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EXHIBIT 2.2
XXXXXX XXXXXX, INC.
Fifty Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
December 17, 2000
Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Xx.
President and Chief Executive Officer
Ladies and Gentlemen:
We refer to the Agreement and Plan of Merger (the "Agreement") of even
date herewith between Regions Financial Corporation ("Regions") and Xxxxxx
Xxxxxx, Inc. ("Xxxxxx"). Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Agreement.
In order to induce Regions to enter into the Agreement, and in
consideration of Regions' undertaking of efforts in furtherance of the
transactions contemplated thereby, Xxxxxx agrees as follows:
1. Representations and Warranties. Xxxxxx hereby represents and
warrants to Regions that Xxxxxx has all requisite corporate power and authority
to enter into this letter agreement (the "Termination Fee Agreement") and to
perform its obligations set forth herein. The execution, delivery and
performance of this Termination Fee Agreement have been duly and validly
authorized by all necessary corporate action on the part of Xxxxxx. This
Termination Fee Agreement has been duly executed and delivered by Xxxxxx.
2. Termination Fee. (a) Unless a Nullifying Event shall have
occurred and be continuing at the time the Agreement is terminated, in the event
that (i) the Agreement shall have been terminated by Regions pursuant to Section
10.1(c) (but only in the event of a breach by Xxxxxx of its obligations under
Sections 8.1 and 8.7), or 10.1(d)(ii) thereof (any such termination referred to
in this clause (i) being hereinafter referred to as a "Covered Termination"),
(ii) prior to or concurrently with a Covered Termination, a First Trigger Event
(as such term is defined below) shall have occurred, and (iii) prior to,
concurrently with or within 12 months after a Covered Termination an Acquisition
Event (as such term is defined below) shall have been publicly announced, Xxxxxx
shall pay to Regions a cash fee of $25 million. Such fee shall be payable in
immediately available funds on or before the second business day following the
consummation of such Acquisition Event, irrespective of whether the date of
consummation is more than 12 months after a Covered Termination, provided that
in the event Xxxxxx enters into a definitive agreement with respect to an
Acquisition Event, such fee shall be payable in immediately available funds on
or before the second business day following the execution of such definitive
agreement by Xxxxxx.
(b) As used herein, a "First Trigger Event" shall mean
the occurrence of any of the following events:
(i) Xxxxxx'x Board of Directors shall have
failed to approve or recommend the Agreement or the Merger, or shall have
withdrawn or modified
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in a manner adverse to Regions its approval or recommendation of the Agreement
or the Merger, or shall have resolved or publicly announced an intention to do
either of the foregoing;
(ii) Xxxxxx or any Significant Subsidiary (as
such term is defined below), or the Board of Directors of Xxxxxx or a
Significant Subsidiary, shall have recommended that the stockholders of Xxxxxx
approve any Acquisition Proposal (as such term is defined below) or shall have
entered into an agreement with respect to, authorized, approved, proposed or
publicly announced its intention to enter into, any Acquisition Proposal;
(iii) the Agreement shall not have been approved
at a meeting of Xxxxxx stockholders which has been held for that purpose prior
to termination of the Agreement in accordance with its terms, if prior thereto
it shall have been publicly announced that any person (other than Regions or any
of its Subsidiaries) shall have made, or disclosed an intention to make, an
Acquisition Proposal;
(iv) any person (together with its Affiliates and
associates) or group (as such terms are used for purposes of Section 13(d) of
the Exchange Act) other than Regions and its Subsidiaries shall have acquired
beneficial ownership (as such term is used for purposes of Section 13(d) of the
Exchange Act) or the right to acquire beneficial ownership of 20% or more of the
then outstanding shares of the stock then entitled to vote generally in the
election of directors of Xxxxxx or a Significant Subsidiary; or
(v) following the making of an Acquisition
Proposal, Xxxxxx shall have intentionally breached any covenant or agreement
contained in the Agreement such that Regions would be entitled to terminate the
Agreement under Section 10.1(c) thereof (without regard to any grace period
provided for therein) unless such breach is promptly cured without jeopardizing
consummation of the Merger pursuant to the terms of the Agreement.
(c) As used herein, "Acquisition Event" shall mean the
public announcement of an agreement (or in the case of clause (C), the public
announcement of a purchase, tender offer, or exchange offer) involving any
transaction described in clauses (A), (B), or (C) of the definition of
"Acquisition Proposal," except that the percentage reference contained in clause
(C) of such definition shall be 50% instead of 20%.
(d) As used herein, "Acquisition Proposal" shall mean
after the date hereof any (i) publicly announced proposal, (ii) regulatory
application or notice (whether in draft or final form), (iii) agreement or
understanding, (iv) disclosure of an intention to make a proposal, or (v)
amendment to any of the foregoing, made or filed on or after the date hereof, in
each case with respect to any of the following transactions with a counterparty
other than Regions or any of its Subsidiaries: (A) a merger or consolidation, or
any similar transaction, involving Xxxxxx or any Significant Subsidiary (other
than mergers, consolidations or similar transactions involving solely Xxxxxx
and/or one or more wholly-owned Subsidiaries of Xxxxxx and other than a merger
or consolidation as to which the common stockholders of Xxxxxx immediately prior
thereto in the aggregate own at least 60% of the common stock of the publicly
held surviving or successor corporation (or any publicly held ultimate parent
company thereof) immediately following consummation thereof); (B) a purchase,
lease or other acquisition of all or substantially all of the assets or deposits
of Xxxxxx or any Significant Subsidiary; or (C) a purchase or other acquisition
(including by way of merger, consolidation, share exchange or otherwise) of
securities representing 20% or more of the voting power of Xxxxxx or any
Significant Subsidiary.
(e) As used herein, "Nullifying Event" shall mean the
following event occurring and continuing at a time when Xxxxxx is not in
material breach of any of its covenants or agreements contained in the
Agreement: Regions shall
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be in breach of any of its covenants or agreements contained in the Agreement
such that Xxxxxx shall be entitled to terminate the Agreement pursuant to
Section 10.1(c) thereof (without regard to any grace period provided for
therein).
(f) As used herein, "Significant Subsidiary" shall mean a
"significant subsidiary," as defined in Rule 1-02 of Regulation S-X promulgated
by the Securities and Exchange Commission, of Xxxxxx.
3. To the extent that Xxxxxx is prohibited by applicable law or
regulation, or by administrative actions or policy of a federal or state
financial institution supervisory agency having jurisdiction over it, from
making the payments required to be paid by Xxxxxx herein in full, it shall
immediately so notify Regions and thereafter deliver or cause to be delivered,
from time to time, to Regions, the portion of the payments required to be paid
by it herein that it is no longer prohibited from paying, within five business
days after the date on which Xxxxxx is no longer so prohibited; provided,
however, that if Xxxxxx at any time is prohibited by applicable law or
regulation, or by administrative actions or policy of a federal or state
financial institution supervisory agency having jurisdiction over it, from
making the payments required hereunder in full, it shall (i) use its reasonable
best efforts to obtain all required regulatory and legal approvals and to file
any required notices as promptly as practicable in order to make such payments,
(ii) within five days of the submission or receipt of any documents relating to
any such regulatory and legal approvals, provide Regions with copies of the
same, and (iii) keep Regions advised of both the status of any such request for
regulatory and legal approvals, as well as any discussions with any relevant
regulatory or other third party reasonably related to the same.
4. In the event of an Acquisition Event and the payment by Xxxxxx
of the fee provided for in Section 2 hereof, Regions shall have the right to no
further remedy from Xxxxxx as a result of the termination of the Agreement and
the consummation of an Acquisition Event.
5. Except where federal law specifically applies, this Agreement
shall be construed and interpreted according to the laws of the State of
Delaware without regard to conflicts of laws principles thereof.
6. This Termination Fee Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. Nothing contained herein shall be deemed to authorize Xxxxxx
or Regions to breach any provision of the Agreement.
8. The provisions of this Termination Fee Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the parties and
their respective successors and assigns.
Please confirm your agreement with the understanding set forth herein
by signing and returning to us the enclosed copy of this Termination Fee
Agreement.
Very truly yours,
XXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
Chairman and Chief Executive Officer
Accepted and agreed to as of
the date first above written:
REGIONS FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxx, Xx.
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Xxxx X. Xxxxx, Xx.
President and Chief Executive Officer
