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Exhibit 2.3
SECOND AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
This Second Amendment to Agreement and Plan of Reorganization (the
"Second Amendment") is dated as of February 21, 1997 by and among NFC Castings,
Inc., a Delaware corporation ("Parent"), NC Merger Company, a Wisconsin
corporation ("Newco"), and Neenah Corporation, a Wisconsin corporation (the
"Company").
RECITALS
Parent, Newco and the Company entered into an Agreement and Plan of
Reorganization dated as of November 20, 1996 ("Agreement and Plan of
Reorganization") pursuant to which they agreed to consummate a transaction in
which Parent would acquire the Company for cash through a reverse triangular
merger of Newco with and into the Company, whereby all of the outstanding shares
of the capital stock of the Company would be converted into the right to receive
cash and all of the outstanding shares of the capital stock of Newco would be
converted into shares of the capital stock of the Company, upon the terms and
subject to the conditions set forth in the Agreement and Plan of Reorganization.
Parent, Newco and the Company entered into a First Amendment to Agreement and
Plan of Reorganization dated as of January 13, 1997 ("First Amendment") pursuant
to which they agreed to amend certain provisions of the Agreement and Plan of
Reorganization. (The Agreement and Plan of Reorganization, as amended by the
First Amendment, is referred to herein as the "Agreement".) The parties desire
to further amend certain provisions of the Agreement in the manner and to the
extent set forth herein.
Accordingly, in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
1. AMENDMENT OF THE AGREEMENT.
1.1 Closing Date. Sections 2.2, 9.1(b)(ii) and 9.1(c)(ii) of the
Agreement are amended by substituting the date "April 11, 1997" for the date
"February 20, 1997" each place it appears.
1.2 Outside Date. Sections 9.1(b)(iii) and 9.1(c)(iii) of the Agreement
are amended by substituting the date "April 11, 1997" for the date "February 21,
1997" each place it appears.
1.3 Definitions. Section 1.1 of the Agreement is amended by amending
the definitions of "Merger Price" and "Merger Price Per Share" to read in their
entirety as follows:
"Merger Price" shall mean the sum of $240,000,000.00 less an
amount equal to the Settlement Adjustment Amount, to be delivered
by Newco pursuant to Article II of this Agreement, subject to later
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adjustment as provided in Section 2.6(e) of this Agreement.
"Merger Price Per Share" shall mean the quotient determined
by dividing the Merger Price to be delivered by Newco at Closing by
the total number of shares of the Company Common Stock issued and
outstanding immediately prior to the Effective Time. (For
illustration purposes only, based on the total issued and
outstanding shares of Company Common Stock set forth in Section
3.1(c) of this Agreement, the Merger Price Per Share would equal
$54,060.14 less the amount determined by dividing the Settlement
Adjustment Amount by the number 4439.50.)
1.4 Definitions. Section 1.1 of the Agreement is amended by adding
thereto the following additional defined terms:
"Former Shareholder" shall mean any former holder of any
shares of capital stock of the Company, whose shares of capital
stock were repurchased by the Company at any time prior to the date
of this Agreement.
"Former Shareholder Claim" shall mean any claim, demand,
cause of action, suit, obligation or liability whatsoever, in law
or equity, known or unknown, whether or not asserted or assertable,
and whether or not paid or settled, that any Former Shareholder
(and such Former Shareholder's directors, officers, employees,
stockholders, heirs, successors, assigns and agents) had, has or
may have against, or that has been, might have been or may be
asserted against, the Company, any of the Subsidiaries or any of
the Company Shareholders, or any of the respective directors,
officers, employees, stockholders, heirs, successors, assigns or
agents of the Company, any of the Subsidiaries or any of the
Company Shareholders, including without limitation any claim,
demand, cause of action, suit, obligation or liability arising from
or in connection with any sale or conveyance of any of such Former
Shareholder's or any other Person's shares of the capital stock of
the Company, including any claim, demand, cause of action, suit,
obligation or liability based upon an allegation that such Former
Shareholder did not receive fair value for his or her shares of the
capital stock of the Company at the time such shares were
repurchased by the Company or any other allegation in connection
with such repurchase or in connection with the transactions
contemplated by this Agreement.
"Former Shareholder Release" shall mean a Confidential
Settlement Agreement and Release substantially in the form of
Exhibit H attached to this Agreement and otherwise in substance and
amount reasonably acceptable to Parent and the Company.
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"Recent Former Shareholder" shall mean any of the following
Former Shareholders: James P. Keating, Jr., Mary K. and James H.
Russell, Jr., Katherine K. Wilson, Dan E. Johnson and the Neenah
Foundry Foundation, Inc.
"Recent Former Shareholder Claim" shall mean any claim,
demand, cause of action, suit, obligation or liability whatsoever,
in law or equity, known or unknown, whether or not asserted or
assertable, and whether or not paid or settled, that any Recent
Former Shareholder (and such Recent Former Shareholder's directors,
officers, employees, stockholders, heirs, successors, assigns and
agents) had, has or may have against, or that has been, might have
been or may be asserted against, the Company, any of the
Subsidiaries or any of the Company Shareholders, or any of the
respective directors, officers, employees, stockholders, heirs,
successors, assigns or agents of the Company, any of the
Subsidiaries or any of the Company Shareholders, arising from or in
connection with any sale or conveyance of any of such Recent Former
Shareholder's or any other Person's shares of the capital stock of
the Company, including any claim, demand, cause of action, suit,
obligation or liability based upon an allegation that such Recent
Former Shareholder did not receive fair value for his or her shares
of the capital stock of the Company at the time such shares were
repurchased by the Company or any other allegation in connection
with such repurchase or in connection with the transactions
contemplated by this Agreement.
"Settlement Adjustment Amount" shall mean one-half (1/2) of
the aggregate amount actually paid by Parent or Newco to the Recent
Former Shareholders in exchange for obtaining Former Shareholder
Releases from them, provided, however, that in no event shall the
Settlement Adjustment Amount exceed $2,000,000.00.
1.5 Payments to Recent Former Shareholders. Article II of the Agreement
is amended by adding thereto, after Section 2.3 thereof, the following
additional Section 2.3A:
2.3A Payments by Parent or Newco to Recent Former
Shareholders. At the Closing, Parent or Newco shall pay to each of
the Recent Former Shareholders the settlement amount recited in the
Former Shareholder Release applicable to such Recent Former
Shareholder.
1.6 Escrow Deposit. Section 2.5(a) of the Agreement is amended to read
in its entirety as follows:
(a) Immediately after the Effective Time, the Paying Agent
shall deposit or shall cause to be deposited with the Escrow Agent
by wire transfer of
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immediately available funds, a portion of the Merger Price equal to
$12,000,000.00 less an amount equal to the Settlement Adjustment
Amount (the "Escrow Deposit"), to be held by the Escrow Agent in
accordance with Section 8.2 of this Agreement and in accordance
with the Escrow Agreement.
1.7 Post-Closing Adjustment. Section 2.6(a) of the Agreement is amended
by replacing the period at the end of clause (ii) thereof with a semi-colon and
adding thereto the following additional clauses (iii), (iv) and (v):
(iii) no reserves, accruals or other liabilities for any Former
Shareholder Claims shall be established with respect to the
Company or any Subsidiary, and the Closing Date Balance
Sheet and the Final Closing Date Balance Sheet shall contain
no such reserves, accruals or liabilities; and
(iv) no expense for any accrual or payment of any portion of any
Former Shareholder Claims, whether in settlement thereof or
otherwise, shall be allowed or taken into account in
computing the net income of the Company for the interim
period ending immediately prior to the Effective Time on the
Closing Date; and
(v) no reduction or decrease shall be made in any asset account
of the Company or any Subsidiary for any payments made to
the Recent Former Shareholders pursuant to Section 2.3A of
this Agreement to the extent any such payments are
considered or deemed to have been made by the Company or any
Subsidiary.
1.8 Approval of Supplemental Disclosures. Section 5.7(b) of the
Agreement is amended by adding the following sentence to the end thereof:
Notwithstanding the immediately preceding sentence, for purposes of
this Agreement, including without limitation Section 6.1 of this
Agreement, Parent hereby consents to all of the updates and
supplements to the Disclosure Schedule set forth in the First
Addendum to Disclosure Schedule to Agreement and Plan of
Reorganization dated as of January 28, 1997 (except for the matter
regarding the Recent Former Shareholders disclosed as new Item 7
under Section 3.10) and in the Second Addendum to Disclosure
Schedule to Agreement and Plan of Reorganization dated as of
February 7, 1997, and accordingly such updates and supplements
(except for such matter regarding the Recent Former Shareholders
disclosed as new Item 7 under Section 3.10) shall be taken into
account for purposes of Section 6.1 of this Agreement.
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1.9 Minimum Cash on Hand. Section 6.17 of the Agreement is amended to
read in its entirety as follows:
6.17 Minimum Cash on Hand. The Company and its Subsidiaries
on a consolidated basis shall have at least $18,000,000 cash and
cash equivalents on hand at Closing (net of checks issued but not
yet presented), less the amount of any payments made to the Recent
Former Shareholders pursuant to Section 2.3A of this Agreement to
the extent any such payments are considered or deemed to have been
made by the Company or any Subsidiary.
1.10 Conditions Precedent to Parent's and Newco's Obligations. Article
VI of the Agreement is amended by adding thereto the following additional
Section 6.18:
6.18 Former Shareholder Releases. Parent shall have received
an irrevocable, duly executed Former Shareholder Release from each
of the Recent Former Shareholders, the continued effectiveness of
each of which as to the applicable Recent Former Shareholder is
conditioned only upon payment to such Recent Former Shareholder at
or before the Closing of the settlement amount recited in the
Former Shareholder Release applicable to such Recent Former
Shareholder.
1.11 Conditions Precedent to Company's Obligations. Article VII of the
Agreement is amended by adding thereto the following additional Section 7.10:
7.10 Former Shareholder Releases. Parent shall have
received, and Parent shall have delivered to the Company
Representative a true and correct copy of, an irrevocable, duly
executed Former Shareholder Release from each of the Recent Former
Shareholders, the continued effectiveness of each of which as to
the applicable Recent Former Shareholder is conditioned only upon
payment to such Recent Former Shareholder at or before the Closing
of the settlement amount recited in the Former Shareholder Release
applicable to such Recent Former Shareholder.
1.12 Indemnification on Behalf of Company Shareholders -- Limitations.
Section 8.2(b) of the Agreement is amended by replacing the period at the end of
clause (xiii) thereof with "; and" and adding thereto the following additional
clause (xiv):
(xiv) for any Recent Former Shareholder Claims or Losses
attributable thereto.
1.13 Termination of Agreement. Section 9.1(b) of the Agreement is
amended by adding thereto the following additional clause (iv):
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(iv) the condition provided for in Section 6.18 of this
Agreement has not been satisfied, or waived by Parent or
Newco in writing, by March 14, 1997; or
1.14 Termination of Agreement. Section 9.1(c) of the Agreement is
amended by replacing the period at the end of clause (iv) thereof with "; or"
and adding thereto the following additional clause (v):
(v) the condition provided for in Section 7.10 of this
Agreement has not been satisfied, or waived by the Company
in writing, by March 14, 1997.
1.15 Exhibits. The Agreement is amended by adding thereto as Exhibit H
the form of Confidential Settlement Agreement and Release attached hereto as
Exhibit H, and the schedule of Exhibits is modified accordingly.
1.16 Exhibits and Schedules. Prior to Closing, the exhibits and
schedules to the Agreement shall be amended to the extent necessary to reflect
the amendments to the Agreement set forth in this Second Amendment.
2. RATIFICATION.
Except as expressly amended by this Second Amendment, all of the terms
and conditions of the Agreement shall remain in full force and effect. The
Agreement, as amended hereby, and all rights and powers created thereby and
thereunder are in all respects ratified and confirmed.
3. COUNTERPARTS.
This Second Amendment may be signed in any number of counterparts, all
of which taken together shall constitute one fully-executed agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above written.
NFC CASTINGS, INC.
/s/ NFC Castings, Inc.
By:________________________________
Title:_____________________________
NC MERGER COMPANY
/s/ NC Merger Company
By:________________________________
Title:_____________________________
NEENAH CORPORATION
/s/ Neenah Corporation
By:________________________________
Title:_____________________________
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