EXHIBIT 2.2
FIRST AMENDMENT TO ACQUISITION DOCUMENTS made and entered into as of
July 3, 2002, by and among ConAgra Foods, Inc., a Delaware corporation
("ConAgra"), HMTF Rawhide, L.P., a Delaware limited partnership ("Acquisition
LP"), and S&C Holdco, Inc., a Delaware corporation ("Holdco").
RECITALS:
WHEREAS, the parties hereto are parties to the Agreement dated May 20,
2002 (the "Acquisition Agreement");
WHEREAS, the Acquisition Agreement contemplates the execution at the
Closing of various agreements attached as Exhibits to the Acquisition Agreement
(the "Ancillary Documents" and together with the Acquisition Agreement, the
"Acquisition Documents");
WHEREAS, Section 2.1.9 of the Acquisition Agreement currently provides
that prior to Closing Holdco shall change its name to "Swift & Company;"
WHEREAS, certain Ancillary Documents to be executed at the Closing have
been prepared in a manner that anticipates the name change contemplated by
Section 2.1.9 of the Acquisition Agreement and thereby reflect that at the
Closing Holdco's name shall be "Swift & Company;"
WHEREAS, the parties desire to amend Section 2.1.9 of the Acquisition
Agreement and the Ancillary Documents to provide and reflect that prior to the
Closing Holdco's name shall be changed to "Swift Foods Company" rather than
"Swift & Company;"
WHEREAS, ConAgra has caused S&C Holdco 3, Inc. to incorporate Swift
Meats Holding Company (defined as "U.S. Acquisition Co." in the Acquisition
Agreement) pursuant to Section 2.1.4 of the Acquisition Agreement;
WHEREAS, U.S. Acquisition Co. is a party to certain of the Ancillary
Documents to be executed at the Closing; and
WHEREAS, the parties desire to amend the Acquisition Agreement and the
Ancillary Documents to provide and reflect that prior to the Closing U.S.
Acquisition Co.'s name shall be changed to "Swift & Company."
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
Section 1. Corporate Name Change of Holdco in Acquisition Agreement.
Section 2.1.9 of the Acquisition Agreement shall be deleted in its entirety and
the following revised Section 2.1.9 shall be deemed inserted in place thereof as
of the date hereof:
2.1.9 ConAgra shall use its reasonable efforts to cause
Holdco to change its corporate name to "Swift Foods
Company" in its jurisdiction of incorporation and
each other jurisdiction in
which it is qualified to do business as set forth on
Schedule 7.1.
Section 2. Corporate Name Change of Holdco in Ancillary Documents. At
or prior to the Closing each Ancillary Document that is to be executed at the
Closing that currently provides or reflects that Holdco's name is to be changed
to Swift & Company by or before and as of the Closing shall be amended as
necessary to reflect that Holdco's name shall be changed to "Swift Foods
Company."
Section 3. Corporate Name Change of U.S. Acquisition Co. in Acquisition
Agreement. The following new Section 2.1.30 shall be deemed inserted in Article
2 of the Acquisition Agreement as of the date hereof:
2.1.30 ConAgra shall use its reasonable efforts to cause
U.S. Acquisition Co. to change its corporate name to
"Swift & Company" in its jurisdiction of
incorporation and each other jurisdiction in which it
is qualified to do business as set forth on Schedule
7.1.
Section 4. Corporate Name Change of U.S. Acquisition Co. in Ancillary
Documents. At or prior to the Closing each Ancillary Document that is to be
executed at the Closing that currently reflects U.S. Acquisition Co.'s name as
"Swift Meats Holding Company" shall be amended as necessary to reflect that U.S.
Acquisition Co.'s name shall be changed to "Swift & Company."
Section 5. Defined Terms. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Acquisition Agreement.
Section 6. Acquisition Agreement Amendment Provision. This First
Amendment to Acquisition Documents is executed, delivered and made effective in
accordance with Section 15.2 of the Acquisition Agreement.
Section 7. Effect on Acquisition Documents. Except as specifically
amended hereby, all terms, provisions and conditions of the Acquisition
Documents shall remain in full force and effect.
Section 8. Amendments. This First Amendment to Acquisition Documents
shall not be amended except in a writing signed by all the parties hereto.
Section 9. Counterparts. This First Amendment to Acquisition Documents
may be executed and delivered (including by facsimile transmission) in one or
more counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same instrument.
Section 10. Applicable Law. This First Amendment to Acquisition
Documents and the legal relations among the parties hereto shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made and performed in Delaware.
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Section 11. Consent to Jurisdiction. THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
DELAWARE STATE COURT SITTING IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
[SIGNATURE PAGE FOLLOWS]
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The undersigned parties have executed this First Amendment to
Acquisition Documents as of the date first set forth above.
CONAGRA FOODS, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President, Operations
Control and Development
HMTF RAWHIDE, L.P.
By: HMTF RW, L.L.C., its General Partner
By: Hicks, Muse, Xxxx & Xxxxx
Equity Fund V, L.P.,
its sole member
By: HM5/GP LLC, its General
Partner
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx,
Vice President
S&C HOLDCO, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx X. Xxxxxx, President
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