Exhibit 10.58
AMENDMENT NO. 1
to
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO.1, dated January 16, 1998, to AGREEMENT AND PLAN OF
MERGER, dated as of November 13, 1997 (the "Original Agreement", and as so
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amended, the "Agreement"), among MBIA INC., a Connecticut corporation
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("Parent"), CMA ACQUISITION CORPORATION, a Delaware corporation and a
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wholly owned subsidiary of Parent ("Sub"), and CAPMAC HOLDINGS INC., a
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Delaware corporation (the "Company").
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WHEREAS, the Company, Parent and Sub have entered into the Original
Agreement;
WHEREAS, the Company, Parent and Sub now wish to amend the Original
Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Sub and the Company hereby agree as follows:
1. The preamble to the Original Agreement is hereby amended to read in
its entirety as follows:
AGREEMENT AND PLAN OF MERGER, dated as of November 13, 1997, as
amended by Amendment No. 1 thereto, dated January 16, 1998 (as so amended, the
"Agreement"), among MBIA NC., a Connecticut corporation ("Parent"), CMA
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ACQUISITION CORPORATION, a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub"), and CAPMAC HOLDINGS INC., a Delaware corporation (the
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("Company").
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2. The second sentence of Section 1.6(a) of the Original Agreement is
hereby amended to read in its entirety as follows:
For purposes of this Agreement, "Exchange Ratio" means $31.00 divided by
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the Parent Common Stock Price (as defined below), rounded to the nearest
1/10,000.
3. The second paragraph of Section 2.1 of the Original Agreement is
hereby amended to read in its entirety as follows:
As used in this Agreement, "Material Adverse Effect" means any
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adverse change or effect that is materially adverse to the financial
condition, results of operations, assets, liabilities or business of a
person or on the ability of such person to perform its obligations
hereunder, but shall exclude any change or effect resulting from any
occurrence or condition generally affecting the industry in which such
person and its subsidiaries operate (including without limitation any
change or proposed change in insurance laws or regulations in any
jurisdiction or official interpretations thereof), any occurrence or
condition relating to developments in Asia and any occurrence or condition
arising out of the transactions contemplated by this Agreement or the
public announcement thereof.
4. The second sentence of Section 5.4(b) of the Original Agreement
shall be amended to read in its entirety as follows:
Notwithstanding the foregoing, the Company may, at any time after March 15,
1998, directly or indirectly, furnish information and access, in each case
only in response to a written request for such information or access made
after the date hereof by any person which was not encouraged, solicited or
initiated by the Company or any of its officers, directors, employees,
representatives or agents after the date hereof, and participate in
discussions and negotiate with such person concerning any Acquisition
Proposal, if, and only to the extent that (i) such person has submitted a
bona fide definitive written Acquisition Proposal to the Board of Directors
of the Company, (ii) the Board, after consultation with its independent
financial advisors, determines that (x) the person making such Acquisition
Proposal is reasonably capable of completing such Acquisition Proposal,
taking into account the legal, financial, regulatory and other aspects of
such Acquisition Proposal and the person making such Acquisition Proposal
and (y) such Acquisition Proposal involves consideration to the Company's
stockholders and other terms and conditions that, taken as a whole, are
superior to the Merger (a proposal described in this clause (ii) a
"Superior Proposal"), and (iii) the Board determines in good faith, based
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upon the advice of outside counsel to the Company, that taking any such
action is necessary for the Board to comply with its fiduciary duty to
stockholders under applicable law.
5. Section 7.1(b) of the Original Agreement is hereby amended by
deleting the word "or" where it appears at the end of clause (ii) thereof,
replacing the period at the end of clause (iii) thereof with "; or", and by
adding a new clause (iv) thereto reading as follows:
(iv) if the Company Stockholder Approval shall not have been
obtained on or before March 15, 1998.
6. Section 7.1(d) of the Original Agreement is hereby amended to read
in its entirety as follows:
(d) By the Company in accordance with Section 5.4; provided that such
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termination under this clause (d) shall not be effective until the Company
has made payment of the Termination Fee and the Facility Fee required by
Section 7.3.
7. Section 7.3(a) of the Original Agreement is hereby amended to read
in its entirety as follows:
(a) The Company shall pay, or cause to be paid, in same day funds to
Parent $19.4 million (the "Termination Fee") and $8 million (the "Facility Fee")
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under the circumstances and at the times set forth as follows:
(i) if Parent terminates this Agreement pursuant to Section 7.1(c)
hereof, the Company shall pay the Termination Fee and the Facility Fee upon
demand;
(ii) if the Company terminates this Agreement pursuant to Section
7.1(d) hereof, the Company shall pay the Termination Fee and the Facility
Fee concurrently therewith;
(iii) if (1) Parent terminates this Agreement pursuant to Section
7.1(b)(iii), 7.1(b)(iv) or 7.1(e) and (2) prior to such termination an
Acquisition Proposal shall have been publicly announced (other than an
Acquisition Proposal made prior to the date hereof) and (3) within six
months thereafter, (A) the Company enters into a definitive agreement with
respect to an Acquisition Proposal or an Acquisition Proposal is
consummated involving any party (x) with whom the Company had any
discussions with respect to an Acquisition Proposal, (y) to whom the
Company furnished information with respect to or with a view to an
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Acquisition Proposal or (z) who had submitted a proposal or expressed any
interest publicly in an Acquisition Proposal, in the case of each of
clauses (x), (y) and (z), prior to such termination, or (B) the Company
enters into a definitive agreement with respect to a Superior Proposal, or
a Superior Proposal is consummated, then, in the case of either (A) or (B)
above, the Company shall pay the Termination Fee and the Facility Fee upon
the earlier of the execution of such agreement or upon consummation of such
Acquisition Proposal or Superior Proposal.
8. This Amendment shall be governed by the laws of the State of
Delaware (regardless of the laws that might otherwise govern under applicable
principles of conflicts of law) as to all matters, including, but not limited
to, matters of validity, construction, effect, performance and remedies.
9. Except as expressly provided in this Amendment, the Original
Agreement shall continue in full force and effect in accordance with the
provisions thereof.
10. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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