EXHIBIT 2.11
AMENDMENT NUMBER ONE
to
Agreement and Plan of Reorganization
dated as of the 23rd day of February, 1998
(the "Agreement")
by and among
UNITED ROAD SERVICES, INC. ("URSI")
KEYSTONE TOWING, INC. ("COMPANY")
and
the STOCKHOLDERS named therein ("STOCKHOLDERS")
This AMENDMENT NUMBER ONE (the "First Amendment") to Agreement and Plan
of Reorganization dated as of the 23rd day of February, 1998 (the "Agreement")
by and among URSI, the COMPANY and the STOCKHOLDERS is executed and delivered
this _______ day of April, 1998, as follows. Capitalized terms used in this
First Amendment shall have the same meaning as set forth in the Agreement.
PREAMBLE
The parties have determined that it is a condition to the consummation
of the Merger under Section 9.9 of the Agreement that the COMPANY obtain advance
approval (the "OPG Consent") for the transfer by way of merger from the COMPANY
to URSI of rights which the COMPANY has under the OPG Contract (as defined
below) prior to the consummation of the Merger, and URSI, the COMPANY and the
STOCKHOLDERS desire to amend the Agreement by entering into this First
Amendment. Each of the parties acknowledges, were it not for the necessity of
obtaining the OPG Consent, that the Merger would have occurred immediately prior
to the closing of the IPO (such time immediately prior to the closing of the IPO
being hereinafter referred to for all purposes of the Agreement and this First
Amendment as the "Effective Reorganization Date"). In executing and delivering
this First Amendment, the parties do not intend to alter the terms and
conditions of the Agreement, other than to extend the time for the consummation
of the Merger to that time (the "Effective Time of the Merger," as defined
below) on the first business day immediately following the obtaining of the OPG
Consent (such Merger being subject always to the representations and warranties
of URSI, the COMPANY and the STOCKHOLDERS remaining true as of the Effective
Time of the Merger, to the respective covenants required to be performed by the
Effective Time of the Merger being performed as of such time, and to the
conditions required to be satisfied by the Effective Time of the Merger being
satisfied as of such time, all as set forth in the Agreement and this First
Amendment).
The parties intend upon the subsequent consummation of the Merger at the
Effective Time of the Merger (a) that all of the benefits and
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burdens of the ownership of the shares of URSI stock to be received by the
STOCKHOLDERS upon the Merger shall pass to the STOCKHOLDERS effective as of the
Effective Reorganization Date and such STOCKHOLDERS shall bear the risk of any
depreciation in the value of such shares and shall have the benefit of any
appreciation in the value of such shares on and after the Effective
Reorganization Date, and (b) that all of the benefits and burdens of the
ownership of the COMPANY shall pass to URSI effective as of the Effective
Reorganization Date and all income, gain or loss earned or incurred by the
Company, and all appreciation or deprecation in the value of the COMPANY
occurring on and after the Effective Reorganization Date, shall inure
exclusively to the benefit or detriment of URSI. The parties intend that all
aspects of the parties' relationships as set forth in the Agreement, as amended
by this First Amendment, shall be governed and construed in accordance with the
statement of the parties' intent as set forth in this Preamble and this First
Amendment (to the extent not otherwise inconsistent with applicable accounting
principles and law governing these relationships).
IN WITNESS WHEREOF and for good and valuable consideration, receipt of
which is hereby acknowledged, the parties, intending to be legally bound, hereby
execute and deliver this First Amendment as of the date set forth above and the
Agreement is hereby amended in the following respects:
1. URSI Authorized and Issued Stock. In Section 1.4(ii), the introductory
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phrase "immediately prior to the Closing Date" is deleted and replaced by
"immediately prior to the closing of the IPO."
2. Conversion of Stock.
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(a) Sections 2.1 and 2.2 of the Agreement are revised to read in full as
follows:
2.1 Manner of Conversion. The manner of converting the shares
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of COMPANY Stock (all of which are owned by a single Stockholder)
into URSI Stock shall be as follows:
As of the Effective Time of the Merger:
(i) one-half of the shares of COMPANY Stock issued and
outstanding immediately prior to the Effective Time of the Merger, by
virtue of the Merger and without any action on the part of the holder
thereof, automatically shall be deemed to represent that number of
shares of URSI Stock determined pursuant to Section 2.2 below, such
shares to be distributed to STOCKHOLDERS as provided in Part IA.1 of
Annex I hereto;
(ii) the other one-half of the shares of COMPANY stock issued and
outstanding immediately prior to the Effective Time of the Merger, by
virtue of the Merger and without any action on
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the part of the holder thereof, automatically shall be deemed to
represent the right to receive the amount of cash determined pursuant
to Section 2.2 below, such cash to be distributed to STOCKHOLDERS as
provided in Part IA.2 of Annex I hereto; and
(iii) all shares of COMPANY Stock that are held by
COMPANY as treasury stock or owned by any COMPANY Subsidiary shall be
cancelled and retired and no shares of URSI Stock or other
consideration shall be delivered or paid in exchange therefor.
In the event that URSI shall make any dividend or
other distribution on shares of URSI Stock after the Effective
Reorganization Date and prior to the Effective Time of the Merger,
URSI shall deliver to the STOCKHOLDERS at the Closing an amount
equal to all such dividends or distributions which would have been
received by the STOCKHOLDERS if the shares of URSI Stock received by
the STOCKHOLDERS had been properly authorized, issued and
outstanding and held by the STOCKHOLDERS on and after the Effective
Reorganization Date. At the Effective Time of the Merger, URSI
shall have no class of capital stock issued and outstanding which,
as a class, shall have any rights or preferences senior to the
shares of URSI Stock received by the STOCKHOLDERS, including,
without limitation, any rights or preferences as to dividends or as
to the assets of URSI upon liquidation or dissolution or as to
voting rights.
2.2 Calculation of URSI Shares. One-half of the shares of
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COMPANY Stock shall be converted, as a result of the Merger, into
the number of shares of URSI Stock as provided in Part IA.1 to Annex
I attached hereto, and the other one-half of the shares of COMPANY
Stock shall be converted, as a result of the Merger, into the amount
of cash determined as set forth in Part IA.2 to Annex I attached
hereto. The URSI Stock and the amount of cash to be received,
respectively, by the stockholders of each of the Other Companies
will be determined as set forth in Part II to Annex I, provided that
the stockholders of certain Other Companies may receive URSI Stock
or cash or both that is contingent upon future revenues, and Part II
to Annex I does not describe such contingent URSI Stock.
b) Subsections 1 and 2 of Part IA of Annex I are revised to read in full as
follows:
A. Fixed consideration to be paid to STOCKHOLDERS:
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1. Aggregate fixed consideration to be paid to
STOCKHOLDERS in conversion of one-half of the shares of COMPANY
Stock: 377,624 shares of URSI Stock.
2. Aggregate fixed consideration to be paid to
STOCKHOLDERS in conversion of the other one-half of the shares of
COMPANY Stock: $4,531,488 in cash.
3. Deliveries at Pre-Closing. The following sentence is added at the end of
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Section 4.1: "Despite the foregoing, documents which by their nature cannot be
delivered until the Closing, such as, for example, the opinions of counsel
contemplated by Sections 8.5 and 9.8 and the certificates of good standing
contemplated by Sections 8.9 and 9.10, need not be delivered until the Closing
Date."
4. Closing Date. The first two sentences of Section 4.2 of the Agreement are
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revised to read in full as follows:
On the date ("Closing Date") which is the later of (i) the date when the
closing with respect to the IPO occurs or (ii) the first business day
after the date when the Los Angeles City Council approves URSI as the
successor to COMPANY under that certain Contract Number 56833 between
the City of Los Angeles Department of General Services and COMPANY for
the operation of an Official Police Garage in the Van Nuys area (the
"OPG Contract"), the Articles of Merger shall be filed with the
appropriate state authorities, or if already filed shall become
effective, and all transactions contemplated by the Agreement, including
the conversion of shares of COMPANY Stock into shares of URSI Stock, the
delivery of shares of URSI Stock, and the delivery of a certified check
or checks in an amount equal to the cash portion of the consideration
which the STOCKHOLDERS shall be entitled to receive pursuant to the
Merger, shall occur and be deemed to be completed.
5. No Payment by Underwriters. In the second sentence of Section 4.2, the
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phrase "by the Underwriters (as defined in Section 5.29)" is deleted.
6. Timing of Certain URSI Representations and Warranties.
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(a) The introduction to Section 6 is revised to read in full as follows:
URSI represents and warrants that (i) the representations and warranties
in Sections 6.1-6.5 and 6.10-6.12 are true at the date of this Agreement
and shall be true at the time of Pre-Closing and the Closing Date, (ii)
the representations and warranties in Sections 6.6-6.9 are true at the
date of this Agreement and shall be true until the
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closing of the IPO, (iii) all of the following representations and
warranties shall survive the Closing Date until the Expiration Date and
(iv) solely for purposes of Section 11.2(iv) hereof, and solely to the
extent that in connection with the IPO the STOCKHOLDERS actually incur
liability under the 1933 Act, the 1934 Act, or any other federal or
state securities laws, the representations and warranties set forth
herein shall survive until the expiration of any applicable limitations
period.
(b) In each place in Sections 6.6-6.9 when the phrase "Closing Date"
appears, it is deleted and replaced by "closing of the IPO."
(c) Section 8.1 of the Agreement is revised to read in full as follows:
8.1 Representations and Warranties; Performance of Obligations. All
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representations and warranties of URSI contained in Sections 6.1-6.5 and
6.10-6.12 shall be true and correct in all material respects as of the
Pricing Date and the Closing Date, and all representations and
warranties of URSI contained in Sections 6.6-6.9 shall be true and
correct in all material respects as of the Pricing Date and the closing
of the IPO, as though such representations and warranties had been made
as of that date; each and all of the terms, covenants and conditions of
this Agreement to be complied with and performed by URSI on or before
the Pricing Date and the Closing Date shall have been duly complied with
and performed in all material respects; and a certificate to the
foregoing effect dated the Pricing Date and the Closing Date and signed
by the President or any Vice President of URSI shall have been delivered
to the STOCKHOLDERS.
7. URSI Prohibited Activities. In the introduction to Section 7.7, the phrase
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"Closing Date" is deleted and referred by "closing of the IPO."
8. Amendment of Schedules. Section 7.9 of the Agreement is revised to read in
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full as follows:
7.9 Amendment of Schedules. Each party hereto agrees that, with respect
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to the representations and warranties of such party contained in this
Agreement, such party shall have the continuing obligation until the
Closing to supplement or amend promptly the Schedules hereto with
respect to any matter hereafter arising or discovered which, if existing
or known at the date of this Agreement, would have been required to be
set forth or described in the Schedules, provided however, that
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supplements and amendments to Schedules 5.10, 5.11 and 5.14 shall only
have to be delivered at the Closing, unless such Schedule is to be
amended to reflect an event occurring other than in the ordinary course
of
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business. In the event that (i) the COMPANY amends or supplements a
Schedule pursuant to this Section 7.9 at or before the Pre-Closing and
URSI and a majority of the Founding Companies do not consent to the
effectiveness of such amendment or supplement at or before the Pre-
Closing or (ii) the COMPANY amends or supplements a Schedule pursuant to
this Section 7.9 after the pre-Closing and URSI does not consent to the
effectiveness of such amendment or supplement at or before the Closing,
this Agreement shall be deemed terminated by mutual consent as set forth
in Section 12.1(i) hereof. In the event that (i) URSI amends or
supplements a Schedule pursuant to this Section 7.9 at or before the
Pre-Closing and COMPANY and a majority of the Founding Companies do not
consent to the effectiveness of such amendment or supplement at or
before the Pre-Closing or (ii) URSI amends or supplements a Schedule
pursuant to this Section 7.9 after the Pre-Closing and the COMPANY does
not consent to the effectiveness of such amendment or supplement at or
before the Closing, this Agreement shall be deemed terminated by mutual
consent as set forth in Section 12.1(i) hereof. For all purposes of this
Agreement, including without limitation for purposes of determining
whether the conditions set forth in Sections 8.1 and 9.1 have been
fulfilled, the Schedules hereto shall be deemed to be the Schedules as
amended or supplemented pursuant to this Section 7.9. In the event that
one of the other Founding Companies amends or supplements a Schedule
pursuant to Section 7.9 of one of the Other Agreements at or before the
Pre-Closing, URSI shall give the COMPANY notice promptly after it has
knowledge thereof. If URSI, COMPANY and a majority of the Founding
Companies do not consent to the effectiveness of such amendment or
supplement at or before the Pre-Closing, this Agreement shall be deemed
terminated by mutual consent as set forth in Section 12.1(i) hereof. For
purposes of this Section 7.9, URSI shall be deemed to have given its
consent to the effectiveness of any amendment or supplement to a
Schedule if URSI does not notify COMPANY of its disapproval within 48
hours after URSI is notified of such amendment or supplement, and
COMPANY and each other Founding Company shall be deemed to have given
its consent to the effectiveness of any amendment or supplement to a
Schedule if COMPANY or such other Founding Company, as applicable, does
not notify URSI of its disapproval within 48 hours after COMPANY or such
other Founding Company, as applicable, is notified of such amendment or
supplement.
9. Good Standing Certificates. In Sections 8.9 and 9.10, the phrase "Pre-
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Closing" is deleted and replaced by "Closing Date."
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10. Date of Opinion of Counsel for COMPANY and the STOCKHOLDERS. In Section
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9.8, the phrase "Pricing Date" is deleted and replaced by "Closing Date."
11. Termination for Default. Section 12.1(iii) is revised to read in full as
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follows:
(iii) before the delivery of shares of URSI Stock on the Closing Date,
by the STOCKHOLDERS or COMPANY, on the one hand, or by URSI on the other
hand, if a material breach or default shall be made by the other in the
observance or in the due and timely performance of any of the covenants,
agreements or conditions contained herein, and such default shall not
have been cured and shall not reasonably be expected to be cured on or
before such delivery of shares.
12. Outside Date. Section 12.1(vi) is revised to read in full as follows:
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(vi) after the Pre-Closing and before the Closing Date, by the
STOCKHOLDERS or COMPANY, on the one hand, or URSI, on the other hand, if
the Closing Date does not occur by September 1, 1998, time being of the
essence.
13. Certain Demand Registration Rights.
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(a) In the first sentence of the first paragraph of Section 17.2, the
phrase "Closing Date" is deleted and replaced by "the closing of the IPO."
(b) In the first sentence of the last paragraph of Section 17.2, the
phrase "on the date of the IPO" is deleted and replaced by "on the Closing
Date."
14. Opinion of Counsel for URSI.
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(a) Numbered paragraph 3 of Annex V is revised to read in full as
follows:
3. The authorized and outstanding capital stock of URSI immediately
prior to the closing of the IPO was as set forth in the URSI prospectus
(the "Prospectus"), dated [_____________], relating to the sale to the
public of [_____________] shares of URSI; each share of stock to be
issued to the STOCKHOLDERS has been duly and validly authorized and
issued; upon consummation of the transactions set forth in the Agreement
each of such shares will be fully paid and nonassessable; and, to our
knowledge, none of such shares will have been issued in violation of the
preemptive rights of any stockholder of URSI.
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(b) Numbered paragraph 4 of Annex V is deleted.
Date:______________, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ SERVICES, INC.
By__________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Date:______________, 1998 STOCKHOLDERS:
____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Date:______________, 1998 KEYSTONE TOWING, INC.
By__________________________________
Name:
Title:
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