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EXHIBIT 2.3
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER is entered into as
of March 30, 1999 (this "Amended Merger Agreement"), between THE MEN'S
WEARHOUSE, INC., a Texas corporation ("TMW"), TMW COMBINATION COMPANY, a
Georgia corporation ("Combination Company"), and K&G MEN'S CENTER, INC., a
Georgia corporation (the "Company").
W I T N E S S E T H:
WHEREAS, TMW, Combination Company and the Company entered into an
Agreement and Plan of Merger dated as of March 3, 1999 (the "Existing Merger
Agreement"); and
WHEREAS, TMW, Combination Company and the Company desire to make
certain modifications to the terms of the Existing Merger Agreement to properly
reflect the understanding of the parties.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby,
TMW, Combination Company and the Company hereby agree as follows:
1. Section 3.1(h) of the Existing Merger Agreement shall be amended in
its entirety to read as follows:
"(h) State Takeover Statutes; Absence of Supermajority Provision. The
Company has taken all action to assure that no state takeover statute or
similar statute or regulation, including, without limitation Sections
14-2-1103, 14-2-1111 and 14-2-1132 of the GBCC, shall apply to the Merger or
any of the other transactions contemplated hereby. The Company has also taken
such other action with respect to any other anti-takeover provisions in its
Bylaws or Articles of Incorporation to the extent necessary to consummate the
Merger on the terms set forth in this Agreement."
2. Section 6.3(b)(ii) of the Existing Merger Agreement shall be
amended in its entirety to read as follows:
"(ii) [Intentionally Omitted];"
3. Miscellaneous.
(1) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
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(2) This Amended Merger Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, TMW, Combination Company and the Company have
caused this Amended Merger Agreement to be signed by their respective officers
thereunto duly authorized, all as of the date first written above.
THE MEN'S WEARHOUSE, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President - Finance and
Principal Financial and
Accounting Officer
TMW COMBINATION COMPANY
By /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President - Finance and
Principal Financial and
Accounting Officer
K&G MEN'S CENTER, INC.
By /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
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