Exhibit 2.1
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of September 12, 2003, is made and entered into by and
among The Xxxxx-Xxxxxxx Stores Corp., an Ohio corporation (the "Company"),
Xxxxxx Holdings, Inc., a Delaware corporation ("Parent"), and Xxxxxx Sub, Inc.,
an Ohio corporation ("Sub"), to amend that certain Agreement and Plan of Merger,
dated as of June 25, 2003, by and among the Company, Parent and Sub, as amended
by Amendment No. 1 thereto, dated September 9, 2003 (as so amended, the "Merger
Agreement"). Defined terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Merger Agreement.
WHEREAS, the parties have negotiated certain amendments to the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
(a) Merger Price Adjustment. The definition of "Merger Price" set forth
in Section 2.01(c)(i) of the Merger Agreement is hereby amended to be "$7.80 in
cash, without any interest thereon" instead of "$7.05 in cash, without any
interest thereon".
(b) Expense Reimbursement Adjustment. The definition of "Expense
Reimbursement" set forth in Section 8.02(b) of the Merger Agreement is hereby
amended to be "One Million Five Hundred Thousand Dollars ($1,500,000)" instead
of "One Million Dollars ($1,000,000)".
(c) Termination Fee Adjustment. The definition of "Termination Fee" set
forth in Section 8.02(b) of the Merger Agreement is hereby amended to be "Two
Million Five Hundred Thousand Dollars ($2,500,000)" instead of "Two Million
Dollars ($2,000,000)".
(d) No Solicitation Adjustment. Section 5.02 of the Merger Agreement is
hereby amended to add new subsection (d) thereto as follows:
"(d) Notwithstanding the terms of subsection (a) of this Section
5.02: (i) the Company shall be entitled to engage in negotiations with
The Bon-Ton Stores, Inc. ("Bon-Ton") for the purpose of obtaining a
Superior Proposal from Bon-Ton from and after September 12, 2003;
provided that, neither the Company, nor any of its officers, directors,
employees or advisors shall offer to or otherwise provide to Bon-Ton
any confidential information with respect to Parent or Sub or their
respective affiliates including, without limitation, any information
related to their negotiations with the Company and/or its advisors,
except with respect to proposals made by Parent or Sub or their
respective affiliates to increase the Merger Price after September 12,
2003; and (ii) if a majority of the Disinterested Directors determines,
in accordance with the requirements of Section 5.02(c), that an
Alternative Proposal made by Bon-Ton from and after September 12, 2003,
is a Superior Proposal, then all references in the penultimate sentence
of Section 5.02(a) to a "three business-day period" or a "three-day
negotiation
period" shall be changed to a "one business-day period" or a "one-day
negotiation period", respectively.
(e) Entire Agreement. Except as amended by this Amendment, the Merger
Agreement remains in full force and effect. This Amendment, together with the
Merger Agreement, supersedes all prior discussions and agreements among the
parties hereto with respect to the subject matter hereof and contains, together
with the Confidentiality Agreement, the sole and entire agreement among the
parties hereto with respect to the subject matter hereof. As of the date hereof,
all references to the Merger Agreement shall be deemed to refer to the Merger
Agreement as amended by this Amendment.
(f) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio applicable to a contract executed
and performed in such State, notwithstanding any conflict of law provisions to
the contrary.
(g) Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, each party hereto has caused this Amendment to be
signed by its officer thereunto duly authorized as of the date first above
written.
THE XXXXX-XXXXXXX STORES CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board
XXXXXX HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXXX SUB, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
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