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Exhibit 2(c)
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
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This FIRST AMENDMENT, dated as of July 27, 1998 (this "Amendment"), to
the Agreement and Plan of Merger is by and among Stone & Xxxxxx, a West Virginia
corporation ("S&T"), The Xxxxx-Xxxxxxx Stores Corp., an Ohio corporation
("Parent"), The Xxxxx-Xxxxxxx Acquisition Corp., an Ohio corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), and G. Xxxxx Xxxxxxx and
Xxxxxx X. Xxxxx, Xx., as Representatives.
WHEREAS, S&T, Parent, Merger Sub and the Representatives are each
parties to that certain Agreement and Plan of Merger, dated as of June 18, 1998
(the "Agreement");
WHEREAS, the Agreement contained a scrivener's error, by which Merger
Sub, an Ohio corporation, was inaccurately identified as a West Virginia
corporation, and the parties to the Agreement desire to correct the scrivener's
error and certain related scrivener's errors contained in the Agreement;
WHEREAS, prior to the Closing Date, S&T paid $165,554.32 to discharge
and satisfy certain past due rent liabilities due and owing to Xxxxxx Company
(the "Xxxxxx Liability") under S&T's leases for its Ohio Valley Mall, Huntington
Mall, and Meadowbrook Mall stores, which Xxxxxx Liability should have been, but
was not, disclosed by S&T on Schedule 2.1(j) to the Agreement;
WHEREAS, S&T is a party to three equipment leases with Sensormatic (the
"Sensormatic Leases") for certain equipment used by S&T at its Charlottesville,
Virginia, Beckley, West Virginia, and Huntington, West Virginia stores, which
Sensormatic Leases should have been, but were not, disclosed by S&T on Schedule
2.1(h) to the Agreement;
WHEREAS, Parent has agreed that the Surviving Corporation will assume
S&T's obligations under the Sensormatic Lease, and, in consideration thereof,
S&T has agreed to pay all costs and expenses (the "Sensormatic Liability")
associated with removing the Sensormatic equipment from S&T's Charlottesville,
Virginia and Beckley, West Virginia stores and re-installing it at the locations
designated by Parent upon the terms and conditions set forth in this Amendment;
WHEREAS, the parties desire to reduce the Merger Consideration by the
amount of the Xxxxxx Liability and the Sensormatic Liability;
NOW, THEREFORE, in consideration of the terms and conditions herein
contained and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and pursuant to Section 9.1 of the Agreement, all
of the parties to the Agreement hereby consent to amend the Agreement as
follows:
1. The preamble of the Agreement is hereby amended and restated in its
entirety as follows:
"This AGREEMENT AND PLAN OF MERGER, dated as of June 18, 1998
(the "Agreement"), is by and among Stone & Xxxxxx, a West
Virginia corporation ("S&T"), The Xxxxx-Xxxxxxx Stores Corp.,
an Ohio corporation ("Parent"), The Xxxxx-Xxxxxxx Acquisition
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Corp., an Ohio corporation and wholly-owned subsidiary of
Parent ("Merger Sub"), and G. Xxxxx Xxxxxxx and Xxxxxx X.
Xxxxx, Xx., as Representatives (as hereinafter defined)."
2. Section 1.1 of the Agreement is hereby amended and restated in its
entirety as follows:
"1.1 MERGER. On the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Ohio
General Corporation Law ("OGCL") and the West Virginia
Corporation Act ("WVCA"), the Merger shall be effected and
Merger Sub shall be merged with and into S&T at the Effective
Time (as defined in Section 1.3 below). At the Effective Time,
the separate corporate existence of Merger Sub shall cease and
S&T shall be the surviving corporation (the "Surviving
Corporation") and S&T shall succeed to and assume all the
rights and obligations of Merger Sub in accordance with the
OGCL and the WVCA."
3. Section 1.3 is hereby amended and restated in its entirety as
follows:
"1.3 CERTIFICATE OF MERGER/ARTICLES OF MERGER. On the Closing
Date, S&T and Merger Sub shall cause a certificate of merger
meeting the requirements of Section 1701.81 of the OGCL (the
"Certificate of Merger"), to be properly executed and filed in
accordance with the OGCL, and S&T and Merger Sub shall cause
articles of merger meeting the requirements of Section 31-1-36
of the WVCA (the "Articles of Merger") to be properly executed
and filed in accordance with the WVCA. The Merger shall be
effective, for corporate law purposes, at the time and on the
latter date of (i) the filing of the Certificate of Merger in
accordance with the OGCL, or (ii) the issuance of a
certificate of merger by the Secretary of State of West
Virginia in accordance with Section 31-1-37 of the WVCA (the
"Effective Time")."
4. Section 1.4 of the Agreement is hereby amended and restated in its
entirety as follows:
"1.4 EFFECTS OF MERGER. The Merger shall have effects set
forth in the applicable provisions of the OGCL and the WVCA.
Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all property of S&T and Merger
Sub shall vest in the Surviving Corporation, and all
liabilities of S&T and Merger Sub shall become the liabilities
of the Surviving Corporation."
5. Section 1.5 of the Agreement is hereby amended and restated in its
entirely as follows:
"1.5 ARTICLES OF INCORPORATION. The articles of incorporation
of S&T in effect immediately prior to the Effective Time shall
be the articles of incorporation
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of the Surviving Corporation (the "Articles") unless changed
or amended in accordance with the provisions thereof and
applicable law; PROVIDED, HOWEVER, that Article First of the
Articles of S&T shall be amended to read as follows:
The name of the corporation is Xxxxx-Xxxxxxx West Xxxxxxxx,
Inc."
6. Section 1.6 of the Agreement is hereby amended and restated in its
entirety as follows:
"1.6 BYLAWS. The bylaws of S&T in effect immediately prior to
the Effective Time shall be the bylaws of the Surviving
Corporation (the "Bylaws") unless changed or amended in
accordance with the provisions thereof and of the Articles and
applicable law."
7. Section 1.11(a) of the Agreement is hereby amended and restated in
its entirety as follows:
"1.11 ESCROW. (a) Prior to or concurrently with the Effective
Time: (i) Parent and S&T shall enter into an escrow agreement,
in the form attached hereto as EXHIBIT A (the "Escrow
Agreement"), with such escrow agent as may be designated by
Parent (the "Escrow Agent") and G. Xxxxx Xxxxxxx and Xxxxxx X.
Xxxxx, Xx., as representatives of the holders of S&T Common
Shares (the "Representatives"); and (ii) subject to Section
7.4(c)(iv), Parent shall deposit with the Escrow Agent,
pursuant to the Escrow Agreement, Three Million Dollars
($3,000,000) in immediately available funds (the "Escrow
Funds"). Upon being deposited with the Escrow Agent pursuant
to the Escrow Agreement, the Escrow Funds and any and all
earnings thereon and proceeds thereof held by the Escrow Agent
(collectively, the "Escrowed Property") shall be subject in
all respects to the provisions of the Escrow Agreement and
shall be held and disbursed by the Escrow Agent in accordance
with the provisions of the Escrow Agreement. In accordance
with the provisions of the Escrow Agreement, the Escrowed
Property shall be held in escrow by the Escrow Agent for a
period of eighteen (18) months after which time any remaining
Escrowed Property will be disbursed, on a pro rata basis, to
the Certificate holders of S&T Common Shares; PROVIDED,
HOWEVER, that such portion of the Escrowed Property sufficient
to completely discharge the amount of any claim for
indemnification made by written demand before the expiration
of such 18-month period (as provided in Section 1.11(b) and
the Escrow Agreement) shall be held in escrow by the Escrow
Agent beyond the 18-month period until such claim has been
fully resolved. On the Closing Date, to provide a fund to
reimburse all out-of-pocket expenses incurred by the
Representatives in connection with their service as
Representatives, Parent shall pay to the Representative the
sum of One Hundred Thousand Dollars ($100,000), which amount
shall be deducted from the aggregate Merger Consideration
otherwise to be deposited into the Exchange Fund and any
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unused portions of such amount shall be distributed by the
Representative to the holders of S&T Common Shares in
proportion to their Proportionate Share (as defined in the
Escrow Agreement) at the termination of the Escrow Agreement.
8. REDUCTION OF THE MERGER CONSIDERATION.
a. To reduce the Merger Consideration by the amount of the
Xxxxxx Liability (with an additional adjustment necessary due to rounding), the
text "$595.49" appearing in Section 1.9(c) of the Agreement is hereby deleted
and the text "$590.01" is inserted in lieu thereof.
b. If after the Closing, it is determined that the Xxxxxx
Liability was overstated and the Xxxxxx Corporation returns to Parent any
overpayment made by S&T to discharge the Xxxxxx Liability (the "Returned
Overpayment"), Parent will pay the Returned Overpayment into, and the Returned
Overpayment will become part of, the Escrowed Property. The Returned Overpayment
will be distributed in accordance with the terms and conditions of the Escrow
Agreement.
9. PAYMENT TO PARENT FROM THE ESCROWED PROPERTY. The parties agree that
as soon as the amount of the Sensormatic Liability is ascertained, Parent will
be entitled to reimbursement for the Sensormatic Liability from the Escrowed
Property. The parties agree that the Escrow Agent may make a payment or payments
from the Escrowed Property to Parent for all costs and expenses associated with
the Sensormatic Liability upon the Parent's submission to the Escrow Agent of a
written claim or claims, as the case may be, for such payment.
10. MISCELLANEOUS. The Agreement shall, except as provided above,
remain unchanged and continue in full force and effect. All initially
capitalized terms used in this Amendment without definition shall have the
respective meanings set forth in the Agreement. All and any references in any of
the Transaction Documents to the Agreement shall be deemed to be references to
the Agreement, as amended by this Amendment.
11. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Amendment and all of which, when taken together, will be deemed to constitute
one and the same Amendment.
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