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Exhibit 2.3
AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 2 dated as of June 19, 1998 to the Agreement and Plan
of Merger, dated as of March 4, 1998, by and among Budget Group, Inc.
("Buyer"), BDG Corporation ("Sub"), Ryder TRS, Inc. (the "Company"), and
certain other parties, as amended on March 16, 1998 (as so amended, the "Merger
Agreement"). Capitalized terms not otherwise defined herein have the meanings
given to them in the Merger Agreement.
WHEREAS, the parties to the Merger Agreement agreed to merge Sub with
and into the Company in accordance with the terms and conditions of the Merger
Agreement and Section 251 of the General Corporation Law of the State of
Delaware;
WHEREAS, the parties desire to amend certain provisions of the Merger
Agreement as more fully set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
agreements herein, the parties hereto agree as follows:
A. Section 1.1(b) of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) an aggregate number of shares of Buyer Class A Common
Stock issuable to all such holders equal to a minimum of 1,182,182
shares (the "Minimum Merger Shares") and a maximum of 3,455,219
shares (the "Maximum Merger Shares") (in each case less any shares of
Buyer Class A Common Stock issued to the holders of Options pursuant
to Section 3.7), with the precise number thereof determined as set
forth in Section 3.1 and subject to adjustment as provided in Article
III;"
B. Section 3.1(b) of the Merger Agreement is amended and
restated in its entirety to read as follows:
"(a) The total amount of cash to be paid in the Merger to
the holders of the Outstanding Company Shares under Section 3.2(a)
(the "Aggregate Cash Consideration") shall be (i) if the Maximum
Merger Shares are issued, $125,000,000, or (ii) if the Minimum Merger
Shares are issued, $200,000,000."
C. Section 3.3 of the Merger Agreement is hereby amended by
adding (i) at the beginning of each sentence in clause (a) the words "Subject
to the terms and conditions set forth
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in Section 3.3(c) below," (ii) in clause (b) on the fourth line thereof after
the word "resulting", the words," subject to the terms and conditions set forth
in Section 3.3(c) below," and (iii) by adding a new clause (c) after clause (b)
thereof to read as follows:
"(c) Notwithstanding anything to the contrary contained
herein, the parties hereto agree that (i) any item or claim set forth
on Schedule X attached hereto shall not, and shall not be deemed to,
constitute a breach as of any date of any representation, warranty or
covenant of the Company or, if applicable, of any Significant
Stockholder ("Excluded Alleged Breaches"), and (ii) no Excluded
Alleged Breach shall give rise to any adjustment under Section 3.3
and all Excluded Alleged Breaches shall be excluded from the
calculation of the Materiality Threshold. For the avoidance of doubt,
the parties hereto agree that the following items are Excluded
Alleged Breaches: (i) any impairment, write-off or decrease in value
of (1) the current and long-term deferred income taxes recorded on
the Company's consolidated financial statements and (2) capitalized
software costs of RyderFirst, Yield Management and Transfer
Optimization Model and computer hardware related to these three items
recorded on the Company's consolidated financial statements, (ii) any
cost associated with upgrading, enhancing, replacing, substituting or
modifying existing software or applications used in operating the
business of the Company and its Subsidiaries and (iii) any cost
associated with transferring existing software, software in
development, hardware and related support equipment, and information
system support services."
D. Section 3.5(a) of the Merger Agreement is hereby amended by
replacing (i) the words "$20 million" twice in the last sentence of the first
paragraph with the words "$19 million" in each case, and (ii) the second
sentence of the second paragraph with the following sentence: "Buyer shall have
the right to buy all the Warrants, in whole and not in part, by paying the
Total Warrant Value for each Original Holder and its Permitted Transferee to
the holder of such Warrant either in immediately available funds or, except as
provided below, in shares of Buyer Class A Common Stock valued at the Market
Value per share of Buyer Class A Common Stock as of the Warrant Measurement
Date (but not in a combination of both); provided, however, that Buyer shall
not have the option set forth above and Buyer shall pay the Total Warrant Value
in immediately available funds to each Warrant holder, if Buyer Class A Common
Stock is no longer listed on the NYSE or another national securities exchange
or automated quotation system."
E. Section 4.14 of the Merger Agreement is hereby amended by
inserting on the second line thereof after the words "Management Company" the
words "and Madison Dearborn Partners, L.P.".
F. A new Section 5.13 of the Merger Agreement is inserted after
Section 5.12 of the Merger Agreement to read as follows:
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"Section 5.13. Closing Date Representation. Buyer represents and
warrants that as of the Closing Date and other than any Excluded
Alleged Breach, neither Buyer nor any of its officers, directors,
employees, agents, Affiliates, financial advisers, investment
bankers, accountants, auditors or other advisers, has knowledge of
any event or circumstance constituting or causing a failure of any
representation or warranty of the Company or any Significant
Stockholder contained in this Agreement to be true and correct as of
any date or a failure of any covenant made or agreed to by the
Company or any Significant Stockholder contained in this Agreement to
be performed on or prior to the Closing Date."
G. Section 9.1 of the Merger Agreement is hereby amended by
adding the following sentence at the end of clause (a): "Notwithstanding
anything to the contrary contained herein, no representations and warranties of
the Company shall be deemed reaffirmed with respect to any Excluded Alleged
Breach".
H. Section 9.2 of the Merger Agreement is hereby amended by
adding on the third line thereof after the words "Significant Stockholders" the
following words, "except, in each case, with respect to any Excluded Alleged
Breach."
I. Section 9.3(a) of the Merger Agreement is hereby amended by
(i) inserting in the first sentence thereof after the words "Section 3.3" the
following words: ", it being understood that as provided in Section 3.3, there
is no breach or any adjustment with respect to any Excluded Alleged Breach,"
(ii) inserting in the second sentence thereof after the words "Escrow
Agreement)" the following words: "or with respect to any Excluded Alleged
Breach," and (iii) replacing the phrase "Indemnified Representative" with the
phrase "Indemnification Representative".
J. Pursuant to Section 3.5(a) of the Merger Agreement, the
parties hereto acknowledge that the form of Warrant attached hereto as Schedule
Y shall be deemed, together with the Warrant Assumptions (as such term is
defined in Section 3.5(a) of the Merger Agreement), to become a part of Exhibit
A to the Merger Agreement.
K. Exhibit B of the Merger Agreement is hereby amended by adding
the following sentence at the end of Section 2.1(a) of the Holdback Escrow
Agreement: "For the avoidance of doubt, the parties hereto agree that the
Excluded Alleged Breaches (as such term is defined in the Merger Agreement)
shall not give rise to any Damages."
L. Section 2.1(a) of Exhibit E to the Merger Agreement is
amended and restated in its entirety to read as follows:
"(a) As soon as practicable, but in any event no later than
15 days after the Effective Time, Buyer shall file a "shelf"
registration statement pursuant to Rule 415 under the Securities Act
(the "Registration Statement") with respect to the Registrable
Securities to be issued to the Holders pursuant to the Merger
Agreement. Buyer agrees that the Registration Statement will cover,
in the
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event the Minimum Merger Shares are issued in the Merger, 1,182,182
shares of Buyer Class A Common Stock or, in the event the Maximum
Merger Shares are issued in the Merger, 3,455,219 shares of Buyer
Class A Common Stock. In the event that the number of shares of Buyer
Class A Common Stock that are covered by the Registration Statement is
less than the number of Registrable Securities, Buyer shall, as
promptly as practicable after the issuance of Registrable Securities
not covered by the Registration Statement, file an additional "shelf"
registration statement and Buyer shall comply with all of its
obligations set forth in this Exhibit E with respect to such
additional registration statement to the same extent as if such
registration statement were the Registration Statement. Buyer shall
use its commercially reasonable efforts to (i) have the Registration
Statement declared effective on or before the Target Date, and (ii)
keep the Registration Statement continuously effective from the date
such Registration Statement is declared effective until the
Termination Date."
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Each Significant Stockholder agrees to comply with its obligations as an
"Original Holder" under Section 3.8(b) of the Merger Agreement. Notwithstanding
anything to the contrary in this Amendment or in the Merger Agreement, this
paragraph shall survive the Closing without limitation as to time.
The Company represents and warrants to Buyer that this
Amendment has been duly executed and delivered by the Company, the form of this
Amendment has been approved by the Board of Directors of the Company and a
majority of the holders of Company Common Stock and no further corporate
authorization on the part of the Company is necessary to consummate the
transactions contemplated by this Amendment.
The Company and each Significant Stockholder represents and
warrants that this Amendment constitutes a valid and binding agreement of the
Company and each Significant Stockholder and is enforceable against the Company
and each Significant Stockholder in accordance with its terms, except to the
extent enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
Buyer represents and warrants to the Company that this
Amendment has been duly executed and delivered by Buyer and Sub, this Amendment
has been approved by Buyer's and Sub's Board of Directors and by a majority of
holders of Sub's common stock, and no further corporate authorization on the
part of Buyer or Sub is necessary to consummate the transactions contemplated
by this Amendment.
This Amendment constitutes a valid and binding agreement of
Buyer and Sub and is enforceable against Buyer and Sub in accordance with its
terms, except to the extent
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enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
The Merger Agreement is hereby reaffirmed in all respects and
shall remain in full force and effect in accordance with its terms except as
amended or modified by this Amendment.
This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first written above.
BUDGET GROUP, INC.
By:
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Name:
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Title:
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BDG CORPORATION
By:
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Name:
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Title:
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RYDER TRS, INC.
By:
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Name:
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Title:
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QUESTOR PARTNERS FUND, L.P.,
By: Questor General Partner, L.P.
its general partner
By: Questor Principals, Inc.,
its general partner
By:
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Xxx Xxxx
Managing Principal
QUESTOR SIDE-BY-SIDE PARTNERS, L.P.,
By: Questor Principals, Inc.,
its general partner
By:
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Xxx Xxxx
Managing Principal
MADISON DEARBORN CAPITAL
PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.
its general partner
By: Madison Dearborn Partners, Inc.,
its general partner
By:
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Xxxxxx X. Xxxxxxx
Vice President
