Exhibit 2.3
Second Amendment, dated as of March 2, 1999, to the Agreement and Plan of
Merger, dated as of September 23, 1998, among YSI, CSC and Palm Merger Corp.
SECOND AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
This Second Amendment ("Amendment") to the Agreement and Plan of Merger
dated as of September 23, 1998 by and among Youth Services International, Inc.,
Correctional Services Corporation and Palm Merger Corp., as amended by the First
Amendment thereto dated as of January 12, 1999 (as so amended, the "Merger
Agreement"), is entered into as of this ___ day of March, 1999.
WHEREAS, the parties desire to amend the Merger Agreement to address
certain issues;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the Merger Agreement is hereby amended as set forth below.
1. Section 3.1.(a). The reference to ".375 shares" in Section 3.1.(a)
shall be deleted and replaced with a reference to ".275 shares."
2. Section 7.4. A new Section 7.4. shall be added as follows:
"7.4. Limitation on Conditions to Each Party's Obligation to Effect
the Merger.
(a) Notwithstanding the provisions of Section 7.1. and Section
7.2., no event or circumstance of which either Parent or Merger
Subsidiary had actual knowledge at the time of execution of the Second
Amendment to the Agreement and Plan of Merger, dated as of March ___,
1999, by and among the Company, Parent and Merger Subsidiary (the
"Second Amendment") shall constitute a permissible basis to relieve
Parent or Merger Subsidiary from their obligations to effect the
Merger pursuant to any condition set forth in Section 7.1. or Section
7.2., including but not limited to the condition set forth in Section
7.1.(g) (if an event or circumstance of which either Parent or Merger
Subsidiary had actual knowledge at the time of execution of the Second
Amendment forms the basis for a failure of X.X. Xxxxxxxx to render a
fairness opinion to Parent), provided that the limitation in this
-------- ----
Section 7.4.(a) shall not apply to the condition to Parent's and
Merger Subsidiary's obligation to effect the Merger set forth in
Section 7.1.(a) (relating to a failure by the holders of Shares or the
holders of Parent Common Stock to approve the Merger).
(b) Notwithstanding the provisions of Section 7.1. and Section
7.3., no event or circumstance of which the Company had actual
knowledge at the time of execution of the Second Amendment shall
constitute a permissible basis to relieve the Company from its
obligation to effect the Merger pursuant to any condition set forth in
Section 7.1. or Section 7.3., including but not limited to the
condition set forth in Section 7.1.(f) (if an event or circumstance of
which the Company had actual knowledge at the time of execution of the
Second Amendment forms the basis for a failure of SunTrust Equitable
Securities to render a fairness opinion to the Company), provided that
-------- ----
the limitation in this Section 7.4.(b) shall not apply to the
condition to the Company's obligation to
effect the Merger set forth in Section 7.1.(a) (relating to a
failure by the holders of Shares or the holders of Parent Common
Stock to approve the Merger)."
3. Section 8.1.(d). The reference to "March 31, 1999" in Section
8.1.(d) shall be deleted and replaced with a reference to "April 30, 1999."
4. Section 8.1.(e). Section 8.1.(e) is hereby amended and restated to
read in its entirety as follows:
"(e) By Parent after April 30, 1999, if any of the
conditions set forth in Article VII hereof, to which the Parent
and the Merger Subsidiary's obligations are subject, have not
been fulfilled or waived, unless such fulfillment has been
frustrated or made impossible by any act or failure to act of
Parent or the Merger Subsidiary;"
5. Counterparts. This Amendment may be executed in counterparts, each
of which shall constitute one agreement, binding on the parties, and each party
hereby covenants and agrees to execute all duplicates or replacement
counterparts of this Amendment as may be required.
6. Merger Agreement. The terms and provisions of the Merger
Agreement, as amended hereby, shall remain in full force and effect. All
references to the Merger Agreement contained therein shall refer to the Merger
Agreement as amended hereby.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
YOUTH SERVICES INTERNATIONAL, INC.
By: /s/ Xxxx X. Dernilio
---------------------------------
Name: Xxxx X. Dernilio
Title: Sr. Vice President
CORRECTIONAL SERVICES CORPORATION
By: /s/ Xxx Xxxxxx
---------------------------------
Name: Xxx Xxxxxx
Title: Chief Financial Officer
PALM MERGER CORP.
By: /s/ Xxx Xxxxxx
---------------------------------
Name: Xxx Xxxxxx
Title: Treasurer
2
