EXHIBIT 11(c)(3)
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of April 8, 1999, by and among RSA
Holdings Corp. of Delaware, a Delaware corporation ("Parent"), RSA
Acquisition Corp., a Delaware corporation and a subsidiary of Parent
("Purchaser"), and American Safety Razor Company, a Delaware corporation (the
"Company").
WHEREAS, the parties have entered into an Agreement and Plan of
Merger dated as of February 12, 1999 (the "Agreement");
WHEREAS, the parties wish to amend certain provisions of the
Agreement; and
WHEREAS, Section 8.04 of the Agreement provides in relevant part
that at any time before any approval of the Agreement by the stockholders of
the Company, the Company, Parent and Purchaser may amend the Agreement by
written agreement signed on behalf of all the parties.
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt of which is hereby acknowledged,
Parent, Purchaser and the Company hereby agree as follows:
1. Terms not specifically defined herein shall have the meanings
set forth in the Agreement.
2. The reference to "$14.125" contained in the second WHEREAS
clause to the Agreement and each other reference to "$14.125" contained
in the Agreement is hereby replaced with "$14.20".
3. The proviso contained in the penultimate sentence of Section
1.01(a) of the Agreement is hereby deleted in its entirety and replaced
with the phrase "; provided that notwithstanding the satisfaction of the
Offer Conditions, Parent, Purchaser and the Company agree that the Offer
may be extended up to and including 2:00 p.m. on April 23, 1999."
4. Section 1.01 of the Agreement is hereby further amended by
adding a new subsection, subsection 1.01(c), which shall read in its
entirety:
"(c) The Offer Documents shall be promptly amended and
supplemented following the execution of the Amendment
Agreement to describe the material terms thereof, and the
Offer Documents as so amended and supplemented, shall be filed
with the SEC and published, sent or given to the Company's
stockholders, in each case as and to the extent required by
applicable federal securities law.
5. Section 1.02 of the Agreement is hereby amended by adding a
new subsection, subsection 1.02(d), which shall read in its entirety:
"(d) The Schedule 14D-9 shall be promptly amended and
supplemented following the execution of the Amendment
Agreement to describe the material terms thereof, and the
Schedule 14D-9, as so amended and supplemented, shall be filed
with the SEC and disseminated to the stockholders of the
Company, in each case as and to the extent required by
applicable federal securities law.
6. Section 2.11 of the Agreement is hereby amended and restated
in its entirety to read as follows:
"Section 2.11 Merger Without Meeting of Stockholders.
Notwithstanding Section 2.10, in the event that Parent, the
Purchaser or any other subsidiary of Parent shall acquire at
least 90% of the outstanding shares of each outstanding class
of capital stock of the Company pursuant to the Offer, if the
Parent, Purchaser or any other subsidiary of the Parent
determines, in its sole discretion, to utilize the provisions
of Section 253 of the GCL, the parties hereto agree to take
all necessary and appropriate action to cause the Merger to
become effective as soon as practicable after the acceptance
for payment of and payment for Shares by the Purchaser
pursuant to the Offer without a meeting of stockholders of the
Company, in accordance with Section 253 of the GCL, provided,
that the foregoing will not alter the Minimum Condition."
7. Section 4.14 of the Agreement is hereby amended by deleting
the "or" immediately before the "(iii)" in the penultimate line thereof
and inserting at the end of such section the following:
"; or (iv) with respect to the cotton related matters
described in Annex A of Section 4.08 of the Company Disclosure
Schedule or referenced in Sections 4.14(iv) and 4.22, any new
condition, event or occurrence (or in the case of any
condition, event or occurrence existing at the date hereof, an
acceleration or worsening thereof), which would, in the good
faith judgment of Parent and its financing sources, reasonably
be expected to have a Material Adverse Effect on the Company".
8. A new section is hereby added to the Agreement, Section 4.22,
which shall read in its entirety:
-2-
"Section 4.22 Cotton Liability. In respect of the potential
liability (the "Cotton Liability") arising from the higher
residual levels of hydrogen peroxide in the cotton that the
Company's pharmaceutical coil business received from its
supplier during the period from March 1998 through November
1998, the Company, based upon a review and investigation of
the Cotton Liability and upon advice of counsel and taking
into account the levels of insurance, including and assuming
for this purpose the purchase of the Supplemental Insurance
(as defined in Section 5.09 hereof) and potential defenses,
claims and counterclaims available to the Company in respect
of the Cotton Liability, the Company believes at the date
hereof that the Cotton Liability will not have a material
adverse effect on the assets, business, financial condition,
results or operations of the Company and its subsidiaries
taken as a whole."
9. Section 5.05 is hereby amended to add the following sentence
at the end thereof to read as follows:
"Purchaser has delivered to the Company revised Commitment
Letters which eliminate any conditions relating to receipt and
satisfaction with respect to the Company's financial
statements for fiscal year 1998".
10. A new section is hereby added to the Agreement, Section 5.09,
which shall read in its entirety:
"Section 5.09 Insurance. Parent has executed binders with
Transcontinental Insurance Company and/or another nationally
recognized insurance company entitling the Company to purchase
$50.0 million of additional insurance (the "Supplemental
Insurance"), pursuant to policies substantially in the form
set forth on Section 5.09 of the Purchaser Disclosure
Statement to cover the Company and existing directors and
officers (as named insureds) for matters arising out of or
relating to, among other things, the cotton liability
described in Annex A of Section 4.08 of the Company Disclosure
Schedule, with coverage contingent upon the consummation of
the Offer."
11. A new section is hereby added to the Agreement, Section 6.17,
which shall read in its entirety:
"Section 6.17 Insurance. Parent will, upon consummation of
the Offer, enter into insurance policies in substantially the
form set forth on Section 5.09 of the Purchaser Disclosure
-3-
Statement with Transcontinental Insurance Company and/or
another nationally recognized insurance company pursuant to
which the Company will purchase the Supplemental Insurance,
with coverage effective upon the consummation of the Offer."
12. The reference to "55 days" contained in Section 8.01(c)(ii) of
the Agreement is hereby replaced with "70 days."
13. Section 8.02 of the Agreement is hereby amended by inserting
the following proviso at the end thereof:
"provided, that, notwithstanding the foregoing, in the event
of the termination of this Agreement pursuant to Section
8.01(c), 8.01(d)(iv), 8.01(e)(i) or 8.01(e)(ii) as a result of
or in connection with the cotton liability described on Annex
A of Section 4.08 of the Company Disclosure Schedule or
referenced in Sections 4.14(iv) and 4.22, each of Parent and
Purchaser, on the one hand, and the Company, on the other
hand, hereby irrevocably and unconditionally releases, acquits
and forever discharges on behalf of itself and any person
acting by, through, or under or in concert with such party and
all persons acting by, through, under or in concert with any
of them (collectively, the "Releasees"), the other party or
parties to this Agreement (the "Other Party") and each of the
directors and officers of the Other Party and any financing
sources of the Other Party (collectively, the "Released
Parties") from any and all charges, complaints, claims, suits,
judgments, demands, actions, obligations or liabilities,
damages, causes of action, rights, costs, loans, debts and
expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever known or unknown, emanating
from, arising out of, or in any way whatsoever arising or
resulting from any action which the Other Party may have taken
or failed to take which results in such termination, and each
such party agrees that neither it, nor any person acting by,
through, or under it shall institute or pursue any action or
actions, cause or causes of action (in law or in equity),
suits or claims in state or federal court against or adverse
to the Released Parties arising from or attributable to the
Releasees in connection with the foregoing."
14. Section 8.03 of the Agreement is hereby amended by inserting
the following new subsection at the end thereof:
"(d) Notwithstanding anything to the contrary contained in
this Agreement, if this Agreement is terminated pursuant to
Section 8.01 (e)(i) or 8.01(e)(ii) as a result of or in
-4-
connection with the cotton liability described on Annex A of
Section 4.08 of the Company Disclosure Schedule or referenced
in Sections 4.14(iv) and 4.22, the Company shall not be
required to pay to Purchaser or Parent a Fee or any Expenses.
15. Item 2 of Section 4.08 of the Company Disclosure Schedule is
hereby amended in the manner set forth in Annex A attached hereto and
such section is hereby replaced in its entirety by Annex A.
16. A new section, Section 5.09, is added to the Purchaser
Disclosure Statement as set forth in Annex B attached hereto.
-5-
17. This Amendment Agreement 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.
18. This Amendment Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to
conflicts of law principles thereof.
IN WITNESS WHEREOF, each of Parent, Purchaser and the Company has
caused this Amendment Agreement to be signed by its respective officers
thereunto duly authorized, all as of the date first written above.
AMERICAN SAFETY RAZOR COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxxxx
Title:
RSA HOLDINGS CORP. OF DELAWARE
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Name: Xxxx X. Xxxxxx
Title:
RSA ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Name: Xxxx X. Xxxxxx
Title:
-6-
