AMENDMENT NUMBER ONE
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
TROPICAL SPORTSWEAR INT'L CORPORATION,
HB ACQUISITION CORP.
AND
DUCK HEAD APPAREL COMPANY, INC.
DATED AS OF JULY 26, 2001
AMENDMENT NUMBER ONE
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NUMBER ONE TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made and entered into as of July 26, 2001, by and among Tropical
Sportswear Int'l Corporation, a Florida corporation ("Buyer"), HB Acquisition
Corp., a Georgia corporation ("Sub"), and Duck Head Apparel Company, Inc., a
Georgia corporation ("Target").
PREAMBLE
The parties to this Amendment previously entered into that certain
Agreement and Plan of Merger by and among the parties as of June 26, 2001 (the
"Merger Agreement"). Since that date, Buyer has been conducting its due
diligence investigation of Target and its business. Buyer has requested from
Target, and Target has agreed to, an extension of its due diligence period
because Buyer has indicated that Buyer's due diligence cannot be completed by
July 26, 2001 as contemplated in the Merger Agreement. As a result, the parties
desire to enter into this Amendment to amend the Merger Agreement to extend the
due diligence period.
Certain capitalized terms used in this Amendment are defined in the
Merger Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1. THE AMENDMENT
1.1 DUE DILIGENCE PERIOD. Paragraph (f) of Section 11.1 of the Merger Agreement
is hereby amended by substituting the date "August 6, 2001" for the phrase "the
thirtieth (30th) day after the date of this Agreement," so that the amended
paragraph (f) of Section 11.1 now is as follows:
(f) By Buyer on or before August 6, 2001 in the event that
Buyer has not been satisfied in its reasonable discretion, exercised in
good faith, with the results of its due diligence review of information
concerning the Target and its business; or
1.2 INITIAL EXPIRATION DATE OF THE OFFER. The parties agree that the initial
expiration date of the Offer shall be Midnight on August 8, 2001, unless Target
shall have received an Acquisition Proposal prior to August 8, 2001 and shall
have provided to Buyer the notices required by Sections 9.1(b) or 9.2(a) of the
Agreement, in which case the Offer shall initially expire on the earlier of
(i)(five (5) business days after any Subsequent Determination by Target's Board
of Directors or (ii) the seventh (7th) business day following the earliest
notice from Target to Buyer advising Buyer that the Board of Directors of Target
1
has received a Superior Proposal. In furtherance of this Section 1.2 of this
Amendment, the third sentence of paragraph (a) of Section 1.1 of the Agreement
is hereby amended by substituting the following sentence therefor:
The initial expiration date of the Offer shall be the later of (x)
August 8, 2001 or (y) if, prior to August 8, 2001, Target shall have
received an Acquisition Proposal and provided the notices to Buyer
required by Sections 9.1(b) or 9.2(a), the earlier of (i) the fifth
(5th) business day following a Subsequent Determination (as defined in
Section 9.1(b)) or (ii) the seventh (7th) business day following the
earliest notice from Target to Buyer advising Buyer that the Board of
Directors of Target has received a Superior Proposal.
1.3 SUBSEQUENT DETERMINATION. The second sentence of paragraph (b) of Section
9.1 of the Agreement is hereby amended by the substitution of the words "after
August 1, 2001" for the clause "after the expiration or waiver of Buyer's right
to terminate this Agreement pursuant to Section 11.1(f)".
1.4 OTHER OFFERS. The proviso of the first sentence of paragraph (a) of Section
9.2 of the Agreement, which follows clause (iv) of that sentence, is hereby
amended by the substitution of the words "after August 1, 2001" for the clause
"after the expiration or waiver of Buyer's right to terminate this Agreement
pursuant to Section 11.1(f)".
1.5 THE MERGER AGREEMENT. Except as set forth in the foregoing provisions of
this Amendment, the terms and conditions of the Merger Agreement shall be in
full force and effect and shall not be amended or otherwise altered by this
Amendment. In the event of a conflict between the terms of this Amendment and
the terms of the Agreement, the terms of this Amendment shall control.
1.6 MISCELLANEOUS. The provisions of Sections 12.5, 12.6, 12.7, 12.8, 12.9,
12.10, 12.11, 12.12, 12.13 and 12.14 of the Merger Agreement shall apply to this
Amendment as fully as if such Sections were set forth in this Amendment in their
entirety.
IN WITNESS WHEREOF, each of the Parties has caused this Amendment to
be executed on its behalf by its duly authorized officers as of the day and year
first above written.
ATTEST: TROPICAL SPORTSWEAR INT'L CORPORATION
By: /s/ Michael Kagan
-------------------------------
/s/ Regina M. Valentin Title: Executive Vice President, CFO
- ---------------------------
Title: Executive Assistant
Assistant Secretary
[CORPORATE SEAL]
2
ATTEST: HB ACQUISITION CORP.
By: /s/ Michael Kagan
---------------------------
/s/ Jane C. Marlow Title: President
- -------------------------------
Title: Witness
[CORPORATE SEAL]
ATTEST: DUCK HEAD APPAREL COMPANY, INC.
By: /s/ William V. Roberti
---------------------------
/s/ K. Scott Grassmyer Title: Chairman, President & CEO
- --------------------------------
Title: Secretary
[CORPORATE SEAL]