1
EXHIBIT 2.3
AMENDMENT NO. 2
TO THE
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 dated as of April 22, 1998 (this "Amendment"), to
the Agreement and Plan of Merger dated as of March 4, 1998, as amended by
Amendment No. 1 to the Agreement and Plan of Merger dated April 17, 1998 (the
"Agreement"), is entered into by and between EVI, Inc., a Delaware corporation
("EVI"), and Weatherford Enterra, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, EVI and the Company have entered into the Agreement, pursuant
to which the Company will merge with and into EVI (the "Merger"), upon the terms
and subject to the conditions of the Agreement, and each issued and outstanding
share of the Company's common stock, $0.10 par value, not owned by the Company,
EVI or any wholly owned subsidiary of the Company or EVI will be converted into
.95 of a share of EVI's common stock, $1.00 par value;
WHEREAS, EVI and the Company wish to amend the Agreement as set forth
in this Amendment; and
WHEREAS, capitalized terms used herein but otherwise not defined herein
shall have the meanings given to such terms in the Agreement;
NOW, THEREFORE, in consideration of the premises, the representations,
warranties and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Section 1.5 of the Agreement is hereby amended in its entirety to
read as follows:
"SECTION 1.5. Directors.
(a) The number of directors of the Surviving Corporation shall
be eight, of which five shall be named by EVI and three shall be named
by the Company.
(b) The directors to be named by the Company have been
identified in writing to EVI. If, prior to the Effective Time of the
Merger, any of the Company's designees to the Board of Directors of the
Surviving Corporation shall decline or be unable to serve as a director
of the Surviving Corporation, the
2
Company's other designees shall designate another person to serve in
such person's stead, subject to the approval of a majority of EVI's
Board of Directors at that time, which approval shall not be
unreasonably withheld.
(c) The directors to be named by EVI have been identified in
writing to the Company. If, prior to the Effective Time of the Merger,
any of EVI's designees to the Board of Directors of the Surviving
Corporation shall decline or be unable to serve as a director of the
Surviving Corporation, the Board of Directors of EVI shall designate
another person to serve in such person's stead.
(d) The directors to be named by the Company shall be from the
existing directors of the Company and shall be required to be approved
by EVI. The directors of the Surviving Corporation shall hold office in
accordance with the Certificate of Incorporation and By-laws of the
Surviving Corporation from the Effective Time of the Merger until the
earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
(e) Subject to the fiduciary duties of the Board of Directors
of the Surviving Corporation, and the willingness of such persons to
serve as directors of the Surviving Corporation, the Board of Directors
of the Surviving Corporation shall submit as nominees for election to
the Board of Directors of the Surviving Corporation at the Annual
Meetings of Stockholders of the Surviving Corporation to be held
through the year 2000 the initial directors of the Surviving
Corporation as provided for herein."
2. Except as otherwise modified and amended by this Amendment, all
other terms and provisions of the Agreement shall remain in full force and
effect.
3. This Amendment may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
constitute the same instrument.
4. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
-2-
3
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed and delivered on its behalf as of the date first above
written.
EVI, INC.
By: /s/ Bernard J. Duroc-Danner
--------------------------------------------
Bernard J. Duroc-Danner
President and Chief Executive Officer
WEATHERFORD ENTERRA, INC.
By: /s/ Thomas R. Bates, Jr.
--------------------------------------------
Thomas R. Bates, Jr.
President and Chief Executive Officer
-3-