Exhibit 2.2
AMENDMENT NUMBER 1 TO THE
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NUMBER 1 to the AGREEMENT AND PLAN OF MERGER, dated as
of December 21, 1999 (this "Amendment"), is entered into by and between Xxxxxxx
Financial Corporation, a Delaware corporation ("Webster") and MECH Financial,
Inc., a Connecticut corporation ("MECH"). Unless otherwise defined herein,
capitalized terms in this Amendment are as defined in the Agreement.
WHEREAS, Webster and MECH entered into an Agreement and Plan of Merger,
dated as of December 1, 1999 (the "Agreement") pursuant to which, among other
things, MECH will merge with and into Webster; and
WHEREAS, the Boards of Directors of Webster and MECH have determined
that it is advisable and in the best interests of their respective companies and
shareholders to amend the Agreement to provide that the Merger contemplated by
the Agreement may be accounted for as a purchase transaction;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein and in the
Agreement, and intending to be legally bound hereby, the parties agree to amend
Agreement as follows:
FIRST
MECH hereby represents and warrants to Webster, which representation and
warranty is being relied upon by Webster as a material inducement to enter into
and perform this Amendment, that MECH has received an oral opinion from KBW, to
be confirmed in writing, to the effect that, in KBW's opinion, the consideration
to be paid by Webster to stockholders of MECH pursuant to the Agreement, as
amended hereby, is fair to such holders of MECH Common Stock from a financial
point of view ("Updated Fairness Opinion") and KBW has consented to the
inclusion of the written Updated Fairness Opinion in the Registration Statement.
SECOND
Section 1.10 of the Agreement is hereby revised and replaced in its entirety by
the following language:
1.10 ACCOUNTING TREATMENT.
It is intended that the Merger be accounted for as a
"purchase" transaction under generally accepted accounting
principles ("GAAP"), unless otherwise determined by Webster.
THIRD
Section 4.11 of the Agreement is hereby revised and replaced in its entirety by
the following language:
4.11 TAX AND ACCOUNTING TREATMENT OF MERGER.
As of the date of this Agreement, Webster is not
aware of any fact or state of affairs that could cause the Merger not to be
treated as a "reorganization" under Section 368(a) of the Code.
FOURTH
Section 5.1(k) of the Agreement is hereby revised by replacing the last sentence
thereof with the following language:
Bonus, commission and other incentive payments may continue to
be made in the ordinary course in accordance with past practices to the extent
such payments would not jeopardize the pooling-of-interests accounting treatment
for the Merger, whether or not the Merger is accounted for as a
pooling-of-interests.
FIFTH
Section 5.5 of the Agreement is hereby revised and replaced in its entirety by
the following language:
5.5 QUALIFIED PLANS.
MECH and its Subsidiary may not terminate any of
their respective plans that are intended to be "qualified"
under Code section 401, except that MECH and its Subsidiary
may terminate their employee stock ownership plan (the "MECH
ESOP") and the Mechanics Savings Bank Pension Plan to the
extent that such termination would not jeopardize the
"qualified" status of either such plan. As to any of such
plans that are not terminated, pro-rata proportional accruals
may be made to the account of each participant in such plan at
the Effective Time, in accordance with the provisions of the
plan and in accordance with past practice and in the same
proportion as the percentage of a year that has passed as of
the Effective Time bears to the full year. For example, if the
Effective Time is July 1, 2000, 183 days will have passed,
including the day of the Effective Time as a day that has
passed, representing 50% of the days in the year 2000.
Accordingly, an accrual of 50% of the aggregate annual accrual
for the applicable plan may be made at the Effective Time.
Nevertheless, no such accruals shall be made to the extent any
such accrual would jeopardize the pooling-of-interests
accounting treatment of the Merger, (whether or not the Merger
is accounted for as a pooling of interests), or the qualified
status of the applicable plan.
SIXTH
Section 6.6(b) of the Agreement is hereby amended by adding the
following new sentence at the end thereof:
Notwithstanding the foregoing, if MECH and its Subsidiary
terminate the MECH ESOP before the Effective Time, Webster and
Xxxxxxx Bank shall not be required to allow the MECH Employees
to participate in any employee stock ownership plan maintained
by Webster or Xxxxxxx Bank until January 1, 2002.
SEVENTH
Section 7.1(g) of the Agreement is hereby deleted in its entirety.
EIGHTH
The definition of "Index Group" at Section 8.1 of the Agreement is
hereby revised and replaced in its entirety by the following language:
"Index Group" means the bank and savings and loan holding
companies set forth at Annex A hereto, the common stocks of
all of which shall be publicly traded and as to which there
shall not have been, since the Starting Date and before the
Determination
Date, an announcement of a proposal for such company to be
acquired or for such company to acquire another company or
companies in transactions with a value exceeding 25% of the
acquiror's market capitalization as of the Starting Date. In
the event that the common stock of any such company ceases to
be publicly traded or any such announcement is made with
respect to any such company, such company shall be removed
from the Index Group, and the weights (which have been
determined based on the number of outstanding shares of common
stock) redistributed proportionately for purposes of
determining the Index Price.
IN WITNESS WHEREOF, Webster and MECH have caused this Amendment Number
1 to the Agreement to be executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
XXXXXXX FINANCIAL CORPORATION
ATTEST:
By: /s/ Xxxxxxx Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------------- ----------------------------
Name: Xxxxxxx Xxxxxxx Xxxxx Name: Xxxxx X. Xxxxx
Title: Senior Vice President, Title: Chairman and Chief
General Counsel and Secretary Executive Officer
MECH FINANCIAL, INC.
ATTEST:
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------------- ----------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: Executive Vice President Title: Chairman, President and
Chief Executive Officer
ANNEX A
Company Symbol Weighing (%)
------- ------ ------------
Peoples Heritage Financial Group, Inc. PHBK 11.67%
Astoria Financial Corporation ASFC 11.60%
Valley National Bancorp VLY 10.48%
Xxxxxx Bancorp, Inc. RSLN 9.58%
People's Bank (MHC) PBCT 9.23%
Xxxxxx Financial Corporation FULT 9.16%
Commerce Bancorp, Inc. CBH 8.53%
Xxxxxxxxxx Corporation CHZ 6.33%
Independence Community Bancorp ICBC 5.70%
Staten Island Bancorp, Inc. SIB 5.17%
Susquehanna Bancshares, Inc. SUSQ 4.33%
Queens County Bancorp, Inc. QCSB 4.22%
Richmond County Financial Corp. RCBK 4.01%
-----
100.0%
