 hereof shall remain in full force and effect.
5. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-3-
4
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have
caused this Amendment to be executed as of the date first written above by
their respective officers thereunto duly authorized.
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Operating Officer
NABORS ACQUISITION CORP. VII
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
President
BAYARD DRILLING TECHNOLOGIES, INC.
By: /s/ XXXXX X. XXXXX
-----------------------------------------
Xxxxx X. Xxxxx
President
-4-
