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AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (the "Amendment"), dated as of March 26, 1998, to the
Agreement and Plan of Merger, dated as of March 1, 1998 (the "Merger
Agreement"), by and among WHX Corporation, a Delaware corporation ("Parent"), HN
Acquisition Corp., a New York corporation and a wholly owned subsidiary of
Parent (the "Purchaser"), and Handy & Xxxxxx, a New York corporation (the
"Company").
WHEREAS, the parties hereto desire to amend the Merger Agreement to
provide that payments required to be made to holders of Options (as defined in
the Merger Agreement) in consideration of the cancellation of such Options
pursuant to the Merger Agreement shall be made immediately prior to the
acceptance of Shares for payment pursuant to the Offer, rather than at the
Effective Time (as defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein shall have the meaning assigned to such
term in the Merger Agreement. Each reference to "hereof," "herein," "hereunder,"
"hereby" and "this Agreement" shall from and after the date hereof refer to the
Merger Agreement as amended by this Amendment.
SECTION 2. Treatment of Options. The first paragraph of Section 2.5 of
the Merger Agreement is hereby amended and restated in its entirety to read as
follows:
Section 2.5 Company Option Plans. Parent and the Company shall
take all actions necessary to provide that, effective immediately prior
to the acceptance of Shares for payment pursuant to the Offer, (i) each
outstanding employee stock option to purchase Shares (an "Employee
Option") granted under the Company's Long-Term Incentive Stock Option
Plan (the "ISO Plan") or the Company's 1995 Omnibus Stock Incentive
Plan (the "1995 Option Plan") and each outstanding non-employee
director option to pur-
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chase Shares ("Director Options" and collectively with Employee
Options, "Options") granted under the Company's Outside Director Stock
Option Plan (the "Director Plan" and collectively with the ISO Plan and
the 1995 Option Plan, the "Option Plans"), whether or not then
exercisable or vested, shall become fully exercisable and vested, (ii)
each Option that is then outstanding shall be cancelled and (iii) in
consideration of such cancellation, and except to the extent that
Parent or the Purchaser and the holder of any such Option otherwise
agree, the Company (or, at Parent's option, the Purchaser) shall pay to
such holders of Options an amount in respect thereof equal to the
product of (A) the excess, if any, of the Offer Price over the exercise
price of each such Option and (B) the number of Shares subject thereto
(such payment to be net of applicable withholding taxes).
SECTION 3. No Further Amendment. Except as otherwise provided herein,
the Merger Agreement shall remain unchanged and in full force and effect.
SECTION 4. Effect of Amendment. From and after the execution of this
Amendment by the parties hereto, any reference to the Merger Agreement shall be
deemed a reference to the Merger Agreement as amended hereby.
SECTION 5. Governing Law. This Amendment shall be governed by, enforced
under and construed in accordance with the laws of the State of New York,
without giving effect to the principles of conflict of laws thereof.
SECTION 6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 7. Captions. The captions of the various sections of this
Amendment have been inserted only for convenience of reference and shall not be
deemed to modify, explain, enlarge or restrict any provision of this Amendment
or the Merger Agreement or affect the construction thereof.
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IN WITNESS WHEREOF, each of Parent, the Purchaser and the
Company has caused this Amendment to be executed as of the date first above
written.
WHX CORPORATION
By: /s/ Xxxxxx XxXxx
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Name: Xxxxxx XxXxx
Title: Chairman
HN ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
HANDY & XXXXXX
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President
General Counsel &
Secretary
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