EXHIBIT 2.2
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of May 2, 1998, amends that certain Agreement and Plan of
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Merger (the "Merger Agreement"), dated as of February 21, 1998, by and among
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Xxxx/RCL, L.L.C., a Delaware limited liability company ("Xxxx"), RCL
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Acquisitions, L.L.C., a Delaware limited liability company ("MergeCo"), Raytheon
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Commercial Laundry LLC, a Delaware limited liability company ("RCL"), and
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Raytheon Company, a Delaware corporation ("Raytheon"), pursuant to which MergeCo
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will merge with and into RCL with RCL being the surviving entity (as such, the
"Surviving Entity"). Capitalized terms used herein but not defined herein shall
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have the meanings assigned to such term in the Merger Agreement.
WHEREAS, the parties hereto wish to amend the Merger Agreement to (i)
reflect the assumption by the Surviving Entity of deferred compensation
obligations owed by Raytheon to Xxxxxx X. L'Esperance pursuant to a certain
Voluntary-Deferment Bonus Plan, dated November 21, 1988, and the corresponding
Cash Merger Consideration adjustments related thereto, (ii) reflect the
assumption by Raytheon of incentive bonus obligations owed by RCL to various
employees pursuant to the "1998 Management Performance Incentive Plan", (iii)
provide for the merger of Raytheon Commercial Appliances Receivables Corporation
("RAYCAR") and Raytheon Commercial Appliances Finance Corporation ("RAYCAF"),
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respectively, with and into new limited liability companies, (iv) update the
exhibits and schedules to be attached to the Merger Agreement and (v) resolve
certain ambiguities in the language of the Merger Agreement
NOW THEREFORE, in consideration of the premises and the mutual
obligations of the parties hereto, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
1. ASSUMPTION OF DEFERRED COMPENSATION AND INCENTIVE BONUS
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OBLIGATIONS.
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(a) The following paragraph in its entirety will be inserted as a new
Section 2.1(c):
"In addition, (i) prior to the Effective Time, Raytheon shall assume
all the obligations owed by the Company to various employees of the Company
pursuant to the "1998 Management Performance Incentive Plan", including but
not limited to the obligations owed by the Company pursuant to any and all
Letter Agreements (the "Letter Agreements"), dated as of September 30,
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1997, by and between the Company and any employees of the Company, in
connection with the "1998 Management Performance Incentive Plan" described
in paragraph 4 of such Letter Agreements, and (ii) from and after the
Effective Time, the Surviving Entity will assume the obligation of Raytheon
owed to Xxxxxx X. L'Esperance, pursuant to that certain
Voluntary-Deferment Bonus Plan, dated November 21, 1988, in the amount of
$340,849 ("Deferred Compensation Obligation"); provided, that the
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Surviving Entity shall not assume any other liabilities of Raytheon,
including but not limited to any other liabilities under the Voluntary-
Deferment Bonus Plan."
(b) The following definitions are hereby deleted and replaced in their
entirety with the following:
"Cash Merger Consideration" means $339,159,151, representing the
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aggregate cash consideration to be paid to Raytheon pursuant to Section
2.6, before giving effect to any adjustment pursuant to Section 2.8."
"Indebtedness" means, as of any date of determination, without
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duplication, (i) any indebtedness for borrowed money or issued in
substitution for or exchange of indebtedness for borrowed money, (ii) any
indebtedness evidenced by any note, bond, debenture or other debt security,
(iii) any indebtedness for the deferred purchase price of property or
services with respect to which a Person is liable, contingently or
otherwise, as obligor or otherwise (other than trade payables and other
current liabilities incurred in the ordinary course of business which are
not more than six months past due), (iv) any commitment by which a Person
assures a creditor against loss (including, without limitation, contingent
reimbursement obligations with respect to letters of credit), (v) any
indebtedness guaranteed in any manner by a Person (including, without
limitation, guarantees in the form of an agreement to repurchase or
reimburse), (vi) any obligations under capitalized leases with respect to
which a Person is liable, contingently or otherwise, as obligor, guarantor
or otherwise, or with respect to which obligations a Person assures a
creditor against loss, (vii) cash or book overdrafts, including without
limitation, any held or outstanding checks as of the Closing Date (except
to the extent reflected in Net Working Capital), (viii) any amounts owed
under any litigation settlements (except to the extent reflected in Net
Working Capital), (ix) any dividends or distributions to unitholders
payable as of the Closing Date, (x) any indebtedness secured by a Lien on a
Person's assets and (xi) any unsatisfied obligation for "with drawal
liability" to a "multiemployer plan" as such terms are defined under ERISA;
provided, however, in no event will Indebtedness include indebtedness,
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commitments and other obligations in respect of the Receivables Financing
Facilities, Other Receivables Obligations or the Deferred Compensation
Obligation.
2. RAYCAR AND RAYCAF MERGERS. The following paragraphs in their
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entirety will be inserted as new Sections 5.9(l) and (m):
(l) Prior to the Closing Date, Raytheon and the Company hereby agree
to (i) form two new subsidiaries in the form of limited liability companies
(the "New LLCs") and (ii) cause RAYCAF and RAYCAR, respectively, to merge with
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and into one of the New LLCs ( the "RAYCAF and RAYCAR Mergers"); provided,
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that the RAYCAF and RAYCAR Mergers must occur on or before the day prior to
the Closing Date. For the purposes of this Agreement, any references to
RAYCAF and RAYCAR hereunder shall mean RAYCAF and RAYCAR and any successor
entities thereto.
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(m) In the event that (i) the Merger does not occur on the Closing
Date, (ii) the RAYCAF and RAYCAR Mergers have occurred and (iii) this
Agreement is terminated pursuant Article 11 hereof, Xxxx hereby agrees to
indemnify and hold harmless the Company for all Covered Liabilities (as
defined in Section 10.2 hereof) related to the unwinding of the RAYCAF and
RAYCAR Mergers, pursuant to the provisions of Article 10 hereof.
3. REVISED EXHIBITS. Exhibits 2.4(b), 8.4(a) and 8.4(b) are hereby
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deleted in their entirety and replaced with the Exhibits on Exhibit A attached
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hereto.
4. DEFINITIONS. The following definitions are hereby deleted and
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replaced in their entirety with the following:
"Balance Sheet" means the audited balance sheet of the Commercial Laundry
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Business of Raytheon as of December 31, 1997.
"Excluded Liabilities" means any and all liabilities associated with or
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arising out of Environmental Law with respect to the Company's formerly
owned facilities in Omro, Wisconsin, Searcy, Arkansas and Wautoma,
Wisconsin, except for those liabilities associated with or arising out of
Environmental Law retained by the Tenant under the Omro Lease pursuant to
Article 7 of the Omro Lease.
"Omro Lease" means the lease agreement, dated as of February 20, 1998,
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between Raytheon Holding LLC, as landlord, and the Company, as tenant, for
certain Leased Real Property located in Omro, Wisconsin, as described
therein, as amended.
5. MISCELLANEOUS.
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(a) All references in Section 10.2 of the Merger Agreement to "Xxxx"
are hereby deleted and replaced in their entirety with "the Surviving Entity".
(b) Article 12 of the Merger Agreement shall govern this
Amendment.
6. EFFECT OF THIS AMENDMENT. The Merger Agreement, as amended
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pursuant to the terms of this Amendment, shall continue in full force and effect
after the time of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Agreement and Plan of Merger to be executed as of the day and year first
above written.
XXXX/RCL, L.L.C.
By:_________________________________
Name:_______________________________
Title:______________________________
RCL ACQUISITIONS, L.L.C.
By:_________________________________
Name:_______________________________
Title:______________________________
RAYTHEON COMMERCIAL LAUNDRY LLC
By:_________________________________
Name:_______________________________
Title:______________________________
RAYTHEON COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
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