EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger ("First Amendment") between
Premier Bancorp, Inc. (hereinafter called "PREMIER"), Premier Acquisition
Corporation (hereinafter called "PAC") and BANC ONE CORPORATION (hereinafter
called "BANC ONE") is dated as of September 7, 1995.
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WITNESSETH
WHEREAS, the parties hereto have entered into an Agreement and Plan of Merger
dated as of July 19, 1995 (hereinafter, the "Merger Agreement") providing for
the merger of PREMIER into PAC, BANC ONE's acquisition of PREMIER and the
exchange of shares of BANC ONE Common Stock for the shares of PREMIER Common
Stock;
WHEREAS, the parties have determined that under applicable Louisiana law
certain rights may be available to shareholders of PREMIER as dissenting
shareholders and that it is desirable that the Merger Agreement be amended with
respect thereto.
STATEMENT OF AMENDMENT
NOW THEREFORE, the parties hereby agree that the Merger Agreement shall be and
is hereby amended as follows:
A. Section 6 of the Merger Agreement is amended to read in its entirety as
follows:
6. Liabilities upon Merger; Service of Process. The Surviving Corporation
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shall be responsible for all of the liabilities of every kind and
description of PREMIER and PAC existing as of the Effective Time.
The filing of a Certificate of Merger with the Secretary of State of the
State of Louisiana, accompanied by such other documents as are required
by the Louisiana BCL, shall operate as a consent by the Surviving
Corporation that it may be sued and served with process in the State of
Louisiana in any suit, action or proceeding for the enforcement of any
obligation or liability of PREMIER, including any amount payable to any
dissenting shareholder; as an irrevocable consent by the Surviving
Corporation to service upon and by the Louisiana Secretary of State as
agent of the Surviving Corporation to accept service of process in any
such suit, action or proceeding for the enforcement of any such
obligation or liability; and as an appointment by the Surviving
Corporation of Xxxxx X. Xxxxxx, XX whose address is 000 Xxxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxxx 00000, as agent of the Surviving Corporation for
service of process in any action, suit or proceeding to enforce any such
obligation or liability of
PREMIER, to whom the Louisiana Secretary of State may mail a copy of any
such process served upon the Louisiana Secretary of State.
B. Section 7(a)(i) of the Merger Agreement is amended to read in its entirety
as follows:
(i) Each share of PREMIER Common that is issued and outstanding immediately
prior to the Effective Time, together with any and all PREMIER Common
Stock purchase rights and related interests and rights associated with
each such share of PREMIER Common ("Rights") arising from, related to
and/or issued pursuant to the Rights Agreement dated January 18, 1989
between PREMIER and Premier Bank, N.A., as Rights Agent (the "PREMIER
Rights Plan"), except for shares of PREMIER Common and Rights related
thereto subject to the rights of a dissenting shareholder, if any,
shall, by virtue of the Merger and without any action on the part of the
holder thereof, thereupon be converted into 0.617761 share of BANC ONE
Common subject, however, to (i) the anti-dilution provisions of Section
7(e) of this Merger Agreement and (ii) provisions set forth in Section
7(c) with respect to fractional shares (the "Exchange Rate").
C. The first paragraph of Section 7(d) of the Merger Agreement is amended to
read in its entirety as follows:
(d) As soon as practicable after the Effective Time, and subject to the
provisions set forth above relating to fractional shares, BANC ONE will,
or will cause Xxxxxx Trust and Savings Bank, as Exchange Agent for BANC
ONE to, distribute to the former holders of PREMIER Common (or their
respective designees) in exchange for and upon surrender for
cancellation by such holders of a certificate or certificates formerly
representing shares of PREMIER Common and Rights issued pursuant to the
PREMIER Rights Plan, the certificate(s) for shares of BANC ONE Common in
accordance with the Exchange Rate. Each certificate formerly
representing PREMIER Common and Rights issued pursuant to the PREMIER
Rights Plan (other than certificates representing shares of PREMIER
Common subject to the rights of dissenting shareholders, if any) shall
be deemed for all purposes to evidence the ownership of the number of
shares of BANC ONE Common into which such shares have been converted
pursuant to the Exchange Rate; provided, however, that, until such
surrender of a holder's certificate or certificates formerly
representing shares of PREMIER Common and Rights issued pursuant to the
PREMIER Rights Plan, the holder thereof shall not be entitled to receive
any dividend or other payment or distribution payable to holders of BANC
ONE Common. Upon such surrender (or, in lieu of surrender, other
provisions reasonably satisfactory to BANC ONE as are made as set forth
in the next following paragraph), there shall be paid to the person
entitled thereto the aggregate amount of dividends or other payments or
distributions (in each
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case without interest) which became payable after the Effective Time, to
the extent not previously paid to such person, on the whole shares of
BANC ONE Common represented by the certificates issued upon such
surrender and exchange or in accordance with such other provisions, as
the case may be. After the Effective Time the holders of certificates
formerly representing shares of PREMIER Common and Rights issued
pursuant to the PREMIER Rights Plan shall cease to have rights with
respect to such shares and to any related Rights (except such rights, if
any, as holders of certificates representing PREMIER Common may have as
dissenting shareholders) and their sole right shall be to exchange said
certificates for shares of BANC ONE Common and any fractional share
payment in accordance with this Merger Agreement.
D. A new subsection (f) is added to Section 7 of the Merger Agreement to read
in its entirety as follows:
(f) If any shareholder of PREMIER Common who files appropriate written
objection pursuant to applicable law and thereafter votes his shares
against the Merger is entitled to dissenters' rights under applicable
law, if such shareholder perfects applicable dissenters' rights, if any,
such shareholder will be entitled to dissenters rights under the
Louisiana BCL.
E. Section 11(c) of the Merger Agreement is amended to read in its entirety as
follows:
(c) No gain or loss will be recognized to the shareholders of PREMIER on the
exchange of their shares of PREMIER Common for shares of BANC ONE Common
(disregarding for this purpose any cash received pursuant to the
exercise of statutory dissenters' rights or in lieu of fractional share
interests);
F. The first paragraph of Section 15(a)(ii) of the Merger Agreement is amended
to read in its entirety as follows:
(ii) except as hereinbelow provided, will not declare or pay any dividends
or make any distributions in any amount on its PREMIER Common in the
quarter in which the Effective Time shall occur and for which quarter
the shareholders of PREMIER Common are entitled to receive regular
quarterly dividends on the shares of BANC ONE Common into which the
shares of PREMIER Common have been converted. It is the intent of this
part (ii) to provide that, except for PREMIER shareholders who have
exercised applicable dissenters' rights and who will, as a result, not
exchange their shares of PREMIER Common for shares of BANC ONE Common,
the holders of PREMIER Common will receive either the payment of cash
dividends on their shares of PREMIER Common or the payment of cash
dividends as the holders of shares of BANC ONE Common received in
exchange for the shares of PREMIER Common for
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the calendar quarter during which the Effective Time shall occur, but
will not receive and will not become entitled to receive for the same
calendar quarter both the payment of a cash dividend as shareholders of
PREMIER and the payment of a cash dividend as the holders of the shares
of BANC ONE Common received in exchange for the shares of PREMIER
Common. In the event that PREMIER does not declare and pay cash
dividends on its PREMIER Common in a particular calendar quarter
because of PREMIER's reasonable expectation that the Effective Time
would occur in said calendar quarter wherein the holders of PREMIER
Common would have become entitled to receive cash dividends for such
calendar quarter on the shares of BANC ONE Common to have been
exchanged for the shares of PREMIER Common, and the Effective Time does
not in fact occur effective in said calendar quarter, then, as a result
thereof, PREMIER shall be entitled to declare and pay a cash dividend
(within the limitations of this Section 15) on said shares of PREMIER
Common for said calendar quarter as soon as reasonably practicable.
Except as amended by this First Amendment, the Merger Agreement and the exhibits
thereto remain in full force and effect without alteration or change. All
references to "Merger Agreement" in the Merger Agreement as originally executed
shall mean the Merger Agreement as amended by this First Amendment.
IN WITNESS WHEREOF, the parties hereto have set their hands to this First
Amendment on the date and in the year first above written.
BANC ONE CORPORATION
ATTEST:
By:/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx Senior Executive Vice President
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Premier Bancorp, Inc.
ATTEST:
By:/s/ G. Xxx Xxxxxxx
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G. Xxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx, XX Chief Executive Officer
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Premier Acquisition Corporation
ATTEST:
By:/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx Chairman
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