Exhibit 2.1
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO THAT CERTAIN AGREEMENT AND PLAN OF MERGER
(this "Amendment") is made and entered into as of March 1, 2004, by and among
NCO GROUP, INC., a Pennsylvania corporation (the "Parent"), NCOG ACQUISITION
CORPORATION, a Pennsylvania corporation and a wholly-owned subsidiary of the
Parent (the "Purchaser"), and RMH TELESERVICES, INC., a Pennsylvania corporation
(the "Company").
WITNESSETH:
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WHEREAS, Parent, Purchaser and the Company are parties to that certain
Agreement and Plan of Merger dated as of November 18, 2003, as the same was
amended on January 22, 2004 and is amended hereby and may be further amended,
modified or supplemented from time to time (the "Merger Agreement");
WHEREAS, the Company and the Parent desire to amend the Merger
Agreement herein as follows;
NOW, THEREFORE, in consideration of the agreements and provisions
herein contained, the parties hereto do hereby agree as follows:
Section 1. Definitions. Any capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
Section 2. Amendment to Merger Agreement. The Merger Agreement is hereby
amended, effective as of the date hereof, as follows:
2.1 Amendment and Restatement of Section 9.2. Section 9.2 of the Merger
Agreement shall be deleted in its entirety, and a new Section 9.2,
which shall read as set forth below, shall be added to the Merger
Agreement:
9.2 Procedure and Effect of Termination. (a) In the event of
termination and abandonment of the Merger by the Parent, the
Purchaser or the Company pursuant to Section 9.1, written notice
thereof shall forthwith be given to the others, and this Agreement
shall terminate and the Merger shall be abandoned, without further
action by any of the parties hereto. The Purchaser agrees that any
termination by the Parent shall be conclusively binding upon it,
whether given expressly on its behalf or not, and the Company shall
have no further obligation with respect to it. If this Agreement is
terminated as provided herein, no party hereto shall have any
liability or further obligation to any other party to this Agreement;
provided that any termination shall be without prejudice to the
rights of any party hereto arising out of any grossly negligent or
willful breach by any other party of any covenant or agreement
contained in this Agreement, and provided, further, that the
obligations set forth in Sections 9.2, 10.6 and 10.8 shall in any
event survive any termination.
(b) In the event of a termination of this Agreement
by Parent pursuant to Section 9.1(g)(ii) or by the Company
pursuant to Section 9.1(f), then contemporaneously with such
termination, the Company shall pay to Parent by wire transfer
of immediately available funds to an account specified by
Parent a non-refundable termination fee in an amount equal to
$3.0 million plus reimbursement of all documented
out-of-pocket costs and expenses incurred by Parent in
connection with the transactions contemplated by this
Agreement (but excluding any investment banking fees) in an
amount not to exceed $1.0 million.
(c) In the event of a termination of this Agreement
by Parent or the Company pursuant to Section 9.1(b) or Section
9.1(d), then contemporaneously with such termination, the
Company shall pay to Parent by wire transfer of immediately
available funds to an account specified by Parent a
non-refundable termination fee in an amount equal to $3.0
million plus reimbursement of all documented out-of-pocket
costs and expenses incurred by Parent in connection with the
transactions contemplated by this Agreement (but excluding any
investment banking fees) in an amount not to exceed $1.0
million, provided, however, that such payment shall be made
only if (A) following the date of this Agreement and prior to
the termination of this Agreement, any Company Takeover
Proposal shall have been publicly announced or shall have
become publicly known and shall not have been withdrawn prior
to such termination, and (B) within nine (9) months following
the termination of this Agreement, either a Company Takeover
Proposal is consummated or the Company enters into an
agreement providing for a Company Takeover Proposal and such
Company Takeover Proposal is later consummated (with such
payment to be made at or prior to the consummation of such
Company Takeover Proposal). For purposes of this Section
9.2(c), the definition of "Company Takeover Proposal" and
"Company Takeover Event" shall be modified (i) by replacing
the 10% threshold used in Section 6.8(a) with 30%, and (ii) to
not apply to the issuance of any non-voting, non-convertible
preferred securities.
Section 3. General Confirmations.
3.1 Continuing Effect. Except as specifically provided herein, the
Merger Agreement and all other documents executed in
connection with the Merger Agreement shall remain in full
force and effect in accordance with their respective terms and
they are hereby ratified and confirmed in all respects.
3.2 No Modification or Waiver. This Amendment is limited as
specified herein and the execution, delivery and effectiveness
of this Amendment shall not operate as a modification,
acceptance or waiver of any provision of the Merger Agreement
or any other document executed in connection with the Merger
Agreement, except as specifically set forth herein.
3.3 References.
(a) From and after the date hereof, the Merger Agreement
and all agreements, instruments and documents
executed and delivered in connection with the Merger
Agreement shall be deemed amended hereby to the
extent necessary, if any, to give effect to the
provisions of this Amendment and all of the terms and
provisions of this Amendment are hereby incorporated
by reference into the Merger Agreement as if such
terms and provisions were set forth in full therein,
as applicable.
(b) All of the provisions of Article X of the Merger
Agreement are hereby incorporated into this Amendment
as if specifically stated herein.
(c) From and after the date hereof, all references in the
Merger Agreement to "this Agreement", "hereto",
"hereof", "hereunder", or words of like import
referring to the Merger Agreement shall mean the
Merger Agreement as amended and all references in the
Merger Agreement or any other agreement, instrument
or document executed and delivered in connection
therewith to "Merger Agreement", "thereto",
"thereof", "thereunder", or words of like import
referring to the Merger Agreement shall mean the
Merger Agreement as amended.
IN WITNESS WHEREOF, the Parent, the Purchaser and the Company
have caused this Amendment to be signed by their respective duly authorized
officers as of the date first above written.
PARENT: NCO GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Chairman, President & CEO
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PURCHASER: NCOG ACQUISITION CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Chairman, President & CEO
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THE COMPANY RMH TELESERVICES, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: President and CEO
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