Exhibit 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger, dated as of March 6,
2001 (the "AMENDMENT"), amends that certain Agreement and Plan of Merger, dated
December 21, 2000 (the "MERGER AGREEMENT"), by and among M-Foods Holdings, Inc.,
a Delaware corporation ("HOLDINGS"), Michael Foods Acquisition Corp. (f/k/a
Protein Acquisition Corp.), a Minnesota corporation and a wholly owned
subsidiary of Holdings ("MERGER SUB") and Michael Foods, Inc., a Minnesota
corporation (the "COMPANY"). Capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to them in the Merger Agreement.
WHEREAS, Holdings, Merger Sub and the Company have entered into the Merger
Agreement and mutually desire to amend the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the undersigned hereby agree as follows:
1. Amendment to Merger Agreement.
A. SECTION 6.3(b) shall be amended as follows: the phrase "the
Company pays to Holdings the Termination Fee (as hereinafter
defined) less any" shall be deleted and replaced with the phrase
"the Company pays the Termination Fee (as hereinafter defined) in
the manner described in SECTION 6.4(c) less any";
B. SECTION 6.4(b) shall be amended and restated in its entirety as
follows:
"(b) The Company shall (provided that neither Holdings nor Merger
Sub is then in material breach of its obligations under this
Agreement) (i) upon the termination of this Agreement pursuant to
SECTION 6.1(d), promptly, but in no event later than two business
days following written notice thereof, pay to Investors, Holdings
and Merger Sub an aggregate amount equal to $5 million, such
amount being distributed in full to Holdings, as disbursing
agent, and allocated (x) to Holdings and Merger Sub for the
out-of-pocket expenses and fees (including fees payable to banks,
investment banking firms and other financial institutions, and
their respective agents and counsel, and fees of counsel,
accountants, financial printers, advisors, experts and
consultants to Holdings and its affiliates) incurred by each
(such amount to not exceed $5 million) and (y) to Investors to
the extent of the excess, if any, of $5 million over the amount
allocated to Holdings and Merger Sub pursuant to the preceding
clause (x) or (ii) upon the termination of this Agreement
pursuant to SECTION 6.2(b), promptly, but in no event later than
two business days following written notice thereof, together with
reasonable supporting documentation, reimburse Holdings and
Merger Sub in an aggregate amount up
to $2,500,000 for the out-of-pocket expenses and fees (including
fees payable to banks, investment banking firms and other
financial institutions, and their respective agents and counsel,
and fees of counsel, accountants, financial printers, advisors,
experts and consultants to Holdings and its affiliates) incurred
by each, such amount being distributed in full to Holdings, as
disbursing agent (either of the payments and allocations in
clauses (i) or (ii) being referred to herein as the "EXPENSE
PAYMENT"). It is understood that in the event a Termination Fee
is paid, to the extent not previously paid, the Expense Payment
shall not be paid."
C. SECTION 6.4(c) shall be amended and restated in its entirety as
follows:
"(c) In the event that this Agreement is terminated by Holdings
pursuant to SECTION 6.2(a) or by the Company pursuant to SECTION
6.3(b), the Company shall pay to Holdings, as disbursing agent,
by wire transfer of immediately available funds to an account
designated by Holdings, on the next business day following such
termination (or, in the case of a termination by the Company
pursuant to SECTION 6.3(b), by wire transfer of immediately
available funds to an account designated by Holdings,
concurrently with the effectiveness of such termination), an
aggregate amount equal to $20 million, such amount being
allocated (x) to Holdings and Merger Sub for the out-of-pocket
expenses and fees (including fees payable to banks, investment
banking firms and other financial institutions, and their
respective agents and counsel, and fees of counsel, accountants,
financial printers, advisors, experts and consultants to Holdings
and its affiliates) incurred by each (such amount to not exceed
$20 million) and (y) to Investors to the extent of the excess, if
any, of $20 million over the amount allocated to Holdings and
Merger Sub pursuant to the preceding clause (x) (the payments and
allocations under clauses (x) and (y) together, the "TERMINATION
FEE"), less, any Expense Payment previously paid."
D. SECTION 6.4(d)(ii) shall be amended and restated in its entirety
as follows:
"(ii) thereafter, within 12 months of the date of such
termination, the Company enters into a definitive agreement with
respect to, or consummates, the Acquisition Proposal referred to
in clause (i), or any proposal with respect to any of the
transactions described in clause (i), (ii) or (iii) of the
definition of Acquisition Proposal (with all of the percentages
included in the definition of such term raised to 50% for
purposes of this definition); then, the Company shall pay to
Holdings, as disbursing agent, concurrently with the earlier of
the execution of such definitive agreement or the consummation of
such Acquisition Proposal, an aggregate amount equal to the
Termination Fee, less any Expense Payment previously paid."
E. SECTION 7.5(b) shall be amended as follows: the phrase "other
than SECTION 4.7 (which is intended" shall be deleted and
replaced with the phrase "other than SECTION 4.7 and SECTION 6.4
(each of which is intended".
2. Continuing Effect. Except as provided in the foregoing SECTION 1 to
this Amendment, this Amendment shall not constitute an amendment or
waiver of any provision of the Merger Agreement, which shall continue
and remain in full force and effect in accordance with its terms.
3. Counterparts. This Amendment may be executed simultaneously in
counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party,
but all such counterparts taken together shall constitute one and the
same Amendment.
4. Governing Law. This Amendment shall be governed and construed in
accordance with the laws of the State of Minnesota, without regard to
the laws that might be applicable under conflicts of laws principles.
* * * * * * * * *
IN WITNESS WHEREOF, Holdings, Merger Sub and the Company have caused this
Amendment to be signed by their respective officers thereunto duly authorized as
of the date first written above.
M-FOODS HOLDINGS, INC., a Delaware corporation
By:
---------------------------------------
Name:
Title:
MICHAEL FOODS ACQUISITION CORP., a Minnesota corporation
By:
---------------------------------------
Name:
Title:
MICHAEL FOODS, INC., a Minnesota corporation
By:
---------------------------------------
Name:
Title: