AMENDMENT NO. 1 To AGREEMENT AND PLAN OF MERGER Among AUSA HOLDING COMPANY AUSA MERGER SUB, INC. and CLARK, INC.
AMENDMENT NO. 1
To
Among
AUSA HOLDING COMPANY
AUSA MERGER SUB, INC.
and
XXXXX, INC.
Effective as of November 1, 2006
AUSA HOLDING COMPANY, a Maryland corporation (“Parent”), AUSA Merger Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and XXXXX, INC., a
Delaware corporation (the “Company”) hereby agree that the AGREEMENT AND PLAN OF MERGER
dated as of November 1, 2006, by and among Parent, Sub and the Company, be amended to (i) reflect
the parties’ original intent that consummation of the Offer be conditioned in part on the
requirement that a majority of shares of Company Common Stock beneficially owned by Disinterested
Stockholders (as hereinafter defined) be validly tendered prior to the expiration of the Offer and
Disinterested Stockholder Approval as provided or referred to in Section 6.01(a) and Section 7.03
was not intended to operate as a condition to the post-Offer Merger in which dissenting
shareholders would have appraisal rights under Delaware law and (ii) expand the list of
shareholders who shall not be considered Disinterested Stockholders, as follows:
1. Section 6.01(a), Stockholder Approval is amended to read as follows:
(a) Stockholder Approval. The Company Stockholder Approval, if required by Applicable
Law, shall have been obtained.
2. The first sentence of Section 7.03, Amendment is amended to read as follows:
Amendment. This Agreement may be amended by the parties hereto at any time pursuant
to resolutions duly adopted by their respective board of directors, whether before or after the
Company Stockholder Approval has been obtained; provided that after the purchase of shares
pursuant to the Offer, no amendment shall be made which decreases the Merger Consideration, and,
after the Company Stockholder Approval has been obtained, there shall be made no amendment that by
Applicable Law requires further approval by stockholders without the further approval of such
stockholders.
3. The entire first paragraph of Exhibit A, Conditions of the Offer, is amended to
read as follows:
Notwithstanding any other term of the Offer or this Agreement, Sub shall not
be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating
to Sub’s obligation to pay for or return tendered shares of Company Common Stock
promptly after the termination or withdrawal of the Offer), to pay for any shares
of Company Common Stock tendered pursuant to the Offer unless:
(i) There shall have been validly tendered and not withdrawn prior to the
expiration of the Offer (a) that number of shares of Company Common Stock which,
together with shares already beneficially owned by Parent or Sub, would constitute
at least a majority of the outstanding Company Common Stock (determined on a fully
diluted basis for all outstanding stock options and any other rights to acquire
Company Common Stock on the date of purchase) as well as (b) a majority of
outstanding shares of Company Common Stock beneficially
owned by the Disinterested Stockholders. For this purpose, the Disinterested
Stockholders are all beneficial owners of Company Common Stock other than Parent,
Sub, Xxx Xxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxx, any other
director of the Company, Xxxxxxx Xxxx and any other member of the management group
proposing to buy the MBO Business, any executive officer or division president of
the Company or any subsidiary thereof, and their respective affiliates. (The
condition specified in this clause (i) is referred to as the “Minimum Tender
Condition”); and
(ii) Any requisite waiting period under the HSR Act (and any extension
thereof) applicable to the purchase of shares of Company Common Stock pursuant to
the Offer or to the Merger shall have expired. Furthermore, notwithstanding any
other term of the Offer or this Agreement, Sub shall not be required to commence
the Offer or accept for payment or, subject as aforesaid, to pay for any shares of
Company Common Stock not theretofore accepted for payment or paid for, and,
subject to and in accordance with this Agreement, may terminate or amend the
Offer, with the consent of the Company or if, immediately prior to the applicable
expiration of the Offer, any of the following conditions exists:
[The remainder of Exhibit A remains unchanged.]
4. This Amendment No. 1 to the AGREEMENT AND PLAN OF MERGER is effective as of
November 1, 2006.
[signature page to follow]
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement to be signed by
their respective officers thereunto duly authorized, as of the date(s) set forth below.
| AUSA HOLDING COMPANY | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxxx | |||
| Title: | President | |||
| Date: | December 11, 2006 | |||
| AUSA MERGER SUB, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxxx | |||
| Title: | President | |||
| Date: | December 11, 2006 | |||
| XXXXX, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Operating Officer | |||
| Date: | December 11, 2006 | |||
