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
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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.
* * * * * * * * *
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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: /s/ James P. Kelley
--------------------------------------
Name: James P. Kelley
Title: PRESIDENT
MICHAEL FOODS ACQUISITION CORP., a Minnesota
corporation
By: /s/ James P. Kelley
--------------------------------------
Name: James P. Kelley
Title: PRESIDENT
MICHAEL FOODS, INC., a Minnesota corporation
By: /s/ Gregg A. Ostrander
--------------------------------------
Name: Gregg A. Ostrander
Title: CHAIRMAN, PRESIDENT & CEO
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