Exhibit 2.1
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO THAT CERTAIN AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made and entered into as of January 22, 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:
WHEREAS, Parent, Purchaser and the Company are parties to that certain
Agreement and Plan of Merger dated as of November 17, 2003, and as the same 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 2.1(a). Section 2.1(a) of the
Merger Agreement shall be deleted in its entirety, and a new Section
2.1(a), which shall read as set forth below, shall be added to the
Merger Agreement:
2.1 Company Common Stock. (a) Each share (a "Share") of
common stock, no par value per share (the "Common Stock"), of the
Company issued and outstanding immediately prior to the Effective
Time (except for Shares then owned beneficially or of record by the
Company, the Parent, the Purchaser or any of the other Parent
Subsidiaries or the Company Subsidiaries), shall, by virtue of the
Merger and without any action on the part of the holder thereof, be
converted into the right to receive that number of fully paid and
non-assessable shares of the common stock, no par value per share, of
the Parent ("Parent Common Stock"), as determined as set forth in
this Section 2.1(a) (hereinafter the "Exchange Ratio"). The Exchange
Ratio shall be fixed at 0.2150 of a share of Parent Common Stock
(such fractional share, the "Merger Consideration") so long as the
Parent Common Stock Value is between $18.75 and $26.75 inclusive.
Notwithstanding anything to the contrary contained herein, if the
Parent Common Stock Value is less than $18.75, Parent may elect, at
its sole option, (i) to adjust the Exchange Ratio to an amount equal
to $4.00 divided by the Parent Common Stock Value, or (ii) to have
the Exchange Ratio remain at 0.2150, and if the Parent Common Stock
Value is more than $26.75, the Exchange Ratio shall automatically
adjust to an amount equal to $5.75 divided by the Parent Common Stock
Value.
2.2 Amendment to Article III. Article III of the Merger Agreement is
hereby amended to (i) delete in its entirety Section 3.14 of the
Merger Agreement and add a new Section 3.14 to the Merger Agreement,
which shall read as set forth below, and (ii) add the following
additional Company representations and warranties:
3.14 Opinion of Financial Advisor. The Board of Directors of the
Company has received an opinion of Broadview International, LLC,
dated January 20, 2004, that the Exchange Ratio is fair, from a
financial point of view, to the holders of the Shares.
3.24 Amendment to Loan and Security Agreement. The Company hereby
represents and warrants to the Parent and Purchaser that on January
15, 2004, the Company and Xxxxx Fargo Foothill, Inc. ("Lender')
entered into an Eighth Amendment to, and Waiver and Consent Under,
Loan and Security Agreement ("Eighth Amendment") pursuant to which,
among other things, the Lender waived all of the Company's
outstanding defaults under the Loan and Security Agreement between
the Company and the Lender. As of the date hereof, after giving
effect to the Eighth Amendment, no default or event of default exists
and is continuing under the Loan and Security Agreement between the
Company and the Lender.
The Company had all requisite corporate power and authority to
execute and deliver the Eighth Amendment and to consummate the
transactions contemplated thereby. The execution and delivery of the
Eighth Amendment and the consummation of the transactions
contemplated thereby were duly and validly authorized and approved by
the Company's Board of Directors. The Eighth Amendment was duly and
validly executed and delivered by the Company, and the Eighth
Amendment constitutes a valid and binding agreement of the Company,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
of general application relating to or affecting the rights and
remedies of creditors, and the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3.25 Disclosure of Issues Raised by Deloitte and Touche. The Company
has disclosed to Parent and/or Purchaser any and all issues raised by
or discussed with Deloitte & Touche ("D&T") in connection with (i)
D&T's audit of the Company for the fiscal year ended September 30,
2003 or (ii) any period of time subsequent to the fiscal year ended
September 30, 2003.
2.3 Amendment and Restatement of Section 5.3. Section 5.3 of the Merger
Agreement shall be deleted in its entirety, and a new Section 5.3,
which shall read as set forth below, shall be added to the Merger
Agreement:
5.3 Except as set forth in Section 5.3 of the Company Disclosure
Letter and Supplement (as hereinafter defined), all Company SEC
filings filed after the date of this Agreement and prior to the
Effective Time (i) will be timely filed and comply in all
material respects with all applicable requirements of the
Securities Act and the Exchange Act and (ii) will not at the time
they will be filed, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that, except as set forth in
Section 3.7 hereof, no representation is made by the Company with
respect to the S-4 Registration Statement or the Proxy
Statement/Prospectus.
2.4 Amendment to Section 7.2. Section 7.2 of the Merger Agreement is
hereby amended to add the following additional condition to the
obligations of the Parent and the Purchaser to affect the Merger:
(h) Provided that Parent has executed normal and customary access
letters with D&T, prior to the Effective Time, the Company shall
have secured access for Parent and its auditors of D&T's work
papers related to D&T's audit and related auditor's report of
the Company for the fiscal year ended September 30, 2003,
including, without limitation, work papers related to subsequent
event review procedures.
2.5 Amendment and Restatement of Section 9.1(e)(ii). Section 9.1(e)(ii)
of the Merger Agreement shall be deleted in its entirety, and a new
Section 9.1(e)(ii), which shall read as set forth below, shall be
added to the Merger Agreement:
(ii) if the Parent Common Stock Value is less than $18.75 and Parent
has not elected to adjust the Exchange Ratio pursuant to Section
2.1(a)(i) hereof.
2.6 Amendment and Restatement of Certain Defined Terms in Annex I. The
definition of Material Adverse Effect set forth in Annex I of the
Merger Agreement shall be deleted in its entirety, and a new
definition of Material Adverse Effect, which shall read as set forth
below, shall be added to Annex I to the Merger Agreement:
Material Adverse Effect: an event, occurrence, violation,
inaccuracy, circumstance or other matter will be deemed to have a
"Material Adverse Effect" on the entity or an entity subsidiaries if
such event, occurrence, violation, inaccuracy, circumstance or other
matter (considered alone or together with any other matter or
matters) had or could reasonably be expected to have a material
adverse effect on (i) the business, condition (financial or
otherwise), capitalization, assets, liabilities, operations,
revenues, results of operations, cash flows, financial performance or
prospects of the entity or any entity subsidiary, or (ii) the ability
of an entity to consummate the Merger or any of the other
transactions contemplated by the Merger Agreement or to perform any
of its obligations under the Merger Agreement; provided, however,
that in determining whether there has been a Material Adverse Effect,
(a) any adverse effects directly resulting from or directly
attributable to general economic conditions or general conditions in
the industry in which the entity and entity subsidiaries do business
which conditions do not affect the entity and any entity subsidiaries
in a materially disproportionate manner; (b) any change in the market
price or trading volume of the Company's stock after the date hereof;
(c) any adverse change, effect, event, occurrence, state of facts or
development resulting from or relating to compliance with the terms
of, or the taking of any action required by, this Agreement; (d) with
respect to the Company only, the taking of any action by the Parent
or any of the Parent's Subsidiaries, or the taking of any action
approved or consented to by the Parent or Purchaser, or (e) such
facts, as to which the executive officers of NCO have actual
knowledge as of the date of this Amendment, shall be disregarded.
Section 3. Supplement to Company Disclosure Letter.
3.1 Parent and Purchaser acknowledge receipt of, and accept and agree to,
the Supplement to the Company Disclosure Letter attached hereto as
Annex 1 (the "Supplement"). The parties hereby acknowledge with
respect to the Supplement to the Company Disclosure Letter the same
acknowledgments that the parties made with respect to the Company
Disclosure Letter pursuant to Section 10.14 of the Merger Agreement.
Subject to the foregoing, the matters set forth in Annex 1 shall be
deemed to supplement and amend the Company's representations,
warranties and covenants under the Agreement
Section 4. General Confirmations.
4.1 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.
4.2 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.
4.3 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 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 hereby 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 hereby amended.
(d) From and after the date hereof, all references in the Merger
Agreement to "the Company Disclosure Letter" or words of like
import referring to the Company Disclosure Letter shall mean the
Company Disclosure Letter as supplemented by the Supplement and
all references in the Merger Agreement or any other agreement,
instrument or document executed and delivered in connection
therewith to "the Company Disclosure Letter" or words of like
import referring to the Company Disclosure Letter shall mean the
Company Disclosure Letter as supplemented by the Supplement.
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 X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Chairman, President & CEO
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PURCHASER: NCOG ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. 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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