FIRST AMENDMENT TO MERGER AGREEMENT
Exhibit 99.3
Execution
Version
FIRST
AMENDMENT TO MERGER AGREEMENT
THIS
FIRST AMENDMENT TO MERGER AGREEMENT (this “Amendment”)
is made and entered into as of December 22, 2006, by and among XxXxxxxx
Corporation, a West Virginia corporation (the “Company”),
McJ Holding Corporation, a Delaware corporation (“Parent”),
and Hg Acquisition Corp., a West Virginia corporation and a wholly owned
subsidiary of Parent (“Merger
Sub”).
W
I T N E S S E T H:
WHEREAS,
the Company, Parent and Merger Sub are parties to that certain Merger Agreement
dated as of December 4, 2006 (the “Agreement”);
and
WHEREAS,
the Company, Parent and Merger Sub desire to amend the Agreement, as hereinafter
more particularly set forth;
NOW,
THEREFORE, for and in consideration of the premises, the mutual covenants
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
1. All
capitalized terms used in this Amendment which are not otherwise defined herein
are used with the same meaning attributed to such capitalized terms in the
Agreement.
2. The sixth
sentence of Section 5.2(e) of the Agreement is hereby amended and restated in
its entirety as follows:
“As of
the date hereof, no event has occurred which, with or without notice, lapse of
time or both, would constitute a default on the part of Parent or Merger Sub
under any of the Financing Commitments, and as of the date hereof Parent has no
reason to believe that any of the conditions to the Financing contemplated by
the Financing Commitments will not be satisfied or that the Financing will not
be made available to Parent on the Closing Date.”
3. The
fourth sentence of Section 6.13 of the Agreement is hereby amended and restated
in its entirety as follows:
“Following
the sale of any Non-Core Assets, the Surviving Corporation shall promptly remit
to each record holder of Shares immediately prior to the Effective Time (other
than Excluded Shares) an amount equal to the product obtained by multiplying (x)
95% of the Net Proceeds (as defined below) of such sale less 40% of the taxable
gain therefrom by (y) a fraction, the numerator of which is equal to the total
number of Shares (other than Excluded Shares referred to in subsection (x) and
(y) of the definition of Excluded Shares in Section 4.1(a)(i), but including
Contribution Shares) held by such record holder immediately prior to the
Effective Time and the denominator of which is equal to the total number of
Shares (other than Excluded Shares referred to in subsection (x) and (y) of the
definition of Excluded Shares in Section 4.1(a)(i), but including Contribution
Shares) outstanding immediately prior to the Effective Time; provided, that the
Surviving Corporation shall not be required to make payments pursuant to this
Section 6.13 more often than semi-annually.”
4. Annex A
to the Agreement is hereby amended to remove the definition of “Cashed-Out
Shares”.
5. This
Amendment may be executed in two or more separate counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
6. Except as
expressly set forth herein, the parties make no other amendment, alteration or
modification of the Agreement nor do they, nor does any of them, by executing
this Amendment, waive any provision of the Agreement or any right that they or
it may have thereunder. Except as expressly set forth herein, the Agreement
shall otherwise remain in full force and effect.
[The next
page is the signature page]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
XXXXXXXX
CORPORATION
|
By
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/s/ X.X. Xxxxxx III | ||
Name:
X.X. Xxxxxx III
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|||
Title:
President and Chief Executive Officer
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McJ
HOLDING CORPORATION
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By
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/s/ Xxxx Xxxxxx | ||
Name:
Xxxx Xxxxxx
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|||
Title:
Vice President & Treasurer
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Hg ACQUISITION
CORP.
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By
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/s/ Xxxx Xxxxxx | ||
Name:
Xxxx Xxxxxx
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|||
Title:
Vice President & Treasurer
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Signature
Page for First Amendment