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FIRST AMENDMENT TO AGREEMENT AND
PLAN OF MERGER
THIS FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER, dated as of
August 14, 1998 (the "First Amendment"), between XXX RIVER INC., a Georgia
corporation ("Parent"), and THE XXXX COMPANY, a Delaware corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, Parent and the Company have entered into that certain Agreement
and Plan of Merger, dated as of June 28, 1998 (the "Original Agreement"),
providing for the merger of the Company with and into Parent on the terms and
conditions contained therein and in accordance with the Georgia Business
Corporation Code and General Corporation Law of the State of Delaware; and
WHEREAS, the respective Boards of Directors of Parent and the Comapny
have approved this First Amendment; and
WHEREAS, the parties now desire to amend the Original Agreement in
certain respects;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Section 6.3(d) of the Original Agreement is hereby deleted in
its entirety and the following Section 6.3(d) shall be subsituted in
lieu thereof:
"(d) Tax Opinion. The Company shall have received a written
opinion of King & Spalding, dated on or about the date that is two
business days prior to the date the Joint Proxy Statement is first
mailed to the Company stockholders and reaffirmed as of the Closing
Date, in form and substance reasonably satisfactory to the Company
to the effect that the Merger will constitute a reorganization
within the meaning of Section 368(a)(1) of the Code. In rendering
such tax opinion, counsel may be entitled to rely upon customary
representations of officers of the Company and Parent."
2. All references in the Original Agreement to "the Merger
Agreement" or "this Agreement" shall be deemed to refer to the Original
Agreement as amended by this First Amendment.
3. The Original Agreement, as amended by this First Amendment,
shall remain in full force and effect in accordance with its terms.
This First Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties. In the event of any
conflict between the provisions of this First Amendment and the
provisions of the Original Agreement, the provisions of this First
Amendment shall control.
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4. Capitalized terms used herein but not otherwise defined shall
have the meanings assigned to such terms in the Original Agreement.
5. This First Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia (without regard to the
principles of conflict of laws thereof).
IN WITNESS WHEREOF, this First Amendment has been signed by the duly
authorized officers of each of the parties hereto as of the day and year
first written above.
XXX RIVER INC.
/s/ X. X. Xxxxxx, Xx.
By:----------------------------
Name: X. X. Xxxxxx, Xx.
Title: Chairman
THE XXXX COMPANY
/s/ Xxxxxxx X. Xxxxxxxxx
By:----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive
Officer
