Exhibit 2.1
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of September 9, 2003, is made and entered into by and
among The Xxxxx-Xxxxxxx Stores Corp., an Ohio corporation (the "Company"),
Xxxxxx Holdings, Inc., a Delaware corporation ("Parent"), and Xxxxxx Sub, Inc.,
an Ohio corporation ("Sub"), to amend that certain Agreement and Plan of Merger,
dated as of June 25, 2003, by and among the Company, Parent and Sub (the "Merger
Agreement"). Defined terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Merger Agreement.
WHEREAS, pursuant to Section 5.02, the parties have negotiated certain
amendments to the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
(a) Merger Price Adjustment. The definition of "Merger Price" set forth
in Section 2.01(c)(i) of the Merger Agreement is hereby amended to be "$7.05 in
cash, without any interest thereon" instead of "$6.00 in cash, without any
interest thereon".
(b) Entire Agreement. Except as amended by this Amendment, the Merger
Agreement remains in full force and effect. This Amendment, together with the
Merger Agreement, supersedes all prior discussions and agreements among the
parties hereto with respect to the subject matter hereof and contains, together
with the Confidentiality Agreement, the sole and entire agreement among the
parties hereto with respect to the subject matter hereof. As of the date hereof,
all references to the Merger Agreement shall be deemed to refer to the Merger
Agreement as amended by this Amendment.
(c) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio applicable to a contract executed
and performed in such State, notwithstanding any conflict of law provisions to
the contrary.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[signature page follows on the next page]
IN WITNESS WHEREOF, each party hereto has caused this Amendment to be
signed by its officer thereunto duly authorized as of the date first above
written.
THE XXXXX-XXXXXXX STORES CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board
XXXXXX HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXXX SUB, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
