WAIVER AND AMENDMENT NO. 1 TO AGREEMENT AND PLAN MERGER
Exhibit 2.8a
WAIVER AND
AMENDMENT NO. 1 TO AGREEMENT AND PLAN MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN MERGER
This Waiver and Amendment No. 1 to Agreement and Plan of Merger (the “Waiver and Amendment”)
is made and entered into as of August 19, 2010, by and among Xxxxx & Wesson Holding Corporation, a
Nevada corporation (“S&W”), Universal Safety Response, Inc., a Delaware corporation (“USR”), and
Xxxxxxx X. Xxxxx, Xx. (“Stockholders’ Representative”), on behalf of the former stockholders of
Universal Safety Response, Inc., a New York corporation (“Old USR”).
RECITALS
A. S&W, SWAC-USR I, Inc., a Delaware corporation (“SWAC I”), USR (formerly known as
SWAC-USR II, Inc. (“SWAC II”)), Old USR, and Stockholders’ Representative are parties to that
certain Agreement and Plan of Merger, dated as of June 18, 2009 (the “Merger Agreement”), pursuant
to which (i) SWAC I merged with and into Old USR, and (ii) immediately thereafter, Old USR merged
with and into SWAC II (which changed its name to Universal Safety Response, Inc.). Unless
otherwise indicated, all capitalized terms used herein shall have the meaning assigned to them in
the Merger Agreement.
B. Pursuant to Section 9.6 of the Merger Agreement, the Merger Agreement may not be modified
or amended other than by an agreement in writing duly executed by all parties thereto.
C. S&W, USR, and Stockholders’ Representative believe that it is in their mutual best
interests to waive certain provisions of the Merger Agreement and amend the Merger Agreement
pursuant to the provisions contained herein.
AGREEMENT
In consideration of the promises and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows.
1. Waiver of Sections 1.1(j), 4.7(a)(i), 4.7(a)(ii), and 4.9 of the Merger Agreement. Each of
S&W, USR, and Stockholders’ Representative (on behalf of the former stockholders of Old USR) hereby
(a) waives the requirements set forth in, as well as any and all rights of such party and any
obligations of each other party under, Sections 1.1(j), 4.7(a)(i), 4.7(a)(ii), and 4.9 of the
Merger Agreement, and (b) agrees that Sections 1.1(j), 4.7(a)(i), 4.7(a)(ii), and 4.9 of the Merger
Agreement shall have no further force and effect following the date hereof.
2. New Section 1.1(l) of the Merger Agreement. A new Section 1.1(l) shall be added to the
Merger Agreement, which shall read as follows:
| (l) | Additional Merger Consideration. |
(i) Delivery of Additional Merger Consideration. On March 18, 2011 (the
“Delivery Date”), S&W shall deliver to the Stockholders’ Representative, on behalf
of the USR stockholders, based on their proportionate ownership of USR Common Stock
at the Effective Time, 4,080,000 additional shares of S&W Common Stock (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination
or other similar recapitalization) (the “Additional Merger Consideration”).
(ii) No Rights as Stockholder until Delivery. The USR stockholders shall not
have any rights, benefits, or entitlements with respect to the shares of S&W Common
Stock constituting the Additional Merger Consideration until such shares of S&W
Common Stock have been delivered to the USR stockholders on the Delivery Date.
Subject to any other agreements between any USR stockholder and S&W, on or after the
Delivery Date, the USR stockholders shall have, with respect to the shares of S&W
Common Stock constituting the Additional Merger Consideration, all of the rights of
a holder of S&W Common Stock.
(iii) Effect of Change in Control of S&W. In the event of a Change in Control
(as defined in Section 1.1(j)(viii) above) of S&W after the Effective Time
but prior to the Delivery Date, S&W shall deliver to the Stockholders’
Representative, on behalf of the USR stockholders and immediately prior to the
consummation of such event, the Additional Merger Consideration.
(iv) Tax Treatment. For tax purposes, the Additional Merger Consideration
shall be treated as comprised of two components, respectively a principal component
and an interest component, the amounts of which shall be determined as provided in
Treasury Regulation Section 1.483-4(b) example (2) using the 3-month test rate of
interest provided for in Treasury Regulation Section 1.1274-4(a)(1)(ii) employing
the semi-annual compounding period. As to such Additional Merger Consideration paid
to each USR stockholder, shares representing the principal component (with a value
equal to the principal component) and shares representing the interest component
(with a value equal to the interest component) shall be represented by separate
share certificates.
3. Effect of Waiver and Amendment. Except as expressly waived or amended hereby, the Merger
Agreement shall continue in full force and effect in accordance with the provisions thereof.
4. Controlling Law. This Waiver and Amendment shall be governed by and construed in
accordance with the laws of the state of Delaware for all purposes and all respects, without regard
to the conflict of law provisions of such state.
5. Counterparts. This Waiver and Amendment may be executed and delivered by each party hereto
in separate counterparts, each of which when so executed and delivered shall be deemed an original
and all of which taken together shall constitute but one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, S&W, USR, and Stockholders’ Representative have executed this Waiver and
Amendment No. 1 to Agreement and Plan of Merger as of the day and year first above written.
| XXXXX &WESSON HOLDING CORPORATION |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx, President and Chief Executive Officer | ||||
| UNIVERSAL SAFETY RESPONSE, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, President | ||||
| /s/ Xxxxxxx X. Xxxxx, Xx. | ||||
| XXXXXXX X. XXXXX, XX., as Stockholders’ | ||||
| Representative | ||||
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