EXHIBIT 2.2
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AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
DATED AS OF
DECEMBER 15, 2000
BETWEEN
THERMACORE INTERNATIONAL, INC.
AND
MODINE MANUFACTURING COMPANY
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THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER between
Thermacore International, Inc, and Modine Manufacturing Company (the
"FIRST AMENDMENT") is entered into this 15th day of March, 2001, by
and among Modine Manufacturing Company, a Wisconsin corporation
("BUYER"), Modine Merger Co., a Pennsylvania corporation and a direct
wholly-owned subsidiary of Buyer (the "MERGER SUB") and Thermacore
International, Inc., a Pennsylvania corporation (the "COMPANY").
BACKGROUND
A. Buyer and the Company entered into an Agreement and Plan of
Merger dated December 13, 2000 (the "MERGER AGREEMENT") under which
Buyer agreed, among other things, to form a new Pennsylvania
corporation as a wholly-owned subsidiary and to cause such corporation
to be merged with and into the Company on the Merger Date and
pursuant to the terms and conditions of the Merger Agreement.
B. Buyer has caused Merger Sub to be formed in accordance with
the Merger Agreement. Buyer and Company desire Merger Sub to be a
party to the Merger Agreement in order to comply with the statutory
requirements for consummating a merger between Merger Sub and the
Company under Pennsylvania law.
C. Subsequent to the signing of the Merger Agreement, a total
of five thousand (5,000) options to purchase Company Common Stock were
rescinded by mutual agreement of the Company and the two holders of
those options. The Buyer and the Company desire to modify the Merger
Agreement, including, but not limited to, the formula to be used in
determining the Per Share Consideration, to reflect the number of
shares of Company Common Stock issuable upon the exercise of all
outstanding Company Stock Options, whether vested or unvested, after
giving effect to such rescission.
D. The parties hereto desire to amend and modify the Merger
Agreement on the terms and conditions set forth in this First
Amendment.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1. Defined terms used herein but not otherwise defined shall
have the meaning ascribed to them in the Merger Agreement.
2. The Merger Agreement is hereby amended to join Merger Sub as
a party to the Merger Agreement. By executing this First Amendment,
Merger Sub agrees to perform all of the duties and obligations of
"Merger Sub," as defined in the Merger Agreement, and to be bound by
all of the terms and conditions of the Merger Agreement.
3. The first sentence of Section 1.1 is hereby deleted.
4. Section 1.7 of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 1.7. AGGREGATE CONSIDERATION; EXCHANGE RATIO; VALUATION
OF BUYER COMMON STOCK. (a) For purposes of this Agreement, the
aggregate consideration to be paid in exchange for the Company Stock
in the Merger shall be ninety-three million five hundred forty-two
thousand dollars ($93,542,000) (the "AGGREGATE CONSIDERATION"). The
"PER SHARE CONSIDERATION" shall equal the Aggregate Consideration
divided by 3,564,825, which, as of March 15, 2001, equals the sum of
the number of outstanding shares of Company Common Stock, the number
of shares of Company Common Stock into which the outstanding Company
Preferred Stock is convertible, and the number of shares of Company
Common Stock issuable upon the exercise of all outstanding Company
Stock Options, whether vested or unvested as of the date of this
Agreement.
(b) The Exchange Ratio shall equal the Per Share Consideration
divided by the Buyer Average Price (as defined below), with the
quotient being rounded to the nearest one one hundred thousandth of a
point. The "BUYER AVERAGE PRICE" means the unweighted average of the
last-sale prices for the Buyer Common Stock, as reported on The Nasdaq
Stock Market, for the twenty (20) trading days ending on the fifth
trading day (the "VALUATION DATE") preceding the Merger Date, but not
more than $32.00 nor less than $22.08.
(c) If at any time during the period between the date of this
Agreement and the Merger Date, any change in the outstanding shares of
Buyer Common Stock shall occur by reason of any reclassification,
recapitalization, stock split or combination, exchange or readjustment
of shares or any stock dividend thereon with a record date during such
period or any similar transaction or event (each a "SHARE CHANGE"),
the minimum and maximum Buyer Average Price set forth in Section
1.7(b) shall be changed by multiplying each such number by the
Adjustment Ratio (as defined herein). The "ADJUSTMENT RATIO" shall be
the number obtained by dividing the number of shares of Buyer Common
Stock issued and outstanding immediately prior to the Share Change by
the number of shares of Buyer Common Stock issued and outstanding
immediately after the Share Change.
5. Merger Sub represents and warrants to the Company that:
(a) CORPORATE EXISTENCE AND POWER. Merger Sub is a
corporation duly incorporated, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania, and has all
corporate powers required to carry on its business as it is conducted
prior to the Merger.
(b) NON-CONTRAVENTION. The execution, delivery and
performance by Merger Sub of the Merger Agreement and of this First
Amendment and the consummation by Merger Sub of the transactions
contemplated by the Merger Agreement do not (a) contravene or conflict
with the Articles of Incorporation or bylaws of Merger Sub, (b)
assuming compliance with the matters referred to in Section 4.3 of the
Merger Agreement, contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Merger Sub,
(c) constitute a default (or an event which with notice, the lapse of
time or both would become a default) under or give rise to a right of
termination, cancellation or acceleration of any right or obligation
of Merger Sub or to a loss of any benefit to which Merger Sub is
entitled under any provision of any agreement, contract or other
instrument binding upon Merger Sub or any license, franchise, permit
or other similar authorization held by Merger Sub, (d) except for the
approval of the Board of Directors of Merger Sub, require any action
or consent or approval of any Person other than a Governmental
Authority, or (e) result in the creation or imposition of any Lien on
any asset of Merger Sub, other than, in the case of the events
specified in clauses (b), (c), (d) and (e) (other than indebtedness of
Merger Sub), any such event which, individually or in the aggregate,
has not had, and is not reasonably likely to have, a Material Adverse
Effect on Merger Sub.
6. REFERENCES. All references to the Merger Agreement in any
other documents shall mean the Merger Agreement as amended hereby and
from time to time hereafter in writing.
7. GOVERNING LAW. This First Amendment shall be governed in
all respects by the laws of the Commonwealth of Pennsylvania without
regard to the conflicts of laws principles of any jurisdiction.
8. NO OTHER CHANGES. Except as set forth in this First
Amendment, the Merger Agreement remains in full force and effect and
is hereby ratified and confirmed.
9. EXECUTION IN COUNTERPARTS. This First Amendment may be
executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned duly authorized officers have
executed this First Amendment as of the date first written above.
MODINE MANUFACTURING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
MODINE MERGER CO.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
THERMACORE INTERNATIONAL, INC.
By: /s/ L. Xxxxxx Xxxxxx
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Name: L. Xxxxxx Xxxxxx
Title: Chief Executive Officer and Chairman
