AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment"),
dated as of November 14, 1995, is between BOTI Holdings, Inc., a Nevada
corporation (the "Parent"), BOTI Acquisition Corp., a Nevada corporation and a
wholly owned subsidiary of the Parent (the "Purchaser"), and Big O Tires, Inc.,
a Nevada corporation (the "Company"), and amends the Agreement and Plan of
Merger dated as of July 24, 1995 (the "Agreement").
RECITALS
The Investment Committee of the Company and the respective Boards of
Directors of the Purchaser, the Parent and the Company have approved this
Amendment in order to clarify certain provisions of the Agreement.
AGREEMENT
In consideration of the premises and the mutual covenants herein
contained and for other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Parent, the Purchaser and the Company
hereby agree as follows:
Article I
All capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
Article II
Section 1.5 (a) of the Agreement shall be amended and restated to read
in its entirety as follows:
(a) Each share of the Company's Common Stock, par value $0.10
per share (the "Shares"), which is issued and outstanding
immediately prior to the Effective Time (other than (i)
Dissenting Shares (as defined below in Section 1.5(e)), (ii)
Shares held by, or which are under contract to be acquired by,
any shareholder of the Parent or of the Purchaser, (iii) Shares
held by, or which are under contract to be acquired by, the
Parent, the Purchaser, the Company or any direct or indirect
subsidiary of the Company, the Parent or the Purchaser and (iv)
shares held by the ESOP (as defined below) which are to be
converted into shares of the Parent as provided in Section
1.5(c)) shall be canceled and extinguished and be converted into
and become a right to receive a cash payment of $16.50 per Share,
without interest (which payment shall include $0.01 per share for
the redemption of the Rights as described in Section 6.2(e)).
Such cash payment shall hereinafter be referred to as the "Merger
Consideration."
Article III
Section 1.5(c) of the Agreement shall be amended and restated to read
in its entirety as follows:
(c) Each Share which is issued and outstanding immediately prior
to the Effective Time and owned by or which is under contract to
be acquired by the parties listed in clauses (ii) and (iii) in
the parenthetical contained in subsection (a) of this Section
1.5, shall be canceled and retired, and no payment shall be made
with respect thereto. Each Share which is issued and outstanding
immediately prior to the Effective Time and held by the ESOP
shall be either (i) converted into one share of the common stock
of the Parent, or (ii) canceled, extinguished and converted into
a right to receive the Merger Consideration. The number of
Shares to be converted or canceled pursuant to the preceding
sentence shall be set forth in a certificate reflecting the
number of shares in each category, which will be executed by the
ESOP Trustee and the Parent and delivered to the Company prior to
the Effective Time.
Article IV
Section 6.2(g) of the Agreement shall be amended and restated to read
in its entirety as follows:
(g) ESOP PARTICIPATION. At least 80% of the shares held by the
Company's Employee Stock Ownership Plan (the "ESOP") are to be
converted into shares of the common stock of the Parent as
provided in Section 1.5(c).
Article V
Section 1.6 of the Agreement shall be amended by inserting the
following sentence at the end of such section:
The provisions of this Section 1.6 shall be satisfied if the
Company has, prior to the Effective Time, entered into binding
agreements with the holders of all Options (other than the
Options referred to in clauses (i) and (ii) above) to cancel such
Options on the terms described above and has made provision to
deliver payment in exchange for the cancellation of such Options
within two business days after the Effective Time.
IN WITNESS WHEREOF, the Parent, the Purchaser and the Company
have caused this Agreement to be executed as of the date first written above by
their duly authorized respective officers.
PARENT: BOTI HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Its: President
PURCHASER: BOTI ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx
Its: President
COMPANY: BIG O TIRES, INC.
By: /s/ Xxxx X. Xxxxxxx
Its: Chairman
By: ___________________________
Its: ___________________________
