EXHIBIT 2.2
AMENDMENT TO THE AMENDED AND RESTATED PLAN AND AGREEMENT OF MERGER AND
REORGANIZATION
AMENDMENT (THIS "AMENDMENT"), DATED AS OF MAY 15, 1997, TO THE AMENDED AND
RESTATED PLAN AND AGREEMENT OF MERGER AND REORGANIZATION, DATED AS OF DECEMBER
28, 1996, BY AND AMONG AEGON N.V., A COMPANY FORMED UNDER THE LAWS OF THE
NETHERLANDS ("MERGER PARTNER"), LT MERGER CORP., A DELAWARE CORPORATION AND A
WHOLLY OWNED SUBSIDIARY OF MERGER PARTNER ("SUB"), AND PROVIDIAN CORPORATION, A
DELAWARE CORPORATION ("COMPANY").
WHEREAS, Merger Partner, Sub and Company have entered into an Amended and
Restated Plan and Agreement of Merger and Reorganization, dated as of December
28, 1996 (the "Merger Agreement");
WHEREAS, Merger Partner, Sub and Company wish to amend the Merger
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties agree as follows:
I. Amendments.
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1. Existing Section 2.2(c) of the Merger Agreement is hereby deleted in
its entirety and replaced with the following:
"(c) Subject to Section 2.3(c), each share of Company Common Stock
that is issued and outstanding immediately prior to the Effective Time
(other than shares to be canceled in accordance with Section 2.2(b)) shall
be converted into a right to receive a number (the "Exchange Ratio") of
shares, or fraction thereof, of voting common stock, par value of one Dutch
Guilder per share, of Merger Partner ("Merger Partner Common Stock")
determined by dividing $28.00 by the Share Price (as defined below),
subject to the provisions of Section 8.1(b)(vi), if applicable. All such
shares of Company Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist, and each certificate previously representing any such shares (a
"Certificate") shall thereafter represent the right to receive that number
of shares of Merger Partner Common Stock into which such shares of Company
Common Stock have been converted. Certificates previously representing
shares of Company Common Stock shall be exchanged for certificates
representing whole shares of Merger Partner Common Stock, and cash in lieu
of any fractional share, issued in consideration therefor upon the
surrender of such certificates in accordance with Section 2.3, without
interest. For purposes of this Agreement, (i) the term "Share Price" shall
be equal to the Fair Market Value at the Effective Time of one share of
Merger Partner Common Stock; provided, however, that if such Fair Market
Value at the Effective Time is less than $50.034, then the Share Price
shall be $50.034, and if such Fair
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Market Value at the Effective Time is greater than $61.153, then the Share
Price shall be $61.153; and (ii) the term "Fair Market Value at the
Effective Time" of one share of Merger Partner Common Stock shall be the
average during the 20 trading days immediately preceding the last business
day before the date of the Effective Time of the average daily high and low
prices per share of Merger Partner Common Stock on the New York Stock
Exchange ("NYSE"). Notwithstanding the foregoing, if the Fair Market Value
at the Effective Time is greater than $66.713, the Exchange Ratio shall
equal (x) the sum of (1) .457868 plus (2) $30.545 divided by the Fair
Market Value at the Effective Time, divided by (y) 2."
2. Section 8.1(c)(vi) of the Merger Agreement is hereby deleted in its
entirety.
II. Miscellaneous.
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1. Except as expressly amended by this Amendment, all of the terms and
provisions of the Merger Agreement shall remain unchanged and continue in full
force and effect and the parties hereto shall be entitled to all of the
applicable benefits thereof and shall be responsible for all of their respective
obligations thereunder.
2. This Amendment may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. This Amendment shall
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that the parties
need not sign the same counterpart.
3. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO ANY APPLICABLE CONFLICTS OF
LAW PROVISIONS THEREOF).
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed and delivered by its respective duly authorized officers, all as of
the date first above written.
AEGON N.V.
By: /s/ Xxxxxx X. Xxxxxxx
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Name:Xxxxxx X. Xxxxxxx
Title: Executive Board Member
LT MERGER CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Name:Xxxxxxx X. Xxxxx
Title: Chairman of the Board, President &
Treasurer
PROVIDIAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxx XX
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Name: Xxxxxx X. Xxxxxx XX
Title: Chairman & Chief Executive Officer
