AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Amendment No. 1 ("Amendment No. 1"), dated as of February 9,
1999, amending the Agreement and Plan of Merger, dated as of November 22,
1998 (the "Agreement"), between Xxxxxx General Corporation, a Delaware
corporation (the "Company"), and River Acquisition Corp., a Delaware
corporation (the "Merger Sub").
WHEREAS, in accordance with Section 8.03 of the Agreement, the
parties hereto desire to amend the Agreement to reflect the parties
agreement that the Merger Consideration (as defined in the Agreement) has
been increased from $57.25 per share in cash to $61.00 per share in cash;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meaning provided therefor in the Agreement.
2. Amendments to Agreement. The Agreement is hereby amended as
set forth in this Section 2:
(i) The first "WHEREAS" clause of the Agreement is amended
to delete the number "$57.25" and replace it with the number "$61.00".
(ii) The first sentence of Section 2.01(a) of the Agreement
is hereby amended to read in its entirety as follows:
"(a) Each share of the Common Stock issued and
outstanding immediately prior to the Effective Time (other than any shares
of Common Stock to be canceled pursuant to Section 2.01(b) and any
Dissenting Shares (as defined below)) shall be converted into the right to
receive $61.00 in cash, without interest (the "Merger Consideration")."
3. Miscellaneous. Except as expressly amended hereby, the terms
and conditions of the Agreement shall continue in full force and effect.
This Amendment No. 1 is limited precisely as written and shall not be
deemed to be an amendment to any other term or condition of the Agreement
or any of the documents referred to therein. Wherever "Agreement" is
referred to in the Agreement or in any other agreements, documents and
instruments, such reference shall be to the Agreement as amended hereby.
4. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement.
5. Governing Law. This Amendment No. 1 shall be governed by,
and construed in accordance with, the laws of the State of Delaware without
regard to the conflict of laws rules thereof.
IN WITNESS WHEREOF, the Company and Merger Sub have caused this
Amendment No. 1 to be executed as of the date first written above by their
respective officers thereunto duly authorized.
COMPANY:
XXXXXX GENERAL CORPORATION
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: President
MERGER SUB:
RIVER ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxx
Title: Chairman
