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EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OR MERGER dated as of January 9,
1998 by and among SKYLINE ACQUISITION CORP., an Ohio corporation (the "Buyer"),
SKYLINE CHILI, INC., an Ohio corporation (the "Company"), and certain
stockholders of the Company executing this instrument (the "Consenting
Stockholders") amending a certain Agreement and Plan of Merger dated as of
November 26, 1997 by and among the Buyer, the Company and the Consenting
Stockholders (the "Agreement"). Capitalized terms used herein which are defined
in the Agreement shall have the same meanings herein as therein unless defined
otherwise herein or the context hereof requires otherwise.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein made, the Parties agree as follows:
1. Conversion of Capital Stock of the Buyer. Section 2(d)(vi) of the
Agreement shall be amended in its entirety to read as follows:
(vi) Conversion of Capital Stock of the Buyer. At and as of the
Effective Time, (A) each share or fractional share of Class A Voting
Common Stock, no par value per share, of the Buyer (the "Buyer Voting
Stock") shall be converted into shares of Class A Voting Common Stock, no
par value per share, of the Surviving Corporation (the "Class A Voting
Stock") at a rate of one share of Buyer Voting Stock per ten thousand
(10,000) shares of Class A Voting Stock, and (B) each share or fractional
share of Class B Nonvoting Common Stock, no par value per share, of the
Buyer (the "Buyer Nonvoting Stock") shall be converted into shares of
Class B Nonvoting Common Stock, no par value per share, of the Surviving
Corporation (the "Class B Nonvoting Stock") at a rate of one share of
Buyer Nonvoting Stock per ten thousand (10,000) shares of Class B
Nonvoting Stock.
2. Exclusivity Termination Date. The Exclusivity Termination Date shall be
March 30, 1998 and, accordingly, Section 5(i) of the Agreement is hereby amended
by replacing the date "February 15, 1998" in the first line thereof with the
date "March 30, 1998".
3. Termination. Each of Section 7(a)(ii)(B) and Section 7(a)(iii)(B) of
the Agreement is hereby amended by replacing the date "February 28, 1998"
therein with the date "April 11, 1998".
4. Exhibits.
(a) Attached hereto are the final forms of the Exhibits A, B, C, E,
F, G, H, I, J
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and K to the Agreement and the Disclosure Schedule of the Buyer.
(b) The parties hereto agree that Exhibit D to the Agreement shall
be in the form attached hereto and any reference thereto in the Agreement shall
be deemed a reference to such attached form of Exhibit D.
5. Effect of Merger.
(a) The provisions of Section 2(d)(ii) of the Agreement are hereby
amended in their entirety to read as follows:
(ii) Articles of Incorporation. The Articles of Incorporation
of the Surviving Corporation as of and after the Effective Time,
until duly amended, shall be the Articles of Incorporation of the
Company, as in effect as of the Effective Time, subject to the
amendment set forth on Exhibit D attached hereto. The Articles of
Incorporation and Code of Regulations of the Surviving Corporation
shall not alter or impair any exculpatory or indemnification
provisions now existing in the Articles of Incorporation or Code of
Regulations of the Company for the benefit of any individual who
served as a director or officer of the Company at any time prior to
or at the Effective Time for actions or omissions to act of such
director or officer taken or omitted on or prior to the Effective
Time.
(b) The provisions of Section 2(d)(iii) of the Agreement are hereby
amended in their entirety to read as follows:
(iii) Code of Regulations. The Code of Regulations of the
Surviving Corporation as of and after the Effective Time, until duly
amended, shall be the Code of Regulations of the Company, as in
effect as of the Effective Time. The Articles of Incorporation and
Code of Regulations of the Surviving Corporation shall not alter or
impair any exculpatory or indemnification provisions now existing in
the Articles of Incorporation or Code of Regulations of the Company
for the benefit of any individual who served as a director or
officer of the Company at any time prior to or at the Effective Time
for actions or omissions to act of such director or officer taken or
omitted on or prior to the Effective Time.
6. No Other Amendments. Except to the extent expressly amended hereby the
Agreement shall not be deemed amended or modified in any way and shall remain in
full force and effect.
7. Miscellaneous.
(a) Succession and Assignment. This instrument shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted
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assigns. No Party may assign either this instrument or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other Parties.
(b) Counterparts. This instrument may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(c) Headings. The section headings contained in this instrument are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this instrument.
(d) Governing Law. This instrument shall be governed by and
construed in accordance with the domestic laws of the State of Ohio without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Ohio or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Ohio.
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IN WITNESS WHEREOF, the Parties hereto have executed this instrument as of
the date first above written.
SKYLINE CHILI, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chairman of Special Committee
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SKYLINE ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
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Title: President
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EXHIBIT D
AMENDMENT TO
ARTICLES OF INCORPORATION
As of the Effective Time, Article Fourth of the Amended Articles of
Incorporation of the Company shall be amended in its entirety to read as
follows:
Fourth: The Corporation shall be authorized to issue a maximum of
5,400,000 shares of common stock, all of which shall be without par value
and which shall be divided into two classes, consisting of 2,900,000
shares of Class A Voting Common Stock (the "Class A Voting Stock") and
2,500,000 shares of Class B Nonvoting Common Stock (the "Class B Nonvoting
Stock", together with the Class A Voting Stock, the "Common Stock"). The
express terms of the shares of Common Stock shall be as follows:
(a) General. Except as otherwise expressly provided herein,
each share of Common Stock shall be freely transferable, and shall
entitle the holder thereof to the same rights as those to which the
holder of every other share of Common Stock is entitled.
(b) Voting.
(i) Class A Voting Stock. The holders of the Class A
Voting Stock shall be entitled to one (1) vote per share on
each matter properly submitted to the Shareholders for their
vote, consent, waiver, release, or other action, subject to
the record date provisions contained in Ohio's General
Corporation Law or the Corporation's Code of Regulations.
(ii) Class B Nonvoting Stock. Except as required by law
and as may otherwise be provided herein, the holders of Class
B Nonvoting Stock shall not be entitled to any voting rights
as stockholders of the Corporation.
(iii) No Cumulative Voting. The holders of the
Corporation's Common Stock shall not have the right to vote
their shares cumulatively in the election of Directors.
(c) Dividends. By action of the Corporation's Board of
Directors, dividends may be declared and paid or set apart for
payment on outstanding shares of the Corporation's Common Stock, out
of any assets or funds of the Corporation legally available for the
payment of dividends, and any dividends paid shall be distributed
pro rata to the holders of the Corporation's outstanding Common
Stock, in accordance with the respective number of shares of Common
Stock held by such
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holders and their respective rights and interest.
(d) Liquidation, Distribution, Etc. Upon the voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation shall be distributed
pro rata to the holders of the Corporation's outstanding Common
Stock, in accordance with the respective number of shares of Common
Stock held by such holders and their respective rights and
interests.
(e) Conversion.
(i) General. Subject to adjustment as provided in (f)
below, each share of Class B Nonvoting Stock shall be
convertible at any time and from time to time at the option of
the holder thereof into one fully paid and nonassessable share
of Class A Voting Stock.
(ii) Procedure. Conversion of the Class B Nonvoting
Stock may be effected by any holder thereof upon the surrender
to the Corporation at the principal office of the Corporation
or at the office of any agent or agents of the Corporation
(the "Transfer Agent"), as may be designated by the Board of
Directors of the Corporation, of the certificate or
certificates for such Class B Nonvoting Stock to be converted
accompanied by a written notice stating that such holder
elects to convert all or a specified whole number of such
shares in accordance with the provisions of this subsection
(e) of Article Fourth and specifying the name or names in
which such holder wishes the certificate or certificates for
shares of Class A Voting Stock to be issued. In case such
notice shall specify a name or names other than that of such
holder, such notice shall be accompanied by payment of all
transfer taxes payable upon the issuance of shares of Class A
Voting Stock in such name or names. Other than such taxes, the
Corporation will pay any documentary, stamp or similar issue
or transfer taxes that may be payable in respect of any issue
or delivery of shares of Class A Voting Stock on conversion of
shares of Class B Nonvoting Stock pursuant hereto. As promptly
as practicable after the surrender of such certificate or
certificates and the receipt of such notice relating thereto
and, if applicable, payment of all required transfer taxes (or
the demonstration to the satisfaction of the Corporation that
such taxes have been paid), the Corporation shall execute and
deliver or cause to be executed and delivered to or on the
order of the holder (x) certificates representing the number
of validly issued, fully paid and nonassessable full shares of
Class A Voting Stock to which the holder (or the holder's
transferee) of shares of Class B Nonvoting Stock being
converted shall be entitled and (y) if less than the full
number of shares of Class B Nonvoting Stock evidenced by the
surrendered certificate or certificates is being converted, a
new certificate or
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certificates, of like tenor, for the number of shares
evidenced by such surrendered certificate or certificates less
the number of shares being converted. Such conversion shall be
deemed to have been made at the close of business on the date
of giving of such notice and of such surrender of the
certificate or certificates representing the shares of Class B
Nonvoting Stock to be converted so that the rights of the
holder thereof as to the shares being converted shall cease
except for the right to receive shares of Class A Voting
Stock, in accordance herewith, and the person entitled to
receive the shares of Class A Voting Stock shall be treated
for all purposes as having become the record holder of such
shares of Class A Voting Stock at such time.
(f) Adjustments. In the event that the Corporation at any time
shall declare or pay, without consideration, any dividend on the
Common Stock payable in either class of Common Stock or in any right
to acquire either class of Common Stock for no consideration, or
shall effect a subdivision of the outstanding shares of either class
of Common Stock into a greater number of shares of such class of
Common Stock (by stock split, reclassification or otherwise than by
payment of dividend in Common Stock or in any right to acquire
Common Stock), or in the event the outstanding shares of either
class of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of
such class of Common Stock, then the number of shares of Class A
Voting Stock into which each share of Class B Nonvoting Stock shall
be convertible immediately prior to such event shall, concurrently
with the effectiveness of such event, be proportionately decreased
or increased, as appropriate, so that, after giving effect to such
event, the aggregate number of shares of Class A Voting Stock
issuable upon conversion of all of the then outstanding Class B
Nonvoting Stock shall represent a percentage of the then outstanding
shares of Class A Voting Stock (including the shares of Class A
Voting Stock issuable upon such conversion) equal to such percentage
determined prior to giving effect to such event. In the event that
this Corporation shall declare or pay, without consideration, any
dividend on the Common Stock payable in any right to acquire either
class of Common Stock for no consideration, then the Corporation
shall be deemed to have made a dividend payable in such class of
Common Stock in an amount of shares equal to the maximum number of
shares issuable upon exercise of such rights to acquire such class
of Common Stock.
(g) Reservation of Stock. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares
of Class A Voting Stock, solely for the purpose of effecting the
conversion of the shares of the Class B Nonvoting Stock, such number
of its shares of Class A Voting Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of
Class B Nonvoting Stock; and if at any time the number of authorized
but unissued shares
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of Class A Voting Stock shall not be sufficient to effect the
conversion of all then outstanding shares of Class B Nonvoting
Stock, the Corporation will take such corporate action as may, in
the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Class A Voting Stock to such number of shares
as shall be sufficient for such purpose, including, without
limitation, engaging in best efforts to obtain the requisite
stockholder approval of any necessary amendment to this Amended
Certificate of Incorporation of the Corporation.
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