EXHIBIT 2.2
AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT, dated as of November 18, 1997 (this "Amendment") among
NationsBank Corporation, a North Carolina corporation ("NationsBank"), NB
Holdings Corporation, a Delaware corporation and wholly-owned subsidiary of
NationsBank ("Merger Sub"), and Xxxxxxx Xxxxx, Inc., a Florida corporation ("the
Company").
WHEREAS, NationsBank and the Company have previously entered into that
certain Agreement and Plan of Merger, dated as of August 29, 1997 (the
"Agreement"); and
WHEREAS, such persons wish to amend the Agreement, pursuant to Sections
2.01 and 9.02 of the Agreement, in the manner set forth below;
NOW, THEREFORE, the parties hereto agree as follows;
1. All capitalized terms used and not defined herein shall have the
meanings given them in the Agreement, and each reference in this Agreement to
"this Agreement", "hereof", "herein", "hereunder" or "hereby" and each other
similar reference shall be deemed to refer to the Agreement as amended hereby.
All references to the Agreement in any other agreement between NationsBank and
the Company relating to the transactions contemplated by the Agreement shall be
deemed to refer to the Agreement as amended hereby.
2. The first paragraph on page 1 of the Agreement is hereby amended and
restated in its entirety to read as follows:
AGREEMENT AND PLAN OF MERGER, dated as of August 29, 1997 (this
"Agreement"), by and among Xxxxxxx Xxxxx, Inc., a Florida corporation (the
"Company"), NationsBank Corporation, a North Carolina corporation
("NationsBank") and NB Holdings Corporation, a Delaware corporation and a
wholly-owned subsidiary of NationsBank (subject to Section 1.01 hereof,
"Merger Sub").
3. The first recital to the Agreement is hereby amended by deleting the
words "with and into NationsBank so that NationsBank" and substituting therefor
the words "with and into Merger Sub so that Merger Sub".
4. Section 1.01 is hereby amended by inserting the following definitions in
appropriate alphabetical order therein:
"Merger Sub" shall have the meaning set forth in the introductory
paragraph to this Agreement, or, at the sole election of NationsBank and
subject to compliance with Section 2.01 hereof, shall mean a wholly-owned
subsidiary of NationsBank organized by NationsBank to effect the Merger.
"Merger Sub Common Stock" shall have the meanings set forth in Section
3.01(c) of this Agreement.
5. Section 1.01 is hereby further amended by inserting the following before
the period in the definition of "Subsidiary" and "Significant Subsidiary": ";
provided that for purposes of Article V, Merger Sub shall be deemed a
Significant Subsidiary of NationsBank"
6. Section 2.01(a) is hereby amended by deleting each reference to
"NationsBank" in the first sentence thereof and substituting in each case the
words "Merger Sub", and by deleting the words "North Carolina" and substituting
therefor the word "Delaware".
7. Section 2.01(a) is hereby further amended by deleting from the second
sentence thereof the words "a wholly-owned subsidiary of".
8. Section 2.01(b) is hereby amended by deleting the phrase "the Secretary
of State of North Carolina" and substituting therefor the phrase "the Secretary
of State of the State of Delaware"; by deleting the phrase "Section 11-05 of the
General and Business Corporation Act of North Carolina (the "NCBCA") and by
substituting therefor the phrase "Section 252 of the General Corporation Law of
the State of Delaware (the "DGCL")"; and by deleting from the last sentence
thereof the phrase "Section 11-06 of the NCBCA" and substituting therefor the
phrase "Sections 259 and 261 of the DGCL".
9. Section 2.01(c) is hereby amended by deleting the word "NationsBank" and
substituting therefor the words "Merger Sub".
10. Section 3.01 is hereby amended by adding at the end thereof a new
subsection (c), to read in its entirety as follows:
(c) OUTSTANDING MERGER SUB COMMON STOCK. Each share of the common
stock of Merger Sub (the "Merger Sub Common Stock") issued and outstanding
immediately prior to the Effective Time shall be unchanged and shall remain
issued and outstanding as common stock of the Surviving Corporation.
11. Section 5.03(b) is hereby amended by adding at the end thereof a new
paragraph (iii), to read in its entirety as follows:
(iii) In case of the representations and warranties of NationsBank,
the outstanding shares of Merger Sub Common Stock are (or, if NationsBank
should designate Merger Sub to be an entity other than NB Holdings
Corporation pursuant hereto, at the Effective Time will be) validly issued
and outstanding, fully paid and nonassessable, and subject to no preemptive
rights.
12. Section 5.03(d) is hereby amended by inserting between the words "and
it has" and "the corporate power" and following the phrase: "(and, in the case
of the representations and warranties of NationsBank, Merger Sub has or, if
NationsBank should designate Merger Sub to be an entity other than NB Holdings
Corporation pursuant hereto, will have at the Effective Time)".
13. Section 5.03(e) is hereby amended by inserting between at the end
thereof the following:
This Agreement and the transactions contemplated hereby have been (or, if
NationsBank should designate Merger Sub to be an entity other than NB
Holdings Corporation pursuant hereto, at the Effective Time will have been)
authorized by all necessary corporate and stockholder action of Merger Sub,
and this Agreement is (or, if NationsBank should designate Merger Sub to be
an entity other than NB Holdings Corporation pursuant hereto, at the
Effective Time will be) a legal, valid and binding agreement of Merger Sub,
enforceable in accordance with its terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general applicability
relating to or affecting creditors' rights or by general equity
principles).
14. Section 7.08 is hereby amended by (A) amending and restating clause (i)
thereof to state in its entirety as follows:
(i) No gain or loss will be recognized by NationsBank, the Company or
Merger Sub as a result of the Merger;
and (B) by substituting for the phrase "NationsBank, the Company and others" in
the last sentence thereof the phrase "NationsBank, the Company and Merger Sub
and others".
15. Upon execution and delivery of this Amendment by each of the parties
hereto, Merger Sub shall become a party to the Agreement with such rights and
obligations as are provided herein and therein.
16. This Amendment shall be governed by and construed in accordance with
the laws of the state of New York, without regard to the conflict of law
principles thereof.
17. This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
18. Except as expressly amended hereby, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
XXXXXXX XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
NATIONSBANK CORPORATION
By: /s/ Xxxx X. Xxxx
------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
and Treasurer
NB HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxx
-----------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
and Treasurer
[Amendment to Agreement and Plan of Merger]
