EXHIBIT 2.2
EXHIBIT 2.2
AMENDMENT dated as of January 20, 1997,
to the AGREEMENT AND PLAN OF REORGANIZATION
dated as of January 14, 1997 (the "Merger
Agreement"), among XXXXX PLASTICS CORPORATION,
a Delaware corporation, PACKERWARE ACQUISITION
CORPORATION, a Kansas corporation, PACKERWARE
CORPORATION, a Kansas corporation, and the
SHAREHOLDERS (as defined therein).
The parties desire to amend the Merger Agreement to accomplish the
following: (i) to correctly reflect the minimum per share consideration for
each Merger Share prior to participation of the Allocated Shares in the
Underpayment Amount, if any, (ii) to revise the description of the Stipulated
Debt, (iii) to clarify that the full amount of consideration payable to the
Unallocated Shares will be paid to Boatmen's under Section 2.3, and (iv) to
correct certain cross-references for definitions set forth in ANNEX I to the
Merger Agreement.
ACCORDINGLY, in consideration of the mutual agreements contained in
this Amendment and in the Subscription Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(i) All capitalized terms used herein and not otherwise defined
herein shall have the meaning ascribed to them in the Merger Agreement.
(ii) Section 2.1 of the Merger Agreement is hereby amended as
follows:
(A) by inserting the following at the end of the definition of
Shareholders' Expenses:
"; it being understood and agreed that the amount of $600,000
payable by the Surviving Corporation pursuant to Section 10.8
constitutes Shareholders Expenses"; and
(B) by inserting the following at the end of the definition of
Stipulated Debt:
"; it being understood and agreed that the first 750,000 of the
aggregate amount of debt-in-transit and checks-in-float shall
constitute accounts payable and the remainder shall constitute
Stipulated Debt as defined herein".
(iii) Section 2.3 of the Merger Agreement is hereby amended by
inserting "(which portion equals the product of $18.20 and the Unallocated ESOP
Share Number)" immediately after "that portion of the Closing ESOP
Consideration attributable to the Unallocated Shares".
(iv) Section 3.1 of the Merger Agreement is hereby amended by
inserting the following phrase at the end thereof "(it being understood and
agreed that the first 750,000 of the aggregate amount of debt-in-transit and
checks-in-float shall constitute accounts payable, and the remainder shall
constitute debt)".
(v) Section 3.3(a) of the Merger Agreement is hereby amended as
follows:
(A) by inserting ", together with interest that shall accrue
thereon at a rate of five percent (5%) per annum from the Closing Date
until the date of payment," within the parenthetical after "the amount of
such excess"; and
(B) by deleting "$15.72" in each of the two places it appears in
the proviso of that subsection and inserting in lieu thereof "the
remainder of $15.72 minus the quotient of the Escrow Amount divided by the
Merger Share Number".
(vi) Section 10.8 of the Merger Agreement is hereby amended and
deleted in its entirety to read as follows:
"10.8 CLOSING BONUS PAYMENTS. As soon as practicable after the
Closing Date, the Surviving Corporation shall pay all payments that are
payable by the Company to any of its employees as a result of the
transactions contemplated by this Agreement, which payments shall be made
by check and shall be net of applicable Federal and state withholding
taxes. In connection with the payments described in the preceding
sentence, the Surviving Corporation will incur additional expenses,
including, without limitation, payroll taxes payable by the Company with
respect to such payments. Notwithstanding anything contained herein to
the contrary, the aggregate amount of payments made to employees and
expenses incurred by the Surviving Corporation pursuant to this Section
10.8 shall not exceed $600,000 in the aggregate."
(vii) ANNEX I to the Merger Agreement is hereby amended by
deleting "Section 1.2(a)" and inserting in lieu thereof "Section 2.1(a)" at the
end of each of the following definitions: (A) Maximum Closing Merger
Consideration; (B) Merger Share Additional Amount(s); (C) Merger Share Number;
(D) Per Allocated Share Additional Amount; (E) Per Allocated Share Closing
Amount; (F) Per Merger Share Additional Amount; (G) Per Merger Share Closing
Amount; and (H) Per Unallocated Share Closing Amount.
(viii) Except as expressly provided in this Amendment, the
Merger Agreement remains in full force and effect in accordance with its terms.
(ix) This Amendment may be executed in more than one counterpart,
and by the parties hereto in separate counterparts, and each such counterpart
shall constitute an original instrument, but all such counterparts taken
together shall constitute one and the same Amendment.
(x) This Amendment shall be governed by, construed and interpreted
in accordance with the laws of the State of Kansas.
* * * *
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
duly executed as of the date and year first above written.
XXXXX PLASTICS CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Vice President, Chief Financial
Officer, Secretary and Treasurer
PACKERWARE ACQUISITION CORPORATION
By: /S/ XXXXX X. XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Vice President, Chief Financial
Officer, Secretary and Treasurer
PACKERWARE CORPORATION
By: /S/ XXXXX X. XXXXXXXXXXXX
Xxxxx X. Xxxxxxxxxxxx Chairman of the Board
SHAREHOLDERS:
PACKERWARE CORPORATION EMPLOYEE
STOCK OWNERSHIP PLAN AND TRUST
By: /S/ XXXXXXXX SHINKSI, PRESIDENT
The Investors Services Trust Company,
not in its individual capacity, but
solely as Trustee
/S/ XXXXX X. XXXXXXXXXXXX
Xxxxx X. Xxxxxxxxxxxx
/S/ XXXXXX X. XXXXXXXXXXXX
Xxxxxx X. Xxxxxxxxxxxx, as trustee
for Xxxxx X. Xxxxxxxxxxxx under the
Agreement dated April 3, 1996, with
Xxxxx X. Xxxxxxxxxxxx, grantor
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/S/ XXX X. XXXXX
Xxx X. Xxxxx
/S/ XXX X. XXXXXX
Xxx X. Xxxxxx
/S/ XXXXX X. XXXXXXXXXXXX
Xxxxx X. Xxxxxxxxxxxx
/S/ X.X. XXXXXXXXXXXX
X.X. Xxxxxxxxxxxx
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