Exhibit 2.1
AMENDMENT NO. 1, dated as of September 6, 2005 (this
"AMENDMENT"), to the AGREEMENT AND PLAN OF MERGER, dated as of March 6, 2005
(the "AGREEMENT"), by and between HIBERNIA CORPORATION, a Louisiana corporation
("HIBERNIA"), and CAPITAL ONE FINANCIAL CORPORATION, a Delaware corporation
("CAPITAL ONE"). Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in the Agreement.
W I T N E S S E T H:
WHEREAS, Capital One and Hibernia have entered into the
Agreement;
WHEREAS, the Boards of Directors of Capital One and Hibernia
have approved this Amendment and deem it advisable and in the best interests of
their respective companies and stockholders to enter into this Amendment; and
WHEREAS, Capital One and Hibernia desire to amend the
Agreement, in accordance with Section 8.4 thereof.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. REFERENCES. Each reference to "hereof", "herein", "hereunder", "hereby"
and "this Agreement" shall from and after the date of this Amendment refer to
the Agreement as amended by this Amendment. Notwithstanding the foregoing,
references to the date of the Agreement, as amended hereby, shall in all
instances continue to refer to March 6, 2005, and references to "the date
hereof" and "the date of this Agreement" shall continue to refer to March 6,
2005.
2. AMENDMENT TO SECTION 1.4(c). The definitions of "Per Share Amount" and
"Cash Component" in Section 1.4(c) of the Agreement are hereby deleted and
amended to read in their entirety as follows:
""PER SHARE AMOUNT" shall mean the sum, rounded to the nearest whole
cent, of (A) $13.95 plus (B) the product, rounded to the nearest one
ten thousandth, of 0.2055 (the "SHARE RATIO") times the Capital One
Closing Price."
""CASH COMPONENT" shall mean $2,231,039,040."
3. AMENDMENT TO SECTION 2.1(d). The third and fourth sentences of Section
2.1(d) of the Agreement are hereby deleted and amended to read in their entirety
as follows:
"As used herein, "ELECTION DEADLINE" means 5:00 p.m. local time (in the
city in which the principal office of the Exchange Agent is located) on
the business day prior to the date of the meeting of Hibernia
stockholders pursuant to Section 6.3(a)."
4. AMENDMENT TO SECTION 3.4. Clauses (i), (ii) and (iii) of Section 3.4 of
the Agreement are hereby deleted and amended to read in their entirety as
follows:
"(i) the filing of applications and notices, as applicable, with the
Board of Governors of the Federal Reserve System (the "FEDERAL RESERVE
BOARD") under the BHC Act and approval of such applications and notices
and the continuing approval of such applications and notices following
the Amendment, (ii) the filing of any required applications, filings or
notices with any foreign, federal or state banking, insurance or other
regulatory authorities and approval of such applications, filings and
notices and the continuing approval of such applications and notices
following the Amendment (the "OTHER REGULATORY APPROVALS"), (iii) the
filing with the Securities and Exchange Commission (the "SEC") of a
Proxy Statement in definitive form relating to the meeting of
Hibernia's stockholders to be held in connection with this Agreement,
as amended by the Amendment, and the transactions contemplated by this
Agreement (the "PROXY STATEMENT") and of a post-effective amendment to
the registration statement on Form S-4 (as amended by the
post-effective amendment, the "FORM S-4") in which the Proxy Statement
is included as a prospectus, and declaration of effectiveness of the
post-effective amendment to the Form S-4 and the filing and
effectiveness of the registration statement contemplated by Section
1.6(e),"
5. AMENDMENT TO SECTION 3.5(c). Clause (i) of Section 3.5(c) of the
Agreement is hereby deleted and amended to read in its entirety as follows:
"(i) final registration statement, prospectus, report, schedule and
definitive proxy statement filed with or furnished to the SEC by
Hibernia since January 1, 2001 pursuant to the Securities Act or the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
prior to the date of the Amendment (the "HIBERNIA SEC REPORTS")
(provided that any Hibernia SEC Reports filed on or after March 6, 2005
shall be deemed to have been made available to Capital One to the
extent filed or furnished publicly with the SEC prior to the date of
the Amendment) and"
6. AMENDMENT TO SECTION 3.6(b). Section 3.6(b) of the Agreement is hereby
deleted and amended to read in its entirety as follows:
"Neither Hibernia nor any of its Subsidiaries has any material
liability of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether due or to become due), except for
those liabilities that are reflected or reserved against on the
consolidated balance sheet of Hibernia included in its Quarterly Report
on Form 10-Q for the fiscal quarter ended June 30, 2005 (including any
notes thereto) and for liabilities incurred in the ordinary course of
business consistent with past practice since June 30, 2005 (or arising
out of or incurred directly or indirectly in connection with or as a
result of Hurricane ▇▇▇▇▇▇▇ or any other hurricane or storm or pursuant
to actions taken in connection with Hibernia's recovery efforts
therefrom) or in connection with this Agreement and the transactions
contemplated hereby."
7. AMENDMENT TO SECTIONS 3.8(a) AND (b). Sections 3.8(a) and (b) of the
Agreement are hereby deleted and amended to read in their entirety as follows:\
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"(a) Since June 30, 2005, no event or events have occurred that have
had or are reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on Hibernia. As used in this
Agreement, the term "MATERIAL ADVERSE EFFECT" means, with respect to
Capital One, Hibernia or the Surviving Corporation, as the case may be,
a material adverse effect on (i) the business, results of operations or
financial condition of such party and its Subsidiaries taken as a whole
(PROVIDED, HOWEVER, that, with respect to this clause (i), Material
Adverse Effect shall not be deemed to include effects to the extent
resulting from (A) changes, after the date hereof, in generally
accepted accounting principles or regulatory accounting requirements
applicable to banks or savings associations and their holding companies
generally, (B) changes, after the date hereof, in laws, rules or
regulations of general applicability or interpretations thereof by
courts or Governmental Entities, (C) changes, after the date hereof, in
global or national political conditions (including the outbreak of war
or acts of terrorism) or in general economic or market conditions
affecting banks or their holding companies generally except to the
extent that such changes in general economic or market conditions have
a materially disproportionate adverse effect on such party, or (D)
public disclosure of the transactions contemplated hereby), or (ii) the
ability of such party to timely consummate the transactions
contemplated by this Agreement. Notwithstanding any other provision of
this Agreement that may be to the contrary, no events or actions
arising out of or directly or indirectly relating to or resulting from
Hurricane ▇▇▇▇▇▇▇ or any other hurricane or storm shall be considered
in determining whether a Material Adverse Effect has occurred or is
reasonably likely to occur for any purposes of this Agreement or
whether there is or may be any failure to be satisfied of any condition
set forth in Article VII hereof.
(b) Since June 30, 2005 through and including the date of this
Agreement, and other than actions taken in connection with Hibernia's
recovery efforts from Hurricane ▇▇▇▇▇▇▇ or any other hurricane or
storm, Hibernia and its Subsidiaries have carried on their respective
businesses in all material respects in the ordinary course of business
consistent with their past practice."
8. AMENDMENT TO SECTION 3.17. The second sentence of Section 3.17 of the
Agreement is hereby deleted and amended to read in its entirety as follows:
"Except for changes in condition resulting directly or indirectly from
Hurricane ▇▇▇▇▇▇▇ or any other hurricane or storm, the Real Property is
in material compliance with all applicable zoning laws and building
codes, and the buildings and improvements located on the Real Property
are in good operating condition and in a state of good working order,
ordinary wear and tear excepted."
9. AMENDMENT TO SECTION 3.24. Section 3.24 of the Agreement is hereby
deleted and amended to read in its entirety as follows:
"Prior to the execution of the Amendment, Hibernia has received an
opinion from its financial advisor to the effect that as of the date of
the Amendment and based upon and subject to the matters set forth in
that opinion, the Merger Consideration is fair to the
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stockholders of Hibernia from a financial point of view. Such opinion
has not been amended or rescinded as of the date of the Amendment."
10. AMENDMENT TO SECTION 4.5(c). Clause (i) of Section 4.5(c) of the
Agreement is hereby deleted and amended to read in its entirety as follows:
"(i) final registration statement, prospectus, report, schedule and
definitive proxy statement filed with or furnished to the SEC by
Capital One since January 1, 2001 pursuant to the Securities Act or the
Exchange and prior to the date of the Amendment (the "CAPITAL ONE SEC
REPORTS") (provided that any Capital One SEC Reports filed on or after
March 6, 2005 shall be deemed to have been made available to Hibernia
to the extent filed or furnished publicly with the SEC prior to the
date of the Amendment) and"
11. AMENDMENT TO SECTIONS 4.8(a) AND (b). Sections 4.8(a) and (b) of the
Agreement are hereby deleted and amended to read in their entirety as follows:
"(a) Since June 30, 2005, no event or events have occurred that have
had or are reasonably likely to have a Material Adverse Effect on
Capital One.
(b) Since June 30, 2005 through and including the date of this
Agreement, Capital One and its Subsidiaries have carried on their
respective businesses in all material respects in the ordinary course
of business consistent with their past practice."
12. AMENDMENT TO SECTION 5.1. Section 5.1 of the Agreement is hereby
deleted and amended to read in its entirety as follows:
"Except (i) as expressly contemplated by or permitted by this
Agreement, (ii) with the prior written consent of the other party, or
(iii) for actions that in the reasonable judgment of Hibernia
management were necessary or desirable in connection with Hibernia's
recovery efforts from Hurricane ▇▇▇▇▇▇▇ as discussed with Capital One
prior to the date of the Amendment and other such actions in relation
to Hurricane ▇▇▇▇▇▇▇ or any other hurricane or storm reasonably taken
thereafter by Hibernia after consultation with Capital One (PROVIDED
that any such action that results in expenses of over $1 million
individually shall be approved by the Capital One integration executive
or his designee (such approval not to be unreasonably withheld)),
during the period from the date of this Agreement to the Effective
Time, each of Hibernia and Capital One shall, and shall cause each of
its respective Subsidiaries to, (a) conduct its business in the
ordinary course in all material respects, (b) use reasonable best
efforts to maintain and preserve intact its business organization and
advantageous business relationships and retain the services of its key
officers and key employees and (c) take no action that is intended to
or would reasonably be expected to adversely affect or materially delay
the ability of either Hibernia or Capital One to obtain any necessary
approvals of any Regulatory Agency or other Governmental Entity
required for the transactions contemplated hereby or to perform its
covenants and agreements under this Agreement or to consummate the
transactions contemplated hereby or thereby."
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13. AMENDMENT TO SECTION 5.2. The introductory clause to Section 5.2 of
the Agreement is hereby deleted and amended to read in its entirety as follows:
"During the period from the date of this Agreement to the Effective
Time, except as set forth in the Hibernia Disclosure Schedule, as
expressly contemplated by this Agreement and except for actions in
connection with Hibernia's recovery efforts from Hurricane ▇▇▇▇▇▇▇ as
discussed with Capital One prior to the date of this Amendment and
other such actions in relation to Hurricane ▇▇▇▇▇▇▇ or any other
hurricane or storm reasonably taken thereafter by Hibernia with the
consent of Capital One (such consent not to be unreasonably
withheld),"
14. AMENDMENT TO SECTION 6.1(a). The first two sentences of Section 6.1(a)
of the Agreement is hereby deleted and amended to read in its entirety as
follows:
"Capital One and Hibernia shall promptly prepare and file with the SEC
a post-effective amendment to the Form S-4, in which the Proxy
Statement will be included as a prospectus. Each of Capital One and
Hibernia shall use their reasonable best efforts to have the
post-effective amendment to the Form S-4 declared effective under the
Securities Act as promptly as practicable after such filing, and
Hibernia shall thereafter mail or deliver the Proxy Statement to its
stockholders. Without limiting the generality of the foregoing, each of
Capital One and Hibernia shall use its respective commercially
reasonable efforts to have the foregoing post-effective amendment filed
with SEC no later than the 10th business day following the date of this
Amendment."
15. AMENDMENT TO SECTION 6.3(a). The first clause of Section 6.3(a) of the
Agreement is hereby deleted and amended to read in its entirety as follows:
"(a) Hibernia shall call a meeting of its stockholders to be held as
soon as reasonably practicable for the purpose of obtaining the
requisite stockholder approval required in connection with this
Agreement, as amended by the Amendment, and the Merger, and shall use
its reasonable best efforts to cause such meeting to occur as soon as
reasonably practicable. The Board of Directors of Hibernia shall use
its reasonable best efforts to obtain from its stockholders the
stockholder vote in favor of the approval and adoption of this
Agreement, as amended by the Amendment, required to consummate the
transactions contemplated by this Agreement. Hibernia shall submit this
Agreement, as amended by the Amendment, to its stockholders at the
stockholder meeting even if its Board of Directors shall have
withdrawn, modified or qualified its recommendation."
16. AMENDMENT TO SECTION 7.1(a). Section 7.1(a) of the Agreement is hereby
deleted and amended to read in its entirety as follows:
"(a) This Agreement, as amended by the Amendment, shall have been
approved and adopted by the requisite affirmative vote of the holders
of Hibernia Common Stock entitled to vote thereon."
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17. AMENDMENT TO SECTION 9.1. Section 9.1 of the Agreement is hereby
deleted and amended to read in its entirety as follows:
"On the terms and subject to conditions set forth in this Agreement,
the closing of the Merger (the "CLOSING") shall take place at 10:00
a.m. on a date and at a place to be specified by the parties, which
date shall be no later than two business days after the satisfaction
or waiver (subject to applicable law) of the latest to occur of the
conditions set forth in Article VII (other than those conditions that
by their nature are to be satisfied or waived at the Closing), unless
extended by mutual agreement of the parties (the "CLOSING DATE"). If
the conditions set forth in Article VII are satisfied or waived during
the two weeks immediately prior to the end of a fiscal quarter of
Capital One, then Capital One may postpone the Closing until the first
full week after the end of that fiscal quarter."
18. AMENDMENT TO ARTICLE IX. Article IX of the Agreement is amended to add
Section 9.11 which shall read in its entirety as follows:
"9.11 Additional Defined Term. As used in this Agreement, "AMENDMENT"
shall mean Amendment No. 1 to this Agreement, dated as of September 6,
2005, between Capital One and Hibernia."
19. RELEASE OF SHARES. The parties hereto agree that all Elections and all
shares of Hibernia Common Stock previously tendered to the Exchange Agent with a
Form of Election may be withdrawn and that holders of record of a share of
Hibernia Common Stock that withdraw their Elections shall be entitled to
re-submit a properly completed Form of Election with their shares of Hibernia
Common Stock (or with customary guaranteed delivery arrangements in lieu
thereof)and make a new Election prior to the Election Deadline. Capital One
shall give the Exchange Agent appropriate instructions in order to effect the
foregoing as soon as practicable after the date hereof and shall cooperate with
Hibernia with respect to appropriate communications with Hibernia stockholders
relating thereto promptly after the date hereof.
20. AUTHORIZATION.
(a) Each party hereto represents to the other that (a) such party has
all necessary corporate power and authority to execute and deliver this
Amendment; (b) the execution and delivery by such party hereto of this Amendment
have been duly, validly and unanimously approved by the Board of Directors of
such party; and (c) this Amendment has been duly and validly executed and
delivered by such party and constitutes the valid and binding obligation of such
party, enforceable against such party in accordance with its terms (except as
may be limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity).
(b) Hibernia represents and warrants to Capital One that the Board of
Directors of Hibernia has determined that the Agreement, as amended by this
Amendment, and the transactions contemplated hereby are advisable and in the
best interests of Hibernia and its stockholders and has directed that the
Agreement, as amended by this Amendment, be submitted
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to Hibernia's stockholders for approval and adoption at a duly held meeting of
such stockholders and, except for the approval of the Agreement, as amended by
this Amendment, by the affirmative vote of the holders of a majority of the
outstanding shares of Hibernia Common Stock entitled to vote at such meeting, no
other corporate proceedings on the part of Hibernia are necessary to approve the
Agreement, as amended by this Amendment, or to consummate the transactions
contemplated thereby.
21. MERGER AGREEMENT REMAINS IN EFFECT. Except as expressly amended by
this Amendment, the Agreement remains in full force and effect and nothing in
this Amendment shall otherwise affect any other provision of the Agreement or
the rights and obligations of the parties thereto.
22. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other party, it being understood that each party need not
sign the same counterpart.
23. GOVERNING LAW; JURISDICTION. This Amendment shall be governed and
construed in accordance with the internal laws of the State of New York
applicable to contracts made and wholly-performed within such state, without
regard to any applicable conflicts of law principles, except to the extent that
the DGCL or the LBCL applies. The parties hereto agree that any suit, action or
proceeding brought by either party to enforce any provision of, or based on any
matter arising out of or in connection with, this Amendment or the transactions
contemplated hereby shall be brought in any federal or state court located in
New York County, New York. Each of the parties hereto submits to the
jurisdiction of any such court in any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of, or in
connection with, this Amendment or the transactions contemplated hereby and
hereby irrevocably waives the benefit of jurisdiction derived from present or
future domicile or otherwise in such action or proceeding. Each party hereto
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Remainder of Page Intentionally Left Blank
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IN WITNESS WHEREOF, Hibernia and Capital One have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
HIBERNIA CORPORATION
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
CAPITAL ONE FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, Chief Executive
Officer and President
Signature Page to Amendment No. 1 to the Agreement and Plan of Merger
