AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of
September 24, 1997, by and among BERNEX INC., a Delaware
corporation ("Parent"), M-A ACQUISITION CORP., a Delaware
corporation ("Acquisition"), ANDAL CORP., a New York corporation
("Andal"), and MULTI-ARC INC., a Delaware corporation (the
"Company").
WITNESSETH
WHEREAS, Parent, Acquisition, Andal and the Company have
previously entered into an Agreement and Plan of Merger, dated as
of June 9, 1997 (the "Agreement and Plan of Merger"), providing
for the acquisition of the Company by Parent, by means of the
merger of Acquisition with and into the Company.
WHEREAS, for good and valuable consideration, Parent,
Acquisition, Andal and the Company desire to amend the Agreement
and Plan of Merger as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Agreement and Plan of Merger.
(a) Section 9.1(d) is hereby amended to read in its
entirety as follows:
(d) by either Parent and Acquisition, on the one
hand, or Andal and the Company on the other if the Closing has
not occurred (other than through the failure of any party seeking
to terminate this Agreement to comply fully with its obligations
under this Agreement) on or before October 10, 1997 (subject to
the last sentence of Section 8.1(b)) or such later date as the
parties may agree upon.
SECTION 2. Reference to and Effect on the Agreement and
Plan of Merger.
(a) On and after the date hereof, each reference in the
Agreement and Plan of Merger to "this Agreement", "hereunder",
"hereof", or words of like import referring to the Agreement and
Plan of Merger, and each reference in all other agreements
entered into on connection with the Agreement and Plan of Merger
to "thereunder", "thereof", or words of like import referring to
the Agreement and Plan of Merger, shall mean and be a reference
to the Agreement and Plan of Merger as amended hereby.
(b) Except as specifically amended above, the Agreement
and Plan of Merger is and shall continue to be in full force and
effect and is hereby in all respects ratified and confirmed.
SECTION 3. Applicable Law. This Amendment No. 1 shall be
governed by and construed in accordance with the internal laws of
the State of New York, without giving effect to the principles of
conflicts of laws thereof.
SECTION 4. Headings. The headings of the Sections of this
Amendment No. 1 are inserted for convenience only and shall not
be deemed to constitute a part hereof.
SECTION 5. Counterparts. More than one counterpart of
this Amendment No. 1 may be executed by the parties hereto, and
each fully executed counterpart shall be deemed an original.
SECTION 6. Capitalized Terms. Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed
thereto in the Agreement and Plan of Merger.
IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement as of the date first written above.
BERNEX INC.
XXXXXX XXXXXXXXXX
By: ________________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Chairman of the Board
M-A ACQUISITION CORP.
XXXXXX XXXXXXXXXX
By: ________________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Chairman of the Board
ANDAL CORP.
XXXXX X. XXXXX
By: ________________________________
Name: Xxxxx X. Xxxxx
Title: Chairman, President
and CEO
MULTI-ARC INC.
XXXXX X. XXXXX
By: ________________________________
Name: Xxxxx X. Xxxxx
Title: President