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Exhibit 2.2
AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger dated as of
July 2, 1997 is by and among Glasstech Holding Co., a Delaware corporation (the
"Parent"), Glasstech Sub Co., a Delaware corporation and a wholly-owned
subsidiary of the Parent (the "Sub"), and Glasstech, Inc., a Delaware
corporation (the "Company").
WHEREAS, the parties entered into an Agreement and Plan of
Merger dated as of June 5, 1997, pursuant to which Sub Co. will be merged with
and into the Company, with the Company as the surviving entity (the "Merger");
WHEREAS, pursuant to the Merger, all outstanding Shares of
Glasstech shall be cancelled and, except for Shares owned by the Parent, the
Sub, any subsidiary of the Parent or the Sub, or held in the treasury of the
Company, shall be converted into the right to receive the Merger Consideration;
WHEREAS, certain stockholders of the Company set forth on
Exhibit A hereto (the "Management Stockholders") are desirous of contributing
their Shares of the Company (the "Management Shares") to the Parent in exchange
for stock of the Parent prior to the Effective Time of the Merger;
WHEREAS, such a contribution and exchange would result in the
Parent owning Shares of the Company at the Effective Time;
WHEREAS, pursuant to the Merger Agreement such Shares of the
Company will not be entitled to participate in the Merger Consideration;
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WHEREAS, the parties are desirous of facilitating the
exchange of the Management Shares by the Management Stockholders
for shares of the Parent;
WHEREAS, to facilitate such exchange, the parties are desirous
of amending the Merger Agreement to adjust the Merger Consideration to reflect
the exclusion of the Management Shares from participation in the Merger
Consideration;
WHEREAS, the parties are desirous of effecting certain
other changes to the Merger Agreement;
NOW, THEREFORE, in consideration of the promises and covenants
set forth herein, and in the Merger Agreement, the parties hereto hereby agree
as follows:
1. DEFINED TERMS. All defined terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Merger
Agreement.
2. AMENDMENT TO SECTION 1.9. The fourth paragraph of
Section 1.9 shall be amended by the addition at the end thereof of the
following sentence:
The amount, if any, payable to record holders of
Shares and Options pursuant to the foregoing provisions of this
paragraph shall be paid (x) to the extent not exceeding $30,160 to
Shareholders' Representative to be held and used as provided in clause
(iii) of the second sentence of Section 2.2(a) and (y) the balance, if
any, to record holders of the Shares and Options as of the Effective
Time.
3. AMENDMENT TO MERGER AGREEMENT FOR MANAGEMENT SHARES.
Sections 2.2(a) and 2.2(b) and the first paragraph of Section
2.2(c) of the Merger Agreement shall be deleted in their entirety and the
following inserted in lieu thereof:
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(a) At the Effective Time, the Parent shall cause the
Sub to deposit with The Bank of New York (or another bank or
trust company reasonably satisfactory to the Company) (the
"Paying Agent") the excess of (i) the Preliminary Aggregate
Merger Consideration over (ii) the sum of (x) the product of
the Per Share Merger Amount (as defined in subparagraph (b)
below) and the number of Management Shares (as defined in
subparagraph (e) below) and (y) the aggregate amount payable
by the Surviving Corporation with respect to Options pursuant
to paragraph (c) (such funds, the "Payment Fund"). Of the
Payment Fund, (i) $3,000,000 (the "Indemnification Escrowed
Fund") shall be held by the Paying Agent pursuant to the terms
of an Escrow Agreement in substantially the form of Exhibit
2.2 attached thereto (the "Indemnification Escrow Agreement")
in escrow for any Losses (as defined in Section 8.2); (ii)
$500,000 (the "Working Capital Escrow" and collectively with
the Indemnification Escrow Fund the "Escrow Funds") shall be
held in escrow by the Paying Agent pursuant to the terms of an
Escrow Agreement in substantially the form of Exhibit 2.2
attached hereto (the "Working Capital Escrow Agreement") and;
(iii) $219,840 shall be paid to the Shareholders'
Representative (to be held in its escrow account) and shall be
used to pay the fees and expenses of the Shareholders'
Representative. The Paying Agent shall, pursuant to
irrevocable instructions, make the payments provided for in
this paragraph (a) out of the Payment Fund. The Payment Fund
shall not be used for any other purpose, except as provided in
this agreement.
(b) The amount resulting from the following formula
shall be the "Per Share Merger Amount":
1. (x) the excess of the Preliminary Aggregate
Merger Consideration over the aggregate amount of the Escrow
Funds plus (y) the exercise price of all outstanding Options
(as defined in Section 2.4)
divided by
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2. (z) the number of Shares outstanding
immediately prior to the Effective Time (counting as
outstanding any Shares issues or issuable upon exercise or
deemed exercise of Options).
(c) Immediately after the Effective Time, the
Surviving Corporation shall cause the Paying Agent to mail to
each record holder of Shares as of the Effective Time, a form
of letter of transmittal and instructions for use in effecting
the surrender of certificates that immediately prior to the
Effective Time represented outstanding Shares (the
"Certificates") for payment. Immediately upon surrender to the
Paying Agent of a Certificate representing Shares, together
with the letter of transmittal duly executed, the holder shall
be paid in cash from the Payment Fund an amount equal to the
product of the Per Share Merger Amount and the number of
Shares represented by such Certificate. At the Effective Time,
the Surviving Corporation shall pay in cash to each holder of
Options listed on Schedule 3.2(a), pursuant to instructions
provided to the Surviving Corporation by such holder, an
amount equal to the product of the Per Share Merger Amount and
the number of such holder's Options as set forth on such
Schedule MINUS the aggregate exercise price of such Options
and applicable withholding taxes, if any.
4. FURTHER AMENDMENT TO MERGER AGREEMENT FOR MANAGEMENT
SHARES.
The following language shall be added to the end of Section
2.2 of the Merger Agreement:
(e) "Management Shares" shall mean the Shares
contributed to Parent by the former stockholders of the
Company as set forth on Schedule 2.2(e). For purposes of
paragraphs (c) and (d) of this Section, Management Shares
shall not be considered Shares.
5. PAYMENTS FROM ESCROWS. The Parent shall be
included on the list of Shareholders set forth as Schedule 2 to
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the Indemnification Escrow Agreement and Schedule 2 to the Working Capital
Escrow Agreement, and the percentage attributable to the Parent on such
schedules shall be the percentage the Management Shares bear to the total number
of Shares outstanding immediately prior to the Effective Time (including Shares
issued or issuable upon exercise or deemed exercise of Options).
6. AMENDMENT TO MERGER AGREEMENT FOR NON-CONTRACT
INVENTORY PAYMENTS. Section 5.13 of the Merger Agreement shall be deleted in
its entirety.
7. AMENDMENT TO MERGER AGREEMENT FOR AGGREGATE MERGER
CONSIDERATION. The words "Seventy Eight Million Dollars ($78,000,000) in Section
1.6 of the Merger Agreement shall be changed to "Seventy Six Million Two Hundred
Thousand Dollars ($76,200,000)." In Section 1.8 of the Merger Agreement, the
words "$78,000,000" shall be changed to "$76,200,000."
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8. NO FURTHER CHANGES. Except as expressly set forth
herein, the Merger Agreement shall remain unchanged in all respects and shall
remain in full force and effect.
GLASSTECH HOLDING CO.
By:/S/ Xxxx X. Xxxxxxxxx
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Title:President
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GLASSTECH SUB CO.
By:/S/ Xxxx X. Xxxxxxxxx
----------------------------------------
Title:President
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GLASSTECH, INC.
By:/S/ Xxxx X. Xxxxxxxxx
----------------------------------------
Title:President
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Schedule 2.2(e)
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Management Shares
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Xxxx X. Xxxxxx 1100
Xxx X. XxXxxxxx 2000
Xxxxx X. Xxxxxx 1500
Xxxxxxx X. Xxxxxxx 1000
Xxxxx X. Xxxxxxxx 150
Xxxxx X. Xxxxxxx 100
Xxxx X. Xxxxxxxxx 17508
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