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EXHIBIT 2.2
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 dated as of March 16, 1998 to the Agreement and Plan of
Merger, dated as of March 4, 1998, by and among Budget Group, Inc. ("Buyer"),
BDG Corporation ("Sub"), Ryder TRS, Inc. (the "Company"), and certain other
parties (the "Merger Agreement"). Capitalized terms not otherwise defined herein
have the meanings given to them in the Merger Agreement.
WHEREAS, the parties to the Merger Agreement agreed to merge Sub with and
into the Company in accordance with the terms and conditions of the Merger
Agreement and Section 251 of the General Corporation Law of the State of
Delaware;
WHEREAS, the parties desire to amend certain provisions of the Merger
Agreement as more fully set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
agreements herein, the parties hereto agree as follows:
Section 1.1(b) of the Merger Agreement is amended and restated in its
entirety to read as follows:
"(b) an aggregate number of shares of Buyer Class A Common Stock
issuable to all such holders equal to a minimum of 1,332,909 shares (the
"Minimum Merger Shares") and a maximum of 3,605,946 shares (the "Maximum
Merger Shares") (in each case less any shares of Buyer Class A Common Stock
issued to the holders of Options pursuant to Section 3.7), with the precise
number thereof determined as set forth in Section 3.1 and subject to
adjustment as provided in Article III;"
Section 3.6(a) of the Merger Agreement is amended and restated in its
entirety to read as follows:
"(a) At the Effective Time, 1,818,430 shares of Buyer Class A Common
Stock (if the Maximum Merger Shares are issued), or 1,332,909 shares of
Buyer Class A Common Stock (if the Minimum Merger Shares are issued) (as
the case may be, the "Escrow Holdback Shares") shall be deposited in escrow
with an escrow agent mutually agreed upon by Buyer and the Company prior to
the Closing (the "Holdback Escrow Agent"), to be held and administered in
accordance with the terms and conditions of a Holdback Escrow Agreement,
substantially in the form attached hereto as Exhibit B (the "Holdback
Escrow Agreement"), against which Holdback Shares Buyer shall be entitled,
in accordance with the terms of the Holdback Escrow Agreement, to recover
Damages (as defined in the Holdback Escrow Agreement) that may be suffered
by Buyer and that are indemnifiable in accordance with the terms of the
Holdback Escrow Agreement (an "Escrow Claim Event")."
Section 3.5(b) (with respect to the heading thereto only) of the Merger
Agreement is amended to read as follows:
"(b) Determination of Warrant Shares."
The text contained in Section 3.5(b) shall not be modified hereby and shall
remain in full force and effect as written in the Merger Agreement.
Section 2.1(a) of Exhibit E to the Merger Agreement is amended and restated
in its entirety to read as follows:
"(a) As soon as practicable, but in any event no later than 15 days
after the Effective Time, Buyer shall file a "shelf" registration statement
pursuant to Rule 415 under the Securities Act (the "Registration
Statement") with respect to the Registrable Securities to be issued to the
Holders pursuant to the Merger Agreement. Buyer agrees that the
Registration Statement will cover, in the event the Minimum Merger Shares
are issued in the Merger, 1,332,909 shares of Buyer Class A Common Stock
or, in the event the Maximum Merger Shares are issued in the Merger,
3,605,946 shares of Buyer Class A Common Stock. In the event that the
number of shares of Buyer Class A Common Stock that are
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covered by the Registration Statement is less than the number of
Registrable Securities, Buyer shall, as promptly as practicable after the
issuance of Registrable Securities not covered by the Registration
Statement, file an additional "shelf" registration statement and Buyer
shall comply with all of its obligations set forth in this Exhibit E with
respect to such additional registration statement to the same extent as if
such registration statement were the Registration Statement. Buyer shall
use its commercially reasonable efforts to (i) have the Registration
Statement declared effective on or before the Target Date, and (ii) keep
the Registration Statement continuously effective from the date such
Registration Statement is declared effective until the Termination Date.
# # #
The Company represents and warrants to Buyer that this Amendment has been
duly executed and delivered by the Company, the form of this Amendment has been
approved by the Board of Directors of the Company and a majority of the holders
of Company Common Stock and no further corporate authorization on the part of
the Company is necessary to consummate the transactions contemplated by this
Amendment.
This Amendment constitutes a valid and binding agreement of the Company and
is enforceable against the Company in accordance with its terms, except to the
extent enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
Buyer represents and warrants to the Company that this Amendment has been
duly executed and delivered by Buyer and Sub and, this Amendment has been
approved by Buyer's and Sub's Board of Directors and by a majority of holders of
Sub's common stock, and no further corporate authorization on the part of Buyer
or Sub is necessary to consummate the transactions contemplated by this
Amendment.
This Amendment constitutes a valid and binding agreement of Buyer and Sub
and is enforceable against Buyer and sub in accordance with its terms, except to
the extent enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
The Merger Agreement is hereby reaffirmed in all respects and shall remain
in full force and effect in accordance with its terms except as amended or
modified by this Amendment.
This Amendment may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first written above.
BUDGET GROUP, INC.
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
Chief Executive Officer
BDG CORPORATION
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx
President
RYDER TRS, INC.
By: /s/ XXX XXXX
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Xxx Xxxx
Chairman of the Board and
Chief Executive Officer
QUESTOR PARTNERS FUND, L.P.,
By: Questor General Partner, L.P.,
its general partner
By: Questor Principals, Inc.,
its general partner
By: /s/ XXX XXXX
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Xxx Xxxx
Managing Principal
QUESTOR SIDE-BY-SIDE PARTNERS, L.P.,
By: Questor Principals, Inc.,
its general partner
By: /s/ XXX XXXX
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Xxx Xxxx
Managing Principal
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MADISON DEARBORN CAPITAL PARTNERS,
L.P.
By: Madison Dearborn Partners, L.P.,
its general partner
By: Madison Dearborn Partners, Inc.,
its general partner
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President
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