AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment”) is entered
into as of May 25, 2011 by and among DSW Inc., an Ohio corporation (“DSW”), DSW MS LLC, an
Ohio limited liability company and a direct wholly-owned subsidiary of DSW (“Merger Sub”),
and Retail Ventures, Inc., an Ohio corporation (“RVI”).
W I T N E S S E T H:
WHEREAS, DSW, Merger Sub, and RVI (collectively, the “Parties”) entered into an
Agreement and Plan of Merger dated as of February 8, 2011 (the “Agreement”);
WHEREAS, Section 7.3 of the Agreement permits amendments to the Agreement by action taken or
authorized by the Parties’ respective Boards of Directors if such amendment is in writing and
signed by each of the Parties; and
WHEREAS, the Parties desire to amend the Agreement as provided in this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,
covenants and agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used in this Amendment without separate
definition shall have the respective meanings assigned to them in the Agreement.
Section 2. Amendment to Section 5.14(a). Section 5.14(a) of the Agreement is hereby
amended by deleting the phrase “(ii) that certain Exchange Agreement, dated July 5, 2005, between
RVI and DSW,” and adjusting the roman numerals “(iii)” and “(iv)” appearing thereafter to be “(ii)”
and “(iii)” respectively.
Section 3. New Section 5.14(b). A new Section 5.14(b) of the Agreement is hereby
adopted to read as follows:
(b) From and after the later to occur of (x) the Effective Time, and (y) the exchange or
settlement of the 6.625% Mandatorily Exchangeable Notes due September 15, 2011 in accordance
with the terms of the PIES Indenture, that certain Exchange Agreement, dated July 5, 2005,
between RVI and DSW shall be terminated and no longer effective.
Section 4. Effect of Amendment. The Parties agree that except as otherwise set forth
herein, all terms, conditions and provisions of the Agreement shall remain in full force and
effect. In the event of any inconsistency or conflict between the Agreement and this
Amendment, the terms, conditions and provisions of this Amendment shall govern and control.
Section 5. Entire Agreement. From and after the execution of this Amendment by the
Parties, any reference to the Agreement shall be deemed to be a reference to the Agreement as
amended hereby.
Section 6. Governing Law. This Amendment shall be governed by and construed in
accordance with the Laws of the State of Ohio, without giving effect to any choice or conflict of
law provision or rule.
Section 7. Counterparts. This Amendment may be executed in two or more counterparts,
each of which shall constitute an original, and all of which taken together shall constitute one
instrument. Any signature page delivered by a facsimile machine shall be binding to the same
extent as an original signature page.
Section 8. Headings. The section headings contained in this Amendment are inserted
for convenience only and shall not affect in any way the meaning or interpretation of this
Amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed and delivered
as of the date first above written.
| DSW INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary |
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| DSW MS LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President, General Counsel and Secretary |
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| RETAIL VENTURES, INC. |
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| By: | Xxxxx X. XxXxxxx | |||
| Name: | Xxxxx X. XxXxxxx | |||
| Title: | Chief Executive Officer, Chief Financial Officer, President and Treasurer |
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