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EXHIBIT (C)(1)(I)
AMENDMENT NO. 1
TO
TENDER OFFER AND MERGER AGREEMENT
BY AND BETWEEN
XXXXXX XXXXXX, INC.,
A TENNESSEE CORPORATION,
XXXXXX ACQUISITION CORP.,
A DELAWARE CORPORATION,
AND
THE X.X. XXXXXX COMPANY,
A DELAWARE CORPORATION
DATE: OCTOBER 16, 1995
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AMENDMENT NO. 1 TO
TENDER OFFER AND MERGER AGREEMENT
This AMENDMENT NO. 1, dated as of October 16, 1995 (this "Amendment No.
1"), to the Tender Offer and Merger Agreement, dated as of September 13, 1995
(the "Merger Agreement"), by and between XXXXXX XXXXXX, INC., a Tennessee
corporation ("Acquiror"), XXXXXX ACQUISITION CORP., a Delaware corporation
("Merger Subsidiary"), and THE X.X. XXXXXX COMPANY, a Delaware corporation
("X.X. Xxxxxx").
WITNESSETH:
WHEREAS, Acquiror, Merger Subsidiary and X.X. Xxxxxx have entered into the
Merger Agreement; and
WHEREAS, following public announcement of the execution and delivery of the
Merger Agreement, an action captioned Crandon Capital Partners x. Xxxxxx, et al.
was instituted against X.X. Xxxxxx and its directors in the Court of Chancery of
the State of Delaware in and for New Castle County (the "Lawsuit"); and
WHEREAS, a proposed settlement of the Lawsuit has been agreed upon between
the plaintiff and X.X. Xxxxxx, subject to the approval of the Court of Chancery,
which proposed settlement has been approved by Acquiror; and
WHEREAS, the proposed settlement of the Lawsuit contemplates certain
amendments to the Merger Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Section 6.3(a) of the Merger Agreement is hereby amended to read in its
entirety as follows:
(a) Acquisition Proposals. X.X. Xxxxxx hereby agrees (a) that neither
it nor any of the X.X. Xxxxxx Subsidiaries shall, and it shall direct and
use its best efforts to cause its and the X.X. Xxxxxx Subsidiaries'
officers, directors, employees, agents, representatives and affiliates
(including, without limitation, any investment banker, attorney or
accountant retained by it or any of the X.X. Xxxxxx Subsidiaries)
(collectively, the "X.X. Xxxxxx Representatives") not to, initiate, solicit
or encourage, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer (including, without limitation, any
proposal or offer to its stockholders but excluding the transactions
contemplated by this Agreement) with respect to a merger, acquisition,
consolidation, business combination, recapitalization, liquidation or
similar transaction involving, or any purchase of a significant amount of
the assets of or more than 25% of any equity securities of, X.X. Xxxxxx
(any such proposal or offering being hereinafter referred to as an
"Acquisition Proposal") or engage or participate in any negotiations or
discussions concerning, or provide any confidential information or data to,
or have any discussions with, any corporation, partnership, person or other
entity or group relating to any Acquisition Proposal, or otherwise assist
or facilitate any effort to attempt to make or implement an Acquisition
Proposal; (b) that it will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing and will take the necessary
steps to inform the individuals or entities referred to above of the
obligations undertaken in this Section 6.3.(a); and (c) that it will notify
Acquiror promptly if any such inquiries or proposals (whether formal or
informal) are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued
with it or any of the X.X. Xxxxxx Representatives and will promptly
communicate to Acquiror the substantive terms of any proposal or inquiry
which it may receive and the identity of the person from whom such proposal
or inquiry is received. Notwithstanding the foregoing and provided none of
X.X. Xxxxxx, the X.X. Xxxxxx Subsidiaries or the X.X. Xxxxxx
Representatives is otherwise in violation of this Section 6.3.(a), the
Board of Directors of X.X. Xxxxxx may furnish information to, or enter into
discussions or negotiations with, any person that makes an unsolicited bona
fide proposal in writing, not subject to any financing contingency, to
acquire X.X. Xxxxxx pursuant to a merger, consolidation, share exchange,
purchase of a substantial portion of the assets,
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business combination or other similar transaction, if, and only to the
extent that (A) the Board of Directors determines in good faith (based on
the written opinion of X.X. Xxxxxx'x outside counsel) that such action is
required for the Board of Directors to comply with its fiduciary duties to
stockholders imposed by law, (B) the Board of Directors determines in good
faith (based on the written opinion of a financial advisor of nationally
recognized reputation) that such transaction would be more favorable to
X.X. Xxxxxx'x stockholders than the Offer, (C) prior to or concurrently
with furnishing such information to, or entering into discussions or
negotiations with, such a person or entity, X.X. Xxxxxx provides written
notice to Acquiror to the effect that it is furnishing information to, or
entering into discussions or negotiations with, such a person or entity,
and (D) X.X. Xxxxxx keeps Acquiror informed of the substantive terms of any
such discussions or negotiations.
2. Section 9.3 of the Merger Agreement is hereby amended to read in its
entirety as follows:
9.3. Fees Upon Certain Events. In the event that (A) any person
(other than Acquiror or any of its affiliates) shall have become, prior to
the termination of this Agreement, the beneficial owner of 50% or more of
the outstanding shares of X.X. Xxxxxx Common, (B) the Offer shall have
expired at a time when the condition set forth in paragraph (a) of Exhibit
A hereto shall not have been satisfied and at any time on or prior to one
year after the expiration of the Offer any person (other than Acquiror or
any of its affiliates) shall acquire beneficial ownership of 50% or more of
the outstanding shares of X.X. Xxxxxx Common or shall consummate an
Acquisition Proposal, or (C) at any time prior to the termination of this
Agreement, any person (other than Acquiror or any of its affiliates) shall
publicly announce any Acquisition Proposal and, at any time on or prior to
one year after the termination of this Agreement, shall become the
beneficial owner of 50% or more of the outstanding shares of X.X. Xxxxxx
Common or shall consummate an Acquisition Proposal, then X.X. Xxxxxx shall
promptly, but in no event later than two business days after the first of
such events to occur, pay Acquiror $2.75 million. X.X. Xxxxxx acknowledges
that the agreements contained in this Section 9.3. are an integral part of
the transactions contemplated in this Agreement; accordingly, if X.X.
Xxxxxx fails to promptly pay the amount due pursuant to this Section 9.3.,
and, in order to obtain such payment, Acquiror commences a suit which
results in a judgment against X.X. Xxxxxx for the fee set forth in this
Section 9.3., X.X. Xxxxxx shall pay to Acquiror its costs and expenses
(including attorneys' fees) in connection with such suit, together with
interest on the amount of the fee at the rate of 10% per annum.
3. The execution of this Amendment No. 1 by Acquiror constitutes the
approval in writing by Acquiror of the settlement of the Lawsuit by X.X. Xxxxxx
on the terms described herein, including, without limitation, the approval of
the settlement by the Court of Chancery and, following such approval, the
payment by X.X. Xxxxxx of $135,000 of fees and expenses for counsel for the
plaintiff in the Lawsuit.
4. Capitalized terms used herein which are not otherwise defined are used
as defined in the Merger Agreement.
5. Except as specifically amended by this Amendment No. 1, the terms of the
Merger Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be executed as of the date first above written.
ATTEST: XXXXXX XXXXXX, INC.
/s/ XXXXXX XXXXXX By /s/ XXX X. XXXXXX
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Title: EVP & Secretary
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ATTEST: XXXXXX ACQUISITION CORP.
/s/ XXXXXX XXXXXX By /s/ S. XXXXXX XXXXX
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Title: President
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ATTEST: THE X.X. XXXXXX COMPANY
/s/ XXXXX X. XXXXXXXX By /s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxxx
Secretary President and Chief Executive Officer
