Exhibit 23
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 ("AMENDMENT NO. 1") dated as of March 10, 1999 to the
Agreement and Plan of Merger (the "AGREEMENT") dated as of February 15, 1999
among ASA Holdings, Inc., a Georgia corporation (the "COMPANY"), Delta Air
Lines, Inc., a Delaware corporation ("BUYER"), and Delta Sub, Inc., a Georgia
corporation and an indirect, wholly-owned subsidiary of Buyer ("MERGER
SUBSIDIARY").
WHEREAS, the Company, Buyer and Merger Subsidiary have each determined
that it is in their respective best interests, and the best interests of their
respective stockholders, to amend the Agreement as hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the Agreement has the meaning assigned
to such term in the Agreement.
Section 2. Amendment of Section 6.04(c). Section 6.04(c) of the
Agreement is amended by replacing the second paragraph thereof in its entirety
with the following:
However, the Company may not exercise its right to terminate
under this Section 6.04(c) (and may not enter into a binding written
agreement with respect to such an Acquisition Proposal) unless the
Company shall have provided to Buyer at least two business days' prior
written notice that the Company's Board intends to terminate this
Agreement pursuant to this Section 6.04(c), specifying the material
terms and conditions of such Acquisition Proposal. Buyer may exercise
its right to terminate under this Section 6.04(c) two business days
after receiving the notice contemplated by this Section 6.04(c).
Section 3. Amendment of Section 10.01(c). Section 10.01(c)(ii) of the
Agreement is hereby amended by adding, immediately after the word "if" in the
first line thereof, the phrase ", except in accordance with Section 6.04(c)
hereof,"
Section 4. Amendment of Section 11.04. Section 11.04(b) of the
Agreement is amended to read in its entirety as follows:
(b) The Company agrees to pay Buyer in immediately available
funds a termination fee of $5,000,000 (the "TERMINATION FEE") if:
(i) this Agreement is terminated by Buyer pursuant to
clause (ii) or (iii) of Section 10.01(c); or
(ii) within 6 months after termination of this Agreement
pursuant to Section 10.01(b)(i), the Company enters
into an agreement to consummate an Acquisition
Proposal with any Third Party and such Acquisition
Proposal shall subsequently be consummated.
Section 5. Confirmation of Agreement. Except as modified or amended in
this Amendment No. 1, all terms and conditions in the Agreement remain in full
force and effect and are hereby ratified and confirmed.
Section 6. Governing Law. This Amendment No. 1 shall be construed in
accordance with and governed by the laws of the State of Georgia, except the
conflicts of laws provisions thereof.
Section 7. Counterparts. This Amendment No. 1 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. This
Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed by their respective authorized officers as of the day and
the year first above written.
ASA HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
DELTA AIR LINES, INC.
By: /s/ Xxxxxxx X. Worth
---------------------------------
Name: Xxxxxxx X. Worth
Title: Chief Operating Officer
DELTA SUB, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Treasurer
