AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger (the "Amendment") is
effective as of November 30, 1995, by and among BFMA Holding Corporation, a
Delaware corporation ("Parent"), BFMA Acquisition Corporation, a New York
corporation and a wholly-owned subsidiary of the Parent ("Newco"), and Marietta
Corporation, a New York corporation (the "Company"), and amends the Agreement
and Plan of Merger (the "Agreement"), dated as of August 26, 1995, by and among
Parent, Newco and the Company.
W I T N E S S E T H :
WHEREAS, Parent, Newco and the Company wish to amend the Agreement in the
manner set forth herein.
NOW, THEREFORE, for and in consideration of the covenants and agreements set
forth herein and in the Agreement, it is mutually agreed as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to them in the Agreement.
2. Amendments.
a. Section 9.1(b) of the Agreement is hereby amended and restated in its
entirety as follows:
(b) By the Parent giving written notice to the Company if, without fault
on the part of the Parent or its Affiliates, the Closing does not occur
prior to January 31, 1996, unless the Proxy Statement has not been mailed
prior to January 11, 1996 in which case such date shall be extended to a
date 20 days after the date of mailing of the Proxy Statement but not later
than February 15, 1996.
b. Section 9.1(f) of the Agreement is hereby amended and restated in its
entirety as follows:
(f) By the Company giving written notice to the Parent if, without fault
on the part of the Company or its officers or Affiliates, the Closing does
not occur prior to January 31, 1996, unless the Proxy Statement has not
been mailed prior to January 11, 1996 in which case such date shall be
extended to a date 20 days after the date of mailing of the Proxy Statement
but not later than February 15, 1996.
c. Section 9.3(b)(ii) of the Agreement is hereby deleted.
d. Section 9.3(c) of the Agreement is hereby amended and restated in its
entirety as follows:
(c) If the Agreement is terminated as a result of (i) Sections 9.3(b)(i)
or (b)(iii), the Company shall pay immediately to an account designated by
the Parent in immediately available funds an amount equal to $250,000, (ii)
Sections 9.3(b)(iv) through (b)(vi), the Company shall pay immediately to
an account designated by the Parent in immediately available funds an
amount equal to $600,000, and (iii) Sections 9.3(b)(vii) or (b)(viii), the
Company shall pay immediately to an account designated by the Parent in
immediately available funds an amount equal to $1,250,000.
3. Continuing Effect of the Agreement. Except as expressly modified herein,
the terms and provisions in the Agreement shall remain in full force and effect
and are hereby ratified and confirmed.
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4. Fees and Expenses. Each party hereto shall pay its own fees and expenses
relating to the negotiation, preparation and consummation of this Amendment.
5. Counterparts. This Amendment may be executed by all parties hereto in one
or more counterparts, each of which shall be deemed to be an original and all
of which, when taken together, shall constitute one and the same instrument.
6. Governing Law. This Amendment shall be construed in accordance with, and
governed by, the internal laws of the State of New York, without giving effect
to the principles of conflict of laws thereof. Any legal action, suit or
proceeding arising out of or relating to this Amendment may be instituted in
any state or federal court located within the County of New York, State of New
York, and each party hereto agrees not to assert, by way of motion, as a
defense, or otherwise, in any such action, suit or proceeding, any claim that
it is not subject personally to the jurisdiction of such court in an
inconvenient forum, that the venue of the action, suit or proceeding is
improper or that this Amendment or the subject matter hereof may not be
enforced in or by such court. Each party hereto further irrevocably submits to
the jurisdiction of any such court in any such action, suit or proceeding.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
set forth above.
BFMA HOLDING CORPORATION
/s/ Xxxxx X. Xxxxxxxxx
By: _________________________________
Xxxxx X. Xxxxxxxxx, President
BFMA ACQUISITION CORPORATION
/s/ Xxxxx X. Xxxxxxxxx
By: _________________________________
Xxxxx X. Xxxxxxxxx, President
MARIETTA CORPORATION
/s/ Xxxxxxx X. Xxxxxx
By: _________________________________
Xxxxxxx X. Xxxxxx, President
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