WAIVER AND AMENDMENT #1 TO AGREEMENT AND PLAN OF MERGER
WAIVER
AND AMENDMENT #1 TO
THIS
AMENDMENT #1 (this “Amendment”) to the Agreement and Plan of Merger by and
between Wentworth I, Inc. (“Wentworth”) and AeroGrow International, Inc.
(“AeroGrow”) dated as of January 12, 2006 (the “Merger Agreement”) is entered
into as of this 31 day of October, 2006 by and between AeroGrow, acting on
its
behalf and as successor to Wentworth, and Xxxxxxx Reverse Merger Fund, LLC
(“KRM
Fund”).
RECITALS
A. Pursuant
to Section 5.1 of the Merger Agreement, KRM Fund was granted the right to send
a
representative to meetings of the Board of Directors of AeroGrow for a period
of
two years following the Closing.
B KRM
Fund
wishes to relinquish the right to send such a representative.
C. Pursuant
to Section 10.4 of the Merger Agreement, KRM Fund was made a third party
beneficiary to certain provisions of the Merger Agreement.
D. Pursuant
to Section 8.4 of the Merger Agreement, the Merger Agreement may be amended
if
such amendment is in writing and is signed by the parties to the Merger
Agreement.
E. AeroGrow
and KRM Fund desire to amend Section 5.1 of the Merger Agreement to eliminate
the rights of KRM Fund to send a representative to meetings of the Board of
Directors of AeroGrow.
F. Capitalized
terms not otherwise defined in this Amendment shall have the meanings ascribed
to such terms in the Merger Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration the sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as
follows:
1. Amendment
of Section 5.1.
The
second and third sentences of Section 5.1 of the Merger Agreement are hereby
deleted in their entirety which stated:
“For
a
period of two years following the Closing, AeroGrow hereby grants Xxxxxxx
Reserve Merger Fund, LLC (“KRM Fund”) the right to send a representative (who
need not be the same individual from meeting to meeting) to observe each meeting
or participate in telephone meetings of AeroGrow’s board of directors and
receive all documents and written materials provided to directors. Such
representative shall be entitled to receive reimbursement for all reasonable
costs incurred in attending such meetings, including, but not limited to, food,
lodging and transportation.”
2. Waiver.
KRM
Fund hereby waives, relinquishes and otherwise foregoes any rights granted
by
the second and third sentences of Section 5.1 of the Merger Agreement (as in
effect prior to the amendment effected by Section 1 of this Amendment).
3. No
Other Changes.
Except
as expressly set forth above, no other amendments or modifications are being
made to the Merger Agreement.
5. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
state of Delaware, USA, regardless of the laws that might otherwise govern
under
applicable principles of law thereof.
6. Counterparts.
This
Amendment may be executed in any number of counterparts and the signatures
delivered by telecopy, each of which shall be an original, with the same effect
as if the signatures were upon the same instrument and delivered in
person.
[The
remainder of this page is intentionally left blank.
Signature
pages follow]
IN
WITNESS WHEREOF, the parties here caused this Amendment to be duly executed
by
their respective authorized officers as of the day and year first above
written.
AEROGROW INTERNATIONAL, INC. | ||
on its own behalf and as successor to Wentworth I, Inc. | ||
|
|
|
By: | /s/ W. Xxxxxxx Xxxxxxxxxxx | |
Name: W. Xxxxxxx Xxxxxxxxxxx |
||
Title:
Chief Executive Officer &
President
|
XXXXXXX REVERSE MERGER FUND, LLC | ||
|
|
|
By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name: Xxxxxxx X. Xxxxxxx |
||
Title:
Manager
|
[Signature
Page to Amendment No. 1 to Merger Agreement]