AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (the “Amendment”),
dated as of July 9, 2007, to the Agreement and Plan of
Merger, dated as of February 9, 2007 (the
“Agreement”), by and among AREP Car Holdings
Corp., a Delaware corporation (“Parent”), AREP
Car Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (“Merger Sub”), and Xxxx
Corporation, a Delaware corporation (the
“Company”).
RECITALS
WHEREAS, Section 7.5 of the Agreement provides that
the Agreement may be amended in a writing signed on behalf of
Parent, Merger Sub and the Company; and
WHEREAS, Parent, Merger Sub and the Company desire to
amend the Agreement as provided herein.
STATEMENT
OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties and covenants and subject to
the conditions herein contained and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
Section 1.01. Definitions;
References. Unless otherwise specifically defined
herein, each capitalized term used but not defined herein shall
have the meaning assigned to such term in the Agreement. Each
reference to “hereof,” “hereunder,”
“hereby,” “herein,” and “this
Agreement” shall, from and after the date of this
Amendment, refer to the Agreement, as amended by this Amendment.
ARTICLE 2
AMENDMENT TO AGREEMENT
AMENDMENT TO AGREEMENT
Section 2.01. Amendment to
Section 1.6. Section 1.6 of the
Agreement is amended by deleting “$36, without
interest” and replacing such amount with “$37.25,
without interest”. All references in the Agreement to the
“Merger Consideration” shall refer to “$37.25,
without interest”.
Section 2.02. Amendment to
Section 5.4. Section 5.4 of the
Agreement is further amended by adding the following at the end
thereof:
“If the Requisite Stockholder Vote approving the Agreement
shall not have been obtained prior to 5:00 p.m., Eastern
Time, on July 16, 2007, then the Company shall, within
three Business Days thereafter, (x) pay to Parent an amount
in cash equal to $12,500,000 (the “Section 5.4
Payment”), which amount shall be paid by wire transfer
of immediately available funds to the account or accounts
designated by Parent, and (y) issue to Parent
335,570 Shares (the “Section 5.4
Issuance”) (which the Company agrees shall be
authorized for listing on the New York Stock Exchange as soon as
practicable, but in any event within five Business days after
July 16, 2007). Notwithstanding the foregoing, the Company
shall not be required to make the Section 5.4 Payment or
the Section 5.4 Issuance if Parent and Merger Sub are in
material breach prior to the Special Meeting of any of their
representations or warranties contained in this Agreement or any
of their covenants or agreements contained in this Agreement to
be performed by them prior to the Special Meeting, and as a
result thereof the conditions contained in
Section 6.3(a) or 6.3(b) are not satisfied or
those that are to be satisfied at Closing are incapable of being
satisfied, unless the Company is in material breach prior to the
Special Meeting of any of its representations or warranties
contained in this Agreement or any of its covenants and
agreements to be performed by it prior to the Special Meeting,
and as a result thereof the conditions contained in Section
6.2(a) or 6.2(b) are not satisfied or those that are
to be satisfied at Closing are incapable of being satisfied.
Prior to the execution of this Amendment, the Share ownership
limitation under the waiver of Section 203 of the
Corporation Law granted by the Company and reflected in the
Stock
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Purchase Agreement (the “Section 203
Limitation”) has been increased from 24% to 24.5%, as
reflected in the amendment to the Stock Purchase Agreement (the
“SPA Amendment”) entered into by the Company
and Parent on the date hereof. Immediately prior to the
Section 5.4 Issuance, the Section 203 Limitation shall
be increased from 24.5% to 27%, as reflected in the SPA
Amendment. The increase of the Section 203 Limitation from
24% to 27% is referred to herein as the
“Section 203 Increase”. Without limiting
the effect of the waiver granted under the terms of the Stock
Purchase Agreement, such waiver shall also inure to the full
benefit of Parent and its Affiliates. Within thirty
(30) days after the issuance of the Shares to Parent
pursuant to this Section 5.4, the Company shall file
a registration statement to register under the Securities Act
the Shares issued to Parent pursuant to this
Section 5.4 pursuant to and in accordance with the
terms of the Registration Rights Agreement entered into by the
Company and Parent on the date hereof.”
Section 2.03. Amendment of
Section 7.1(d). Section 7.1(d) of the
Agreement is amended and restated in its entirety as follows:
“this Agreement and the Merger will be terminated and
abandoned automatically without any further action on the part
of the Company, Parent or Merger Sub, (I) if the Requisite
Stockholder Vote approving the Agreement shall not have been
obtained prior to 5:00 p.m., Eastern Time, on July 16,
2007; or (II) if after the date hereof, any court or agency
of competent jurisdiction issues an order, injunction, decree or
ruling (in each case, whether temporary, preliminary or
permanent) restraining, restricting, enjoining or otherwise
prohibiting or effectively preventing: (i) either or both
or any part of the Section 5.4 Payment, the
Section 5.4 Issuance or the Section 203 Increase;
(ii) the holding of the Special Meeting on or prior to
July 16, 2007 or the vote of the Stockholders on the Merger
on or prior to July 16, 2007; or (iii) any other
aspect of the Merger, this Agreement or the transactions
contemplated herein (any of the foregoing, an
“Injunction”), any such termination pursuant to
this Section 7.1(d)(II) to be effective upon the
earlier to occur of (A) twenty-four (24) hours after
the issuance of the Injunction or (B) immediately prior to
the commencement of the Special Meeting.”
For the avoidance of doubt, and without limiting or restricting
any of the other rights of Parent under this Agreement, in the
event that the Agreement shall have been terminated pursuant to
Section 7.1(d), then Parent shall (i) be entitled to
all of its rights under Section 5.4 hereof (including,
without limitation, the Section 5.4 Payment, the
Section 5.4 Issuance and the Section 203 Increase),
all of which shall survive termination, and (ii) continue
to be entitled to all of its other rights hereunder which by the
terms of this Agreement survive such termination (including, but
not limited, to its rights under Section 7.4(b)(i)(A) hereof).
Parent hereby agrees that the Company shall adjourn the Special
Meeting to July 16, 2007.
Section 2.05. Amendment to
Section 7.3. Section 7.3 of the
Agreement is amended and restated in its entirety as follows:
“Effect of Termination. If this Agreement is
terminated and the Merger is abandoned pursuant to
Section 7.1, this Agreement, except for the
provisions of Sections 5.3(b), 5.4,
7.2, 7.3, 7.4 and Article VIII
and the cost reimbursement and indemnity provisions of
Sections 5.11, shall forthwith become void and have
no effect, without any liability on the part of any party or its
directors, officers, stockholders or Affiliates.”
Section 2.06. Amendment to
Section 7.4(b)(i)(A). Section 7.4(b)(i)(A)
of the Agreement is amended and restated in its entirety as
follows:
“this Agreement is terminated pursuant to
Section 7.1(d), and the Company (I) enters into
a definitive agreement with respect to an Acquisition Proposal
within 12 months after the termination of this Agreement
and such transaction is completed and (II) such Acquisition
Proposal has received approval, if required by applicable Law,
by the affirmative vote or consent of the holders of a majority
of the outstanding Shares within such twelve month period,
or”
Section 2.07. Amendment to
Section 7.4(d). Section 7.4(d) of the
Agreement is amended and restated in its entirety as follows:
“ “Superior Fee” means an amount in
cash equal to (i) $85,225,000, plus (ii) an amount
equal to the lesser of (A) the sum of Parent’s and
Merger Sub’s reasonably documented Expenses and
(B) $15,000,000, which Superior Fee shall be paid (when due
and owing) by wire transfer of immediately available funds to
the account or accounts
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designated by Parent; provided, that the amount of the
Superior Fee payable by the Company to Parent pursuant to
Section 7.4(b)(i)(A) shall be reduced to the extent of
any Section 5.4 Payment actually made or Section 5.4
Issuance actually issued (for purposes of calculating any such
payments made by the Company, the Section 5.4 Issuance
shall be deemed to have a value of $12,500,000).”
Section 2.08. Additional Representations and
Warranties of the Company. The Company hereby
represents and warrants to Merger Sub and Parent as follows:
(a) Authority Relative to Amendment. The
Company has all necessary corporate power and authority to
execute and deliver this Amendment, and to perform its
obligations hereunder. The execution and delivery of this
Amendment by the Company have been duly and validly authorized
by all necessary corporate action, and no other corporate
proceedings on the part of the Company are necessary to
authorize the execution and delivery of this Amendment. This
Amendment (including without limitation, the Section 203
Increase) has been duly and validly executed and delivered by
the Company and, assuming the due authorization, execution and
delivery by Merger Sub and Parent, this Amendment constitutes a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms (except as such
enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other
similar Laws of general applicability relating to or affecting
creditors’ rights, and to general equitable principles).
Section 2.09 Additional Representations and
Warranties of Parent and Merger Sub. Parent and
Merger Sub hereby jointly and severally represent and warrant to
the Company as follows:
(a) Authority Relative to
Amendment. Parent and Merger Sub have all
necessary power and authority to execute and deliver this
Amendment, to perform their respective obligations hereunder.
The execution and delivery of this Amendment by Parent and
Merger Sub have been duly and validly authorized by all
necessary corporate action on the part of Parent and Merger Sub,
and no other corporate proceedings on the part of Parent or
Merger Sub are necessary to authorize the execution and delivery
of this Amendment. This Amendment has been duly and validly
executed and delivered by Parent and Merger Sub and, assuming
the due authorization, execution and delivery by the Company,
this Amendment constitutes a legal, valid and binding obligation
of Parent and Merger Sub, enforceable against Parent and Merger
Sub in accordance with its terms (except as such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditor’s rights,
and to general equitable principles).
ARTICLE 3
MISCELLANEOUS
MISCELLANEOUS
Section 3.01. No Further
Amendment. Except as expressly amended hereby,
the Agreement is in all respects ratified and confirmed and all
of the terms and conditions and provisions thereof shall remain
in full force and effect. This Amendment is limited precisely as
written and shall not be deemed to be an amendment to any other
term or condition of the Agreement or any of the documents
referred to therein.
Section 3.02. Effect of
Amendment. This Amendment shall form a part of
the Agreement for all purposes, and each party thereto and
hereto shall be bound hereby.
Section 3.03. Governing
Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware
(without giving effect to choice of law principles thereof that
would result in the application of the Laws of another
jurisdiction).
Section 3.04. Counterparts. This
Amendment may be executed in counterparts, each of which shall
be deemed to be an original, but all of which, taken together,
shall constitute one and the same agreement.
[Remainder
of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Merger Sub, Parent, and the Company
have caused this Amendment to be executed as of the date first
written above by their respective officers thereunto duly
authorized.
AREP CAR HOLDINGS CORP.
| By: |
/s/ Xxxxxx
Xxxxx
|
Name: Xxxxxx Xxxxx
| Title: | Chief Financial Officer |
AREP CAR ACQUISITION CORP.
| By: |
/s/ Xxxxxx
Xxxxx
|
Name: Xxxxxx Xxxxx
| Title: | Chief Financial Officer |
XXXX CORPORATION
| By: |
/s/ Xxxxxx
X. Xxxxxxxxx
|
Name: Xxxxxx X. Xxxxxxxxx
| Title: | Executive Vice President, General Counsel and Chief Administrative Officer |
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