Exhibit 2.3
SECOND AMENDMENT TO AGREEMENT AND
PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT
AND PLAN OF MERGER (this “ Amendment ”) is made
as of this 31st day of January 2005, by and among Gregg Investment
Corporation, LLC, a Delaware limited liability company (“
Investor ”), GIC Corporation, an Indiana corporation
(the “ Merger Sub ”), Gregg Appliances, Inc., an
Indiana corporation (the “ Company ”), and Jerry
W. Throgmartin, an individual residing in the State of Indiana, in
his capacity as Sellers’ Representative. Capitalized terms
used in this Amendment and not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement (as defined
below).
RECITALS
WHEREAS, Investor, Merger Sub, the
Company and the Sellers are parties to that certain Agreement and
Plan of Merger, dated as of October 19, 2004, as amended by that
certain First Amendment To Agreement and Plan of Merger dated
January 13, 2005 (the “ Merger Agreement ”),
providing for the merger of Merger Sub with and into the Company on
the terms and subject to the conditions set forth therein;
and
WHEREAS, the parties hereto desire
to amend the Merger Agreement in accordance with Section 12.10
thereof.
AGREEMENT
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendments to Merger Agreement
.
1.1 January 31, 2005 Calculation
Date .
(a) Section 2.01(b) of the
Merger Agreement is hereby amended to read in its entirety as
follows: “(b) plus an amount equal to the Cash on
January 31, 2005;”.
(b) Section 2.01(c) of the
Merger Agreement is hereby amended to read in its entirety as
follows: “(c) less the amount of Debt outstanding on
January 31, 2005;”.
(c) The first sentence of Section
2.03(a) of the Merger Agreement is hereby amended to read in
its entirety as follows:
No later than two (2) Business Days
prior to the Closing, the Sellers’ Representative shall
deliver to Investor a statement (the “ Preliminary Working
Capital Statement ”) setting forth the Net Working
Capital as of January 31, 2005.
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(d) The first sentence of Section
2.03(b) of the Merger Agreement is hereby amended to read in
its entirety as follows:
As soon as practicable after the
Closing but no later than sixty (60) Business Days after the
Closing Date, Investor shall deliver to the Sellers’
Representative a final calculation of the Net Working Capital as of
January 31, 2005 (the “ Final Working Capital
Statement ”).
(e) The first sentence of Section
2.03(c) of the Merger Agreement is hereby amended to read in
its entirety as follows:
If the Sellers’ Representative
disagrees with any item set forth on the Final Working Capital
Statement or the calculation of Net Working Capital based thereon,
the parties shall work together to resolve any such disagreements,
including, but not limited to, providing each other with such
financial information regarding the Company as of January 31, 2005
as each may reasonably request.
(f) A new Section 6.23 is
hereby added to the Merger Agreement, which Section shall read in
its entirety as follows:
Section 6.23.
Restriction on Cash
Disbursements . The Sellers covenant and agree with Investor
and Merger Sub that they shall not, and shall cause the Company and
each of its subsidiaries not to, make any disbursement of Cash from
any bank account of the Company or any of its subsidiaries, except
to pay ordinary course of business expenses consistent with past
practice, during the period beginning on January 31, 2005 and
continuing through the end of the Closing Date, and except for
disbursements made on the Closing Date in connection with the
Closing Payment, stock appreciation rights, the stock option held
by Dennis L. May, Debt owed to National City Bank of Indiana, fees
payable to KeyBanc Capital Markets or its Affiliates, fees payable
to Freeman Spogli & Co. V, L.P., fees payable to the Escrow
Agent and fees payable in connection with the debt financing
described in the Wachovia Commitment Letter.
1.2 Delivery of Purchase Price
Allocation .
(a) The final sentence of Section
2.04(a) of the Merger Agreement is hereby amended to read in
its entirety as follows:
Investor shall prepare the final
allocation in accordance with Schedule 2.04(a) as of January
31, 2005, which final allocation shall be delivered no later than
fifteen (15) days after the Final Working Capital Statement has
been deemed finalized, but in any event thirty (30) days prior to
the date on which the Form 8023 refer
