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 28, 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:
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";
(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:
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"(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.
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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
By: /s/ James A. Stroud
------------------------------------
Name: James A. Stroud
Title: Chairman of the Company
CAPITAL SENIOR LIVING ACQUISITION, LLC
By: /s/ Lawrence A. Cohen
------------------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
ILM II SENIOR LIVING, INC.
By: /s/ J. William Sharman, Jr.
------------------------------------
Name: J. William Sharman, Jr.
Title: Chairman of the Board of Directors,
President and Chief Executive Officer
