EXHIBIT 10.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of July
30, 1999 (this "AMENDMENT"), is made by and among Intek Global Corporation, a
Delaware corporation (the "COMPANY"), Security Services plc, a public limited
company incorporated under the laws of England and Wales ("PARENT"), and IGC
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("MERGER SUB").
WHEREAS, the Company, Parent and Merger Sub are parties to that
certain Agreement and Plan of Merger, dated as of June 9, 1999 (the "MERGER
AGREEMENT"), which provided for certain transactions, including the commencement
of an offer to purchase any and all of the outstanding shares of common stock,
par value $.01 per share, of the Company (the "SHARES"), by Merger Sub (the
"OFFER") and, following the consummation of the Offer, the merger of Merger Sub
with and into the Company (the "MERGER") with the Company becoming a wholly
owned subsidiary of Parent, all subject to the terms and conditions set forth in
the Merger Agreement;
WHEREAS, the Company, Securicor plc, a public limited company
incorporated under the laws of England and Wales and the ultimate parent of
Parent ("SECURICOR"), and the Company's directors have been named as defendants
in three class action lawsuits in connection with the transactions contemplated
by the Merger Agreement (the "PENDING ACTIONS");
WHEREAS, counsel to the Company, Securicor, the Company's directors,
and the plaintiffs in the Pending Actions (the "PLAINTIFFS") have executed and
delivered a Memorandum of Understanding, dated as of July 8, 1999 (the
"MEMORANDUM OF UNDERSTANDING"), providing for, among other things, the
settlement of the Pending Actions and, in connection therewith, an increase in
the consideration payable in the Offer and the Merger and an extension of the
expiration date of the Offer;
WHEREAS, the Memorandum of Understanding provides that the Merger
Agreement will be amended in certain respects, including to increase the
consideration payable in the Offer and the Merger and to extend the expiration
date of the Offer;
WHEREAS, the Memorandum of Understanding provides that the expiration
date of the Offer would be extended to July 29, 1999 and the parties to the
Memorandum of Understanding subsequently agreed to extend the expiration date of
the Offer to August 16, 1999;
WHEREAS, Section 11.3(a) of the Merger Agreement provides that the
approval of the Independent Committee (as defined in the Merger Agreement) is
required for the amendment of the Merger Agreement;
WHEREAS, by unanimous written consent, the Independent Committee
approved this Amendment amending the Merger Agreement (the Merger Agreement, as
amended by this Amendment, being referred to herein as the "AMENDED MERGER
AGREEMENT"), and the transactions contemplated by the Amended Merger Agreement
and determined that the Offer and the Merger pursuant to the Amended Merger
Agreement are fair to, and in the best interests of, the holders of Shares
(other than Parent and its affiliates) and that the Merger Consideration (as
defined in the Amended Merger Agreement) is fair to the holders of Shares (other
than Parent and its affiliates) and resolved to recommend the approval of the
Amended Merger Agreement to the Board of Directors of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. CERTAIN DEFINED TERMS. Terms used herein with their initial
letters capitalized, and not otherwise defined herein, shall have the respective
meanings given such terms in the Merger Agreement.
2. AMENDMENTS TO THE MERGER AGREEMENT.
a. OFFER PRICE. The first sentence of Section 1.1(a) of the
Merger Agreement is hereby amended by deleting therefrom the reference to the
$2.75 purchase price to be offered in the Offer and replacing such reference
with $3.0125.
b. EXPIRATION DATE. The following sentence is hereby added to
Section 1.1(a) of the Merger Agreement, such sentence to appear after the
existing fifth sentence of Section 1.1(a) (which fifth sentence reads "The
initial scheduled expiration date of the Offer shall be the date that is 20
business days following the date of commencement of the Offer."): "The initial
scheduled expiration date of the Offer is hereby extended from July 14, 1999 to
August 16, 1999." The existing fourth sentence of Section 1.1(a) (which fourth
sentence reads "The Offer shall expire at midnight on the expiration date.") is
hereby deleted.
c. SECTION 2.2(a). Section 2.2(a) of the Merger Agreement is
hereby amended by deleting therefrom the reference to the $2.75 into which
Shares will be converted in the Merger and replacing such reference with
$3.0125.
d. RECITALS. The reference to "42,303,038 Shares" set forth in
the first "Whereas" clause in the Merger Agreement is hereby deleted and the
following is inserted in its place: "42,311,038 Shares".
e. SECTION 4.5. The reference to "42,303,038 Shares" set forth
in the second sentence of Section 4.5 of the Merger Agreement is hereby deleted
and the following is inserted in its place: "42,311,038 Shares". The reference
to "4,135,666
Shares" set forth in the third sentence of Section 4.5 of the Merger
Agreement is hereby deleted and the following is inserted in its place:
"4,425,500 Shares".
3. COMPANY ACTION. The Company hereby consents to the Offer
pursuant to the terms of the Amended Merger Agreement and represents that, by
unanimous written consent, the Independent Committee approved this Amendment and
the transactions contemplated by the Amended Merger Agreement and determined
that the Offer and the Merger pursuant to the Amended Merger Agreement are fair
to, and in the best interests of, the holders of Shares (other than Parent and
its affiliates) and that the Merger Consideration is fair to the holders of
Shares (other than Parent and its affiliates) and resolved to recommend the
approval of the Amended Merger Agreement to the Board of Directors of the
Company.
4. COMPANY CORPORATE AUTHORIZATION; REQUIRED VOTE. The Company
hereby represents and warrants to Parent and Merger Sub as follows:
a. The execution, delivery and performance by the Company of
this Amendment and the consummation by the Company of the transactions
contemplated hereby are within the Company's corporate powers and, except for
any required approval by the Company's stockholders in connection with the
consummation of the Merger, have been duly authorized by all necessary corporate
action, including, without limitation, action by the Board of Directors of the
Company. This Amendment has been duly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent transfer and other similar laws affecting
creditors' rights generally and by equitable principles of general
applicability.
b. The affirmative vote of the holders of a majority of the
outstanding Shares is the only vote of the holders of any class or series of the
Company's capital stock (under applicable law or otherwise) necessary to approve
the Amended Merger Agreement, the Merger pursuant to the terms specified
therein, and the transactions contemplated thereby.
5. PARENT AND PURCHASER CORPORATE AUTHORIZATION. Parent and Merger
Sub hereby represent and warrant to the Company as follows:
a. The execution, delivery and performance by Parent and Merger
Sub of this Amendment and the consummation by Parent and Merger Sub of the
transactions contemplated hereby are within the corporate powers of Parent and
Merger Sub and have been duly authorized by all necessary corporate action.
b. The Board of Directors of each of Parent and Merger Sub has
approved this Amendment and the transactions contemplated hereby.
c. This Amendment has been duly executed and delivered by each
of Parent and Merger Sub and constitutes a valid and binding agreement of each
of Parent and Merger Sub enforceable against each of them in accordance with its
terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer
and other similar laws affecting creditors' rights generally and by equitable
principles of general applicability.
6. PARTIES IN INTEREST. This Amendment shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Amendment,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Amendment.
7. GOVERNING LAW. This Amendment shall be construed in accordance
with and governed by the law of the State of Delaware applicable to agreements
entered into and to be performed wholly within such state.
8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
9. ENTIRE AGREEMENT. The Merger Agreement, this Amendment and the
Confidentiality Agreement dated January 19, 1999 between Parent and the Company
constitute the entire agreement among the parties with respect to the subject
matter of the Amended Merger Agreement and supersede all other prior agreements
and understandings, both oral and written, between the parties with respect to
the subject matter hereof and thereof.
10. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
INTEK GLOBAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
SECURITY SERVICES PLC
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
IGC ACQUISITION CORP.
By: /s/ X. Xxxxx XxXxxxxx, Jr.
-----------------------------------------
Name: X. Xxxxx XxXxxxxx, Jr.
Title: Chairman of the Board and President
