Exhibit 2.2
October 17, 2003
M-Foods Holdings, Inc.
c/o Vestar Capital Partners
Seventeenth Street Plaza
1225 17th Street, Suite 1660
Denver, Colorado 80202
Attn: J. Christopher Henderson
M-Foods Investors, LLC
c/o Vestar Capital Partners
Seventeenth Street Plaza
1225 17th Street, Suite 1660
Denver, Colorado 80202
Attn: J. Christopher Henderson
Re: Agreement and Plan of Merger
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Gentlemen:
Reference is hereby made to that certain Agreement and Plan of Merger by
and among M-Foods Investors, LLC, as Stockholder Representative, THL Food
Products Holding Co. ("Buyer"), THL Food Products Co. ("Merger Sub"), M-Foods
Holdings, Inc. (the "Company") and the Stockholders, dated as of October 10,
2003 (the "Agreement"). Capitalized terms used herein but not otherwise defined
shall have the meaning ascribed thereto in the Agreement. The parties hereto
desire to waive and amend certain provisions of the Agreement as set forth
herein. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree that the
Agreement is amended as follows:
1. Section 9.01(e) of the Agreement is hereby deleted in its entirety and
replaced with the following:
"(e) by Buyer and Merger Sub on October 24, 2003 if the appropriate waivers
under Section 280G(b)(5)(A)(ii) of the Code with respect to the transactions
contemplated by this Agreement shall not have been obtained and delivered to
Buyer on or before October 23, 2003 (if Buyer and Merger Sub do not provide the
Company with a termination notice on October 24, 2003, Buyer and Merger Sub
shall be deemed to have waived their right to terminate this Agreement pursuant
to this Section 9.01(e)); or".
2. The parties hereby agree that the Company will deliver or cause to be
delivered all the information on the list attached hereto to KPMG LLP no later
than 5:00 p.m. on October 21, 2003. The parties further agree that the dates set
forth in Section 9.01(e) of the Agreement will be extended by one business day
for each day after October 21, 2003 delivery of such documents is delayed.
3. Section 9.01(f) of the Agreement is hereby deleted in its entirety and
replaced with the following:
"(f) by Buyer and Merger Sub by October 21, 2003 at 12:00 p.m. (eastern
standard time) if the updated schedules delivered to the Buyer pursuant to
Section 7.09 contain information which is not contained in the schedules
delivered as of the date of this Agreement and which additional information is
material and adverse to the Company and its Subsidiaries (if Buyer and Merger
Sub do not provide the Company with a termination notice by 12:00 p.m. October
21, 2003, Buyer and Merger Sub shall be deemed to have waived their right to
terminate this Agreement pursuant to this Section 9.01(f))."
4. The first sentence of Section 7.07 of the Agreement is hereby amended
to read as follows: "Within ten (10) days after the execution and delivery of
this Agreement, the Buyer shall cause Merger Sub and Merger Sub shall commence a
tender offer (the "Tender Offer") pursuant to Rule 13e of the Exchange Act for
the Subordinated Notes of the Company."
5. A new subparagraph (c) shall be added to Section 7.07 of the Agreement
as follows:
"Buyer shall not permit Merger Sub to, and Merger Sub shall not, terminate the
Tender Offer or Solicitation without the prior written consent of the Company;
provided, that the foregoing shall not affect the Merger Sub's right to
terminate the Tender Offer if (i) any of the events set forth in clause (iii)
under the respective heading and subheading "Terms of the Offer and the
Solicitation--Conditions to the Offer and the Solicitation" shall have occurred,
(ii) the Merger Sub and the Dealer Manager shall have jointly determined that
the continuation of such Tender Offer would or is reasonably likely to result in
a material violation of law, or (iii) Banc of America Securities LLC has
resigned as Dealer Manager and Solicitation Agent for the Tender Offer and
Solicitation; provided that Merger Sub shall use commercially reasonable efforts
to find a replacement dealer manager and solicitation agent. In the event the
Tender Offer is terminated pursuant to clause (ii) of this paragraph and unless
otherwise prohibited by law, Buyer agrees to cause Merger Sub to initiate a new
tender offer for the Subordinated Notes in accordance with paragraph (a) of this
Section 7.07. Capitalized terms used in this subparagraph (c) and not otherwise
defined in this Agreement shall have the terms ascribed to them in that certain
Offer to Purchase and Consent Solicitation Statement of the Merger Sub dated as
of October 20, 2003."
All matters relating to the interpretation, construction, validity and
enforcement of this letter agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of laws of
any jurisdiction other than the State of Delaware.
Except as modified herby, the Agreement remains unchanged and in full force
and effect.
If you are in agreement with the foregoing, please countersign this letter
where indicated below.
THL FOOD PRODUCTS HOLDING CO. THL FOOD PRODUCTS CO.
By: /s/ Kent Weldon By: /s/ Kent Weldon
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Name: Kent Weldon Name: Kent Weldon
Title: Vice President Title: Vice President
AGREED AND ACCEPTED:
COMPANY STOCKHOLDER REPRESENTATIVE
M-FOODS HOLDINGS, INC. M-FOODS INVESTORS, LLC
By: /s/ John D. Reedy By: /s/ J. Christopher Henderson
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Name: John D. Reedy Name: J. Christopher Henderson
Title: Executive Vice President & Title:
Chief Financial Officer
Dated: October 17, 2003