1
EXHIBIT 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment No. 1"), dated as of May 10, 1999, by and among NSC Holdings, Inc., a
Delaware corporation ("Holdings"), NSC Acquisition, Inc., a Delaware corporation
and a wholly owned subsidiary of Holdings ("Merger Subsidiary"), Waste
Management, Inc., a Delaware corporation ("Waste Management") and NSC
Corporation, a Delaware corporation ("NSC"). Unless otherwise indicated,
capitalized terms used herein without definition shall have the respective
meanings set forth in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Holdings, Merger Subsidiary, Waste Management and NSC
are parties to that certain Agreement and Plan of Merger, dated as of February
12, 1999 (the "Merger Agreement"); and
WHEREAS, Holdings, Merger Subsidiary, Waste Management and NSC
desire to amend the Merger Agreement as set forth in this Amendment No. 1;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Amendment No. 1, the
parties agree as follows:
1. Section 2.1(b) of the Merger Agreement shall be deleted in
its entirety and the following substituted in place thereof:
"(b) CONVERSION OF COMMON STOCK. Each issued and
outstanding share of Common Stock (other than shares to be canceled in
accordance with Section 2.1(a) and shares of Common Stock ("Dissenting
Shares") that are owned by stockholders ("Dissenting Stockholders")
that have properly exercised appraisal rights pursuant to Section 262
of the DGCL) shall be converted into the right to receive $1.25 in
cash, without interest (the "Merger Consideration"). All such shares of
Common Stock shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each holder of a
certificate representing any such shares of Common Stock shall cease to
have any rights with respect thereto, except the right to receive the
Merger Consideration upon surrender of such certificate in accordance
with Section 2.3."
2. Section 5.5(b) of the Merger Agreement shall be deleted in
its entirety and the following substituted in place thereof:
"(b) In the event that (i) this Agreement is
terminated by NSC pursuant to Section 7.1(e), then NSC shall promptly,
but in no event later than two days after the date of termination
pursuant to this clause (i), pay Holdings a fee equal
1
2
to the sum of (A) $100,000 and (B) all documented out-of-pocket fees
and expenses incurred by Holdings' in connection with the transactions
contemplated hereby (including, without limitation, fees and expenses
of Holdings' legal and financial advisors) not to exceed $400,000 in
the aggregate (collectively, the "Termination Fee"), payable by wire
transfer of same day funds, or (ii)(x) an Acquisition Proposal shall
have been made known to NSC or has been made directly to its
stockholders generally or any person shall have publicly announced an
intention (whether or not conditional) to make an Acquisition Proposal
which, in any such case, has not been publicly withdrawn prior to the
Stockholders Meeting, (y) thereafter, this Agreement is terminated by
either NSC or Holdings pursuant to Section 7.1(b)(ii), and (z) within
12 months of such termination NSC enters into any Acquisition Agreement
or consummates any Acquisition Proposal, then NSC shall pay Holdings
the Termination Fee, payable by wire transfer of same day funds, no
later than two days after the first to occur of the execution of an
Acquisition Agreement or the consummation of an Acquisition Takeover
Proposal. Notwithstanding the foregoing, in no event shall (1) the
Termination Fee be payable by NSC more than once and (2) NSC have any
obligation to pay Holdings the amounts contemplated by clause (i)(B)
above unless and until Holdings shall have provided NSC with invoices
or other reasonable evidence of such amounts. NSC acknowledges that the
agreements contained in this Section 5.5(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these
agreements, Holdings would not enter into this Agreement."
3. Section 5.7 of the Merger Agreement shall be deleted and
the following substituted in place thereof:
"REPURCHASE OF WASTE MANAGEMENT SHARES. Immediately
prior to the Effective Time Waste Management will sell to NSC and NSC
will purchase from Waste Management 996,420 shares of Common Stock to
NSC in exchange for a subordinated promissory note in the principal
amount of $1,245,525, bearing interest at 11% per annum, in the form
attached hereto as Exhibit D."
4. Section 6.2(f) of the Merger Agreement shall be deleted and
the following substituted in place thereof:
"(f) REPURCHASE OF SHARES. NSC shall have repurchased
from Waste Management 996,420 shares of Common Stock in exchange for a
subordinated promissory note in the principal amount of $1,245,525,
bearing interest at 11% per annum, in the form attached hereto as
Exhibit D."
5. Exhibit D attached to the Merger Agreement shall be deleted
in its entirety and ANNEX A to this Amendment No. 1 substituted in place
thereof.
6. Holdings and Merger Subsidiary hereby acknowledge receipt
of a revised Disclosure Letter delivered by NSC prior to the execution of this
Amendment No. 1. Such revised Disclosure Letter shall be substituted in place of
the Disclosure Letter delivered by NSC in connection with the execution of the
Merger Agreement.
2
3
7. All references to the Merger Agreement contained in the
Voting Agreement, that certain Memorandum of Understanding, dated February 12,
1999, by and between NSC and Waste Management and any exhibits to the Merger
Agreement, shall mean the Merger Agreement, as amended by this Amendment No. 1.
8. Except as herein modified, all other provisions of the
Merger Agreement shall be and remain in full force and effect.
9. This Amendment No. 1 may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
[SIGNATURE PAGE FOLLOWS]
4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to Agreement and Plan of Merger to be signed by their respective
officers thereunto duly authorized, all as of the date first written above.
NSC CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive
WASTE MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and Secretary
NSC HOLDINGS, INC.
By: /s/ Xxxxxx X'Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X'Xxxxxxxx
Title: Chairman
NSC ACQUISITION, INC.
By: /s/ Xxxxxx X'Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X'Xxxxxxxx
Title: Chairman
5
ANNEX A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUCH
SALE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION SHALL HAVE BEEN REGISTERED
UNDER SAID ACT, OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE, AND THEN
ONLY IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS.
ALL INDEBTEDNESS EVIDENCED HEREBY AND REFERENCED HEREIN IS SUBORDINATED IN RIGHT
OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL INDEBTEDNESS OWED TO FINOVA
CAPITAL CORPORATION AS SET FORTH IN THAT CERTAIN SUBORDINATION AND STANDSTILL
AGREEMENT ON OR ABOUT THE DATE HEREOF AMONG FINOVA CAPITAL CORPORATION, THE
PAYEE OF THIS NOTE AND THE OTHER PARTIES NAMED THEREIN (THE "FINOVA
SUBORDINATION AGREEMENT")
SUBORDINATED PROMISSORY NOTE
$1,245,525.00 Methuen, Massachusetts
________________, 1999
FOR VALUE RECEIVED, the undersigned, NSC Corporation, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of Waste
Management, Inc., a Delaware corporation ("Payee"), in lawful money of the
United States of America, in immediately available funds at the principal
business address of Payee, 0000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or at
such other location as the holder hereof may designate from time to time in
writing, the principal amount of ONE MILLION TWO HUNDRED FORTY FIVE THOUSAND
FIVE HUNDRED TWENTY FIVE DOLLARS AND NO CENTS ($1,245,525.00), together with
interest from the date hereof, at a rate of 11% per annum (computed on the basis
of a 365-day year and based upon the number of days actually elapsed), payable
in arrears on the fifteenth day of each August, November, February and May
commencing August 15, 1999. The principal amount hereof and any and all accrued
but unpaid interest thereon shall be due and payable on December 31, 2003.
If any amount of principal or interest payable hereunder is not paid
when due (whether at stated maturity, by acceleration or otherwise), the then
entire outstanding principal amount hereof, together with all overdue interest,
shall automatically and immediately accrue interest until such default is cured,
payable on demand, at a rate per annum equal to the lesser of (i) 5% per annum
above the interest rate otherwise in effect, or (ii) the maximum interest rate
permitted under applicable law.
Whenever any payment hereunder shall be stated to be due on a day other
than a Business Day (as hereinafter defined), such payment shall be made on the
next succeeding
6
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest. As used herein, the term "Business Day"
means any day of the year on which banks are not required or authorized to close
in New York, New York.
This Note is executed and delivered pursuant to the Agreement and
Plan of Merger, dated as of February 12, 1999, by and among Borrower, Payee, NSC
Holdings, Inc. and NSC Acquisition, Inc.
Borrower shall be in default under this Note upon the occurrence of
any of the following events of default ("Events of Default"):
(a) default in the payment of the principal of or any installment of
interest on this Note when due, which default continues for a period of ten (10)
days after notice of such default is delivered by Payee to Borrower;
(b) any "event of default," "default" or similar event or occurrence
that results in the acceleration of indebtedness of Borrower to any other person
under any note, indenture, agreement or undertaking; or
(c) the dissolution, voluntary or involuntary bankruptcy,
termination of existence, insolvency, business failure or appointment of a
receiver of any part of the property of Borrower or any guarantor or surety of
any of the obligations of Borrower.
Upon occurrence of any Event of Default, and at any time thereafter
as long as any such Event of Default shall be continuing, Payee may declare all
liabilities and obligations of Borrower to Payee immediately due and payable and
the same shall thereupon become immediately due and payable without any further
action on the part of Payee, and upon the occurrence of any Event of Default
mentioned in clause (c) hereof, all liabilities and obligations of Borrower to
Payee shall become due and payable without any action upon the part of Payee.
Borrower shall have the right at any time and from time to time to
prepay the unpaid principal amount hereof, in whole or in apart, without premium
or penalty. In the case of any such prepayment, Borrower shall also pay in full
all accrued but unpaid interest in respect of the entire outstanding principal
amount hereof and all overdue interest, if any.
The indebtedness evidenced by this Note is subordinated to all
Senior Indebtedness of Borrower as set forth in the FINOVA Subordination
Agreement. Until all liabilities and obligations of Borrower to Payee are paid,
such Senior Indebtedness, together with all other indebtedness of Borrower for
money borrowed to which the indebtedness evidenced by this Note may be
subordinated, shall not exceed $22,000,000 in the aggregate, as provided in that
certain Memorandum of Understanding, dated February 12, 1999, between Payee and
Borrower.
Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
2
7
Borrower shall pay Payee, on demand, any reasonable out-of-pocket
expenses (including reasonable legal fees) arising out of or in connection with
any action or proceeding (including any action or proceeding arising in or
related to any insolvency, bankruptcy or reorganization involving or affecting
borrower) taken to protect, enforce, determine or assert any right or remedy
under this Note.
This Note shall bind Borrower and its successors and assigns, and the
benefits hereof shall inure to the benefit of Payee and its successors and
assigns. All references herein to "Borrower" and "Payee" shall be deemed to
apply to borrower and Payee, respectively, and to their respective successors
and assigns.
This Note and any other documents delivered in connection herewith and
the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
substantive law of Delaware without giving effect to its conflict of laws
principles.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by its
officers thereunto duly authorized, as of the date first above written.
NSC CORPORATION
By:
--------------------------
Name:
Title:
