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Exhibit 10.14
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
dated as of this 29th day of May, 1998, by and among TELEBANC FINANCIAL
CORPORATION, a Delaware corporation ("Parent"), TBK ACQUISITION CORP., a
Delaware corporation and a wholly-owned subsidiary of Parent ("Acquisition
Corp."), and DIRECT FINANCIAL CORPORATION, a New Jersey corporation (the
"Company"), recites and provides as follows:
RECITALS:
WHEREAS, pursuant to an Agreement and Plan of Merger dated January 14,
1998 (the "Merger Agreement"), by and between Parent and the Company, Parent
agreed to acquire the Company, and the Company agreed to be acquired by Parent,
by virtue of a merger whereby Parent would become the Surviving Institution;
WHEREAS, pursuant to Section 4.13 of the Merger Agreement, Parent, subject
to certain limitations, has the right to modify the structure of the
transactions contemplated in the Merger Agreement; and
WHEREAS, pursuant to this Amendment, Parent desires to (i) modify the
structure of the Merger whereby Acquisition Corp. would be merged with and into
the Company and the Company would be the Surviving Institution and (ii) effect
such other changes in the Merger Agreement consistent with the revised
structure.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT:
SECTION 1. General Amendment. Except for the amendments set for in Section
2 below, all references in the Merger Agreement to "Acquiror" shall be deemed to
be and hereby are amended to read "Parent" and all references to "Subsidiaries"
shall be deemed to include Acquisition Corp.
SECTION 2. Amendment to Sections 1.1 and 1.2 of the Merger Agreement.
Sections 1.1 and 1.2 of the Merger Agreement are hereby deleted in their
entirety and restated as follows:
"1.1 Structure of Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.6 hereof),
Acquisition Corp. will merge with and into the Company (the "Merger"),
with the Company being the surviving institution (the "Surviving
Institution") pursuant to the provisions of, and with the effects
provided in, the Delaware General Corporation Law ("DGCL") and the New
Jersey Business Corporation Act ("NJBCA"). At the Effective Time, the
separate corporate existence of Acquisition Corp. shall cease, and the
Company shall continue as the Surviving Institution. The certificate of
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incorporation and bylaws, as in effect immediately prior to the Effective
Time, shall be the certificate of incorporation and bylaws of the
Surviving Institution until thereafter amended as provided by law. The
directors and officers of Acquisition Corp., immediately prior to the
Effective Time, shall be the directors and officers of the Surviving
Institution until thereafter such directors and officers resign or are
removed or their term of office expires.
1.2 Effect of the Merger on Outstanding Shares of Company Stock.
Subject to the terms and conditions of this Agreement, to effectuate, and
automatically by virtue of, the Merger:
(a) Common Stock. At the Effective Time, (i) each share of
common stock of the Company, par value $1.00 per share ("Company
Common Stock"), issued and outstanding immediately prior to the
Effective time (other than shares ("Excluded Shares") held directly
or indirectly by Parent or the Company or any of their respective
Subsidiaries, excluding shares held in a fiduciary capacity that are
beneficially owned by third parties or in satisfaction of a debt
previously contracted) ("Outstanding Common Shares") shall become and
be converted into the right to receive cash in the amount of $12.00
per share without interest (the "Per Share Merger Consideration") and
(ii) each outstanding share of Acquisition Corp. shall be converted,
on a one for one basis, into one share of the Surviving Institution
common stock, as such shares are constituted immediately prior to the
Effective Time.
(b) Preferred Stock. At the Effective Time, each share of Series
B 8.75% Cumulative Convertible Preferred Stock of the Company, par
value $1.00 per share ("Company Preferred Stock"), issued and
outstanding immediately prior to the Effective Time (other than
Excluded Shares) ("Outstanding Preferred Shares") shall become and be
converted into the right to receive cash in the amount of the Per
Share Merger Consideration multiplied by 2.1739.
(c) Excluded Shares. Each Excluded Share shall by virtue of the
Merger be canceled and retired and shall cease to exist, and no
exchange or payment shall be made therefor."
SECTION 3. Effectiveness. The amendments provided for by this Amendment
shall become effective upon the execution and delivery of this Amendment by each
of the parties hereto.
SECTION 4. Merger Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, all of the terms and conditions of the Merger
Agreement shall remain in full force and effect. All references to the Merger
Agreement in any other document or instrument shall be deemed to mean the Merger
Agreement as amended by this Amendment. This Amendment shall not constitute a
novation of the Merger Agreement, but shall constitute an
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amendment thereof.
SECTION 5. Counterparts. This Amendment may be executed in any number of
counterparts and by separate parties hereto on separate counterparts, each of
which when executed shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 6. Governing Law. This Amendment and the legal relations between
the parties hereto shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to the conflict of laws rule
thereof.
SECTION 7. Acquisition Corp. Acquisition Corp. has been formed solely for
the purpose of the Merger and has no assets other than the consideration to be
paid in connection with the Merger.
SECTION 8. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers as of the day and year first above
written.
TELEBANC FINANCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice Chairman of the Board and President
TBK ACQUISITION CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice Chairman of the Board and President
DIRECT FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
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