AMENDMENT NO. 1 TO THE AGREEMENT AND
PLAN OF SHARE ACQUISITION
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF SHARE ACQUISITION, dated
as of January 19, 2001 ("Amendment No. 1"), is between Fiduciary Trust Company
International, a bank organized under the New York State Banking Law (the
"Company"), and Franklin Resources, Inc., a Delaware corporation ("Parent").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Agreement.
WHEREAS, Parent and the Company are parties to that certain Agreement and
Plan of Share Acquisition, dated as of October 25, 2000 (the "Agreement"); and
WHEREAS, Parent and the Company desire to amend certain provisions of the
Agreement as set forth in this Amendment No. 1 in accordance with Section 8.6 of
the Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. AMENDMENT TO RECITALS. The seventh recital of the Agreement hereby is
deleted in its entirety.
2. AMENDMENT TO SECTION 2.14. Section 2.14 of the Agreement hereby is
amended in its entirety to read as follows:
"SECTION 2.14 AFFILIATES. Notwithstanding anything to the contrary
herein, no shares of Parent Common Stock or cash shall be delivered
pursuant to the Share Exchange to a person who may be deemed an
"affiliate" of the Company in accordance with Section 6.14 hereof for
purposes of Rule 145 under the Securities Act of 1933, as amended (the
"SECURITIES ACT") and applicable Securities and Exchange Commission
("SEC") rules and regulations until such person has executed and
delivered to Parent the written agreement contemplated by Section
6.14. The Company believes that the individuals listed on Schedule
2.14 of the Company Disclosure Schedule (as hereinafter defined) are
the "affiliates" of the Company as of the date of this Agreement for
the purposes of the transactions contemplated hereby and the Parent
agrees that, absent a material change in circumstances, such
individuals are the only persons who will be required to execute and
deliver the written agreements contemplated by Section 6.14."
3. AMENDMENT TO SECTION 3.27. Section 3.27 of the Agreement hereby is
deleted in its entirety without any redesignation of section numbers,
and such section of the Agreement is deemed to be intentionally
omitted.
4. AMENDMENT TO SECTION 5.1(o). Subsection (o) of Section 5.1 of the
Agreement hereby is deleted in its entirety without any redesignation
of subsection letters, and such subsection of Section 5.1 is deemed to
be intentionally omitted.
5. AMENDMENT TO SECTION 5.2(f). Subsection (f) of Section 5.2 of the
Agreement hereby is deleted in its entirety without any redesignation
of subsection letters, and such subsection of Section 5.2 is deemed to
be intentionally omitted.
6. AMENDMENT TO SECTION 6.12. Section 6.12 of the Agreement hereby is
deleted in its entirety without any redesignation of section numbers,
and such section of the Agreement is deemed to be intentionally
omitted.
7. AMENDMENT TO SECTION 6.14. Section 6.14 of the Agreement hereby is
amended in its entirety to read as follows:
"SECTION 6.14 AFFILIATE LETTERS. Pursuant to Section 2.14 hereof,
Section 6.14 of the Company Disclosure Schedule sets forth a list of
all individuals who are, and all individuals who to the Company's
knowledge will be at the Closing Date, "affiliates" of the Company for
purposes of Rule 145 under the Securities Act. The Company will cause
such list to be updated promptly through the Closing Date. Not later
than 30 days prior to the Effective Time, the Company shall cause its
"affiliates" to deliver to Parent a written agreement substantially in
the form attached as Exhibit B."
8. AMENDMENT TO SECTION 7.2(d). Subsection (d) of Section 7.2 of the
Agreement hereby is deleted in its entirety without any redesignation
of subsection letters, and such subsection of Section 7.2 is deemed to
be intentionally omitted.
9. AMENDMENT TO EXHIBIT B TO THE AGREEMENT. Exhibit B to the Agreement
hereby is amended as follows:
(a) Paragraph (b) hereby is deleted in its entirety.
(b) Paragraph (c) hereby is deleted in its entirety.
(c) The final paragraph hereby is amended in its entirety to read as
follows:
"I hereby acknowledge that I understand the requirements of this
letter and the limitations imposed upon the transfer, sale or other
disposition of the Parent Shares to be received by me in the Share
Exchange."
10. AMENDMENT TO EXHIBIT C TO THE AGREEMENT. Exhibit C to the Agreement
hereby is deleted in its entirety.
11. AMENDMENT TO THE PARENT DISCLOSURE SCHEDULE TO THE AGREEMENT. Section
6.14 of the Parent Disclosure Schedule hereby is deleted in its
entirety.
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12. AMENDMENT TO THE COMPANY DISCLOSURE SCHEDULE TO THE AGREEMENT. The
Company Disclosure Schedule hereby is amended as follows:
(a) The heading of Section 2.14 of the Company Disclosure Schedule
hereby is amended in its entirety to read as follows:
"Affiliates for Purposes of Rule 145"
(b) The heading of Section 6.14 of the Company Disclosure Schedule
hereby is amended in its entirety to read as follows:
"Affiliates for Purposes of Rule 145"
(c) Section 3.27 of the Company Disclosure Schedule hereby is deleted
in its entirety.
13. Each party represents as to itself that it has duly and validly
executed and delivered this Amendment No. 1 and that, assuming this
Amendment No. 1 has been duly and validly executed and delivered by
the other party hereto, this Amendment No. 1 constitutes the legal,
valid and binding obligation of such party, enforceable against it in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to
creditors rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
14. Except as modified herein, each of the parties hereto acknowledges and
agrees that it continues to be bound by each of the terms and
provisions of the Agreement, which terms and provisions, as amended
hereby, shall continue in full force and effect.
15. The parties agree to use their commercially reasonable efforts to
prepare and have executed as promptly as practicable after the date
hereof any necessary amendments to any agreement, document or
instrument executed and delivered in connection with the execution and
delivery of the Agreement to effect or reflect the provisions of this
Amendment No. 1.
16. This Amendment No. 1 may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and shall
become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being
understood that both parties need not sign the same counterpart.
17. This Amendment No. 1 shall be governed by and construed in accordance
with the laws of the State of New York.
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IN WITNESS WHEREOF, each of the parties has caused this Amendment No. 1 to
be duly executed on its behalf as of the day and year first above written.
FRANKLIN RESOURCES, INC.
By: /s/ Martin L. Flanagan
----------------------------
Name: Martin L. Flanagan
Title: President, Member - Office of
the President
FIDUCIARY TRUST COMPANY INTERNATIONAL
By: /s/ Anne M. Tatlock
----------------------------
Name: Anne M. Tatlock
Title: Chairman