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EXHIBIT 2B
ANNEX B
FIRST AMENDMENT, DATED AS OF AUGUST 27, 1997, TO THE AGREEMENT AND PLAN OF
MERGER, DATED AS OF JULY 17, 1997, BETWEEN HECHINGER COMPANY, BSQ ACQUISITION,
INC. AND HECHINGER ACQUISITION, INC.
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FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT, dated as of August 27, 1997 (the "First Amendment"), to
the AGREEMENT AND PLAN OF MERGER, dated as of July 17, 1997 (the "Merger
Agreement"), by and among Hechinger Acquisition, Inc., a Delaware corporation
("Acquisition"), BSQ Acquisition, Inc., a Delaware corporation ("BSQ
Acquisition"), and Hechinger Company, a Delaware corporation ("Hechinger").
RECITALS
A. The Merger Transaction. Acquisition, BSQ Acquisition and Hechinger have
entered into the Merger Agreement, providing for the Merger (as defined in the
Merger Agreement) of Acquisition with and into Hechinger and pursuant to which
Hechinger, following the Merger, will become a wholly owned subsidiary of BSQ
Acquisition.
B. Amendment. Acquisition, BSQ Acquisition and Hechinger desire to amend
certain terms set forth in the Merger Agreement pursuant to Section 11.10 of the
Merger Agreement which permits the amendment thereof by written agreement of the
parties thereto.
NOW, THEREFORE, in consideration of the premises, and of the respective
representations, warranties, covenants and agreement set forth therein, the
parties hereto hereby agree as follows:
1. Definitions. All capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Merger Agreement.
2. Amendment.
2.1 Section 4.1(a). Section 4.1(a) of the Merger Agreement is
hereby amended by deleting the words "equal to $3.00" in the eleventh
line thereof and substituting in their place the words "equal to
$2.375."
2.2 Section 4.2. Section 4.2 of the Merger Agreement shall be
amended by inserting, immediately after the end of the fourth sentence
thereof, the following sentence:
"In the event any holder of Shares or of Options entitled to
payment hereunder holds an odd number of Shares or has options
exercisable into an odd number of Shares such that, in either case,
such holder would otherwise receive a fractional cent, such
fractional cent shall be rounded upwards to the next whole cent;
provided, however, that the parties hereto shall agree upon
appropriate provisions in the letter of transmittal referred to above
to minimize the amount of additional consideration being paid as a
result of this sentence."
2.3 Section 4.4. Section 4.4 of the Merger Agreement is hereby
amended by (i) deleting the words "less than $3.00 per share" in the
fifth line thereof and substituting in their place the words "less than
$2.375 per share"; (ii) deleting the words "$3.00 multiplied by" in the
seventh line thereof and substituting in their place the words "$2.375
multiplied by"; and (iii) deleting the words "greater than $3.00" in the
twelfth line thereof and substituting in their place the words "greater
than $2.375."
2.4 Section 8.3.3. Section 8.3.3 of the Merger Agreement is hereby
amended by deleting the text thereof in its entirety and substituting in
its place "[Reserved.]"
3. Certain Schedules. The items set forth in Schedule 1 attached to
this First Amendment as Exhibit A shall be deemed to have been disclosed in
Schedules 5.11.3 and 7.1 of the Merger Agreement.
4. Counterparts. For the convenience of the parties hereto, this
First Amendment may be executed in any number of separate counterparts,
each such counterpart being deemed to be an original instrument, and all
such counterparts shall together constitute the same agreement.
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5. Merger Agreement. Except as herein expressly amended, the Merger
Agreement is ratified and confirmed in all respects and shall remain in
full force and effect in accordance with its terms. All references to the
Merger Agreement shall mean such Agreement as amended hereby and as may in
the future be amended, restated, supplemented or modified from time to
time.
6. Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware.
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SIGNATURE PAGE TO FIRST AMENDMENT DATED AUGUST 27, 1997 BY AND AMONG HECHINGER
ACQUISITION, INC., BSQ ACQUISITION, INC. AND HECHINGER COMPANY
IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first hereinabove written.
HECHINGER COMPANY
By: /s/ XXXX X. XXXXXXXXX, XX.
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Name: Xxxx X. Xxxxxxxxx, Xx.
Title: Chairman and CEO
HECHINGER ACQUISITION, INC.
By: /s/ XXXXXXX X. ANNICK
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Name: Xxxxxxx X. Annick
Title: Vice President, Secretary
and Treasurer
BSQ ACQUISITION, INC.
By: /s/ XXXXXXX X. ANNICK
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Name: Xxxxxxx X. Annick
Title: Vice President, Secretary
and Treasurer
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