Exhibit 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
dated November __, 2000 (this "Amendment"), among CAPITAL SENIOR LIVING
CORPORATION, a Delaware corporation ("CSLC"); CAPITAL SENIOR LIVING ACQUISITION,
LLC, a Delaware limited liability company, all of the outstanding membership
interests in which are wholly-owned by CSLC ("Sub"); and ILM II SENIOR LIVING,
INC., a Virginia finite-life corporation (the "Company").
W I T N E S S E T H:
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WHEREAS, CSLC, Sub and the Company entered into an Amended and Restated
Agreement and Plan of Merger dated October 19, 1999, as amended by the First
Amendment thereto dated April 18, 2000 (the "Merger Agreement");
WHEREAS, at a special meeting of the holders of the Company's Common
Stock convened on June 22, 2000, the holders of not less than 66-2/3% of such
outstanding common stock duly approved the Merger Agreement and the transactions
contemplated thereby;
WHEREAS, the parties hereto acknowledge that the Merger was not
consummated on or prior to September 30, 2000 and the non-satisfaction of the
condition set forth in Section 6.3(d) of such Merger Agreement;
WHEREAS, pursuant to Section 7.3 and Section 7.4(a) of the Merger
Agreement, the parties to the Merger Agreement desire to amend and extend
certain terms thereof as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual premises and the
representations, warranties, agreements and covenants, herein contained, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Subject to any approval by the holders of the Company's Common Stock
or CSLC's Common Stock required by applicable law, the Merger
Agreement is hereby amended as follows:
(a) the termination fee payable to CSLC upon the terms and
subject to the conditions prescribed by Section 5.6(b) of
the Merger Agreement is hereby amended by deleting in such
Section 5.6(b), each time it appears, the number
"$1,858,200" and, in each instance, inserting in lieu and
stead thereof, the number "$1,000,000";
<PAGE>
(b) Section 7.1(d) of the Merger Agreement is hereby amended by
deleting the provisions thereof in their entirety and
inserting in lieu and stead thereof:
"(d) by either CSLC or the Company, if the Merger
shall not have been consummated at or prior to
5:00 p.m., Eastern time, on March 31, 2001.";
(c) Section 4.1(b) is hereby amended by the addition at the end
thereof of the following sentence:
"Notwithstanding anything to the contrary contained in this
Section 4.1(b) or elsewhere in this Agreement, the Company
shall be permitted at any time to distribute (and such
distribution shall not be construed as a breach by the
Company of any provision of this Agreement) to its
stockholders all or any portion of any proceeds received
from CSLC from the sale of the Santa Barbara Property (as
that term is defined in Section 5.10(d) hereof), provided
that any such distribution shall be considered a partial
payment of the Merger Consideration hereunder and shall be
treated as a return of invested capital which reduces the
original issue price per share for purposes of calculating
the ordinary cash dividend limit of 8.5% of original issue
price per share set forth in this Section 4.1(b)."
(d) All references to the Merger Agreement shall hereafter refer
to the Merger Agreement as amended by this Amendment.
2. Except as amended in this Amendment, the Merger Agreement remains in
full force and effect. All capitalized terms used in this Amendment
which are not otherwise defined in this Amendment shall be as defined
in the Merger Agreement. Unless otherwise expressly stated herein,
nothing contained in this Amendment shall be deemed to constitute a
waiver by any party hereto of any of the provisions contained in the
Merger Agreement, or a waiver of any remedies of the parties in
respect of the past or future breach or violation thereof, including
without limitation, the provisions of Section 5.6(e) of the Merger
Agreement. All remedies hereunder and under the Merger Agreement are
cumulative and not exclusive of any other remedies provided by law or
in equity.
3. This Amendment may be executed in counterparts, all of which, when
taken together, constitute but one and the same original agreement.
<PAGE>
IN WITNESS WHEREOF, CSLC, Sub, and the Company have caused this
Amendment to be executed and delivered by their respective officers thereunto
duly authorized all on this 28th day of November, 2000.
CAPITAL SENIOR LIVING CORPORATION
/s/ James A. Stroud
By: ------------------------------------
Name: James A. Stroud
Title: Chairman of the Company
CAPITAL SENIOR LIVING ACQUISITION, LLC
/s/ Lawrence A. Cohen
By: -------------------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
ILM II SENIOR LIVING, INC.
/s/ William Sharman, Jr.
By: -------------------------------------
Name: J. William Sharman, Jr.
Title: Chairman of the Board of Directors,
President and Chief Executive Officer
