FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.1
EXECUTION
COPY
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of October 12, 2010
(this “Amendment”), among
ITT Corporation, an Indiana corporation (“Parent”), Oyster
Acquisition Corp., an Oklahoma corporation and a direct wholly owned subsidiary
of Parent (“Sub”), and O.I.
Corporation, an Oklahoma corporation (the “Company”).
WHEREAS,
Parent and Sub, on the one hand, and Company, on the other hand are parties to
that certain Agreement and Plan of Merger, dated as of September 13, 2010 (the
“Agreement”); and
Section
1. Amendments to Merger
Agreement.
(a) Section
4.1(a)(i) of the Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
“(i) declare,
set aside or pay any dividends on, or make any other actual, constructive or
deemed distributions in respect of, any of its capital stock, or otherwise make
any payments to its shareholders in their capacity as such, other than dividends
or distributions from Subsidiaries of the Company to the Company, provided, that (A)
prior to the Closing, the Company may declare and continue to pay a quarterly
cash dividend of $0.05 per share of Company Common Stock on dates and in the
manner consistent with prior practice, and (B) prior to the Closing, the Company
may declare a one-time cash dividend of up to $0.50 per share of Company Common
Stock then outstanding, payable to the Company’s shareholders immediately prior
to or following the Closing (the “Closing Dividend”),
but only if (x) prior to the Closing the Company pays the full amount of the
Closing Dividend to the Company’s transfer agent (for subsequent payment to the
Company’s shareholders) on terms and conditions acceptable to Parent and (y) the
payment of the Closing Dividend does not cause the Net Cash Amount as of
immediately prior to the Effective Time to be less than $4,145,000; (ii) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock or (iii) purchase, redeem or otherwise acquire
any shares of capital stock of the Company or any of its Subsidiaries or any
other securities thereof or any rights, warrants or options to acquire, any such
shares or other securities.”
(b) Section
6.3(g) of the of the Agreement is hereby amended by deleting it in its entirety
and replacing it with the following:
“Net Cash
Amount. The Net Cash Amount as of immediately prior to the
Effective Time ( after giving effect to the payment of any dividend permitted by
Section
4.1(a)(i)) shall not be less than $4,145,000.”
(c) Section
8.10 of the Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
“Net Cash Amount” as
of any date means an amount equal to (i) the sum of (A) the aggregate amount of
cash and cash equivalents of the Company and its Subsidiaries as of such date
plus (B) the Prepaid Expense Amount, minus (ii) the sum of (A) the aggregate
principal amount of indebtedness for borrowed money and indebtedness evidenced
by notes, debentures, bonds or similar instruments of the Company and its
Subsidiaries, together with all accrued and unpaid interest thereon, plus (B)
the amount by which the aggregate of all unpaid costs and expenses incurred by
the Company and its Subsidiaries in connection with this Agreement and the
transactions contemplated hereby is greater than the Transaction Expense Amount.
For the avoidance of doubt, for purposes of determining the Net Cash Amount
under this Agreement, the amount of the Closing Dividend paid by the Company to
its transfer agent pursuant to Section 4.1(a)(i) shall not be included in the
cash and cash equivalents of the Company and its Subsidiaries.”
Section
2. Agreement Remains in
Effect. Except as expressly provided in this Amendment, the
Agreement shall remain in full force and effect without any modification or
amendment.
Section
3. Counterparts. This
Amendment may be executed in 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.
Section
4. Entire Agreement; No
Third-Party Beneficiaries. This Amendment, together with the
Agreement, constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Amendment, is not intended to confer upon
any person other than the parties hereto any rights or remedies
hereunder.
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(a) This
Amendment shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
State of Oklahoma without regard to the conflict of law principles
thereof. The parties hereby irrevocably submit to the jurisdiction of
the courts of the State of Oklahoma and the federal courts of the United States
of America located in the State of Oklahoma solely in respect of the
interpretation and enforcement of the provisions of this Amendment and of the
documents referred to in this Amendment, and in respect of the transactions
contemplated hereby, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof or
of any such document, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in said courts or that
the venue thereof may not be appropriate or that this Amendment or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a court. The parties hereby consent to and
grant any such court jurisdiction over the person of such parties and over the
subject matter of such dispute and agree that mailing of process or other papers
in connection with any such action or proceeding in the manner provided in Section 8.2 of the
Agreement or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(b) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AMENDMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AMENDMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION
5(b).
Section
6. Assignment. Neither
this Amendment nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties.
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ITT
CORPORATION
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By:
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/s/ Xxxx Xxxxxxx | |
Name:
Xxxx Xxxxxxx
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Title:
Senior Vice President
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OYSTER
ACQUISITION CORP.
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By:
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/s/ Xxxxxx Xxxxxx | |
Name:
Xxxxxx Xxxxxx
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Title:
President
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O.I.
CORPORATION
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By:
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/s/ J. Xxxxx Xxxxxxxxx | |
Name:
J. Xxxxx Xxxxxxxxx
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Title:
CEO & CFO
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