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EXHIBIT 2.4
SECOND AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT ("Amendment") is entered into as of January 26,
2000, by and between SYNAGRO TECHNOLOGIES, INC., a Delaware corporation
("Parent"), RESTEC ACQUISITION CORP., a Rhode Island corporation and a
wholly-owned subsidiary of Parent ("Rhode Island Merger Sub"), NEW ENGLAND
TREATMENT COMPANY, INC., a Rhode Island corporation ("Company"), XXXX X.
XXXXXXX, individually ("Xx. Xxxxxxx"), XXXXXXX X. XXXXXXXX, individually ("Xxx.
Xxxxxxxx"), XXXXXXX X. XXXXXXXX, as Executrix of the Estate of Xxxxxxx X.
Xxxxxxxx (the "Estate"), XXXXXXX X. XXXXXXXX and XXXXXX XXXXXX, as Co-Trustees
of the Xxxxxxx X. Xxxxxxxx Revocable Trust under agreement dated November 2,
1998 (the "Trust") (collectively, the "Merger Parties") and RESTEC ACQUISITION
CORP., a Delaware corporation and a wholly-owned subsidiary of Parent ("Delaware
Merger Sub").
RECITALS
WHEREAS, the Merger Parties entered into that certain Agreement and
Plan of Merger dated October 20, 1999, as amended by a letter agreement dated
January 7, 2000 (as amended, the "Agreement"), under the terms of which Rhode
Island Merger Sub was, upon satisfaction or waiver of the conditions to Closing
set forth in the Agreement, and at the Effective Time, to merge with and into
the Company (the "Merger");
WHEREAS, the Merger Parties now desire to amend the Agreement to
provide, among other things, that Delaware Merger Sub, rather than Rhode Island
Merger Sub, will, upon satisfaction or waiver of the conditions to Closing set
forth in the Agreement, and at the Effective Time, merge with and into the
Company, and that the Company will issue shares of nonvoting stock prior to the
Merger, as more fully set forth herein; and
WHEREAS, capitalized terms used herein shall have the meanings ascribed
to them herein or in the Agreement, and references to Sections herein shall mean
the corresponding Sections of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable and consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Adoption of Letter Agreement. The parties hereto hereby consent to,
confirm, approve and adopt the letter agreement dated January 7, 2000,
among Parent, Xx. Xxxxxxx, the Grat, the Trust, the Estate, and Xxx.
Xxxxxxxx.
2. Amendments to Agreement.
a. Any and all references in the Agreement (including any
Exhibits or Schedules thereto, any documents required for the
consummation of the transactions contemplated by the
Agreement, and any amendments to the
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Agreements other than this Amendment) to RESTEC Acquisition
Corp., a Rhode Island corporation, are hereby amended to be
references to RESTEC Acquisition Corp., a Delaware
corporation, and, as a result of this Amendment, the defined
term "Merger Sub" as used in the Agreement (including any
Exhibits or Schedules thereto, any documents required for the
consummation of the transactions contemplated by the
Agreement, and any amendments to the Agreements other than
this Amendment) for RESTEC Acquisition Corp., a Rhode Island
corporation, is now a reference to RESTEC Acquisition Corp., a
Delaware corporation.
b. The first complete sentence of Section 1.1 of the Agreement
is hereby amended to read:
Upon the terms and subject to the conditions of this
Agreement, at the Effective Time (as defined in
Section 1.2) in accordance with the Rhode Island
Business Corporation Act and the General Corporation
Law of the State of Delaware, the Merger Sub shall be
merged with and into the Company and the separate
existence of the Merger Sub shall thereupon cease.
c. The first complete sentence of Section 1.2 of the Agreement
is hereby amended to read:
The Merger shall become effective at such time (the
"Effective Time") as (i) articles of merger are filed
with the Secretary of State of the State of Rhode
Island in accordance with the Rhode Island Business
Corporation Act and (ii) a certificate of merger is
filed with the Secretary of State of the State of
Delaware in accordance with the General Corporation
Law of the State of Delaware (collectively, the
"Merger Filing").
d. Section 2.1 of the Agreement is hereby amended to read in
its entirety:
SECTION 2.1. CERTIFICATE OF INCORPORATION. The
Articles of Incorporation of the Company as in effect
immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving
Corporation after the Effective Time, as the same may
thereafter be amended in accordance with its terms
and as provided under the Rhode Island Business
Corporation Act.
e. The last sentence of Section 3.1(a) of the Agreement is
hereby amended to read in its entirety:
Each Shareholder and each of Xxxx XxXxxxxxx, Xxxxx
Xxxxxxxxx and Xxxxx Xxxxxxx (as new shareholders of
the Company) shall be
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entitled to receive the percentages of the aggregate
consideration issuable pursuant to this Section
3.1(a) as set forth on Schedule 1 to this Amendment.
3. No Other Amendments to Agreement. Except as specifically set forth
in this Amendment, the Agreement shall remain in full force and effect,
without any amendment or modification thereto.
4. Counterparts and Facsimile Signatures. This Amendment may be
executed in any number of counterparts, and signature pages may be
delivered by telecopy, with the original executed signature pages to be
furnished promptly thereafter.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day first written above.
SYNAGRO TECHNOLOGIES, INC.
By: /s/ Xxxx X. Rome
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Xxxx X. Rome, Executive Vice President
RESTEC ACQUISITION CORP.,
a Rhode Island corporation
By: /s/ Xxxx X. Rome
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Xxxx X. Rome, Vice President
RESTEC ACQUISITION CORP.,
a Delaware corporation
By: /s/ Xxxx X. Rome
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Xxxx X. Rome, Vice President
NEW ENGLAND TREATMENT COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, individually
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, individually
THE XXXXXXX X. XXXXXXXX REVOCABLE TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Co-Trustee
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Co-Trustee
THE ESTATE OF XXXXXXX X. XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Executrix
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SCHEDULE 1 TO SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Xxxx X. Xxxxxxx 46%
Estate of Xxxxxxx X. Xxxxxxxx 46%
Xxxx XxXxxxxxx 4%
Xxxxx Xxxxxxxxx 2.5%
Xxxxx Xxxxxxx 1.5%
