FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
FIRST
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as
of February 16, 2010 (this “ Amendment “),
is entered into by and among The Talbots, Inc., a Delaware
corporation (the “Company”), Tailor Acquisition
Inc., a Delaware corporation and direct subsidiary of the
Company (“Merger Sub”), and BPW Acquisition
Corp., a Delaware corporation (“BPW”).
WHEREAS, the parties hereto are parties to that certain
Agreement and Plan of Merger, dated as of December 8, 2009
(the “Merger Agreement”);
WHEREAS, pursuant to Section 8.4 of the Merger Agreement,
the parties hereto desire to amend the Merger Agreement as set
forth in this Amendment; and
WHEREAS, all necessary actions to make this Amendment a valid
agreement of the parties hereto have been taken.
NOW THEREFORE, for and in consideration of the premises and
mutual agreements herein set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITION
OF TERMS
Unless the context otherwise requires: (A) a term defined
in the Merger Agreement has the same meaning when used in this
Amendment; (B) capitalized terms used herein that are not
otherwise defined herein shall have the meaning assigned to such
terms in the Merger Agreement; (C) references to Sections
mean reference to such Sections in the Merger Agreement, unless
stated otherwise; and (D) rules of construction applicable
pursuant to the Merger Agreement are also applicable herein.
Each reference in the Merger Agreement to the “date of this
Agreement”, the “date hereof” or any similar term
shall refer to December 8, 2009.
ARTICLE II
AMENDMENT TO
THE MERGER AGREEMENT
The Merger Agreement is hereby amended as follows:
A. Article I of the Merger Agreement is hereby amended
by deleting the definition of “Average Company Stock
Price” therein in its entirety and replacing it with the
following:
“Average Company Stock Price” means the
volume weighted average price per share (calculated to the
nearest one-hundredth of one cent) of the Company Common Stock
on the NYSE (based on “regular way” trading on the
NYSE only, as reported by Bloomberg L.P. or, if not reported
thereby, by another authoritative source mutually agreed by the
parties) for the 15 consecutive trading days immediately
preceding the fifth trading day prior to the date of the BPW
Stockholders Meeting.
B. Article I of the Merger Agreement is hereby amended
by inserting the following definition of “Closing
Average” after the definition of “Certificates”,
and before the definition of “Code”, contained therein:
“Closing Average” means the average of
the daily volume weighted average prices per share (calculated
to the nearest one-hundredth of one cent) of the Company Common
Stock on the NYSE (based on “regular way” trading on
the NYSE only, as reported by Bloomberg L.P. or, if not reported
thereby, by another authoritative source mutually agreed by the
parties) over the 5 consecutive trading days immediately
preceding the Closing Date.
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C. Article I of the Merger Agreement is hereby amended
by deleting the definition of “Exchange Ratio” therein
in its entirety and replacing it with the following:
“Exchange Ratio” means an amount equal
to the greater of : (i) the quotient (rounded to the
nearest ten-thousandth) obtained by dividing $11.25 by the
Average Company Stock Price; provided, however, that if
such quotient is: (a) greater than 1.3235, such quotient
shall be deemed to be 1.3235 (the “Exchange Ratio
Ceiling”); or (b) less than 0.9000, the such
quotient shall be deemed to be 0.9000 and (ii) the quotient
(rounded to the nearest ten-thousandth) obtained by dividing
$11.25 by the Closing Average; provided, however, that if
such quotient is: (a) greater than 1.3235, such quotient
shall be deemed to be 1.3235; or (b) less than 0.9000, such
quotient shall be deemed to be 0.9000.
ARTICLE III
MISCELLANEOUS
| A. | Ratification of Merger Agreement; No Further Amendment; Full Force and Effect. |
The Merger Agreement as amended by this Amendment, is in all
respects ratified and confirmed, and this Amendment shall be
deemed part of the Merger Agreement. Except as otherwise
expressly provided in this Amendment, all of the terms and
conditions of the Merger Agreement remain unchanged and continue
in full force and effect. This Amendment shall form a part of
the Merger Agreement for all purposes, and each party hereto and
thereto shall be bound hereby. This Amendment shall be deemed to
be in full force and effect from and after the execution of this
Amendment by the parties hereto.
| B. | Governing Law; Jurisdiction and Venue; No Trial by Jury. |
This Amendment shall be governed by and construed in accordance
with, the laws of the State of Delaware without regard, to the
fullest extent permitted by law, to the conflicts of laws
provisions thereof which might result in the application of the
laws of any other jurisdiction.
Each party hereto irrevocably submits to the exclusive
jurisdiction of (i) the state courts of the State of
Delaware and (ii) the United States District Court for the
State of Delaware for the purposes of any suit, action or other
proceeding arising out of or relating to this Amendment, any
documents referred to in this Amendment or any transaction
contemplated hereby or thereby. Each party hereto agrees to
commence any action, suit or proceeding relating hereto only in
either such court. Each party hereto irrevocably and
unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Amendment,
any documents referred to in this Amendment or any transaction
contemplated hereby or thereby in (a) the state court of
the State of Delaware, or (b) the United States District
Court for the State of Delaware, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.
Each party hereto further irrevocably consents to the service of
process out of any of the aforementioned courts in any such
suit, action or other proceeding by the mailing of copies
thereof by mail to such party at its address set forth in the
Merger Agreement, such service of process to be effective upon
acknowledgment of receipt of such registered mail; provided
that nothing in this paragraph shall affect the right of any
party hereto to serve legal process in any other manner
permitted by law. The consent to jurisdiction set forth in this
paragraph shall not constitute a general consent to service of
process in the State of Delaware and shall have no effect for
any purpose except as provided in this paragraph. The parties
hereto agree that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
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Each of the parties hereto hereby irrevocably and
unconditionally waives any right it may have to trial by jury in
connection with any litigation arising out of or relating to
this Amendment, any documents referred to in this Amendment or
any transaction contemplated hereby or thereby.
| C. | Entire Agreement; Counterparts. |
This Amendment constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written
and oral, among the parties hereto, or any of them, with respect
to the subject matter hereof. This Amendment may be executed in
two or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[Remainder
of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company, Merger Sub and BPW have caused
this Amendment to be executed as of the date first written above
by their respective officers thereunto duly authorized.
THE TALBOTS, INC.
| By: |
/s/ Xxxxxxx
Xxxxxx
|
Xxxxxxx Xxxxxx
Chief Operating Officer,
Chief Financial Officer and Treasurer
TAILOR ACQUISITION, INC.
| By: |
/s/ Xxxxxxx
X. X’Xxxxxxx
|
Xxxxxxx X. X’Xxxxxxx
Vice President
By:
/s/ Xxxx
Xxxxxxxx
Xxxx Xxxxxxxx
Chief Executive Officer
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