FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of September
21, 2001 ("First Amendment") is made by and among Xxxxxxx & Xxxxxx Corporation,
a Delaware corporation ("Parent"); Xxxxxxx & Xxxxxx Products Co., a Delaware
corporation ("Products"); JAII Acquisition Co., a Delaware corporation ("Merger
Sub"); Xxxxx XxXxxxxx ("XxXxxxxx"); Xxxx Fabrics Corporation, a Delaware
corporation ("Seller"); and Xxxx Automotive Industries, Inc., a Delaware
corporation (the "Company"), amending certain provisions of the Agreement and
Plan of Merger dated as of August 17, 2001, (the "Merger Agreement") by and
among Parent, Products, Merger Sub, XxXxxxxx, Seller and the Company.
Capitalized terms not otherwise defined herein have the meanings assigned to
such terms in the Merger Agreement.
WHEREAS, Parent, Products, Merger Sub, XxXxxxxx, Seller and the Company
have agreed to modify certain terms and conditions of the Merger Agreement as
specifically set forth in this First Amendment.
NOW THEREFORE, in consideration of the premises and mutual agreements
contained herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
AMENDMENTS TO AGREEMENT
1.1. The last sentence of Section 3.3 of the Merger Agreement is hereby
amended to read as follows:
"The "Debt Repayment Amount" shall mean the $55,000,000 (which amount
shall include all principal, premium, interest, fees, charges, costs,
expenses and other obligations, contingent or otherwise, relating thereto)
for which the Company has indemnified Seller pursuant to the
Restructuring."
1.2. The last sentence of Section 4.5(b) of the Merger Agreement is hereby
amended to read as follows:
-2-
"As of the Effective Time, the Debt Repayment Amount will not exceed
$55,000,000."
1.3. The last sentence of the first paragraph of Section 8.7 of the Merger
Agreement is hereby amended to read as follows:
"At the time of Closing, the Debt Repayment Amount shall not exceed
$55,000,000 (inclusive of all principal, premium, interest, fees, charges,
costs, expenses and other obligations, contingent or otherwise, relating
thereto)."
1.4. Clause (i) of the second paragraph of Section 6.13 of the Merger
Agreement is hereby amended by inserting the following immediately after the
term "Supply Agreement" in such clause:
"(including, without limitation, its right to sell "seconds" to bona
fide seconds dealers and "close-outs" as provided therein)".
1.5. The reference to "Supply and Looms Agreement" in the definition of
"Supply Agreement" is hereby amended to "Supply Agreement".
ARTICLE II
PROVISIONS OF GENERAL APPLICATION
2.1. Except as otherwise expressly provided by this First Amendment, all of
the terms, conditions and provisions to the Merger Agreement remain unaltered.
The Merger Agreement and this First Amendment shall be read and construed as one
agreement.
2.2. If any of the terms of this First Amendment shall conflict in any
respect with any of the terms of the Merger Agreement, the terms of this First
Amendment shall be controlling.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their duly authorized officers all as of the day and
year first above written.
XXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President and
General Counsel and Secretary
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
JAII ACQUISITION CO.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
XXXX FABRICS CORPORATION
By: /s/ Xxxxx XxXxxxxx
---------------------------------------
Name: Xxxxx XxXxxxxx
Title: Chief Executive Officer
XXXX AUTOMOTIVE INDUSTRIES, INC.
By: /s/ Xxxxx XxXxxxxx
---------------------------------------
Name: Xxxxx XxXxxxxx
Title: President
XXXXX XxXXXXXX
/s/ Xxxxx XxXxxxxx
--------------------------------------------