EXHIBIT 2.2
AMENDMENT TO THE
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
BY AND AMONG
NACO, INC.,
ABC RAIL PRODUCTS CORPORATION
AND ABCR ACQUISITION SUB, INC.
Amendment dated as of February 16, 1999 by and among NACO, Inc.
("NACO"), ABC Rail Products Corporation ("ABC"), ABCR Acquisition Sub, Inc.
("SUB I") and ABCR Acquisition Subsidiary, Inc. ("SUB II") (this "AMENDMENT") to
the Amended and Restated Agreement and Plan of Merger by and among NACO, ABC,
and Sub I dated as of December 10, 1998 (the "MERGER AGREEMENT").
PRELIMINARY STATEMENTS
WHEREAS, the Merger Agreement provides for ABC and NACO to enter into a
"merger of equals" business combination in which Sub I will merge with and into
NACO so that NACO will become a wholly owned subsidiary of ABC;
WHEREAS, each of the parties hereto is in agreement that for
administrative convenience Sub I should be replaced by Sub II as a party to the
Merger Agreement and all documents related to the Merger Agreement
(collectively, the "MERGER DOCUMENTS"); and
WHEREAS, the parties to the Merger Agreement have the power to amend
the Merger Agreement under section 7.3 thereof.
AMENDMENT
Pursuant to section 7.3 of the Merger Agreement, and notwithstanding
section 8.8 thereof, the parties hereto hereby agree to amend the Merger
Agreement and all other Merger Documents as follows:
1. Sub I is hereby removed as a party to the Merger Documents and
foregoes all powers and rights, and avoids all duties and obligations, it had
under the Merger Documents.
2. All references to Sub I in the Merger Documents are changed to refer
to Sub II, which now assumes all powers, rights, duties and obligations that Sub
I previously had under the Merger Documents.
3. The execution and delivery of this Amendment has been duly and
validly authorized and approved by the respective Boards of Directors of each of
the parties hereto, and no other proceedings (corporate or otherwise) on the
part of the parties hereto are necessary to authorize this Amendment. This
Amendment has been duly and validly executed and delivered by each of the
parties hereto and constitutes a valid and binding agreement of such parties,
enforceable against each of them in accordance with its terms.
4. Upon execution hereof, each reference in the Merger Agreement to
"this Agreement," "hereby," "hereunder," "herein," "hereof" or words of like
import referring to the Merger Agreement shall mean and refer to the Merger
Agreement, as amended by this Amendment. If this Amendment is inconsistent with
(or affects the interpretations of) unamended portions of the Merger Agreement,
the provisions of (or interpretations suggested by) this Amendment shall
control. This Amendment shall be governed and construed in accordance with the
laws of the State of Delaware without regard to any applicable principles of
conflicts of law.
5. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed, as of the date first written above, by their respective duly
authorized signatories.
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NACO, INC.
/s/ Xxxx Xxxxx
------------------------------
By: Xxxx Xxxxx
Title: Secretary
ABC RAIL PRODUCTS CORPORATION
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
ABCR ACQUISITION SUB, INC.
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Director
ABCR ACQUISITION
SUBSIDIARY, INC.
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
President
