Exhibit 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
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This Amendment to the Agreement and Plan of Merger (the
"Amendment") is made and entered into this 14th day of December 1998 by
and among Unified Financial Services, Inc., a Delaware corporation
("Unified"), Equity Acquisition Corporation, a Kentucky corporation and
wholly owned subsidiary of Unified ("Merger Sub" and, collectively with
Unified, the "Buyers"), Equity Underwriting Group, Inc., a Kentucky
corporation ("Seller"), and Xxxx X. Xxxxx and D. Xxxxxxx Xxxxx,
shareholders of Seller ("Shareholders").
WITNESSETH:
WHEREAS, Unified, Merger Sub, Seller and Shareholders
entered into that certain Agreement and Plan of Merger dated October 16,
1998 (the "Agreement"); and
WHEREAS, the respective Boards of Directors of Unified,
Merger Sub and Seller as well as Shareholders have heretofore approved
the merger of Merger Sub with and into Seller; and
WHEREAS, each of Unified, Merger Sub, Seller and
Shareholders believes that based upon events subsequent to October 16,
1998, certain provisions of the Agreement should be amended to change
the following: (i) the Exchange Ratio; (ii) the representation and
warranty pertaining to the capitalization of Seller; and (iii) the
representation and warranty pertaining to the accuracy of information.
NOW THEREFORE, in consideration of the premises and the
agreements herein contained, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree that the Agreement is
hereby amended in each of the following respects:
(1) Section 1.7(b) is hereby amended in its entirety
to read as follows:
"1.7 Conversion of Securities.
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(b) Subject to Sections 1.9, 1.11 and 1.12 hereof,
each share of common stock, no par value per share, of
Target ("Target Common Stock") issued and outstanding
immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into and become the right
to receive 5291.3035 shares (the "Exchange Ratio") of common
stock of Buyer, par value $0.01 per share, and the
associated "Rights" under the "Rights Agreement," as those
terms are defined in Section 3.2 hereof ("Buyer Common
Stock"); provided, however, that any Target Common Stock
held by Target, Buyer or any of their respective
Subsidiaries (as defined in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission (the
"SEC')), in each case other than in a fiduciary capacity or
as a result of debts previously contracted, shall be
canceled and shall not be exchanged for shares of Buyer
Common Stock. The Exchange Ratio was computed by dividing
(i) the total number of shares of Target Common Stock that
were issued and outstanding on the date of this Agreement
into (ii) 241,745, the aggregate number of shares of Buyer
Common Stock to be issued in the Merger."
(2) Section 2.3(a) is hereby amended to read as follows:
"2.3. Capitalization.
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(a) Target. The authorized capital stock of Target
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consists of solely One Thousand (1,000) shares of Target
Common Stock, of which 45.68723 shares are outstanding (the
"Target Shares") and held of record beneficially by the
shareholders identified on Schedule 2.3. All treasury
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shares of Target are identified on Schedule 2.3. Except as
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set forth on Schedule 2.3, each Shareholder owns, or record
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and beneficially, the Target Shares set forth on Schedule
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2.3 as owned by him, free and clear of all liens, claims,
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charges, options, encumbrances, agreements, mortgages,
pledges, security interests or restrictions (each, a "Lien"
and, collectively, the "Liens"). All of the Target Shares
are duly authorized, validly issued, fully paid and
nonassessable. With the exception of the Target Shares,
there are no Equity Securities of Target which have been
authorized or which are outstanding. There is no stock
appreciation, phantom stock, profit participation, success
fee or similar right (individually and collectively,
"Appreciation Rights") with respect to Target, that has been
authorized or which is outstanding. There are no voting
trusts, proxies or other agreements or understandings with
respect to the voting of the capital stock of Target.
Target is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire retire any
shares of its capital stock."
(3) Section 3.8 is hereby amended to read as follows:
"3.8 Accuracy of Information. The statements contained in
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this Agreement, the Schedules and in any other written
document executed and delivered by or on behalf of Buyer
pursuant to the terms of this Agreement, including any
certificate delivered in connection with the opinion
described in Section 9.3, are true and correct in all
material respects, and such statements and documents do not
omit any material fact necessary to make the statements
contained herein or therein not misleading."
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Other than as amended hereby, the Agreement remains in
full force and effect. This Amendment may be executed in several
counterparts, each of which shall be deemed the original, but all of
which together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
UNIFIED FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chairman,
President and Chief Executive
Officer
EQUITY ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
EQUITY UNDERWRITING GROUP, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
"SHAREHOLDERS"
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ D. Xxxxxxx Xxxxx
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D. Xxxxxxx Xxxxx
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