AMENDMENT NO. 1 TO TRANSACTION AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO TRANSACTION AGREEMENT AND PLAN OF MERGER, dated as of
November 8, 1999 (this "Amendment"), by and among HSBC Holdings plc, a public
limited company organized and existing under the laws of England ("Parent"),
Republic New York Corporation, a Maryland corporation (the "Company"), Safra
Republic Holdings S.A., a societe anonyme organized and existing under the laws
of Luxembourg ("SRH"), and RNYC Merger Corporation, a Maryland corporation
("Merger Sub").
WHEREAS, Parent, the Company and SRH entered into that certain Transaction
Agreement and Plan of Merger, dated as of May 10, 1999 (the "Original
Agreement");
WHEREAS, Parent, the Company, SRH and Merger Sub entered into that certain
Joinder Agreement, dated as of May 20, 1999 (the "Joinder Agreement"), whereby
Merger Sub became a party to the Merger Agreement (the Original Agreement, as
amended by the Joinder Agreement and this Amendment, the "Agreement");
WHEREAS, as a condition to, and concurrently with, the execution of this
Amendment, Parent, HSBC North America Inc. ("US Holdco"), RNYC Holdings Limited,
Congregation Beit Xxxxxx (together with RNYC Holdings Limited, the
"Stockholder"), Saban S.A. (the "Stockholder Parent"), Xx. Xxxxxx X. Xxxxx and
the Company are entering into an Amendment (the "Stockholder Agreement
Amendment") to that certain Stockholders Agreement, dated as of May 10, 1999
(the "Original Stockholder Agreement" and, as amended by the Stockholder
Agreement Amendment, the "Stockholder Agreement"), among Parent, the
Stockholder, the Stockholder Parent and Xx. Xxxxxx X. Xxxxx;
WHEREAS, prior to the date hereof the Board of Directors of the Company has
approved and declared advisable the Agreement and has approved (including for
purposes of Sections 3-601 through 3-604 and 3-701 through 3-709 of the General
Corporation Law of the State of Maryland (the "MGCL")) the Stockholder
Agreement, upon the terms and subject to the conditions set forth in the
Agreement and the Stockholder Agreement;
WHEREAS, the Board of Directors of SRH has approved the Agreement and on
May 9, 1999 approved the Offer and recommended the Offer, upon the terms and
subject to the conditions set forth in the Original Agreement;
WHEREAS, the parties desire to make certain representations, warranties and
agreements in connection with this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
Section 1. Defined Terms. Capitalized terms used but not otherwise defined
in this Amendment shall have the meanings ascribed thereto in the Original
Agreement or the Joinder Agreement, as applicable.
Section 2. Amendments to Original Agreement.
(A) Section 1.4(a) of the Original Agreement shall be deleted in its
entirety and the following substituted therefor:
(a) Outstanding Company Common Stock. Each share of common stock, par value
$5.00 per share, of the Company (the "Company Common Stock") issued and
outstanding immediately prior to the Effective Time (other than shares of
Company Common Stock held (i) in the Company's treasury ("Treasury Shares") or
(ii) directly or indirectly by Parent or the Company or any of their respective
wholly owned Subsidiaries (except for Fiduciary and DPC Shares (as defined in
Section 1.4(d))) shall become and be converted into the right to receive $72.00
in cash to be paid, without interest thereon, as provided in Section 1.5(c) (the
"Merger Consideration").
(B) Section 1.5(b) and Section 1.5(c) of the Original Agreement shall be
deleted in their entirety and the following substituted therefor:
(b) From time to time following the Effective Time, Parent or Merger Sub
shall deposit, or shall cause to be deposited, with a bank or trust company
(which may be an affiliate of Parent or the Company) (the "Exchange Agent"), for
the benefit of the holders of the Certificates, cash amounts, as instructed by
the Exchange Agent (such cash (without any interest) being hereinafter referred
to as the "Exchange Fund"), to be paid pursuant to this Article I in exchange
for outstanding shares of Company Common Stock entitled to receive the Merger
Consideration; provided, that, if the Effective Time occurs after December 17,
1999, neither Parent nor Merger Sub shall be required to deposit, or cause to be
deposited, any cash amounts with the Exchange Agent before January 7, 2000.
(c) As promptly as practicable after the Effective Time, Parent shall send
or cause to be sent to each former holder of record of shares of Company Common
Stock (other than shares that are to be canceled pursuant to Section 1.4(d))
immediately prior to the Effective Time, transmittal materials for use in
exchanging such stockholder's Certificates for the Merger Consideration. Parent
shall cause any check in respect of the Merger Consideration which such Person
shall be entitled to receive to be delivered to such stockholder upon delivery
to the Exchange Agent of Certificates representing such shares of Company Common
Stock (or indemnity reasonably satisfactory to Parent and the Exchange Agent, if
any of such Certificates are lost, stolen or destroyed) owned by such
stockholder; provided, that if the Effective Time occurs after December 17,
1999, in no event shall any check be required to be mailed before January 7,
2000. No interest will be paid on any such cash to be paid pursuant to this
Article I upon such delivery. Parent or its designee shall be entitled to deduct
and withhold from the Merger Consideration otherwise payable to any holder of
Certificates such amounts (if any) as Parent or such designee determines are
required to be deducted or withheld under the Internal Revenue Code of 1986, as
amended (the "Code"), or any provision of state, local or foreign tax law. To
the extent that amounts are so withheld by Parent or such designee, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the holder of such Certificates.
(C) Section 2.1 of the Original Agreement shall be deleted in its entirety
and the following substituted therefor:
2.1 Closing Date. The closing of the transactions provided for in this
Agreement (the "Closing") shall be held (a) at the offices of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M. on
the third business day after the satisfaction or waiver (subject to applicable
law) of the latest to be satisfied or waived of the conditions (other than those
conditions to be satisfied at the Closing) set forth in Sections 8.1, 8.2 and
8.3 hereof; provided, that if the conditions in Sections 8.1(a), 8.1(b), 8.2(c)
and 8.2(f) shall have been satisfied:
(i) prior to December 31, 1999, Parent, in its sole discretion, by written
notice to the Company and SRH may elect to schedule the Closing for any date
after such conditions have been satisfied through and including December 31,
1999, but if the date of satisfaction of the last of the conditions in Section
8.1(a), 8.1(b), 8.2(c) and 8.2(f) is before December 28, 1999, Parent may
schedule the Closing for a date later than such third business day only if
Parent and Merger Sub irrevocably agree in such notice that the reference to the
Closing Date in Section 8.2(a) shall be deemed to refer to the date which is the
third business day following satisfaction of the last to be satisfied of the
conditions in Sections 8.1(a), 8.1(b), 8.2(c) and 8.2(f) (the "Original Date");
and
(ii) after December 31, 1999, Parent, after consulting with the Company,
may by written notice to the Company and SRH elect to schedule the Closing for
any date not less than two business days or more than 35 calendar days after the
satisfaction or waiver (subject to applicable law) of the latest to be satisfied
or waived of the conditions (other than those conditions to be satisfied at the
Closing) set forth in Sections 8.1, 8.2 and 8.3 hereof only if Parent and Merger
Sub irrevocably agree in such notice that the reference to the Closing Date in
Section 8.2(a) shall be deemed to refer to the earlier of the Original Date and
the scheduled Closing Date;
or (b) at such other place and on such other date as shall be agreed to by
the parties hereto. The date on which the Closing occurs is hereinafter referred
to as the "Closing Date." For the avoidance of doubt, it is expressly understood
that nothing in Section 2.1(a) shall be deemed to modify or require waiver of
the conditions set forth in Sections 8.1(c), 8.2(b), 8.2(d), 8.2(e), 8.2(g) or
8.2(h). Notwithstanding the provisions of Section 2.1(a)(i) and Section
2.1(a)(ii), if Parent exercises its right to schedule the Closing pursuant to
the proviso to either Section 2.1(a)(i) or Section 2.1(a)(ii) and the Effective
Time does not occur on such scheduled date as a result of the failure of the
condition in Section 8.2(b), then the condition in Section 8.2(a) shall be read
to refer to the rescheduled Closing Date, if any, and not to the Original Date;
provided, that if there is a failure of the condition in Section 8.2(b) and the
failure of any other condition (other than Section 8.3(c)), the failure of the
Effective Time to have occurred shall be deemed to have been caused by the
failure of the condition in Section 8.2(b). If the Effective Time does not occur
on such scheduled Closing Date for any other reason, Section 8.2(a) shall
continue to be interpreted as referring to the Original Date for purposes of any
Closing which occurs on or before the date specified in Section 9.1(c)
(including any date specified in the proviso to Section 9.1(c)).
(D) Section 7.13 of the Original Agreement shall be deleted in its entirety
and the following substituted therefor:
7.13. The Offer. Provided that this Agreement shall not have been
terminated in accordance with Article IX, Parent shall, or shall cause Offer Sub
to, commence an offer to acquire all outstanding shares of SRH Common Stock not
owned, directly or indirectly, by the Company at a price of $72.00 per share of
SRH Common Stock. Parent shall, and shall cause Offer Sub to, accept for payment
all shares of SRH Common Stock tendered to Parent or Offer Sub at, or as soon as
possible following, the Effective Time; provided, that Parent or Offer Sub shall
not be required to make payment for, or mail checks with respect to, tendered
shares of SRH Common Stock until the seventh calendar day following the
Effective Time, but if the Effective Time occurs after December 17, 1999 in no
event earlier than January 10, 2000. The obligation of Parent or Offer Sub to
consummate the Offer and to accept for payment any shares of SRH Common Stock
tendered pursuant thereto shall be subject only to the conditions set forth in
Article VIII to this Agreement and to the prior or concurrent consummation of
the Merger (collectively, the "Offer Conditions"), which are for the sole
benefit of Parent and Offer Sub and may be asserted by Parent or Offer Sub
regardless of the circumstances giving rise to any such condition, or waived by
Parent or Offer Sub in whole or in part at any time and from time to time prior
to acceptance of shares for payment in its sole discretion; provided, that in no
event shall Parent or Offer Sub purchase (or accept for purchase) any shares of
SRH Common Stock pursuant to the Offer if the Merger shall not have occurred or
concurrently occur. The Company and SRH agree that no shares of SRH Common Stock
held by the Company, SRH or any of their respective Subsidiaries will be
tendered to Parent or Offer Sub pursuant to the Offer. Parent and Offer Sub will
not, without the prior written consent of SRH, (i) decrease or change the form
of the consideration payable in the Offer, (ii) decrease the number of shares of
SRH Common Stock sought pursuant to the Offer, (iii) impose additional
conditions to the Offer or change the Offer Conditions (provided, that Parent or
Investor in its sole discretion may waive any such conditions and, in connection
therewith, substitute a less restrictive condition) or (iv) make any other
change in the terms or conditions of the Offer which is materially adverse to
the holders of the shares of SRH Common Stock. Notwithstanding the foregoing,
Parent and SRH may, without the consent of the Company or SRH, (x) extend the
Offer, if at the scheduled expiration date of the Offer any of the Offer
Conditions shall not have been satisfied or waived, until such time as all
conditions are satisfied or waived, (xi) extend the Offer for any period
required by any statute, rule, regulation, interpretation or position of any
Governmental Authority applicable to the Offer, and (xii) extend the Offer for
any reason on one or more occasions for an aggregate of not more than 15
business days beyond the latest expiration date that would otherwise be
permitted under clauses (x) and (xi) of this sentence. Subject to the Offer
Conditions and the terms and conditions of this Agreement, Parent shall, and
Parent shall cause Offer Sub to, accept for payment all shares of SRH Common
Stock validly tendered and not withdrawn pursuant to the Offer as soon as
practicable after the expiration of the Offer; provided, that Parent or Offer
Sub shall not be required to make payment for, or mail checks with respect to,
tendered shares of SRH Common Stock until the seventh calendar day following the
Effective Time, but if the Effective Time occurs after December 17, 1999 in no
event earlier than January 10, 2000.
(E) The following Section 7.15 shall be added to Article VII of the
Original Agreement.
7.15. Insurance. The Company and SRH shall, and shall cause their
respective Subsidiaries to, keep in place and maintain, and comply with the
terms of, all existing insurance policies, contracts and cover and all
agreements and arrangements with respect to insurance, where the maximum amount
of coverage exceeds $1 million.
(F) Section 8.2(a) of the Original Agreement shall be shall be deleted in
its entirety and the following substituted therefor:
(a) Representations and Warranties. Subject to Section 2.3(b), the
representations and warranties of the Company and of SRH set forth in this
Agreement (including the Amendment) shall be true and correct in all respects as
of the Closing Date (except to the extent such representations and warranties
expressly speak as of a specified earlier date, in which case such
representations and warranties shall be true as of such earlier date) as though
made on and as of the Closing Date; and Parent shall have received certificates
signed on behalf of each of the Company and of SRH by their respective Chief
Executive Officers and Chief Financial Officers (or, in the case of SRH, the
functional equivalent thereof) to such effect.
(G) Section 8.2 of the Original Agreement shall be amended by adding the
following clause (h) following clause 8.2(g):
(h) Transfer of Company Common Stock to US Holdco. Immediately prior to the
Effective Time and following the satisfaction or irrevocable waiver of all
conditions set forth in Sections 8.1, 8.2 (other than this Section 8.2(h)) and
8.3 hereof, RNYC Holdings Limited shall have transferred 6,250,000 shares of
Company Common Stock to US Holdco in accordance with the terms of the
Stockholder Agreement.
(H) Section 8.3(a) of the Original Agreement shall be deleted in its
entirety and the following substituted therefor:
(a) Representations and Warranties. Subject to Section 2.3(b), the
representations and warranties of Parent set forth in this Agreement (including
the Amendment) shall be true and correct, as of the Closing Date (except to the
extent such representations and warranties speak as of a specified earlier date,
in which case such representations and warranties shall be true as of such
earlier date) as though made on and as of the Closing Date; and the Company
shall have received a certificate signed on behalf of Parent by the Group
Financial Director to such effect.
(I) Section 9.1(c) of the Original Agreement shall be deleted in its
entirety and the following substituted therefor:
(c) by either Parent, the Company or SRH if the Merger shall not have been
consummated on or before January 31, 2000, unless the failure of the Closing to
occur by such date shall be due to the failure of the party seeking to terminate
this Agreement to perform or observe the covenants and agreements of such party
set forth herein; provided, that if all conditions set forth in Sections 8.1,
8.2 and 8.3 (other than those conditions to be satisfied at Closing) shall have
been satisfied and Parent elects to schedule the Closing pursuant to the proviso
to Section 2.1(a)(ii), then such date shall be the date which is 30 calendar
days following the date so scheduled for Closing.
(J) Section 10.6 of the Original Agreement shall be deleted in its entirety
and the following substituted therefor:
10.6 Entire Agreement. The Agreement (including the Joinder Agreement, the
Amendment, the Company Disclosure Schedule, the SRH Disclosure Schedule, the
exhibits attached to the Agreement and all other documents and instruments
referred to herein) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof other than the Option Agreement, the
Stockholder Agreement and the Confidentiality Agreement; provided that Section 5
of the Confidentiality Agreement shall not affect the representations and
warranties of any party hereto.
(K) The definition of "Material Adverse Effect" in Section 10.12(a) of the
Original Agreement shall be amended by adding the following sentences at the end
of the definition:
For all purposes of determining whether there has been, or is reasonably
likely to be, a Material Adverse Effect with respect to the Acquired Companies,
all adverse facts, circumstances or conditions relating to the Princeton Note
Matter (as defined below) of which, as of the date hereof, Parent or its
representatives have been informed of by the Company or its representatives or
Parent otherwise has Knowledge shall be disregarded. For purposes hereof, the
term "Princeton Note Matter" shall mean the involvement or alleged involvement
and the actions or omissions or alleged actions or omissions, if any, of
Republic New York Securities Corporation, the Company and their respective
officers, directors, employees and agents with respect to Xxxxxx X. Xxxxxxxxx,
Princeton Global Management Ltd., Princeton Economics International Ltd.,
Cresvale International - Tokyo Branch and all affiliated Persons and any
existing effects or the reasonably foreseeable effects thereof.
Section 3. Representations and Warranties of the Company. The Company
hereby represents and warrants to Parent as follows:
(a) The Company has full corporate power and authority to execute and
deliver this Amendment and to consummate the transactions contemplated by the
Agreement. The execution and delivery of this Amendment and the consummation of
the transactions contemplated by the Agreement have been duly and validly
approved by the Board of Directors of the Company prior to the date hereof
(which approval satisfies in full the requirements of the MGCL regarding
approval by a board of directors), and such approval is in full force and
effect. The Board of Directors of the Company has adopted a resolution declaring
advisable the Merger and the other transactions contemplated by the Agreement.
The Board of Directors of the Company has directed that the Agreement and the
transactions contemplated by the Agreement be submitted to the Company's
stockholders for approval at a meeting of such stockholders and, except for the
approval of the Agreement by the affirmative vote of the holders of a majority
of the votes of the outstanding shares of the Company Common Stock entitled to
vote thereon, no other corporate proceedings on the part of the Company and no
other stockholder votes are necessary to approve the Agreement and to consummate
the transactions contemplated thereby. As of the date hereof, the Board of
Directors of the Company has resolved to recommend that the Company's
stockholders approve the Merger. This Amendment has been duly and validly
executed and delivered by the Company and (assuming due authorization, execution
and delivery by Parent, Merger Sub and SRH) constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. In addition, the Board of Directors has taken all requisite action
such that the freezeout, special shareholder voting and other requirements
imposed by Sections 3-601 through 3-604 and 3-701 through 3-709 of the MGCL, and
the provisions of any other applicable "freezeout", "fair price", "moratorium",
"control share acquisition" or other similar anti-takeover statute or regulation
enacted under state, federal or foreign laws, are not applicable to the Merger,
the Agreement, the Option Agreement or the Stockholder Agreement or the
transactions contemplated by the Agreement, the Option Agreement and the
Stockholder Agreement. No holder of Company Capital Stock shall have the right
to appraisal or to demand or receive payment of the fair value of such Company
Capital Stock from the Successor Corporation or any other Person pursuant to the
MGCL or otherwise.
(b) Neither the execution and delivery of this Amendment by the Company,
nor the consummation by the Company of the Merger, nor compliance by the Company
with any of the terms or provisions of the Agreement, will (i) violate any
provision of the articles of incorporation or bylaws of the Company or any of
its Subsidiaries or (ii) assuming that the consents and approvals referred to in
Section 3.4 of the Agreement are duly obtained, violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to the Company or any of its Subsidiaries or any of their respective
properties or assets, or violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
result in the termination of or a right of termination or cancellation under,
accelerate the performance required by or rights or obligations under, or result
in the creation of any Lien (or have any of such results or effects, upon notice
or lapse of time, or both) upon any of the respective properties or assets of
the Company or any of its Subsidiaries under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement, contract, or other instrument or obligation to which the
Company or any of its Subsidiaries is a party, or by which they or any of their
respective properties, assets or business activities may be bound or affected.
(c) Except as disclosed previously by the Company to Parent prior to the
date of this Amendment, to the Knowledge of the Company there are no material
facts, events, circumstances or occurrences directly or indirectly relating to
the Princeton Note Matter, including any facts, events, circumstances or
occurrences that would impact the measure of any civil or criminal damages,
penalties, fines or other liabilities that might be levied against, or incurred
by, the Company, SRH and any of their respective Subsidiaries as a result of, or
otherwise relating to, the Princeton Note Matter.
(d) The Company understands and acknowledges that Parent and Merger Sub are
entering into this Amendment in reliance upon the execution, delivery and
performance by the Stockholder, Stockholder Parent, Xx. Xxxxxx X. Xxxxx and the
Company of the Stockholder Agreement Amendment.
Section 4. Representations and Warranties of SRH. SRH hereby represents and
warrants to Parent as follows:
(a) SRH has full power and authority to execute and deliver this Amendment
and to consummate the transactions contemplated by the Agreement. The execution
and delivery of this Amendment and the consummation of the transactions
contemplated by the Agreement have been duly and validly approved by the Board
of Directors of SRH prior to the date hereof (which approval satisfies in full
the requirements of Luxembourg Law regarding approval by a board of directors),
and such approval is in full force and effect. On May 9, 1999, the Board of
Directors of SRH recommended to SRH's stockholders to tender their Shares of SRH
Common Stock in the Offer. No other proceeding on the part of SRH and no
stockholder vote is necessary to approve this Amendment or the Agreement and to
consummate the transactions contemplated by the Agreement. This Amendment has
been duly and validly executed and delivered by SRH and (assuming due
authorization, execution and delivery by Parent, Merger Sub and the Company)
constitutes a valid and binding obligation of SRH, enforceable against SRH in
accordance with its terms. In addition, the Board of Directors of SRH has taken
all requisite action such that the provisions of any applicable "freezeout",
"fair price", "moratorium", "control share acquisition" or other similar
anti-takeover statute or regulation, are not applicable to the Merger, the Offer
or the other transactions contemplated by the Agreement.
(b) Neither the execution and delivery of this Amendment by SRH, nor the
consummation by the Company of the Merger or SRH of the Offer, nor compliance by
SRH with any of the terms or provisions of the Agreement, will (i) violate any
provision of the articles of association (or similar documents) of SRH or any of
its Subsidiaries or (ii) assuming that the consents and approvals referred to in
Section 4.4 of the Agreement are duly obtained, violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to SRH or any of its Subsidiaries or any of their respective
properties or assets, or violate, conflict with, result in a breach of any
provision of or the loss of any benefit under, constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
result in the termination of or a right of termination or cancellation under,
accelerate the performance required by or rights or obligations under, or result
in the creation of any Lien (or have any of such results or effects upon notice
or lapse of time, or both) upon any of the respective properties or assets of
SRH or any of its Subsidiaries under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, deed of trust, license, lease,
agreement, contract, or other instrument or obligation to which SRH or any of
its Subsidiaries is a party, or by which they or any of their respective
properties, assets or business activities may be bound or affected.
(c) SRH understands and acknowledges that Parent and Merger Sub are
entering into this Amendment in reliance upon the execution, delivery and
performance by the Stockholder, Stockholder Parent, Xx. Xxxxxx X. Xxxxx and the
Company of the Stockholder Agreement Amendment.
Section 5. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Company and SRH as follows:
(a) Parent and Merger Sub have full corporate power and authority to
execute and deliver this Amendment and to consummate the transactions
contemplated by the Agreement.
(b) The consummation of the transactions contemplated by the Agreement has
been duly and validly approved by a duly authorized committee of the Board of
Directors of Parent and by the Board of Directors of Merger Sub. No other
corporate proceedings on the part of Parent and Merger Sub and no vote of
Parent's stockholders are necessary to consummate the transactions contemplated
hereby.
(c) The execution and delivery of this Amendment by Parent and Merger Sub
has been duly and validly authorized in accordance with applicable law. This
Agreement has been duly and validly executed and delivered by Parent and Merger
Sub and (assuming due authorization, execution and delivery by the Company and
SRH) constitutes a valid and binding obligation of Parent and Merger Sub,
enforceable against Parent and Merger Sub in accordance with its terms.
(d) Neither the execution and delivery of this Amendment by Parent and
Merger Sub, nor the consummation by Parent and Merger Sub of the Merger and the
Offer, nor compliance by Parent and Merger Sub with any of the terms or
provisions of the Agreement, will (i) violate any applicable law or the
memorandum and articles of association, certificate of incorporation, bylaws or
other organizational documents of Parent or Merger Sub, as applicable, or (ii)
assuming that the consents and approvals referred to in Section 5.3 of the
Agreement are duly obtained, violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to Parent or
any of its Subsidiaries or any of their respective properties or assets, or
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the respective
properties or assets of Parent or any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement, contract or other instrument or obligation to
which Parent or any of its Subsidiaries is a party, or by which they or any of
their respective properties or assets may be bound or affected.
Section 6. Counterparts. This Amendment may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
Section 7. Governing Law. Except as required by mandatory provisions of the
MGCL, this Amendment shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state.
Section 8. The Original Agreement. Except as specifically amended hereby,
the Original Agreement shall continue in full force and effect in accordance
with the provisions thereof in existence on the date hereof. Unless the context
otherwise requires, after the date hereof, any reference to the Original
Agreement shall mean the Original Agreement as amended hereby.
IN WITNESS WHEREOF, Parent, Merger Sub, the Company and SRH have caused
this Amendment to be executed by their respective officers thereunto duly
authorized as of the date first above written.
HSBC HOLDINGS PLC
By: _____________________________
Name: Xxxxx X. Xxxx
Title: Authorised Signatory
RNYC MERGER CORPORATION
By: _____________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
REPUBLIC NEW YORK CORPORATION
By: _____________________________
Name: Xxx X. Xxxxxxx
Title: Chairman and
Chief Executive Officer
SAFRA REPUBLIC HOLDINGS S.A.
By: _____________________________
Name: A. Xxxxx Xxxxxxxxx
Title: General Manager
and Attorney-in-Fact
By: _____________________________
Name: Xxxxxx Xxxx
Title: Attorney-in-Fact
