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AMENDMENT NO. 1 TO MERGER AGREEMENT
This Amendment No. 1 (the "AMENDMENT"), made and entered into this
12th day of December 1995, is by and among AMRE, Inc., a Delaware corporation
("AMRE"), AMRE Acquisition, Inc., a Delaware corporation and a newly formed,
wholly owned subsidiary of AMRE ("MERGER SUB"), Facelifters Home Systems, Inc.,
a New York corporation (the "COMPANY"), and Facelifters Home Systems, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Company ("COMPANY
SUB"), and amends that certain Agreement and Plan of Merger, made and entered
into the 31st day of October 1995, by and among AMRE, Merger Sub, the Company
and Company Sub (the "MERGER AGREEMENT"). Capitalized terms used and not
defined herein shall have the meanings assigned to them in the Merger
Agreement.
PRELIMINARY STATEMENTS
AMRE, Merger Sub, the Company and Company Sub desire to amend the
Merger Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
STATEMENT OF AMENDMENT
1. Amendatory Provisions.
a. Section 1.5(a)(ii) to the Merger Agreement is amended and
restated in its entirety to read as follows:
(ii) If the Average Price of the AMRE Common Stock
is more than $9.50, except as provided below, then each of the
Shares shall be converted into that number of shares of AMRE
Common Stock determined by multiplying by the following
formula:
11.28
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8.00 + (N - 9.50)
Where: N = the Average Price of the
----- AMRE Common Stock
Notwithstanding any other provision hereof, in no event shall
each Share be converted into less than one (1) share of AMRE
Common Stock, regardless of the Average Price of the AMRE
Common Stock as specified in the above formula.
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b. Section 1.5(e) to the Merger Agreement is amended and restated
in its entirety to read as follows:
(e) At the Effective Time, all options
(individually a "Company Option" or collectively, the "Company
Options") then outstanding under the Company's stock option
plans (collectively, the "Company Stock Option Plans") shall
remain outstanding following the Effective Time and shall
remain exercisable pursuant to the terms of such plans. At
the Effective Time, such Company Options shall, by virtue of
the Merger and without any further action on the part of the
Company or the holder of any such Company Options, be assumed
by AMRE in such manner that AMRE (i) is a corporation
"assuming a stock option in a transaction to which Section
424(a) applies" within the meaning of Section 424 of the Code,
or (ii) to the extent that Section 424(a) of the Code does not
apply to any such Company Option, would be such a corporation
were Section 424(a) applicable to such option. Each Company
Option assumed by AMRE shall be exercisable upon the same
terms and conditions as under the applicable Company Stock
Option Plan and the applicable option agreement issued
thereunder, except that (A) each such Company Option shall be
exercisable for that whole number of shares of AMRE Common
Stock (to the nearer whole share) into which the number of
Shares subject to such Option immediately prior to the
Effective Time would be converted under this Section 1.5, and
(B) the option exercise price per share of AMRE Common Stock
shall be an amount equal to the option price per Share subject
to such Company Option in effect prior to the Effective Time
divided by the Exchange Ratio (the price per share, as so
determined, being rounded upward to the nearest full cent).
2. Existing Agreement. Except as expressly amended hereby, all
of the terms, covenants and conditions of the Merger Agreement (i) are ratified
and confirmed, (ii) shall remain unamended and not waived and (iii) shall
continue in full force and effect.
3. Governing Law. This Amendment shall be governed in all
respects, including validity, interpretation and effect, by the internal laws
of the State of Delaware without giving effect to the principles of conflict of
laws thereof.
4. Counterparts. This Amendment may be executed in one or more
counterparts.
5. Enforceability. If any provision of this Amendment shall be
held to be illegal, invalid or unenforceable under any applicable law, then
such contravention or invalidity shall not invalidate the entire Amendment or
the Merger Agreement. Such provision shall be deemed to be modified to the
extent necessary to render it legal, valid and enforceable, and if no such
modification shall render it legal, valid and enforceable, then this Amendment
and the Merger Agreement shall be construed as if not containing the provision
held to be invalid, and the rights and obligations of the parties shall be
construed and enforced accordingly.
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IN WITNESS WHEREOF, AMRE, Merger Sub, the Company and Company Sub have
caused this Amendment to be executed as of the date first written above.
AMRE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President & C.E.O.
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AMRE ACQUISITION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President & C.E.O.
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FACELIFTERS HOME SYSTEMS, INC.,
a New York corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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FACELIFTERS HOME SYSTEMS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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