EXHIBIT 2.3
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of
February 23, 1996 ("Second Amendment"), is made by and among Fairchild
Industries, Inc., a Delaware corporation ("Fairchild"), RHI Holdings, Inc., a
Delaware corporation ("RHI"), The Fairchild Corporation, a Delaware corporation
("TFC"), and Shared Technologies Inc., a Delaware corporation ("Shared
Technologies"), amending certain provisions of the Agreement and Plan of Merger
dated as of November 9, 1995, as amended by the First Amendment to the Agreement
and Plan of Merger dated as of February 2, 1996, including the exhibits and
schedules thereto (the "Merger Agreement") by and among Fairchild, RHI, TFC and
Shared Technologies. Terms not otherwise defined herein which are defined in the
Merger Agreement shall have the same respective meanings herein as therein.
WHEREAS, Fairchild, RHI, TFC and Shared Technologies have agreed to
modify certain terms and conditions of the Merger Agreement as specifically set
forth in this Second Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
AMENDMENTS TO MERGER AGREEMENT
1.1 The following shall be added as a new final paragraph to Schedule
3.1(b) to the Merger Agreement, "Summary of Terms of Special Preferred Stock":
"The terms of the Special Preferred Stock will provide, or Fairchild,
RHI and Shared Technologies shall enter into an agreement giving,
Shared Technologies the option to extend the final maturity of the
Special Preferred Stock from March 31, 2007, to March 31, 2008. If such
option is exercised, Shared Technologies will pay a dividend to the
holders of the Special Preferred Stock at the same rate payable on the
Senior Discount Notes due 2006 to be issued by a subsidiary of the
Surviving Corporation in connection with the Merger, calculated on the
outstanding liquidation preference of the Special Preferred Stock. Such
dividend shall accrue from March 31, 2007, and be payable quarterly
beginning June 30, 2007."
1.2 Section 6.7(a) of the Merger Agreement is amended by adding "(the
'Closing Date Balance Sheet')," after the words "Effective Date" on the last
line of such section, such that such line reads as follows:
"......gies on the Effective Date (the "Closing Date Balance Sheet"),
is at least $80,000,000);........ ."
1.3 Section 6.7(b) of the Merger Agreement is amended in its entirety
to read as follows:
"(b) except as contemplated by Schedule 9.1 and except for the
assignment to RHI by Fairchild of Fairchild's receivables (the
"Permitted Receivables Assignment"), in an amount of $9,000,000,
there has not been any direct or indirect redemption, purchase
or other acquisition of any shares of capital stock of Fairchild
or any of its subsidiaries, or any declaration, setting aside or
payment of any dividend or other distribution by Fairchild or
any of its subsidiaries in respect of their capital stock;
provided that the Permitted Receivables Assignment shall not
reduce the net worth of Fairchild to less than $80,000,000.
Notwithstanding the foregoing, if the Effective Time shall not
have occurred on or prior to March 15, 1996, the amount of the
Permitted Receivables Assignment shall be increased to the
maximum amount which would not cause the net worth of Fairchild,
as evidenced by the Closing Date Balance Sheet, to be less than
$80,000,000. Within 90 days of the Closing Date, Arthur
Andersen, L.L.P. will prepare and deliver to the parties an
audited balance sheet of Fairchild as of the Closing Date (the
"Audited Balance Sheet"). In the event that the net worth of
Fairchild, as shown on the Audited Balance Sheet, (x) is less
than $80,000,000, Fairchild shall pay to Shared Technologies an
amount in cash equal to such difference or (y) is more than
$80,000,000, Shared Technologies shall pay to Fairchild an
amount in cash equal to such difference; provided that no such
cash payment, when taken together with the amount of receivables
assigned to RHI by Fairchild pursuant to this paragraph, shall
be required in an amount greater than the amount of the
Permitted Receivables Assignment."
1.4 The following shall be added as a new Section 8.12 of the Merger
Agreement:
"8.12 Post-Merger Sale of Shared Technologies Cellular, Inc. RHI agrees
that if, within 150 days of the Effective Time, the Surviving
Corporation shall receive cash proceeds from the sale of its interest,
as of this date, in STCI, then RHI shall contribute to the Surviving
Corporation, a sum equal to 40% of such cash proceeds received by the
Surviving Corporation, up to a maximum contribution of $1,600,000."
1.5 Section 10.1(c) of the Merger Agreement is hereby amended by
deleting the date "March 8, 1996," and inserting the date "March 15, 1996," in
lieu thereof.
1.6 Section 10.1(d) shall be amended by deleting the words "..., at the
Special Meeting of (including any adjournment thereof)," and adding at the end
of such section the words "on or before March 4, 1996". ARTICLE II
AMENDMENTS TO THE TAX SHARING AGREEMENT
(EXHIBIT E)
2.1 The parties hereto agree to amend The Tax Sharing Agreement as set
forth as Exhibit E to the Merger Agreement to provide for the following
language:
(i) Notwithstanding any other representation in the Merger Agreement or
in the Tax Sharing Agreement, TFC and RHI make no representation or warranty as
to (i) the amount of any net operating loss and tax credits of the TFC Group
allocable to FII or VSI at the Effective Date as a result of the operations of
FII and VSI prior to the Effective Date; and (ii) the amount of any reduction in
tax payable by Shared Technologies due to utilization of any net operating loss
or tax credit of the TFC Group allocable to FII and VSI as a result of the
operations of FII and VSI prior to the Effective Date.
(ii) Notwithstanding any other provision of the Tax Sharing Agreement,
Shared Technologies shall not share with TFC and RHI any reduction in the tax
payment of Shared Technologies as a result of Shared Technologies utilizing any
net operating losses or tax credits of the TFC Group allocable to FII or VSI at
the Effective Date or as a result of operations of FII and VSI prior to the
Effective Date.
ARTICLE III
PROVISIONS OF GENERAL APPLICATION
3.1 Except as otherwise expressly provided by this Second Amendment,
all of the terms, conditions and provisions to the Merger Agreement remain
unaltered. The Merger Agreement and this Second Amendment shall be read and
construed as one agreement.
3.2 If any of the terms of this Second Amendment shall conflict in any
respect with any of the terms of the Merger Agreement, the terms of this Second
Amendment shall be controlling.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their duly authorized officers, all as of the day
and year first above written.
SHARED TECHNOLOGIES INC. THE FAIRCHILD CORPORATION
By:/s/Anthony D. Autorino By:/s/Donald E. Miller
Anthony D. Autorino Donald E. Miller
Chief Executive Officer Senior Vice President
FAIRCHILD INDUSTRIES, INC. RHI HOLDINGS, INC.
By:/s/Donald E. Miller By:/s/Donald E. Miller
Donald E. Miller Donald E. Miller
Vice President Vice President
ACCEPTED AND AGREED TO BY:
FAIRCHILD HOLDING CORP.
By:/s/Donald E. Miller
Donald E. Miller
Vice President