Exhibit 2
AMENDMENT NO. 1 TO TRANSACTION AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO TRANSACTION AGREEMENT AND PLAN OF MERGER,
dated as of November 8, 1999 (this "Amendment"), by and among HSBC Holdings plc,
a public limited company organized and existing under the laws of England
("Parent"), Republic New York Corporation, a Maryland corporation (the
"Company"), Safra Republic Holdings S.A., a societe anonyme organized and
existing under the laws of Luxembourg ("SRH"), and RNYC Merger Corporation, a
Maryland corporation ("Merger Sub").
WHEREAS, Parent, the Company and SRH entered into that certain
Transaction Agreement and Plan of Merger, dated as of May 10, 1999 (the
"Original Agreement");
WHEREAS, Parent, the Company, SRH and Merger Sub entered into
that certain Joinder Agreement, dated as of May 20, 1999 (the "Joinder
Agreement"), whereby Merger Sub became a party to the Merger Agreement (the
Original Agreement, as amended by the Joinder Agreement and this Amendment, the
"Agreement");
WHEREAS, as a condition to, and concurrently with,
the execution of this Amendment, Parent, HSBC North America Inc. ("US Holdco"),
RNYC Holdings Limited, Congregation Beit ▇▇▇▇▇▇ (together with RNYC Holdings
Limited, the "Stockholder"), Saban S.A. (the "Stockholder Parent"),
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and the Company are entering into an Amendment
(the "Stockholder Agreement Amendment") to that certain Stockholders
Agreement, dated as of May 10, 1999 (the "Original Stockholder Agreement"
and, as amended by the Stockholder Agreement Amendment, the "Stockholder
Agreement"), among Parent, the Stockholder, the Stockholder Parent and
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇;
WHEREAS, prior to the date hereof the Board of Directors of
the Company has approved and declared advisable the Agreement and has approved
(including for purposes of Sections 3-601 through 3-604 and 3-701 through 3-709
of the General Corporation Law of the State of Maryland (the "MGCL")) the
Stockholder Agreement, upon the terms and subject to the conditions set forth in
the Agreement and the Stockholder Agreement;
WHEREAS, the Board of Directors of SRH has approved the
Agreement and on May 9, 1999 approved the Offer and recommended the Offer, upon
the terms and subject to the conditions set forth in the Original Agreement;
WHEREAS, the parties desire to make certain representations,
warranties and agreements in connection with this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending to be
legally bound hereby, the parties agree as follows:
Section 1. Defined Terms. Capitalized terms used but not
otherwise defined in this Amendment shall have the meanings ascribed thereto
in the Original Agreement or the Joinder Agreement, as applicable.
Section 2. Amendments to Original Agreement.
(A) Section 1.4(a) of the Original Agreement shall be deleted
in its entirety and the following substituted therefor:
(a) Outstanding Company Common Stock. Each share of
common stock, par value $5.00 per share, of the Company (the
"Company Common Stock") issued and outstanding immediately
prior to the Effective Time (other than shares of Company
Common Stock held (i) in the Company's treasury ("Treasury
Shares") or (ii) directly or indirectly by Parent or the
Company or any of their respective wholly owned Subsidiaries
(except for Fiduciary and DPC Shares (as defined in Section
1.4(d))) shall become and be converted into the right to
receive $72.00 in cash to be paid, without interest thereon,
as provided in Section 1.5(c) (the "Merger Consideration").
(B) Section 1.5(b) and Section 1.5(c) of the Original
Agreement shall be deleted in their entirety and the following substituted
therefor:
(b) From time to time following the Effective Time,
Parent or Merger Sub shall deposit, or shall cause to be
deposited, with a bank or trust company (which may be an
affiliate of Parent or the Company) (the "Exchange Agent"),
for the benefit of the holders of the Certificates, cash
amounts, as instructed by the Exchange Agent (such cash
(without any interest) being hereinafter referred to as the
"Exchange Fund"), to be paid pursuant to this Article I in
exchange for outstanding shares of Company Common Stock
entitled to receive the Merger Consideration; provided, that,
if the Effective Time occurs after December 17, 1999, neither
Parent nor Merger Sub shall be required to deposit, or cause
to be deposited, any cash amounts with the Exchange Agent
before January 7, 2000.
(c) As promptly as practicable after the Effective
Time, Parent shall send or cause to be sent to each former
holder of record of shares of Company Common Stock (other than
shares that are to be canceled pursuant to Section 1.4(d))
immediately prior to the Effective Time, transmittal materials
for use in exchanging such stockholder's Certificates for the
Merger Consideration. Parent shall cause any check in respect
of the Merger Consideration which such Person shall be
entitled to receive to be delivered to such stockholder upon
delivery to the Exchange Agent of Certificates representing
such shares of Company Common Stock (or indemnity reasonably
satisfactory to Parent and the Exchange Agent, if any of such
Certificates are lost, stolen or destroyed) owned by such
stockholder; provided, that if the Effective Time occurs after
December 17, 1999, in no event shall any check be required to
be mailed before January 7, 2000. No interest will be paid on
any such cash to be paid
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pursuant to this Article I upon such
delivery. Parent or its designee shall be entitled to deduct
and withhold from the Merger Consideration otherwise payable
to any holder of Certificates such amounts (if any) as Parent
or such designee determines are required to be deducted or
withheld under the Internal Revenue Code of 1986, as amended
(the "Code"), or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by Parent or
such designee, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder
of such Certificates.
(C) Section 2.1 of the Original Agreement shall be deleted in
its entirety and the following substituted therefor:
2.1 Closing Date. The closing of the transactions
provided for in this Agreement (the "Closing") shall be held
(a) at the offices of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M. on the
third business day after the satisfaction or waiver (subject
to applicable law) of the latest to be satisfied or waived of
the conditions (other than those conditions to be satisfied at
the Closing) set forth in Sections 8.1, 8.2 and 8.3 hereof;
provided, that if the conditions in Sections 8.1(a), 8.1(b),
8.2(c) and 8.2(f) shall have been satisfied:
(i) prior to December 31, 1999, Parent, in its
sole discretion, by written notice to the Company and SRH
may elect to schedule the Closing for any date after such
conditions have been satisfied through and including
December 31, 1999, but if the date of satisfaction of the
last of the conditions in Section 8.1(a), 8.1(b), 8.2(c)
and 8.2(f) is before December 28, 1999, Parent may
schedule the Closing for a date later than such third
business day only if Parent and Merger Sub irrevocably
agree in such notice that the reference to the Closing
Date in Section 8.2(a) shall be deemed to refer to the
date which is the third business day following
satisfaction of the last to be satisfied of the conditions
in Sections 8.1(a), 8.1(b), 8.2(c) and 8.2(f) (the
"Original Date"); and
(ii) after December 31, 1999, Parent, after
consulting with the Company, may by written notice to the
Company and SRH elect to schedule the Closing for any date
not less than two business days or more than 35 calendar
days after the satisfaction or waiver (subject to
applicable law) of the latest to be satisfied or waived of
the conditions (other than those conditions to be
satisfied at the Closing) set forth in Sections 8.1, 8.2
and 8.3 hereof only if Parent and Merger Sub irrevocably
agree in such notice that the reference to the Closing
Date in Section 8.2(a) shall be deemed
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to refer to the
earlier of the Original Date and the scheduled Closing
Date;
or (b) at such other place and on such other date as shall be
agreed to by the parties hereto. The date on which the Closing
occurs is hereinafter referred to as the "Closing Date." For
the avoidance of doubt, it is expressly understood that
nothing in Section 2.1(a) shall be deemed to modify or require
waiver of the conditions set forth in Sections 8.1(c), 8.2(b),
8.2(d), 8.2(e), 8.2(g) or 8.2(h). Notwithstanding the
provisions of Section 2.1(a)(i) and Section 2.1(a)(ii), if
Parent exercises its right to schedule the Closing pursuant to
the proviso to either Section 2.1(a)(i) or Section 2.1(a)(ii)
and the Effective Time does not occur on such scheduled date
as a result of the failure of the condition in Section 8.2(b),
then the condition in Section 8.2(a) shall be read to refer to
the rescheduled Closing Date, if any, and not to the Original
Date; provided, that if there is a failure of the condition in
Section 8.2(b) and the failure of any other condition (other
than Section 8.3(c)), the failure of the Effective Time to
have occurred shall be deemed to have been caused by the
failure of the condition in Section 8.2(b). If the Effective
Time does not occur on such scheduled Closing Date for any
other reason, Section 8.2(a) shall continue to be interpreted
as referring to the Original Date for purposes of any Closing
which occurs on or before the date specified in Section 9.1(c)
(including any date specified in the proviso to Section
9.1(c)).
(D) Section 7.13 of the Original Agreement shall be deleted in
its entirety and the following substituted therefor:
7.13. The Offer. Provided that this Agreement shall
not have been terminated in accordance with Article IX, Parent
shall, or shall cause Offer Sub to, commence an offer to
acquire all outstanding shares of SRH Common Stock not owned,
directly or indirectly, by the Company at a price of $72.00
per share of SRH Common Stock. Parent shall, and shall cause
Offer Sub to, accept for payment all shares of SRH Common
Stock tendered to Parent or Offer Sub at, or as soon as
possible following, the Effective Time; provided, that Parent
or Offer Sub shall not be required to make payment for, or
mail checks with respect to, tendered shares of SRH Common
Stock until the seventh calendar day following the Effective
Time, but if the Effective Time occurs after December 17, 1999
in no event earlier than January 10, 2000. The obligation of
Parent or Offer Sub to consummate the Offer and to accept for
payment any shares of SRH Common Stock tendered pursuant
thereto shall be subject only to the conditions set forth in
Article VIII to this Agreement and to the prior or concurrent
consummation of the Merger (collectively, the "Offer
Conditions"), which are for the sole benefit of Parent and
Offer Sub and may be asserted by Parent or Offer Sub
regardless of the circumstances
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giving rise to any such
condition, or waived by Parent or Offer Sub in whole or in
part at any time and from time to time prior to acceptance of
shares for payment in its sole discretion; provided, that in
no event shall Parent or Offer Sub purchase (or accept for
purchase) any shares of SRH Common Stock pursuant to the Offer
if the Merger shall not have occurred or concurrently occur.
The Company and SRH agree that no shares of SRH Common Stock
held by the Company, SRH or any of their respective
Subsidiaries will be tendered to Parent or Offer Sub pursuant
to the Offer. Parent and Offer Sub will not, without the prior
written consent of SRH, (i) decrease or change the form of the
consideration payable in the Offer, (ii) decrease the number
of shares of SRH Common Stock sought pursuant to the Offer,
(iii) impose additional conditions to the Offer or change the
Offer Conditions (provided, that Parent or Investor in its
sole discretion may waive any such conditions and, in
connection therewith, substitute a less restrictive condition)
or (iv) make any other change in the terms or conditions of
the Offer which is materially adverse to the holders of the
shares of SRH Common Stock. Notwithstanding the foregoing,
Parent and SRH may, without the consent of the Company or SRH,
(x) extend the Offer, if at the scheduled expiration date of
the Offer any of the Offer Conditions shall not have been
satisfied or waived, until such time as all conditions are
satisfied or waived, (xi) extend the Offer for any period
required by any statute, rule, regulation, interpretation or
position of any Governmental Authority applicable to the
Offer, and (xii) extend the Offer for any reason on one or
more occasions for an aggregate of not more than 15 business
days beyond the latest expiration date that would otherwise be
permitted under clauses (x) and (xi) of this sentence. Subject
to the Offer Conditions and the terms and conditions of this
Agreement, Parent shall, and Parent shall cause Offer Sub to,
accept for payment all shares of SRH Common Stock validly
tendered and not withdrawn pursuant to the Offer as soon as
practicable after the expiration of the Offer; provided, that
Parent or Offer Sub shall not be required to make payment for,
or mail checks with respect to, tendered shares of SRH Common
Stock until the seventh calendar day following the Effective
Time, but if the Effective Time occurs after December 17, 1999
in no event earlier than January 10, 2000.
(E) The following Section 7.15 shall be added to
Article VII of the Original Agreement.
7.15. Insurance. The Company and SRH shall, and shall
cause their respective Subsidiaries to, keep in place and
maintain, and comply with the terms of, all existing insurance
policies, contracts and cover and all agreements and
arrangements with respect to insurance, where the maximum
amount of coverage exceeds $1 million.
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(F) Section 8.2(a) of the Original Agreement shall be shall be
deleted in its entirety and the following substituted therefor:
(a) Representations and Warranties. Subject to
Section 2.3(b), the representations and warranties of the
Company and of SRH set forth in this Agreement (including the
Amendment) shall be true and correct in all respects as of the
Closing Date (except to the extent such representations and
warranties expressly speak as of a specified earlier date, in
which case such representations and warranties shall be true
as of such earlier date) as though made on and as of the
Closing Date; and Parent shall have received certificates
signed on behalf of each of the Company and of SRH by their
respective Chief Executive Officers and Chief Financial
Officers (or, in the case of SRH, the functional equivalent
thereof) to such effect.
(G) Section 8.2 of the Original Agreement shall be amended by
adding the following clause (h) following clause 8.2(g):
(h) Transfer of Company Common Stock to US Holdco.
Immediately prior to the Effective Time and following the
satisfaction or irrevocable waiver of all conditions set forth
in Sections 8.1, 8.2 (other than this Section 8.2(h)) and 8.3
hereof, RNYC Holdings Limited shall have transferred 6,250,000
shares of Company Common Stock to US Holdco in accordance with
the terms of the Stockholder Agreement.
(H) Section 8.3(a) of the Original Agreement shall be deleted
in its entirety and the following substituted therefor:
(a) Representations and Warranties. Subject to
Section 2.3(b), the representations and warranties of Parent
set forth in this Agreement (including the Amendment) shall be
true and correct, as of the Closing Date (except to the extent
such representations and warranties speak as of a specified
earlier date, in which case such representations and
warranties shall be true as of such earlier date) as though
made on and as of the Closing Date; and the Company shall have
received a certificate signed on behalf of Parent by the Group
Financial Director to such effect.
(I) Section 9.1(c) of the Original Agreement shall be deleted
in its entirety and the following substituted therefor:
(c) by either Parent, the Company or SRH if the
Merger shall not have been consummated on or before January
31, 2000, unless the failure of the Closing to occur by such
date shall be due to the failure of the party seeking to
terminate this Agreement to perform or observe the covenants
and agreements of such party set forth herein; provided, that
if all conditions set forth in Sections 8.1, 8.2 and 8.3
(other than those
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conditions to be satisfied at Closing) shall
have been satisfied and Parent elects to schedule the Closing
pursuant to the proviso to Section 2.1(a)(ii), then such date
shall be the date which is 30 calendar days following the date
so scheduled for Closing.
(J) Section 10.6 of the Original Agreement shall be deleted in
its entirety and the following substituted therefor:
10.6 Entire Agreement. The Agreement (including the
Joinder Agreement, the Amendment, the Company Disclosure
Schedule, the SRH Disclosure Schedule, the exhibits attached
to the Agreement and all other documents and instruments
referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the
subject matter hereof other than the Option Agreement, the
Stockholder Agreement and the Confidentiality Agreement;
provided that Section 5 of the Confidentiality Agreement shall
not affect the representations and warranties of any party
hereto.
(K) The definition of "Material Adverse Effect" in Section
10.12(a) of the Original Agreement shall be amended by adding the following
sentences at the end of the definition:
For all purposes of determining whether there has been, or is
reasonably likely to be, a Material Adverse Effect with
respect to the Acquired Companies, all adverse facts,
circumstances or conditions relating to the Princeton Note
Matter (as defined below) of which, as of the date hereof,
Parent or its representatives have been informed of by the
Company or its representatives or Parent otherwise has
Knowledge shall be disregarded. For purposes hereof, the term
"Princeton Note Matter" shall mean the involvement or alleged
involvement and the actions or omissions or alleged actions or
omissions, if any, of Republic New York Securities
Corporation, the Company and their respective officers,
directors, employees and agents with respect to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Princeton Global Management Ltd., Princeton
Economics International Ltd., Cresvale International - Tokyo
Branch and all affiliated Persons and any existing effects or
the reasonably foreseeable effects thereof.
Section 3. Representations and Warranties of the Company. The
Company hereby represents and warrants to Parent as follows:
(a) The Company has full corporate power and authority to
execute and deliver this Amendment and to consummate the transactions
contemplated by the Agreement. The execution and delivery of this Amendment and
the consummation of the transactions contemplated by the Agreement have been
duly and validly approved by the Board of Directors
7
of the Company prior to the
date hereof (which approval satisfies in full the requirements of the MGCL
regarding approval by a board of directors), and such approval is in full force
and effect. The Board of Directors of the Company has adopted a resolution
declaring advisable the Merger and the other transactions contemplated by the
Agreement. The Board of Directors of the Company has directed that the Agreement
and the transactions contemplated by the Agreement be submitted to the Company's
stockholders for approval at a meeting of such stockholders and, except for the
approval of the Agreement by the affirmative vote of the holders of a majority
of the votes of the outstanding shares of the Company Common Stock entitled to
vote thereon, no other corporate proceedings on the part of the Company and no
other stockholder votes are necessary to approve the Agreement and to consummate
the transactions contemplated thereby. As of the date hereof, the Board of
Directors of the Company has resolved to recommend that the Company's
stockholders approve the Merger. This Amendment has been duly and validly
executed and delivered by the Company and (assuming due authorization, execution
and delivery by Parent, Merger Sub and SRH) constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. In addition, the Board of Directors has taken all requisite action
such that the freezeout, special shareholder voting and other requirements
imposed by Sections 3-601 through 3-604 and 3-701 through 3-709 of the MGCL, and
the provisions of any other applicable "freezeout", "fair price", "moratorium",
"control share acquisition" or other similar anti-takeover statute or regulation
enacted under state, federal or foreign laws, are not applicable to the Merger,
the Agreement, the Option Agreement or the Stockholder Agreement or the
transactions contemplated by the Agreement, the Option Agreement and the
Stockholder Agreement. No holder of Company Capital Stock shall have the right
to appraisal or to demand or receive payment of the fair value of such Company
Capital Stock from the Successor Corporation or any other Person pursuant to the
MGCL or otherwise.
(b) Neither the execution and delivery of this Amendment by
the Company, nor the consummation by the Company of the Merger, nor compliance
by the Company with any of the terms or provisions of the Agreement, will (i)
violate any provision of the articles of incorporation or bylaws of the Company
or any of its Subsidiaries or (ii) assuming that the consents and approvals
referred to in Section 3.4 of the Agreement are duly obtained, violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to the Company or any of its Subsidiaries or any of their
respective properties or assets, or violate, conflict with, result in a breach
of any provision of or the loss of any benefit under, constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by or rights or
obligations under, or result in the creation of any Lien (or have any of such
results or effects, upon notice or lapse of time, or both) upon any of the
respective properties or assets of the Company or any of its Subsidiaries under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement, contract, or other
instrument or obligation to which the Company or any of its Subsidiaries is a
party, or by which they or any of their respective properties, assets or
business activities may be bound or affected.
8
(c) Except as disclosed previously by the Company to Parent
prior to the date of this Amendment, to the Knowledge of the Company there are
no material facts, events, circumstances or occurrences directly or indirectly
relating to the Princeton Note Matter, including any facts, events,
circumstances or occurrences that would impact the measure of any civil or
criminal damages, penalties, fines or other liabilities that might be levied
against, or incurred by, the Company, SRH and any of their respective
Subsidiaries as a result of, or otherwise relating to, the Princeton Note
Matter.
(d) The Company understands and acknowledges that Parent and
Merger Sub are entering into this Amendment in reliance upon the execution,
delivery and performance by the Stockholder, Stockholder Parent, ▇▇. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and the Company of the Stockholder Agreement Amendment.
Section 4. Representations and Warranties of SRH. SRH hereby
represents and warrants to Parent as follows:
(a) SRH has full power and authority to execute and deliver
this Amendment and to consummate the transactions contemplated by the Agreement.
The execution and delivery of this Amendment and the consummation of the
transactions contemplated by the Agreement have been duly and validly approved
by the Board of Directors of SRH prior to the date hereof (which approval
satisfies in full the requirements of Luxembourg Law regarding approval by a
board of directors), and such approval is in full force and effect. On May 9,
1999, the Board of Directors of SRH recommended to SRH's stockholders to tender
their Shares of SRH Common Stock in the Offer. No other proceeding on the part
of SRH and no stockholder vote is necessary to approve this Amendment or the
Agreement and to consummate the transactions contemplated by the Agreement. This
Amendment has been duly and validly executed and delivered by SRH and (assuming
due authorization, execution and delivery by Parent, Merger Sub and the Company)
constitutes a valid and binding obligation of SRH, enforceable against SRH in
accordance with its terms. In addition, the Board of Directors of SRH has taken
all requisite action such that the provisions of any applicable "freezeout",
"fair price", "moratorium", "control share acquisition" or other similar
anti-takeover statute or regulation, are not applicable to the Merger, the Offer
or the other transactions contemplated by the Agreement.
(b) Neither the execution and delivery of this Amendment by
SRH, nor the consummation by the Company of the Merger or SRH of the Offer, nor
compliance by SRH with any of the terms or provisions of the Agreement, will (i)
violate any provision of the articles of association (or similar documents) of
SRH or any of its Subsidiaries or (ii) assuming that the consents and approvals
referred to in Section 4.4 of the Agreement are duly obtained, violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to SRH or any of its Subsidiaries or any of their
respective properties or assets, or violate, conflict with, result in a breach
of any provision of or the loss of any benefit under, constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, result in the termination of or a right of termination or
cancellation under, accelerate the performance required by or rights or
obligations under, or result in the creation of any Lien (or have any of such
results or effects upon notice or lapse of time, or both) upon any of the
respective properties
9
or assets of SRH or any of its Subsidiaries under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement, contract, or other instrument or obligation
to which SRH or any of its Subsidiaries is a party, or by which they or any of
their respective properties, assets or business activities may be bound or
affected.
(c) SRH understands and acknowledges that Parent and Merger
Sub are entering into this Amendment in reliance upon the execution, delivery
and performance by the Stockholder, Stockholder Parent, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
the Company of the Stockholder Agreement Amendment.
Section 5. Representations and Warranties of Parent.
Parent hereby represents and warrants to the Company and SRH as follows:
(a) Parent and Merger Sub have full corporate power and
authority to execute and deliver this Amendment and to consummate the
transactions contemplated by the Agreement.
(b) The consummation of the transactions contemplated by the
Agreement has been duly and validly approved by a duly authorized committee of
the Board of Directors of Parent and by the Board of Directors of Merger Sub. No
other corporate proceedings on the part of Parent and Merger Sub and no vote of
Parent's stockholders are necessary to consummate the transactions contemplated
hereby.
(c) The execution and delivery of this Amendment by Parent and
Merger Sub has been duly and validly authorized in accordance with applicable
law. This Agreement has been duly and validly executed and delivered by Parent
and Merger Sub and (assuming due authorization, execution and delivery by the
Company and SRH) constitutes a valid and binding obligation of Parent and Merger
Sub, enforceable against Parent and Merger Sub in accordance with its terms.
(d) Neither the execution and delivery of this Amendment by
Parent and Merger Sub, nor the consummation by Parent and Merger Sub of the
Merger and the Offer, nor compliance by Parent and Merger Sub with any of the
terms or provisions of the Agreement, will (i) violate any applicable law or the
memorandum and articles of association, certificate of incorporation, bylaws or
other organizational documents of Parent or Merger Sub, as applicable, or (ii)
assuming that the consents and approvals referred to in Section 5.3 of the
Agreement are duly obtained, violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to Parent or
any of its Subsidiaries or any of their respective properties or assets, or
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the respective
properties or assets of Parent or any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease,
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agreement, contract or other instrument or obligation to
which Parent or any of its Subsidiaries is a party, or by which they or any of
their respective properties or assets may be bound or affected.
Section 6. Counterparts. This Amendment may be executed in
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 parties, it being understood that all parties need
not sign the same counterpart.
Section 7. Governing Law. Except as required by mandatory
provisions of the MGCL, this Amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such state.
Section 8. The Original Agreement. Except as specifically
amended hereby, the Original Agreement shall continue in full force and effect
in accordance with the provisions thereof in existence on the date hereof.
Unless the context otherwise requires, after the date hereof, any reference to
the Original Agreement shall mean the Original Agreement as amended hereby.
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IN WITNESS WHEREOF, Parent, Merger Sub, the Company and SRH
have caused this Amendment to be executed by their respective officers thereunto
duly authorized as of the date first above written.
HSBC HOLDINGS PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorised Signatory
RNYC MERGER CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
REPUBLIC NEW YORK CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: Chairman and
Chief Executive Officer
SAFRA REPUBLIC HOLDINGS S.A.
By: /a/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Manager
and Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Attorney-in-Fact