AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (the "Amendment") to the Agreement and Plan of
Merger (the "Agreement") by and among CCPC Acquisition Corp., a Delaware
corporation ("ACQUIROR"), EG Two Acquisition Co., a Delaware corporation
("Acquisition Subsidiary"), and ECKO Group, Inc., a Delaware corporation
("ECKO"), dated as of August 5, 1999, is made and entered into as of the 10th
day of August, 1999 by and among ACQUIROR, Acquisition Subsidiary, and ECKO.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Agreement.
WHEREAS, ACQUIROR, Acquisition Subsidiary and ECKO are parties to the
Agreement and wish to clarify and amend certain of the provisions of the
Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and in the Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. The last sentence of Section 1.3(a) of the Agreement is hereby
amended and restated to read as follows:
Notwithstanding the foregoing, following the election or appointment of
Acquisition Subsidiary's designees to the Board of Directors of EKCO pursuant to
this Section 1.3 and until the Effective Time, (i) Acquisition Subsidiary shall
only be entitled to designate up to that number of directors that is one less
than the total number of directors on the EKCO Board, regardless of the total
number of such directors, and the Board of Directors of EKCO shall have at least
one director who was a director on August 5, 1999 (provided that EKCO will cause
there to be at least three directors at all times prior to the Effective Time),
(ii) any amendment of this Agreement adverse to EKCO, its stockholders, holders
of options, holders of warrants, directors, officers or employees, any
termination of this Agreement by EKCO, any amendment of the indemnification or
exculpation provisions of the certificate of incorporation or by-laws of EKCO in
effect on August 5, 1999, any extension of time for the performance of
ACQUIROR's or Acquisition Subsidiary's obligations hereunder, any waiver of any
condition for the benefit of EKCO or any of the obligations or other acts of
ACQUIROR or Acquisition Subsidiary, or any waiver or exercise of EKCO's or its
stockholder's rights, remedies or benefits hereunder shall require the approval
(in addition to the approval of the Board of Directors as a whole) of a majority
of the directors, or of the director, of EKCO then in office who was or were
director(s) on August 5, 1999, and (iii) ACQUIROR will cause Acquisition
Subsidiary not to, and Acquisition Subsidiary will not take any action to cause
its designees to constitute a greater number of directors than provided in this
Agreement.
2. The third sentence of Section 5.5 of the Agreement is hereby amended
and restated as follows:
For purposes of this Section 5.5, Section 5.9, Section 6.1(a), Section
7.1(b) and condition (a) set forth in ANNEX A, "reasonable best efforts" of
ACQUIROR shall not require ACQUIROR to agree to any prohibition, limitation, or
other requirement which would prohibit or materially limit the ownership or
operation by EKCO or any of the EKCO Subsidiaries, or by ACQUIROR, Acquisition
Subsidiary or any of ACQUIROR's subsidiaries of all or any material portion of
the business or assets of EKCO or any of the EKCO Subsidiaries or ACQUIROR or
any of its material subsidiaries, or compel Acquisition Subsidiary, ACQUIROR or
any of ACQUIROR's subsidiaries to dispose of or hold separate all or any
material portion of the business or assets of EKCO or any of the EKCO
Subsidiaries or ACQUIROR or any of its material subsidiaries.
3. The first sentence of Section 5.8 of the Agreement is amended and
restated as follows:
Until the six year anniversary date of the Effective Time, the ACQUIROR
and Acquisition Subsidiary agree that all rights to indemnification or
exculpation now existing in favor of the present and former officers, directors,
employees and other indemnified parties (the "Indemnified Parties") of EKCO as
provided in EKCO's Certificate of Incorporation or by-laws or otherwise in
effect as of the date hereof shall survive the Merger and shall continue in full
force and effect, and ACQUIROR shall cause the Surviving Corporation to, and the
Surviving Corporation shall, keep in effect all such indemnification and
exculpation provisions to the fullest extent permitted under applicable law,
which provisions shall not be amended, repealed or otherwise modified for such
six-year period after the Effective Time, except as required by applicable law
or except to make changes permitted by applicable law that would enlarge the
exculpation or rights of indemnification thereunder.
4. Section 5.9(d) of the Agreement is amended and restated as follows:
At or prior to consummation of the Debt Offer, ACQUIROR will provide to
EKCO all necessary funds to purchase the Senior Notes pursuant to the Debt
Offer. For the avoidance of doubt, consummation of the Offer shall be a
condition to consummation of the Debt Offer.
5. Section 6.1(a) of the Agreement is hereby amended and restated as
follows:
no Governmental Entity shall have issued an Order or injunction or
shall have enacted or promulgated any statute, rule or regulation which would
prohibit or restrict the consummation of the Merger; PROVIDED, HOWEVER, that if
the foregoing has occurred, each party shall use its reasonable best efforts to
lift, rescind, cause to expire, terminate or ameliorate the effects of any such
Order or injunction or statute, rule or regulation;
6. Section 7.1(c) of the Agreement is hereby amended and restated as
follows:
(c) by either ACQUIROR or EKCO if the consummation of the
Offer shall not have occurred on or before 120th day following the date hereof;
PROVIDED that the right to terminate this Agreement under this Section 7.1(c)
shall not be available to any party whose
2
failure to fulfill any covenant, agreement or obligation under this Agreement
has been the cause of or resulted in the failure of the consummation of the
Offer to occur on or before such date; and provided, further, that if the Offer
or the Merger shall not have been consummated solely due to the waiting period
(or any extension thereof) or approvals under the HSR Act or any applicable
foreign competition laws not having expired or been terminated or received, then
such date shall be extended to the 180th day following the date hereof;
7. Section 7.2(a) of the Agreement is hereby amended and restated as
follows:
In the event of termination of this Agreement pursuant to this Article
VII, this Agreement, except for the provisions of Section 5.4(b), Section 5.7,
this Section 7.2 and Article VIII, and, provided that the Offer shall have been
consummated prior to termination, Section 5.8 (which shall survive for a period
of six years from the date of termination) and Section 5.11 (which, as to
Sections 5.11(a) and 5.11(b), shall survive for one year after termination and,
as to Sections 5.11(c) and 5.11(d), shall survive termination), shall forthwith
become void and have no further effect, without liability on the part of any
party or its affiliates, directors, officers or stockholders. Nothing in this
Section 7.2 or Section 8.4 shall relieve any party to this Agreement of
liability for breach of this Agreement on or prior to the date of termination.
8. Section 8.4 of the Agreement is amended and restated as follows:
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective Time
or the termination of this Agreement; PROVIDED, HOWEVER, that this Section 8.4
shall in no way limit the obligations of the parties under any covenant or
agreement contained herein or therein that by its terms applies or is to be
performed in whole or in part after the Effective Time, including Article II,
and Sections 5.8, 5.11 and 5.12, which shall survive the Effective Time.
9. Section 8.12 of the Agreement is hereby amended deleting the term
"5.9" and inserting the term "5.8" in place thereof.
10. The last paragraph of the Agreement immediately preceding the
signature blocks thereof is hereby amended by deleting the clause ", and have
caused their respective corporate seals to be hereunto affixed," from such
paragraph.
11. Except as expressly modified hereby, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect.
3
IN WITNESS WHEREOF, ACQUIROR, Acquisition Subsidiary and EKCO have duly
executed this Amendment or caused this Amendment to be duly executed by their
respective duly authorized officers as of the day and year first written above.
CCPC ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
EG TWO ACQUISITION CO.
By: /s/ Phylllis X. Xxxxxxx
-------------------------------------------
Phylllis X. Xxxxxxx
Title: President
EKCO GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Xxxxxx X. Xxxx
Title: Vice President
4
