1
Exhibit 2.3
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 2 to Agreement and Plan of Merger ("Amendment No.
2") is entered into as of October 26, 1998, by and among ▇▇▇▇▇▇▇ Company, a
Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ Holdings, Inc., a Delaware
corporation ("Holdings") and REM Acquisition, Inc., a Delaware corporation
("MergerCo").
W I T N E S S E T H
WHEREAS, the Company, Holdings and MergerCo are parties to an Agreement
and Plan of Merger dated as of July 16, 1998 (the "Merger Agreement");
WHEREAS, the Merger Agreement was amended by Amendment No. 1 to
Agreement and plan of Merger dated as of September 22, 1998, by and among the
Company, Holdings and MergerCo; and
WHEREAS, the parties hereto desire to amend the Merger Agreement to
reflect the elections made by such Electing Stockholders;
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto do hereby agree as follows:
1. Article I of the Merger Agreement is hereby amended as
follows:
"ELECTION MEMORANDUM" has the meaning specified in Section
3.1(c)(i).
"MANAGEMENT CASHED SHARES" has the meaning specified in
Section 3.1(c)(i).
"MANAGEMENT ROLLOVER SHARES" has the meaning specified in
Section 3.1(c)(i).
"MANAGEMENT STOCKHOLDER" has the meaning specified in Section
3.1(c)(i).
"NON-MANAGEMENT CASHED SHARES" has the meaning specified in
Section 3.1(c)(i).
"NON-MANAGEMENT ROLLOVER SHARES" has the meaning specified in
Section
3.1(c)(i).
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2. Section 3.1(c) of the Merger Agreement is amended and restated in
its entirety to read as follows:
"(c) CONVERSION (OR EXCHANGE) OF SHARES. Except as otherwise
provided in Section 3.1(d), all other issued and outstanding Shares of
Holdings shall be converted into the following:
(i) any holder of Shares of Holdings who is a member of
management of Holdings or the Company (each, a "MANAGEMENT
STOCKHOLDER"; collectively, the "MANAGEMENT STOCKHOLDERS") may elect to
receive shares of Merger Common Stock ("MANAGEMENT ROLLOVER SHARES"),
cash in lieu of shares of Merger Common Stock ("MANAGEMENT CASHED
SHARES"), or a combination of cash and Merger Common Stock. Management
Stockholders shall make such election by having completed and returned
the Election Memorandum dated October 16, 1998 (the "ELECTION
MEMORANDUM") to ▇▇▇▇▇▇▇ Company, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, on or prior to 5:00 p.m.
on Thursday, October 22, 1998. All other holders of Shares have elected
(i) to receive the shares of Merger Common Stock (the "NON-MANAGEMENT
ROLLOVER SHARES"; together with the Management Rollover Shares, the
"ROLLOVER SHARES") as indicated on Schedule 3.1(c) hereto and (ii) to
receive cash in lieu of shares of Merger Common Stock (the
"NON-MANAGEMENT CASHED SHARES"; together with the Management Cashed
Shares, the "CASHED SHARES") for the balance of such stockholders'
Shares. The consideration set forth in this clause (i) is referred to
as the "MERGER CONSIDERATION".
(ii) The Rollover Shares of Management Stockholders pursuant
to (i) above are as indicated on Schedule 3.1(c)."
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3. Section 3.2(a)(ii) is hereby amended and restated in its entirety to
read as follows:
"(A) In respect of the number of Management Options listed
next to the names of those Persons identified on Schedule 3.2(a)
hereto, each Management Stockholder may elect to receive an amount in
cash equal to the product of (1) the number of Option Shares subject to
such Management Options immediately prior to the Effective Time and (2)
the excess, if any, of the Cash Price over the per share exercise price
of such Management Options, to be delivered by the Surviving
Corporation immediately following the Effective Time. All applicable
withholdings taxes attributable to the payments made hereunder or to
distributions contemplated hereby shall be deducted from the amounts
payable under this Section 3.2 and all such taxes attributable to the
exercise of Management Options shall be withheld from the proceeds
received in respect of the Option Shares issuable upon such exercise.
(B) For all Management Options for which elections pursuant to
Section 3.2(a)(ii)(A) were not made, and for any other Management
Options, holders thereof shall be deemed to have elected to receive the
same number of options (each, a "CONTINUING MANAGEMENT OPTION")
entitling the holder thereof to purchase the number of shares of Merger
Common Stock equal to the number of Option Shares subject to such
Management Options immediately prior to the Effective Time, at an
exercise price per share equal to the exercise price per Option Share
of such Management Options immediately prior to the Effective Time.
After the Effective Time, each Continuing Management Option shall
(unless otherwise agreed by Holdings and the holder of such Continuing
Management Option) be subject to the same, terms and conditions as were
applicable to the related Management Option immediately prior to the
Effective Time, provided that all such Continuing Management Option
shall as of the Effective Time be immediately fully vested and
exercisable.
(C) The election referred to in Section 3.2(a)(ii)(A) above
shall be made by each Management Option holder's completing and
returning the Election Memorandum to ▇▇▇▇▇▇▇ Company on or prior to
October 22, 1998."
4. Section 3.2(b)(ii) is hereby amended and restated in its entirety to
read as follows:
"(A) In respect of the number of Anti-Dilution Options listed
next to the names of those Persons identified on Schedule 3.2(b)
hereto, each Management Stockholder may elect to receive an amount in
cash equal to the product of (1) the number of Option Shares subject to
such Anti-Dilution Options immediately prior to the Effective Time and
(2) the excess, if any, of the Cash Price over the per share exercise
price of such Management Options, to be delivered by the Surviving
Corporation immediately following the Effective Time. All applicable
withholdings taxes attributable to the payments made hereunder or to
distributions contemplated hereby shall be deducted from the amounts
payable under this Section 3.2 and all such taxes attributable to the
exercise of Anti-Dilution Options shall be withheld from the proceeds
received in respect of the Option Shares issuable upon such exercise.
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(B) For all Anti-Dilution Options for which elections pursuant
to Section 3.2(b)(ii)(A) were not made, and for any other anti-Dilution
Options, holders thereof shall be deemed to have elected to receive the
same number of options (each, a "CONTINUING ANTI-DILUTION OPTION")
entitling the holder thereof to purchase the number of shares of Merger
Common Stock equal to the number of Option Shares subject to such Anti-
Dilution Options immediately prior to the Effective Time, at an
exercise price per share equal to the exercise price per Option Share
subject to such Anti-Dilution Options immediately prior to the
Effective Time. After the Effective Time, each Continuing Anti-
Dilution Option shall (unless otherwise agreed by Holdings and the
holder of such Continuing Anti-Dilution Option) be subject to the same
terms and conditions as were applicable to the related Anti-Dilution
Option immediately prior to the Effective Time, provided that all such
Continuing Anti-Dilution Options shall as of the Effective Time be
immediately fully vested and exercisable.
(C) The election referred to in Section 3.2(a)(ii)(A) above
shall have been made by each Anti-Dilution Option holder's completing
and returning the Election Memorandum to ▇▇▇▇▇▇▇ Company on or prior to
October 22, 1998."
5. Schedules 3.1(c), 3.2(a) and 3.2(b) to the Merger Agreement are each
hereby amended and restated in their entirety by replacing each of such
Schedules with those Schedules attached hereto as Exhibits A, B and C,
respectively.
6. This Amendment shall be effective immediately upon execution by the
parties hereto and upon consent by the ESOP Trustee to the terms and conditions
hereof.
7. The Merger Agreement remains in full force and effect in all other
respects.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the day and year first written above.
REM ACQUISITION, INC.
▇▇▇▇▇▇▇ HOLDINGS, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇ COMPANY, a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
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EXHIBIT A
---------
Schedule 3.1(c)
ROLLOVER SHARES
---------------
Common Rollover Rollover
Stock % Shares
------ -------- --------
▇▇▇▇▇ 154,716 70% 108,301
▇▇▇▇▇▇ 215,663 65% 140,181
▇▇▇▇▇▇▇ 171,928 23% 39,543
▇▇▇▇▇▇ 54,162 75% 40,622
Franklin 135,000 60% 81,000
Maher 123,516 60% 74,110
▇▇▇▇▇▇ 39,344 60% 23,606
Nie 700,000 40% 280,000
▇▇▇▇▇▇▇▇▇ 285,763 60% 171,458
Pleasant 129,716 60% 77,830
▇▇▇▇▇▇ 126,146 60% 75,688
--------- ---------
Senior Management 2,135,954 1,112,339
--------------------------------------------------------
Applegate 5,639 100% 5,639
▇▇▇▇▇▇▇▇ 15,535 100% 15,535
▇▇▇▇▇▇ 15,535 60% 9,321
▇▇▇▇▇▇▇▇ 20,944 80% 16,755
▇▇▇▇▇▇▇▇▇▇ 10,000 100% 10,000
▇▇▇▇▇▇▇▇▇ 80% 0
▇▇▇▇▇▇▇ 10,000 100% 10,000
Cowie 23,302 60% 13,981
Cuppia 15,535 100% 15,535
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Common Rollover Rollover
Stock % Shares
------ -------- --------
▇▇▇▇▇ (retiring) 38,836 0% 0
▇▇▇▇ 4,710 60% 2,826
▇▇▇▇▇▇▇ 3,000 100% 3,000
Fettner (resigned) 0% 0
Giambalo 100% 0
▇▇▇▇▇▇ 5,000 100% 5,000
▇▇▇▇▇▇▇▇▇ 5,000 100% 5,000
Hellyer 19,470 70% 13,629
▇▇▇▇▇▇▇▇ 10,000 100% 10,000
▇▇▇▇▇▇▇▇▇▇ 15,535 100% 15,535
▇▇▇▇ 11,279 60% 6,767
▇▇▇▇▇▇▇ 5,000 60% 3,000
▇▇▇▇▇▇▇▇▇▇▇ 4,000 100% 4,000
▇▇▇▇▇ 38,836 100% 38,836
Messershmitt 39,083 60% 23,450
Messner 2,000 100% 2,000
▇▇▇▇▇▇ 5,000 75% 3,750
▇▇▇▇▇▇ 38,836 60% 23,302
▇▇▇▇▇▇ 10,000 100% 10,000
▇▇▇▇ (retiring) 4,710 0% 0
▇'▇▇▇▇▇ 80% 0
▇▇▇▇▇▇▇ 46,605 90% 41,944
Peterken 100% 0
▇▇▇▇▇▇▇ 25,802 75% 19,352
▇▇▇▇▇▇▇▇ 30,002 100% 30,002
▇▇▇▇▇▇ 5,000 100% 5,000
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Common Rollover Rollover
Stock % Shares
------ -------- --------
Silverstone 5,000 85% 4,250
▇▇▇▇▇▇▇▇ 5,000 100% 5,000
▇▇▇▇▇ 15,272 60% 9,163
Woodhead 80% 0
-------- --------- ---------
Other Management 509,465 381,572
---------------- --------- ---------
Subtotal - ▇▇▇▇▇▇▇ 2,645,419 1,493,911
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EXHIBIT A
Schedule 3.1(c)
ROLLOVER SHARES
Common Stock
--------------------------------------------------------------
Common Rollover Rollover
Investcorp Shares % Shares
---------- ---------------- --------- -----------
Connoissour Equity Limited 1,962,692.5 4.6% 89,711.57
Equity SIMA Limited 2,589,315.8 4.6% 118,079.28
Equity SIMB Limited 2,452,515.0 4.6% 112,100.59
Foundation Equity Limited 1,962,692.5 4.6% 89,711.57
Foundation Holdings Ltd. 1,962,692.5 4.6% 89,711.57
▇▇▇▇▇▇▇ Equity Limited 1,962,692.5 4.6% 89,711.57
▇▇▇▇▇▇▇ Holdings Limited 1,962,692.5 4.6% 89,711.57
▇▇▇▇▇▇▇ Investments Ltd. 1,962,692.5 4.6% 89,711.57
Spring Equity Limited 1,962,692.5 4.6% 89,711.57
Spring International Limited 1,962,692.5 4.6% 89,711.57
Spring Investments Limited 1,962,692.5 4.6% 89,711.57
Connoisseur Holdings Ltd. 2,831,886.0 4.6% 129,441.03
Ashford Limited 8,962.7 4.6% 409.67
▇▇▇▇▇▇▇▇ Limited 8,962.7 4.6% 409.67
Fairburn Limited 8,962.7 4.6% 409.67
Peach Limited 8,962.7 4.6% 409.67
--------------- -----------------
Total Class A 25,567,800.0 1,168,663.73
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Common Rollover Rollover
Investcorp Shares % Shares
---------- ---------------- --------- -----------
Chemical Norm. (Guernsey) 797,607 4.6% 36,457.36
Investcorp ▇▇▇▇▇▇▇ Hold. 2,685,171 4.6% 122,734.92
------------ ----------------
Investcorp Class C 3,482,778 4.6% 159,192
Ballet Limited 18,400 4.6% 841.03
Denary Limited 18,400 4.6% 841.03
Gleam Limited 18,400 4.6% 841.03
Highlands Limited 18,400 4.6% 841.03
Noble Limited 18,400 4.6% 841.03
Outrigger Limited 18,400 4.6% 841.03
Quill Limited 18,400 4.6% 841.03
Radial Limited 18,400 4.6% 841.03
Shoreline Limited 18,400 4.6% 841.03
Zinnia Limited 18,400 4.6% 841.03
Investcorp Investment Equity
Limited 16,000 4.6% 731.33
-------------- ----------------
Investcorp Class D 200,000 4.6% 9,141.68
Subtotal Investcorp 29,250,578 1,336,997.70
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EXHIBIT B
---------
Schedule 3.2(a)
CONTINUING MANAGEMENT OPTIONS
-----------------------------
Common Rollover Rollover
Stock % Option Shares
▇▇▇▇▇ 45,284 70% 31,699
▇▇▇▇▇▇ 63,667 65% 41,384
▇▇▇▇▇▇▇ 50,000 23% 11,500
▇▇▇▇▇▇ 156,338 75% 117,254
Franklin 20,000 60% 12,000
Maher 45,284 60% 27,170
▇▇▇▇▇▇ 120,656 60% 72,394
Nie 1,800,000 40% 720,000
▇▇▇▇▇▇▇▇▇ 64,237 60% 38,542
Pleasant 45,284 60% 27,170
▇▇▇▇▇▇ 30,000 60% 18,000
------ --------- ---------
Senior Management 2,440,750 1,117,113
-------------------------------------------------------
Applegate 100% 0
▇▇▇▇▇▇▇▇ 100% 0
▇▇▇▇▇▇ 14,465 60% 8,679
▇▇▇▇▇▇▇▇ 21,056 80% 16,845
▇▇▇▇▇▇▇▇▇▇ 100% 0
▇▇▇▇▇▇▇▇▇ 30,000 80% 24,000
▇▇▇▇▇▇▇ 100% 0
Cowie 6,698 60% 4,019
Cuppia 100% 0
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Common Rollover Rollover
Stock % Option Shares
------- -------- -------------
▇▇▇▇▇ (retiring) 0% 0
▇▇▇▇ 45,290 60% 27,174
▇▇▇▇▇▇▇ 100% 0
Fettner (resigned) 10,000 0% 0
Giambalo 30,000 100% 30,000
▇▇▇▇▇▇ 100% 0
▇▇▇▇▇▇▇▇▇ 100% 0
▇▇▇▇▇▇▇ 38,048 70% 26,634
▇▇▇▇▇▇▇▇ 100% 0
▇▇▇▇▇▇▇▇▇▇ 14,465 100% 14,465
▇▇▇▇ 23,721 60% 14,233
▇▇▇▇▇▇▇ 25,000 60% 15,000
▇▇▇▇▇▇▇▇▇▇▇ 16,000 100% 16,000
▇▇▇▇▇ 41,164 100% 41,164
Messershmitt 11,234 60% 6,740
Messner 8,000 100% 8,000
▇▇▇▇▇▇ 25,000 75% 18,750
▇▇▇▇▇▇ 11,164 60% 6,698
▇▇▇▇▇▇ 100% 0
▇▇▇▇ (retiring) 25,290 0% 0
▇'▇▇▇▇▇ 20,000 80% 16,000
▇▇▇▇▇▇▇ 90% 0
Peterken 30,000 100% 30,000
▇▇▇▇▇▇▇ 6,698 75% 5,024
▇▇▇▇▇▇▇▇ 100% 0
Senese 10,000 100% 10,000
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Common Rollover Rollover
Stock % Option Shares
------- -------- -------------
Silverstone 25,000 85% 21,250
▇▇▇▇▇▇▇▇ 100% 0
▇▇▇▇▇ 14,728 60% 8,837
Woodhead 20,000 80% 16,000
-------- --------- ------
Other Management 523,021 385,512
---------------- --------- ---------
Subtotal - ▇▇▇▇▇▇▇ 2,963,771 1,502,625
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EXHIBIT C
---------
Schedule 3.2(b)
CONTINUING ANTI-DILUTION OPTIONS
--------------------------------
Anti-Dilution Rollover Rollover
Stock Options % Option Shares
▇▇▇▇▇ 14,123 70% 9,886
▇▇▇▇▇▇ 19,436 65% 12,633
▇▇▇▇▇▇▇ 9,552 23% 2,197
▇▇▇▇▇▇ 5,580 75% 4,185
Franklin 15,417 60% 9,250
▇▇▇▇▇ 13,065 60% 7,839
▇▇▇▇▇▇ 3,821 60% 2,293
Nie 81,519 40% 32,608
▇▇▇▇▇▇▇▇▇ 21,834 60% 13,100
Pleasant 13,275 60% 7,965
▇▇▇▇▇▇ 14,122 60% 8,473
------ ------- -------
Senior Management 211,744 110,429
-----------------------------------------------------------------
Applegate 191 100% 191
▇▇▇▇▇▇▇▇ 527 100% 527
▇▇▇▇▇▇ 1,018 60% 611
▇▇▇▇▇▇▇▇ 1,425 80% 1,140
▇▇▇▇▇▇▇▇▇▇ 339 100% 339
▇▇▇▇▇▇▇▇▇ 1,018 80% 814
▇▇▇▇▇▇▇ 339 100% 339
Cowie 1,018 60% 611
Cuppia 527 100% 527
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Anti-Dilution Rollover Rollover
Stock Options % Option Shares
▇▇▇▇▇ (retiring) 1,317 0% 0
▇▇▇▇ 1,696 60% 1,018
▇▇▇▇▇▇▇ 102 100% 102
Fettner (resigned) 339 0% 0
Giambalo 1,018 100% 1,018
▇▇▇▇▇▇ 170 100% 170
▇▇▇▇▇▇▇▇▇ 170 100% 170
▇▇▇▇▇▇▇ 1,951 70% 1,366
▇▇▇▇▇▇▇▇ 339 100% 339
▇▇▇▇▇▇▇▇▇▇ 1,018 100% 1,018
▇▇▇▇ 1,187 60% 712
▇▇▇▇▇▇▇ 1,018 60% 611
▇▇▇▇▇▇▇▇▇▇▇ 678 100% 678
▇▇▇▇▇ 2,714 100% 2,714
Messershmitt 1,707 60% 1,024
▇▇▇▇▇▇▇ 339 100% 339
▇▇▇▇▇▇ 1,018 75% 764
▇▇▇▇▇▇ 1,696 60% 1,018
▇▇▇▇▇▇ 339 100% 339
▇▇▇▇ (retiring) 1,018 0% 0
▇'▇▇▇▇▇ 678 80% 542
▇▇▇▇▇▇▇ 1,581 90% 1,423
Peterken 1,018 100% 1,018
▇▇▇▇▇▇▇ 1,102 75% 827
▇▇▇▇▇▇▇▇ 1,018 100% 1,018
▇▇▇▇▇▇ 508 100% 508
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Anti-Dilution Rollover Rollover
Stock Options % Option Shares
------------- -------- --------
Silverstone 1,018 85% 865
▇▇▇▇▇▇▇▇ 170 100% 170
▇▇▇▇▇ 1,018 60% 611
Woodhead 678 80% 542
------- ------- -------
Other Management 35,025 26,023
------- ------- -------
Subtotal - ▇▇▇▇▇▇▇ 246,769 136,452
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