Exhibit 2.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (this
"Amendment"), is made and entered into as of the 9th day of October 1996, by
and among Phar-Mor, Inc., a Pennsylvania corporation ("Phar-Mor"), ShopKo
Stores, Inc., a Minnesota corporation ("ShopKo"), and Cabot Noble, Inc., a
Delaware corporation ("Parent").
RECITALS
WHEREAS, Phar-Mor, ShopKo and Parent (together, the "Parties") have entered
into an Agreement and Plan of Reorganization dated as of September 7, 1996
(the "Agreement") pursuant to which, among other things, Phar-Mor and ShopKo
have agreed, subject to the satisfaction of certain covenants and conditions,
to a business combination pursuant to which each would become separate wholly
owned subsidiaries of Parent; and
WHEREAS, the Parties wish to amend the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the Parties agree as follows:
I. DEFINITIONS. Unless otherwise defined in this Amendment, all
capitalized terms shall have the meanings given such terms in the
Agreement.
II. AMENDED EXHIBITS. Exhibit B to the Agreement, the Form of Revised
Certificate of Incorporation of Cabot Noble, and Exhibit H to the
Agreement, the Stock Purchase Agreement, are hereby deleted in their
entirety and replaced with Exhibit B and Exhibit H respectively, attached
hereto.
III. AMENDMENT TO ARTICLE I. Article I of the Agreement is hereby amended
by deleting Section 1.7 in its entirety and replacing it with the
following:
1.7 Board of Directors of Parent; Committees. The parties hereby agree
that (i) the current members of the Phar-Mor Board, (ii) Xxxx X. Xxxxxx,
and (iii) two individuals selected by the ShopKo Board at least one of whom
(A) is not affiliated with ShopKo, Supervalu, Phar-Mor or Xxxxxxxx Xxxxxx
(an "Independent Director") and (B) is selected in consultation with
Xxxxxxxx & Struggles, New York (or such other nationally recognized
executive search firm as may be approved by Phar-Mor and ShopKo)
(collectively, the "ShopKo Designees"), shall serve as members of the
Parent Board from and after the Effective Date (or from such later date as
ShopKo Designees are appointed pursuant to the provisions hereof), until
their respective successors are duly elected or appointed and qualified in
the manner provided in the By-Laws of Parent, or as otherwise provided by
law; provided that the ShopKo Board shall use reasonable efforts to
designate the ShopKo Designees before the Effective Date; and provided
further, that to the extent such ShopKo Designees are not designated on or
before the Effective Date, the right of ShopKo to appoint such designee as
contemplated by this Section 1.7 shall be enforceable by those Persons who
are members of the ShopKo Board as of the date of this Agreement. The
ShopKo Designees shall be subject to approval by the members of the Phar-
Mor Board who are not also officers or employees of Phar-Mor or affiliates
of Xxxxxxxx Xxxxxx. Any individual selected by the Phar-Mor Board to fill
any vacancy on the Phar-Mor Board shall be selected in consultation with
Xxxxxxxx & Struggles, New York (or such other nationally recognized
executive search firm as may be approved by Phar-Mor and ShopKo), and shall
be an individual that (i) is neither an officer or employee of Phar-Mor nor
an affiliate of Xxxxxxxx Xxxxxx, and (ii) is approved by the members of the
ShopKo Board who are not also officers or employees of ShopKo or Supervalu,
directors of Supervalu or otherwise affiliated with Supervalu. The Parent
Board shall be classified into three classes of approximately equal size,
with an equal number of Independent Directors serving in each class to the
extent possible. The Parent Board shall establish a Compensation Committee
and Audit Committee which shall consist of two or more Independent
Directors selected by the Parent Board. The entire Parent Board shall serve
as its Nominating Committee.
IV. AMENDMENTS TO ARTICLE IV. Article IV of the Agreement is hereby
amended by deleting Subsection 4.2(b) in its entirety and replacing it with
the following:
(b) Phar-Mor shall, as soon as reasonably practicable after the date
hereof, (i) take all steps necessary to call, give notice of, convene
and hold a special meeting of its shareholders ("Phar-Mor Special
Meeting") for the purpose of securing the approval and adoption of the
Phar-Mor Plan by the holders of a majority of the Phar-Mor Common
Shares represented at the Phar-Mor Special Meeting (or any adjournments
thereof) at which a quorum is present, in person or by proxy, and
entitled to vote ("Phar-Mor Shareholders' Approval"), (ii) distribute
to its shareholders the Proxy Statement in accordance with applicable
federal and state law and its articles of incorporation and by-laws,
(iii) subject to the fiduciary duties of the Phar-Mor Board, recommend
to its shareholders the approval of the Phar-Mor Plan, and (iv)
cooperate and consult with ShopKo with respect to each of the foregoing
matters.
V. AMENDMENT TO ARTICLE V. Article V of the Agreement is hereby amended
by deleting Subsection 5.1(i) in its entirety and replacing it with the
following:
(i) Parent Buy Back. At the Effective Date, there shall exist no
condition of circumstance that would reasonably be expected to prevent
or delay the consummation of the transactions contemplated in that
certain Stock Purchase Agreement among Parent, Supervalu and
Supermarket, dated as of the date of this Agreement, a copy of which is
attached hereto as Exhibit H (the "Stock Purchase Agreement"), pursuant
to which, immediately following the consummation of the Reorganization,
Parent will on the Effective Date acquire 90% of the Parent Common
Shares received by Supermarket as a result of the Reorganization (the
"Parent Buy Back"). All documentation, payments and deliveries
necessary to consummate the Parent Buy Back pursuant to the terms of
the Stock Purchase Agreement shall be completed at or before Closing
and held in escrow pending the Effective Date. Without limiting the
foregoing, at the Effective Date, Parent shall have received a
financing commitment or other reasonable assurances from one or more
underwriters, placement agents, banks or other financing sources, which
may include the credit facilities referred to in Section 5.1(g) (on
terms and conditions reasonably acceptable to each of Parent, Phar-Mor
and ShopKo) that Parent (together with its Subsidiaries from and after
the Effective Date) may obtain financing of at least $75 million (the
"Parent Buy-Back Financing"), and all documents and deliveries
necessary to consummate such financing shall be completed at or before
Closing and held in escrow pending the Effective Date. Notwithstanding
any provisions to the contrary, the conditions set forth in this
Section 5.1(i) may not be waived without the prior written consent of
Supervalu, which consent may not be unreasonably withheld or delayed.
VI. RATIFICATION. Except as expressly amended by this Amendment, the
Agreement shall remain in full force and effect and the Agreement is hereby
ratified and confirmed as of the date first written above.
VII. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law of such state.
VIII. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
IX. RESTATEMENT. This Amendment may be incorporated into an amended and
restated version of the Agreement, which Agreement as amended and restated
shall be the Agreement and Plan of Reorganization dated as of September 7,
1997, as amended and restated as of October 9, 1996.
X. CORPORATE AUTHORITY. Each of Parent, ShopKo and Phar-Mor represents
that it has taken all necessary action to authorize the execution, delivery
and performance of this Amendment.
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2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
ShopKo Stores, Inc.
/s/ Xxxx X. Xxxxxx
By: _________________________________
Name:Xxxx X. Xxxxxx
Title:President and Chief
Executive Officer
Phar-Mor, Inc.
/s/ Xxxxxx X. Xxxx
By: _________________________________
Name:Xxxxxx X. Xxxx
Title: Chairman of the Board and
Chief Executive Officer
Cabot Noble, Inc.
/s/ Xxxxxx X. Xxxx
By: _________________________________
Name:Xxxxxx X. Xxxx
Title: Chairman of the Board and
Chief Executive Officer
Exhibit B
RESTATED CERTIFICATE OF INCORPORATION
OF
CABOT NOBLE, INC.
Cabot Noble, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), hereby certifies that:
1. The name of the Company is Cabot Noble, Inc.
2. The date of filing of the Company's original Certificate of Incorporation
was .
3. The Restated Certificate of Incorporation of the Company (the "Restated
Certificate") attached hereto as Exhibit A was duly adopted in accordance with
the provisions of Section 245 of the General Corporation Law of the State of
Delaware.
4. The Restated Certificate so adopted reads in full as set forth in Exhibit
A attached hereto and is hereby incorporated by reference.
In Witness Whereof, Cabot Noble, Inc. has caused this Restated Certificate
to be signed by Xxxxxx X. Xxxx, its Chief Executive Officer, and attested by
Xxxx X. Xxxxxxx, its Secretary this day of 1996, and the undersigned
hereby affirm and acknowledge under penalty of perjury that the filing of this
Restated Certificate is the act and deed of Cabot Noble, Inc.
_____________________________________
XXXXXX X. XXXX
CHIEF EXECUTIVE OFFICER
Attest:
_____________________________________
XXXX X. XXXXXXX
ASSISTANT SECRETARY
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
CABOT NOBLE, INC.
First. The name of the corporation is Cabot Noble, Inc. (the "Company").
Second. The address of the Company's registered office in the State of
Delaware is 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxxxxx 00000. The name of the Company's registered agent at such address is
The Corporation Trust Company.
Third. The purpose of the Company is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
the State of Delaware ("DGCL").
Fourth. Section 1. Authorized Capital Stock. The Company is authorized to
issue two classes of capital stock, designated Common Stock and Preferred
Stock. The total number of shares of capital stock that the Company is
authorized to issue is 250,000,000 shares, consisting of 200,000,000 shares of
Common Stock, par value $0.01 per share, and 50,000,000 shares of Preferred
Stock, par value $0.01 per share.
Section 2. Preferred Stock. The Preferred Stock may be issued in one or more
series. The Board of Directors of the Company (the "Board") is hereby
authorized to issue the shares of Preferred Stock in each series and to fix
from time to time before issuance the number of shares to be included in any
such series and the designation, relative powers, preferences, and rights and
qualifications, limitations, or restrictions of all shares of such series. The
authority of the Board with respect to each such series will include, without
limiting the generality of the foregoing, the determination of any or all of
the following:
(a) the number of shares of each series and the designation to
distinguish the shares of such series from the shares of all other series;
(b) the voting powers, if any, and whether such voting powers are full or
limited in such series;
(c) the redemption provisions, if any, applicable to such series,
including the redemption price or prices to be paid;
(d) whether dividends, if any, will be cumulative or noncumulative, the
dividend rate of such series, and the dates and preferences of dividends on
such series;
(e) the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the Company;
(f) the provisions, if any, pursuant to which the shares of such series
are convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or classes of
stock, or any other security, of the Company or any other corporation or
other entity, and the price or prices or the rates of exchange applicable
thereto;
(g) the right, if any, to subscribe for or to purchase any securities of
the Company or any other corporation or other entity;
(h) the provisions, if any, of a sinking fund applicable to such series;
and
(i) any other relative, participating, optional, or other special powers,
preferences, rights, qualifications, limitations, or restrictions thereof;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of such Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. Common Stock. Except as may otherwise be provided in a Preferred
Stock Designation, the holders of Common Stock will be entitled to one vote on
each matter submitted to a vote at a meeting of
stockholders for each share of Common Stock held of record by such holder as
of the record date for such meeting.
Fifth. The Board may make, amend, and repeal the By-Laws of the Company. Any
By-Law made by the Board under the powers conferred hereby may be amended or
repealed by the Board (except as specified in any such By-Law so made or
amended) or by the stockholders in the manner provided in the By-Laws of the
Company. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation to the contrary, By-Laws 1, 3(a), 8, 10, 11, 12,
13, and 39 may not be amended or repealed by the stockholders, and no
provision inconsistent therewith may be adopted by the stockholders, without
the affirmative vote of the holders of Voting Stock (as defined below) having
at least 75% of the votes of all Voting Stock, voting together as a single
class. The Company may in its By-Laws confer powers upon the Board in addition
to the foregoing and in addition to the powers and authorities expressly
conferred upon the Board by applicable law. For the purposes of this Restated
Certificate, "Voting Stock" means stock of the Company of any class or series
entitled to vote generally in the election of Directors. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of Voting Stock having at least 75% of the
votes of all Voting Stock, voting together as a single class, is required to
amend or repeal, or to adopt any provisions inconsistent with, this Article
Fifth.
Sixth. Subject to the rights of the holders of any series of Preferred
Stock:
(a) any action required or permitted to be taken by the stockholders of
the Company must be effected at a duly called annual or special meeting of
stockholders of the Company and may not be effected by any consent in
writing of such stockholders; and
(b) special meetings of stockholders of the Company may be called only by
(i) the Chairman of the Board (the "Chairman"), (ii) the Secretary of the
Company (the "Secretary") within 10 calendar days after receipt of the
written request of a majority of the total number of Directors that the
Company would have if there were no vacancies (the "Whole Board"), acting
at a duly constituted meeting of the Board and (iii) as provided in By-Law
3.
At any annual meeting or special meeting of stockholders of the Company, only
such business will be conducted or considered as has been brought before such
meeting in the manner provided in the By-Laws of the Company. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of Voting Stock having at least 75% of the
votes of all Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provision inconsistent with, this
Article Sixth.
Seventh. Section 1. Number, Election, And Terms of Directors. Subject to the
rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, the number of the Directors of the Company will not be less than
three (3) nor more than sixteen (16) and will be fixed from time to time in
the manner described in the By-Laws of the Company. The Directors, other than
those who may be elected by the holders of any series of Preferred Stock, will
be classified with respect to the term for which they severally hold office
into three classes, as nearly equal in number as possible, designated Class I,
Class II, and Class III. A majority of the Directors shall be "Independent
Directors," as defined in Section 5 of this Article Seventh, and each Class of
Directors shall have a number of Independent Directors as nearly equal as
possible; provided, that such requirements shall not apply to the Board as
constituted pursuant to that certain Agreement and Plan of Reorganization
dated as of September 7, 1996, as amended and restated, by and among the
Company, Phar-Mor, Inc. and ShopKo Stores, Inc. (the "Initial Board"); and
provided further that any Director appointed or elected (i) to fill a vacancy
created on the Initial Board (other than a vacancy attributable to a Director
who is alos at the time such vacancy is created the Chief Executive Officer of
the Company) or (ii) upon any increase in the size of the Board, shall be an
Independent Director, until such time as a majority of the Directors are
Independent Directors. At any meeting of stockholders at which Directors are
to be elected, the number of Directors elected may not exceed the greatest
number of Directors then in office in any class of Directors. The Directors
first elected to Class I will hold office for a term expiring at the annual
meeting of stockholders to be held in 1997; the Directors first elected to
Class II will hold office for a term expiring at the annual meeting of
stockholders to be held in 1998; and the Directors first elected
to Class III will hold office for a term expiring at the annual meeting of
stockholders to be held in 1999, with the members of each class to hold office
until their successors are elected and qualified. At each succeeding annual
meeting of the stockholders of the Company, the successors of the class of
Directors whose terms expire at that meeting will be elected by plurality vote
of all votes cast at such meeting to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect additional Directors under circumstances specified in
a Preferred Stock Designation, Directors may be elected by the stockholders
only at an annual meeting of stockholders. Election of Directors of the
Company need not be by written ballot unless requested by the Chairman or by
the holders of Voting Stock having a majority of the votes of all Voting Stock
present in person or represented by proxy at a meeting of the stockholders at
which Directors are to be elected.
Section 2. Nomination of Director Candidates. Advance notice of stockholder
nominations for the election of Directors must be given in the manner provided
in the By-Laws of the Company.
Section 3. Newly Created Directorships And Vacancies. Subject to the rights,
if any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation,
newly created directorships resulting from any increase in the number of
Directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal, or other cause will be filled solely by the
affirmative vote of a majority of the remaining Directors then in office
acting at a duly constituted meeting of the Board, even though less than a
quorum of the Board, or by a sole remaining Director. Any Director elected in
accordance with the preceding sentence will hold office until the next annual
meeting of stockholders and until such Director's successor has been elected
and qualified. No decrease in the number of Directors constituting the Board
may shorten the term of any incumbent Director.
Section 4. Removal. Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, any Director may be removed from
office by the stockholders only for cause and only in the manner provided in
this Section 4. At any annual meeting or special meeting of the stockholders,
the notice of which states that the removal of a Director or Directors is
among the purposes of the meeting, the affirmative vote of the holders of
Voting Stock having at least 75% of the votes of all Voting Stock, voting
together as a single class, may remove such Director or Directors for cause.
Section 5. Independent Director. "Independent Director" shall mean any
individual that (a) is not an affiliate (as defined in Rule 12b-2 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (the "Exchange Act")) of the Company (except an individual who is
an affiliate of the Company solely because such individual is a Director) or
of any corporation, partnership, association or other entity with respect to
which the Company owns a majority of the common stock or other equity
interests or has the power to vote or direct the voting of a sufficient number
of securities or other governing body ("Subsidiary"), and (b) is not and has
not been an officer or employee, or any family member of an officer, director or
employee of the Company or any Subsidiary.
Section 6. Amendment, Repeal, Etc. Notwithstanding anything contained in
this Certificate of Incorporation to the contrary, the affirmative vote of
holders of Voting Stock having at least 75% of the votes of all Voting Stock,
voting together as a single class, is required to amend or repeal, or adopt
any provision inconsistent with, this Article Seventh.
Eighth. To the full extent permitted by the DGCL or any other applicable law
currently or hereafter in effect, no Director of the Company will be
personally liable to the Company or its stockholders for or with respect to
any acts or omissions in the performance of his or her duties as a Director of
the Company. Any repeal or modification of this Article Eighth will not
adversely affect any right or protection of a Director of the Company existing
prior to such repeal or modification.
Ninth. The Company will indemnify each person who is or was or had agreed to
become a Director or officer of the Company and, at the Company's option, may
indemnify any other person who is or was serving or
who had agreed to serve at the request of the Board or an officer of the
Company as an employee or agent of the Company or as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust,
or other entity, whether for profit or not for profit (including the heirs,
executors, administrators, and estate of such person), to the full extent
permitted by the DGCL or any other applicable law as currently or hereafter in
effect. Without limiting the generality or the effect of the foregoing, the
Company may adopt By-Laws, or enter into one or more agreements with any
person, which provide for indemnification greater or different than that
provided in this Article Ninth or the DGCL. Any amendment or repeal of, or
adoption of any provision inconsistent with, this Article Ninth will not
adversely affect any right or protection existing hereunder, or arising out of
facts occurring, prior to such amendment, repeal, or adoption and no such
amendment, repeal, or adoption, will affect the legality, validity, or
enforceability of any contract entered into or right granted prior to the
effective date of such amendment, repeal, or adoption.
