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EXHIBIT 2.2
FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT (this "Amendment") TO THE AGREEMENT AND PLAN OF
MERGER dated as of August 6, 1999, hereby amends the Agreement and Plan of
Merger, dated as of January 10, 1999 (the "Agreement"), among XXXXXX INDUSTRIES,
INC., a Delaware corporation ("Parent"), STARRY ACQUISITION CORP., a Texas
corporation ("Merger Sub") and a wholly owned subsidiary of Parent, and POOL
ENERGY SERVICES CO., a Texas corporation (the "Company"). Capitalized terms used
but not defined in this Amendment shall have the meanings ascribed to such terms
in the Agreement.
1. Section 2.1(a) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
"Each share of common stock, without par value, of the Company
("Company Common Stock") issued and outstanding immediately prior to
the Effective Time (excluding any treasury shares held by the Company
or any of its Subsidiaries (as defined in Section 9.3(g)), such shares
being governed by Section 2.1(d) of this Agreement, and excluding any
shares held by Parent or any of its Subsidiaries, such shares being
governed by Section 2.1(f) of this Agreement), including the associated
Company Rights, if any, outstanding at the Effective Time pursuant to
the Company Rights Plan (as such terms are defined in Section 4.2),
shall be converted into the right to receive 1.025 fully paid,
nonassessable shares of common stock (the "Exchange Ratio"), par value
$.10 per share, of Parent ("Parent Common Stock").
2. Section 2.1(d) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
"Each share of Company Common Stock held in the treasury of the Company
and each share of Company Common Stock owned by any Subsidiary of the
Company immediately prior to the Effective Time shall be canceled and
extinguished without any conversion thereof and no payment shall be
made with respect thereto."
3. Section 2.1(e) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
"Each share of common stock, par value $.10 per share, of Merger Sub
issued and outstanding immediately prior to the Effective Time (such
number of shares, the "Merger Sub Number") shall be converted into a
number of fully paid, nonassessable shares of common stock of the
Surviving Corporation as is equal to the result obtained by dividing
(i) the aggregate number of shares of
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Company Common Stock converted into Parent Common Stock pursuant to
Section 2.1(a) of this Agreement by (ii) the Merger Sub Number."
4. Section 2.1 of the Agreement is hereby amended by adding the
following thereto as a new subsection (f):
"(f) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time and owned by Parent or any
Subsidiary of Parent shall be unaffected by the Merger and shall remain
outstanding following the Effective Time as one fully paid,
nonassessable share of common stock of the Surviving Corporation."
5. Section 8.1(a)((v) of the Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
"By either Parent or the Company, if the Merger shall not have been
consum mated on or before October 1, 1999, provided, however, that such
date shall be extended for up to an additional six months if the
applicable waiting period under the HSR Act shall not have expired or
been terminated by such date (unless the failure to consummate the
Merger by the applicable date shall be due to the action or failure to
act of the party seeking to terminate this Agreement);"
6. Exhibit 1.4A (the Restated Articles of Incorporation of the Company)
is hereby amended by deleting the first sentence under the caption
"Article IV" and replacing it with the following:
"The aggregate number of shares which the corporation shall have the
authority to issue is 30,000,000 shares of common stock of the par value of $.10
each."
7. The Agreement as amended hereby, is and shall continue to be in full
force and effect, and is hereby in all respects ratified and confirmed.
8. This Amendment shall be governed by and construed in accordance with
the laws of the State of Texas, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law.
9. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Vice President-Finance
STARRY ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Vice President-Finance
POOL ENERGY SERVICES CO.
By: /s/ X.X. Xxxxxxxxxx
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X. X. Xxxxxxxxxx
Chairman, President and Chief
Executive Officer
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