1
EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 (this "Amendment") to the Agreement and Plan of Merger
(the "Merger Agreement"), dated September 10, 1998, by and among Suiza Foods
Corporation, a Delaware corporation ("Parent"), Suiza Foods Acquisition Corp.,
an Ohio corporation and wholly owned subsidiary of Parent ("Merger Sub"), and
Xxxxxxxxx Foods Company, an Ohio corporation (the "Company"), dated as of
January 18, 1999, is entered into by and among Parent, Merger Sub and the
Company.
WHEREAS, concurrently herewith, certain stockholders of the Company are
entering into a Stock Purchase Agreement with Parent and the Company to induce
Parent and Merger Sub not to terminate the Merger Agreement and abandon the
merger contemplated thereby; and
WHEREAS, the parties hereto wish to amend and waive certain provisions of
the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
1. Closing. Section 3.8 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"3.8 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Huddleston,
Bolen, Xxxxxx, Xxxxxx & Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx
00000-0000, at 9:00 a.m. local time on March 31, 1999 or at such other time
and place as Parent and the Company shall agree in writing, in either case
upon satisfaction (or waiver) of the conditions set forth in Article IX
(other than those conditions that can be satisfied only at the Effective
Time)."
2. Waiver of Condition. Parent, Merger Sub and the Company acknowledge
that Parent and Merger Sub believe the Company has suffered certain reversals
in its business since June 30, 1998 that may constitute a Company Material
Adverse Effect, but that the Company believes that the reversals identified by
Parent and Merger Sub may not constitute a Company Material Adverse Effect.
Parent and Merger Sub agree to waive any right they may have under Section
9.3(b) of the Merger Agreement to terminate such Agreement based on the
financial operating performance of the Company between June 30, 1998 and the
Effective Time so long as the Company is operated in the ordinary course, and
provided that such waiver shall not affect any right of Parent and Merger Sub
to terminate such Agreement based on the failure of any other condition to
their performance set forth therein. The foregoing waiver shall not be valid
and enforceable if the detailed financial information previously provided by
the Company to Parent and Merger Sub with respect to the Company's financial
operating performance through November 30, 1998 was not true and correct in all
material respects at such date.
2
3. Termination of Merger Agreement by Either Parent or the Company.
Clause (a) of Section 10.2 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"... (a) the Merger shall not have been consummated by April 15, 1999,
or..."
4. Authority Relative to the Amendment. The execution, delivery and
performance of the Merger Agreement and this Amendment and the consummation of
the transactions contemplated thereby and hereby have been duly and effectively
authorized by all necessary corporate action of the parties, and the Merger
Agreement, as amended by this Amendment, constitutes the valid and binding
obligations of the parties, enforceable against each of them in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
5. Reference to and Effect on the Merger Agreement.
(a) Upon execution of this Amendment, each reference in the Merger
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import, and each reference in any document related thereto, or executed in
connection herewith, shall mean and be a reference to the Merger Agreement as
amended hereby, and the Merger Agreement and this Amendment shall be read
together and construed as one single instrument.
(b) Except as specifically amended above, the Merger Agreement
shall remain in full force and effect and is hereby ratified and confirmed by
the parties.
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
SUIZA FOODS CORPORATION
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Xxxxx X. Xxxx, Executive Vice President-
Corporate Development
3
SUIZA FOODS ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Xxxxx X. Xxxx, Vice President
XXXXXXXXX FOODS COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------
Title: /s/ Chairman of the Board of Directors
---------------------------------------
