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Amendment No. 1 to Agreement and Plan of Merger
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER dated as of November 18, 1998,
among General Microwave Corp., a New York corporation ("GMC"), eleven GMC
shareholders identified on Exhibit "A" hereto (the "Participating
Shareholders"), GMC Acquisition Corporation, a New York corporation
("Acquisition") and Xxxxxx Industries, Inc. ("Xxxxxx"), a Delaware Corporation.
W I T N E S S E T H:
WHEREAS, GMC, the Participating Shareholders, Acquisition and Xxxxxx are parties
to an Agreement and Plan of Merger dated as of August 21, 1998 (the "Merger
Agreement"), pursuant to which GMC is to be merged with and into Acquisition and
the outstanding shares of Common Stock, par value $.01 per share, of GMC
(referred to collectively as the "GMC Shares" and individually as a "GMC Share")
are to be converted upon the merger into the right to receive a warrant to
purchase Xxxxxx Common Stock and $18 in cash; and
WHEREAS, the parties to the Merger Agreement desire to amend the Merger
Agreement to provide that Acquisition will merge with and into GMC and GMC will
be the surviving corporation in the merger; and
WHEREAS, the parties to the Merger Agreement further desire to make certain
other amendments to the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the
parties hereto agree as follows:
SECTION 1. Amendments. The Merger Agreement is hereby amended as follows:
(a) Section 1.1 is hereby amended and restated as follows:
"1.1 Surviving Corporation. At the Effective Time (as defined in Section
1.3 hereof), Acquisition shall be merged with and into GMC upon the terms
and conditions hereinafter set forth as permitted by and in accordance
with the BCL. At the Effective Time, the identity and separate existence
of Acquisition shall cease, and GMC shall succeed to all rights,
privileges, powers, franchises, properties, assets, debts, liabilities and
obligations of Acquisition in accordance with the BCL."
(b) Section 1.3 is hereby amended and restated as follows:
"1.3 Effective Time. The Merger shall become effective when the
Certificate of Merger is filed by the Secretary in accordance with the
applicable provisions of the BCL (or at such later time specified as the
effective time in the Certificate of Merger), which Certificate shall be
submitted for filing as soon as practicable after all of the conditions
set forth in Article VI are fulfilled or waived, provided that this
Agreement has not been previously terminated pursuant to Section 7.1
hereof. The date and time when the Merger shall become effective are
herein referred to as the "Effective Time." The Effective Time shall be
after January 1, 1999."
(c) Section 1.4 is hereby amended and restated as follows:
"1.4 Certificate of Incorporation. The Certificate of Incorporation of
the Surviving Corporation from and after the Effective Time shall be the
Certificate of
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Incorporation of GMC. Simultaneously with the Effective Time, the GMC
Certificate of Incorporation shall be amended to conform to the
substantive provisions of the Certificate of Incorporation attached as
Exhibit B to this Agreement."
(d) Section 3.1 is hereby amended and restated as follows:
"3.1 Effect of Merger. At and after the Effective Time, the separate
existence of Acquisition shall cease, the GMC Shares shall cease to exist
(except as evidence of the right of the holder thereof to receive cash and
warrants therefor in accordance with the terms hereof), subject to the
rights of holders of Dissenting Shares referred to in Section 2.1(b)
hereof, and all rights, privileges, powers and franchises, and all
property, tangible and intangible, of Acquisition and of GMC shall
transfer to, vest in and devolve on the Surviving Corporation without
further act or deed. Confirmatory deeds, assignments, or similar
instruments to evidence such transfer may be executed and delivered at any
time in the name of GMC or Acquisition by GMC's last acting officers or by
the appropriate officers of the Surviving Corporation. The Surviving
Corporation shall be liable for all of the debts and obligations of
Acquisition and GMC. Any existing claim, action or proceeding pending by
or against Acquisition or GMC may be prosecuted to judgment as if the
Merger had not taken place or, on motion of the Surviving Corporation, the
Surviving Corporation may be substituted as a party, and any judgment
against Acquisition or GMC shall constitute a lien on the property of the
Surviving Corporation. The Merger shall not impair the rights of creditors
or any liens on the property of either of the Constituent Corporations."
(e) All references in the Merger Agreement to the Surviving Corporation
following the effectiveness of the Merger shall be deemed to refer to GMC,
rather than Acquisition.
(f) Section 4.1 is hereby amended and restated as follows:
"4.1 Representations and Warranties by GMC. GMC represents and warrants
to, and agrees with, Acquisition and Xxxxxx, subject to the exceptions set
forth in the disclosure schedule (the "Schedule") to be delivered to
Acquisition and Xxxxxx, as follows:"
(g) All references to the Schedule in the Merger Agreement shall be construed
to reflect that such Schedule was not attached to the Merger Agreement at
the time of its execution and is not a part of, or an exhibit to, the
Merger Agreement. Notwithstanding the foregoing, the Schedule and its
contents shall be considered together with the Merger Agreement for the
purpose of determining GMC's compliance with its representations,
warranties and covenants contained in the Merger Agreement.
(h) Section 5.2(g) is hereby amended to add the following:
"The foregoing shall not be construed to prevent GMC's purchase of an
officers and directors' liability insurance policy having a term of three
years from the Effective Time and covering acts prior to the Effective
Time."
(i) Section 6.2(g) is hereby amended and restated as follows:
"(g) Cutoff Date. The Merger shall in any event have been completed no
later than January 8, 1999. This condition shall be a mutual condition."
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(j) The form of Consulting Agreement attached as Exhibit E to the Merger
Agreement is hereby amended as follows:
(A) Section 2 shall be amended and restated as follows:
"2. Xx. Xxxxxx'x Position
Before the effective date of this Agreement, Xx. Xxxxxx was the
non-executive Chairman of the Board of Directors of General
Microwave Corporation. Pursuant to this Agreement and as of the
date hereof, Xx. Xxxxxx shall be a part-time consultant to the
Corporation."
(B) Section 4(a) shall be amended and restated as follows:
"4. Compensation
(a) As full compensation for his services under this Agreement,
the Corporation shall pay Xx. Xxxxxx during the term hereof
at the rate of Sixty Thousand ($60,000.00) Dollars per year.
This compensation shall be payable in equal monthly
installments."
(k) All references in the Exhibits to the Merger Agreement to the merger of
GMC into Acquisition shall be deemed to refer to the merger of Acquisition
into GMC, with GMC as the surviving corporation. All references in such
Exhibits to the "Surviving Corporation" shall be deemed to refer to GMC.
SECTION 2. All capitalized terms used herein, unless otherwise defined
herein, are used herein as defined in the Merger Agreement. Except as expressly
provided herein, all terms and provisions of the Merger Agreement shall remain
in full force and effect.
SECTION 3. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered will be deemed an original, and such
counterparts together will constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
GENERAL MICROWAVE CORP.:
By: Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Chairman, Board of Directors
PARTICIPATING SHAREHOLDERS:
/s/ XXXXXXX X. XXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxx
/s/ MOE WIND
--------------------------------------
Moe Wind
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/s/ XXXXXXX XXXXX
--------------------------------------
Xxxxxxx Xxxxx
/s/ XXXXXXXX XXXXXXX
--------------------------------------
Xxxxxxxx Xxxxxxx
/s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXXXX XXXXXXXXX
--------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ XXXXXX XXXXX
--------------------------------------
Xxxxxx Xxxxx
/s/ XXXXXX XXXXXXXX
--------------------------------------
Xxxxxx XxXxxxxx
GMC ACQUISITION CORP.:
By: /s/ XXX X. XXXXX
-----------------------------------
Xxx X. Xxxxx, President
XXXXXX INDUSTRIES, INC.:
By: /s/ XXXXX XXXX
-----------------------------------
Xxxxx Xxxx, President
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EXHIBIT A
PARTICIPATING SHAREHOLDERS
Xxxxxxx X. Xxxxxx
Moe Wind
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx XxXxxxxx
