EX-2.2
AMENDMENT TO MERGER AGREEMENT
This Amendment, dated as of March 31, 1997, is made by and among
XXXXXXX MILLING COMPANY, a Minnesota corporation ("Xxxxxxx"), XXXXX XXXX PET
FOOD COMPANY, INC., a Delaware corporation ("Buyer"), and XXXXX XXXX PET FOOD
ACQUISITION CO., a Minnesota corporation ("Buyer Subsidiary").
WITNESSETH
WHEREAS, Xxxxxxx, Buyer and Buyer Subsidiary have entered into a
Merger Agreement (the "Merger Agreement") dated as of March 21, 1997; and
WHEREAS, Xxxxxxx, Buyer and Buyer Subsidiary desire to amend
certain provisions of the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements contained herein, the parties hereto hereby agrees as
follows:
1. Name of Buyer. The name of Buyer is set forth in the Merger
Agreement as "Xxxxx Xxxx Pet Food Co., Inc." The correct legal name of Buyer
as set forth in its Certificate of Incorporation is "Xxxxx Xxxx Pet Food
Company, Inc." The parties agree that (i) all references to "Xxxxx Xxxx Pet
Food Co., Inc." in the Merger Agreement and all exhibits thereto shall be
deemed to be references to "Xxxxx Xxxx Pet Food Company, Inc." and (ii) at
the time of execution and delivery of the Armour Stock Purchase Agreement,
attached as Exhibit A to the Merger Agreement, the correct legal name of
Buyer shall be inserted in the final execution copies thereof.
2. Amendment to Section 9.03. The reference to "Section 7.01(f)"
in the last line of Section 9.03 of the Merger Agreement shall be amended to
read "Section 7.01(g)".
3. Amendment to Exhibit B. The Plan of Merger attached as Exhibit
B to the Merger Agreement shall be amended and restated in its entirety to
read as set forth in Exhibit B (Amended) attached to this Amendment.
4. Miscellaneous. Except as specifically set forth herein, all
terms and provisions of the Merger Agreement and all exhibits thereto shall
remain in full force and effect with no other modification or waiver. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which taken together
shall constitute one and the same instrument. This Amendment shall be
governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
XXXXXXX MILLING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx, President
XXXXX XXXX PET FOOD COMPANY, INC.
By: /s/ Xxx Xxxxx
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Xxx Xxxxx, Executive Vice President
XXXXX XXXX PET FOOD ACQUISITION CO.
By: /s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx, Executive Vice President
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EXHIBIT B (AMENDED)
PLAN OF MERGER
Merger of
XXXXX XXXX PET FOOD ACQUISITION CO.
with and into
XXXXXXX MILLING COMPANY
WHEREAS, Xxxxx Xxxx Pet Food Acquisition Co., a Minnesota
corporation ("Buyer subsidiary"), and Xxxxxxx Milling Company, a Minnesota
corporation ("Xxxxxxx" and, together with Buyer Subsidiary, the "Constituent
Corporations"), have entered into that certain Merger Agreement (the "Merger
Agreement") dated as of March 21, 1997, as amended March 31, 1997 by and
among Xxxxxxx, Xxxxx Xxxx Pet Food Company, Inc., a Delaware corporation, and
Buyer Subsidiary; and
WHEREAS, the Merger Agreement provides for the merger of Buyer
Subsidiary with and into Xxxxxxx pursuant to Section 302A.611 of the
Minnesota Business Corporation Act ("MBCA") and in accordance with the terms
of this Plan of Merger, with Xxxxxxx being the surviving corporation of the
merger;
NOW, THEREFORE, BE IT RESOLVED that at the Effective Time (as
defined below) and in accordance with this Plan of Merger and pursuant to
Section 302A.611 of the MBCA, Buyer Subsidiary shall be merged with and into
Xxxxxxx on the terms and conditions contained in these resolutions, with
Xxxxxxx being the surviving corporation of such merger (the "Merger"), the
name of which shall continue to be Xxxxxxx Milling Company.
FURTHER RESOLVED, that the Merger shall be effective (the
"Effective Time") immediately upon filing of the Articles of Merger with the
Secretary of State of the State of Minnesota, all in the manner required by
law.
FURTHER RESOLVED, that each share of Common Stock, par value
$.0l, of Buyer Subsidiary outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into one (1) share of Class A Voting Common
Stock, $.05 par value, of Xxxxxxx and each holder of a stock certificate
representing shares of Common Stock of Buyer Subsidiary outstanding
immediately prior to the Effective Time shall, upon surrender of such
certificate, be entitled to receive a stock certificate representing the same
number of shares of Class A Voting Common Stock of Xxxxxxx and until so
surrendered, each such stock certificate
representing Common Stock of Buyer Subsidiary shall, by virtue of the Merger,
be deemed for all purposes to evidence ownership of the same number of shares
of Class A Voting Common Stock of Xxxxxxx.
FURTHER RESOLVED, that (i) each share (other than a "Dissenting
Share" as defined below) of 5 % Preferred Stock, $50 par value, of Xxxxxxx
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be canceled
and converted into the right to receive in cash an amount equal to Fifty
Dollars ($50.00) per share, plus accrued but unpaid dividends thereon through
the Effective Time, (ii) each share (other than a Dissenting Share or a share
owned by Armour Corporation, a Delaware corporation) of Class A Voting Common
Stock of Xxxxxxx, $.05 par value, and Class B Non-Voting Common Stock of
Xxxxxxx, $.05 par value, shall, by virtue of the Merger and without any
action on the part of the holder thereof, be canceled and converted into the
right to receive in cash an amount equal to the Common Stock Merger
Consideration Per Share (as defined in Section 1.03 of the Merger Agreement),
and (iii) each Dissenting Share shall, by virtue of the Merger and without
any action on the part of the holder thereof, be canceled and converted into
the right to receive in cash an amount equal to the fair value thereof
determined in accordance with Section 302A.473 of the MBCA. "Dissenting
Share" for purposes of this Plan of Merger means each share of capital stock
of Xxxxxxx owned by a shareholder who becomes entitled, pursuant to the
provisions of Section 302A.473 of the MBCA, to receive payment of the fair
value of such share.
FURTHER RESOLVED, that the Articles of Incorporation and By-laws
of Xxxxxxx shall be the Articles of Incorporation and By-Laws of the
surviving corporation.
FURTHER RESOLVED, that no amendments to the Articles of
Incorporation of Xxxxxxx shall be effected by the Merger.
FURTHER RESOLVED, at the Effective Time, Xxxxxxx shall thereupon
and thereafter possess all the rights, privileges, immunities, powers and
franchises, of a public as well as of a private nature, of each of the
Constituent Corporations, and be subject to all the duties, liabilities and
obligations of each of the Constituent Corporations; and all property, real,
personal and mixed, and all debts due to any of the Constituent Corporations
on whatever account, including subscriptions to shares, and all other choses
in action and every other interest of or belonging to or due to each of the
Constituent Corporations shall vest in Xxxxxxx; and all and every other
interest shall be thereafter as effectually the property of Xxxxxxx as they
were of the several and respective Constituent Corporations; and the title to
any real estate or any interest therein, vested by deed or otherwise, in any
of the Constituent Corporations, shall not revert or be in any way impaired
by reason of the Merger; and all rights of creditors and all liens upon any
property of any of the Constituent Corporations shall be preserved
unimpaired; and all debts, duties, liabilities and obligations of any of the
Constituent Corporations shall thenceforth attach to Xxxxxxx, which shall
assume all such debts, duties, liabilities and obligations, and such debts,
duties, liabilities
2
and obligations may be enforced against it to the same extent as if such
debts, duties, liabilities and obligations had been incurred or contracted by
it.
