Exhibit 2.2
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of July 13, 1998, by and among
First Nationwide (Parent) Holdings Inc., a Delaware corporation, First
Nationwide Holdings Inc., a Delaware corporation, Golden State Bancorp Inc., a
Delaware corporation, Golden State Financial Corporation, a Delaware
corporation, First Gibraltar Holdings Inc., a Delaware corporation, and
Xxxxxx'x Xxxx/Ford Ltd., Texas limited partnership (collectively, the
"Parties"), to the Agreement and Plan of Reorganization (the "Agreement"),
dated as of February 4, 1998, by and among the Parties. Capitalized terms which
are not otherwise defined herein shall have the meanings set forth in the
Agreement.
WHEREAS, in accordance with Section 8.3 of the Agreement, the
Parties desire to amend the Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and
intending to be legally bound hereby, the Parties hereby agree as follows:
1. Section 1.6(c)(ii)(C) of the Agreement is hereby amended
by adding the following new language at the end of subsection (3) thereof after
the words "Effective Date" but before the period:
,plus
(4) if the closing of the sale of
assets and the assumption of liabilities contemplated by the Purchase
and Sale Agreement, dated as of March 29, 1998, by and between CFB and
Union Planters Bank of Florida(the "Florida Branch Sale"), occurs on
or before the Effective Date, then for the first Taxable Period
immediately following the Effective Date, any federal income tax
savings resulting from the Florida Branch Sale. For this purpose, the
amount of federal income tax savings resulting from the Florida Branch
Sale shall be an amount equal to (i) the product of the amount of the
gain recognized by CFB for federal income tax purposes as a result of
the Florida Branch Sale and the highest marginal federal income tax
rate applicable to corporations for the taxable year in which the
Florida Branch Sale occurs, less (ii) the amount of any federal income
taxes actually paid as a result of such sale (including any payment in
lieu of federal income taxes under the Tax Sharing Agreement(as
defined in Section 6.14)) by CFB.
2. Section 1.6(c)(ii)(A) of the Agreement is hereby amended
by adding the following new sentence at the end of such section:
In the calculation of the Tax Benefits there shall be
excluded any deductions resulting from or arising in
connection with the refinancing of all of the long-term debt
of FNH and Parent Holdings and the purchasing of all of the
preferred stock of CFB, in each case outstanding as of the
date hereof, pursuant to the refinancing transactions
contemplated to be consummated immediately after the
consummation of the transactions contemplated by this
Agreement, or any transactions with substantially similar
purpose or effect.
3. Section 6.7(b) of the Agreement is hereby deleted in its
entirety and replaced with the following new Section 6.7(b):
Parent Holdings shall use its reasonable best efforts to
cause the persons serving as officers and directors of
Golden State immediately prior to the Effective Time to be
covered for a period of six (6) years from the Effective Time
(the "Coverage Period") by the directors' and officers'
liability insurance policy maintained by Golden State (except
that effective as of the Effective Time the single aggregate
coverage limit shall be increased to $100 million, and
provided that Parent Holdings may substitute for such
policy, as amended pursuant hereto, policies of directors'
and officers' liability insurance of at least the same
coverage and amounts and containing terms and conditions which
are not less advantageous to such directors and officers of
Golden State than the terms and conditions of such policy, as
amended pursuant hereto) with respect to acts and omissions
occurring prior to the Effective Time
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which were committed by such officers and directors in their
capacity as such; provided that Parent Holdings shall not be
required as to any such policy to pay premiums in excess of
300% of the amount currently expended annually by Golden
State to obtain such insurance, and if such insurance cannot
be obtained for such premium Parent Holdings shall obtain for
such persons the maximum coverage that may be obtained for
such premiums. It is the understanding of the parties hereto
that the obligations of Parent Holdings contemplated by the
preceding sentence are expected to be satisfied through the
purchase by Parent Holdings, by means of the payment of a
single premium prior to the Effective Time, of a directors'
and officers' liability insurance policy with a single
aggregate coverage limit of $100 million, and shall be so
satisfied for so long as such policy remains in effect during
the Coverage Period.
4. Section 6.14(a)(ii) and Section 6.14(b)(i) of the
Agreement are hereby amended by deleting the words "Merger Sub" and inserting
instead the words "New FNH".
5. All references to "this Agreement" in the Agreement shall
be deemed to refer to the Agreement as amended hereby.
6. Each of the Parties represents to the other that (i) it
has full corporate (or partnership) power and authority to execute and deliver
this Amendment and, subject to the terms and conditions set forth in the
Agreement, to consummate the transactions contemplated hereby, (ii) the
execution and delivery of this Amendment by such party have been duly and
validly approved by the Board of Directors of such party and no other corporate
proceedings on the part of such party are necessary in connection with the
execution and delivery of this Amendment by such party, and (iii) this
Amendment has been duly and validly executed and delivered by such party and
constitutes a valid and binding obligation of such party, enforceable against
such party in accordance with its terms.
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7. Except as expressly amended by this Amendment, the
Agreement is hereby ratified and confirmed in all respects.
8. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and 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.
9. This Amendment shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to any
applicable conflicts of law provisions.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
GOLDEN STATE BANCORP INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice Chairman
GOLDEN STATE FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
FIRST NATIONWIDE (PARENT)
HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
FIRST NATIONWIDE HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
FIRST GIBRALTAR HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX'X XXXX/FORD, LTD.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
