Exhibit 2.3
FIRST AMENDMENT TO EXCHANGE AND MERGER AGREEMENT
This First Amendment, dated as of November 1, 1996 ("First Amendment"),
to the Exchange and Merger Agreement dated as of May 31, 1996 (the "Agreement")
is made and entered into by and among each of the Persons listed under the
heading "Exchanging Group" on the signature pages hereto ("Exchanging Group"),
▇▇▇▇▇ Crown and Company (Not Incorporated), an Illinois limited partnership
("HCNI"), and 360 Communications Company, a Delaware corporation ("360 ").
RECITALS
A. Exchanging Group, HCNI and 360 are parties to the Agreement.
B. Exchanging Group, HCNI and 360 desire to amend the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Exchanging Group, HCNI and 360 agree as follows:
AGREEMENT
1. The definition of "Non-Retained Assets" set forth in Section 1 of the
Agreement is hereby amended by: (i) deleting the words "(i) any accounts
receivable arising in connection with the Swaps and (ii)" in subsection (c)
thereof, (ii) deleting the word "and" at the end of subsection (j) thereof,
(iii) deleting the period at the end of subsection (k) thereof, and (iv)
inserting the following clause immediately after subsection (k) thereof: "(l)
any rights of Subject Entities under the Swaps and (m) any rights of ICN to
participate in the lottery for the A-side cellular licenses for Florida Rural
Service Area Number 11 and Minnesota Rural Service Area Number 11".
2. The definition of "Non-Retained Liabilities" set forth in Section 1 of the
Agreement is hereby amended by:(i) deleting the word "or" at the end of
subsection (n) thereof, (ii) deleting the period at the end of subsection (o)
thereof and replacing it with the following: "; and", and (iii) inserting the
following clause immediately after subsection (o) thereof: "(p) any liability,
obligation or commitment with respect to the Swaps."
3. The definition of "Retained Liabilities" set forth in Section 1 of the
Agreement is hereby amended by: (i) deleting the words ", including liabilities
under the Swaps, provided the Swaps are assigned to 360 and the required
consents for such assignment are obtained," in subsection (a) thereof, and (ii)
deleting "(o)" in subsection (a) thereof and replacing it with "(p)".
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4. Section 1 of the Agreement is hereby amended by inserting the following
definitions in appropriate alphabetical order:
""Specified Party" means (i) with respect to the Swap identified as
item no.1 on Schedule 1.6, ICNP; (ii) with respect to the Swap
identified as item no. 2 on Schedule 1.6, CCI; (iii) with respect to
the Swap identified as item no. 3 on Schedule 1.6, ICNP; (iv) with
respect to the Swap identified as item no. 4 on Schedule 1.6, CHF
Industries, Inc. n/k/a Habco, Inc.; (v) with respect to the Swap
identified as item no.5 on Schedule 1.6, ICN; and (vi) with respect to
the Swap identified as item no. 6 on Schedule 1.6, ICN.
"Specified Swaps" means (i) the Swap identified as item no. 2 on
Schedule 1.6 and (ii) the Swap identified as item no.4 on Schedule 1.6.
"Swap Differential" has the meaning set forth in Section 2.12.
"Value" means the value of the applicable Swap to the applicable
Specified Party as of 11:00 a.m., New York time, on the day which is
two business days immediately preceding the Closing Date, as calculated
by The First National Bank of Chicago in accordance with GAAP using its
customary "▇▇▇▇ to market" procedures."
5. Section 2.1 of the Agreement is hereby amended by (i) deleting the word "and"
immediately after the number "2.7" in the third line of the first sentence
thereof and replacing it with a comma, (ii) inserting the following clause
immediately after the number "2.11" in the third line of the first sentence
thereof: "and 2.12" and (iii) deleting the third, fourth and fifth sentences
thereof.
6. Section 2.6 of the Agreement is hereby amended by (i) deleting the word "and"
immediately after the number "2.7" in the third line of the first sentence
thereof and replacing it with a comma and (ii) inserting the following clause
immediately after the number "2.11" in the third line of the first sentence
thereof: "and 2.12 (together with the payments set forth in Section 12.12)".
7. The Agreement is hereby amended by inserting a new Section 2.12 to read
as follows:
"2.12. Swap Differential. The amount obtained by subtracting (a) the
product of one-half multiplied by the sum of the Value of each of the
Specified Swaps from (b) the sum of the Value of each of the Swaps is
referred to herein as the "Swap Differential." If the Swap Differential
exceeds zero, Exchanging Group shall jointly and severally pay an
amount equal to the Swap Differential to 360 at Closing (a) by wire
transfer of immediately available funds to an account or accounts
designated by 360 in writing prior to Closing or (b) in such other
consideration as shall be mutually agreeable to the parties. If the
Swap Differential exceeds zero, the amount of the Swap Differential
shall be a reduction of the consideration received by Exchanging Group
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pursuant to the terms and conditions of this Agreement, and the parties
shall allocate such reduction in consideration to the partnership
interests of Cell Plus and the capital stock of ICN and CCTS as
follows: 30.06% to ICN, 19.26% to Cell Plus and 50.68% to CCTS. If the
Swap Differential is negative, 360 shall pay an amount equal to the
absolute value of the Swap Differential to Exchanging Group (or such
other parties as are designated in writing by Exchanging Group prior to
Closing) at Closing (a) by wire transfer of immediately available funds
to an account or accounts designated in writing by Exchanging Group
prior to Closing or (b) in such other consideration as shall be
mutually agreeable to the parties. If the Swap Differential is
negative, the absolute value of the Swap Differential shall be
additional consideration received by Exchanging Group pursuant to the
terms and conditions of this Agreement, and the parties shall allocate
such additional consideration to the partnership interests of Cell Plus
and the capital stock of ICN and CCTS as follows: 30.06% to ICN, 19.26%
to Cell Plus and 50.68% to CCTS. In either case, the amount of
consideration for Cell Plus shall be deemed a reduction or increase, as
the case may be, of the goodwill of Cell Plus."
8. Section 3.34 of the Agreement is hereby amended by inserting the following
immediately after the last sentence thereof: "Exchanging Group is acquiring the
360 Shares solely for the purpose of investment as defined in 16 CFR ss.
801.1(i)(1), which provides as follows:
Voting securities are held or acquired `solely for the purpose of
investment' if the person holding or acquiring such voting securities
has no intention of participating in the formulation, determination or
direction of the basic business decisions of the issuer."
9. Section 9.4(n) of the Agreement is hereby amended by deleting such
Section in its entirety and replacing it with the following:
"(n) Evidence of cancellation of, or assignment to and assumption by
ICNP of, those Swaps to which any of the Subject Entities is a party
(which shall include the consent of the other parties to such
agreements, if necessary)."
10. Section 9.5(i) of the Agreement is hereby amended by deleting the
following words: "and the Swaps (if all requisite consents are obtained in
accordance with Section 2.1 hereof)".
11. Section 11.1(b) of the Agreement is hereby amended by deleting the
fourth sentence thereof and substituting the following sentence in lieu thereof:
"Exchanging Group agrees to include Section 754 elections with these final
Federal returns if 360 so directs."
12. Except as expressly modified hereby, the terms and provisions of the
Agreement shall continue in full force and effect, and, as so amended, the
Agreement is hereby ratified and confirmed. Whenever the Agreement or any of the
agreements, instruments or other documents executed and delivered in connection
therewith refer to the Agreement, all such references shall be deemed to be to
the Agreement as modified hereby.
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13. This First Amendment and the legal relations among the parties hereto shall
be governed by and construed in accordance with the laws of the State of
Illinois, and any litigation concerning this First Amendment or the transactions
contemplated hereby or any other matters relating hereto shall be cited in a
court of competent jurisdiction located in ▇▇▇▇ County, Illinois.
14. This First Amendment may be executed in one or more counterparts, each of
which shall be considered an original, but all of which together shall
constitute the same instrument.
[The balance of this page is intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
First Amendment as of the date first above written.
EXCHANGING GROUP:
INDEPENDENT CELLULAR NETWORK PARTNERS
By: ▇▇▇▇▇ CROWN AND COMPANY (NOT INCORPORATED)
By:
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A General Partner
By: INDEPENDENT CELLULAR NETWORK INVESTORS
By:
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Not Personally
but Solely as Trustee of the Trusts that
are Partners
CC INDUSTRIES, INC.
By:
----------------------
Its: ----------------------
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
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CELLULAR PLUS, L.P.
By: QUALITY CELLULAR PLUS COMMUNICATIONS, INC.
By:
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
OHIO CELLULAR RSA, L.P.
By: QUALITY CELLULAR COMMUNICATIONS OF OHIO, INC.
By:
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
OHIO RSA CORPORATION
By:
------------------
Its:
------------------
QUALITY CELLULAR COMMUNICATIONS OF OHIO, INC.
By:
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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QUALITY CELLULAR PLUS COMMUNICATIONS, INC.
By:
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, President
C-PLUS, INC.
By:
------------------------
Its:
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360 :
360 COMMUNICATIONS COMPANY
By:
------------------------
Its:
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▇▇▇▇▇ CROWN AND COMPANY (NOT INCORPORATED)
By:
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A General Partner
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