AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF ORGANIZATION
AMENDMENT NO. 1, dated as of October 15, 1997 (this "Amendment"), to
the Agreement and Plan of Organization, dated as of May 9, 1997 (the
"Agreement"), by and among COLLECTIBLES USA, INC., a Delaware corporation
("CEI"), XXXXXX ACQUISITION CORP., a Delaware corporation ("Newco") XXXXXX
STORES, INC., a Florida corporation (the "Company") and the Stockholders named
therein. Capitalized terms not otherwise defined herein have the respective
meanings set forth in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Section 1.3(iii) of the Agreement. Section 1.3(iii) of
the Agreement is hereby amended by deleting the phrase "Xxxxx X. Xxxxxx" in the
third line thereof and inserting in lieu thereof the phrase "W. Xxxxxxxx
Xxxxxxxxxxx".
2. Amendment to Section 1.3(iv) to the Agreement. Section 1.3(iv) of
the Agreement is hereby amended by deleting the phrase "Xxxxx X. Xxxxxx" in the
third to fourth lines thereof and inserting in lieu thereof the phrase "W.
Xxxxxxxx Xxxxxxxxxxx", and by deleting the phrase "Xxxxx X. Xxxxxx" in the
fourth to fifth lines thereof and inserting in lieu thereof the phrase "W.
Xxxxxxxx Xxxxxxxxxxx".
3. Amendment to Section 12.1(ii) of the Agreement. Section 12.1(ii) of
the Agreement is hereby amended by deleting the phrase "October 31, 1997" in the
fourth line thereof and inserting in lieu thereof the phrase "November 30,
1997".
4. Amendment to Section 8.5 of the Agreement. (a) Section 8.5 of the
Agreement is hereby amended by deleting such section in its entirety and
replacing it with the following:
8.5 REGISTRATION STATEMENT. The Registration Statement shall
have been declared effective by the SEC and no stop order suspending
the effectiveness of the Registration Statement shall be in effect and
no proceeding therefor shall have been instituted or shall be pending
or contemplated under the 1933 Act and the Underwriters shall have
agreed to acquire on a firm commitment basis the CEI Stock being
offered in the IPO, subject to the conditions set forth in the
Underwriting Agreement, on terms such that the per share value of the
shares of CEI Stock to be received by the STOCKHOLDERS as set forth on
Annex III shall be a minimum of $9.00 per share, notwithstanding the
Minimum Value stated on Annex III.
(b) The parties hereto acknowledge and agree that as a result of the
provisions of Section 4(a) of this Amendment No. 1, the Minimum Value stated on
Annex III shall have no further force or effect.
5. Amendment to Section 8.12 of the Agreement. Section 8.12 of the
Agreement is hereby amended by deleting such section in its entirety and
replacing it with the following:
8.12 RELEASE. The holders of CEI Stock shall have delivered to
CEI an instrument dated the Closing Date, releasing CEI from any and
all (i) claims of such holders against CEI and (ii) obligations of CEI
to such holders, except for (x) items specifically identified on
Schedule 8.12, (y) continuing obligations to such holders relating to
their employment by CEI and (z) obligations arising under this
Agreement or the transactions contemplated hereby.
6. Effect on Agreement. The Agreement shall continue in full force and
effect as amended by this Amendment. From and after the date hereof, all
references to the Agreement shall be deemed to mean the Agreement as amended by
this Amendment.
7. Governing Law. This Amendment shall be construed in accordance with
the laws of the State of New York without reference to its conflicts of law
provisions.
8. Counterparts. This Amendment may be executed simultaneously in two
or more counterparts, each of which shall be an original, and all of which
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
COLLECTIBLES USA, INC.
By /s/ XXXXXX XXXXXXXX
----------------------------------
Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
XXXXXX ACQUISITION CORP.
By /s/ XXXXXX XXXXXXXX
----------------------------------
Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
XXXXXX STORES, INC.
By /s/ XXX X. XXXXXX
----------------------------------
Name:
Title: PRESIDENT
XXX AND XXX XXXXXX, as tenants by the entirety:
/s/ XXX X. XXXXXX /s/ XXX X. XXXXXX
--------------------- -------------------------
Xxx X. Xxxxxx Xxx X. Xxxxxx
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AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF ORGANIZATION
AMENDMENT NO. 2, dated as of November 28, 1997 (this "Amendment"), to
the Agreement and Plan of Organization, dated as of May 9, 1997, as amended by
that certain Amendment No. 1, dated as of October 15, 1997 (the "Agreement"), by
and among COLLECTIBLES USA, INC., a Delaware corporation ("CEI"), XXXXXX
ACQUISITION CORP., a Delaware corporation ("Newco"), XXXXXX STORES, INC., a
Florida corporation (the "Company"), and the Stockholders named therein.
Capitalized terms not otherwise defined herein have the respective meanings set
forth in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Amendment to Annex III of the Agreement. Annex III of the Agreement
is hereby amended by deleting such annex in its entirety and replacing it with
Exhibit A attached hereto.
2. Amendment to Section 12.1(ii) of the Agreement. Section 12.1(ii) of
the Agreement is hereby amended by deleting the phrase "November 30, 1997" in
the fourth line thereof and inserting in lieu thereof the phrase "July 31,
1998".
3. Amendment to Section 8.5 of the Agreement. (a) Section 8.5 of the
Agreement is hereby amended by deleting such section in its entirety and
replacing it with the following:
8.5 REGISTRATION STATEMENT. The Registration Statement shall
have been declared effective by the SEC and no stop order suspending
the effectiveness of the Registration Statement shall be in effect and
no proceeding therefor shall have been instituted or shall be pending
or contemplated under the 1933 Act and the Underwriters shall have
agreed to acquire on a firm commitment basis the CEI Stock being
offered in the IPO, subject to the conditions set forth in the
Underwriting Agreement, on terms such that the aggregate value of the
cash and the number of shares of CEI Stock to be received by the
STOCKHOLDER is not less than the Minimum Value set forth on Annex III.
(b) The parties hereto acknowledge and agree that as a result of the
provisions of Section 3(a) of this Amendment No. 2, the provisions of Section
4(b) of Amendment No. 1 shall have no further force or effect.
4. Amendment to Section 1.5 to the Agreement. Section 1.5 of the
Agreement is hereby amended by adding the following sentences to the end
thereof:
Notwithstanding the foregoing, the amount of all debts and
liabilities of the COMPANY assumed by the Surviving
Corporation shall not exceed $900,000 including up to $30,000
of debts and liabilities owed by the COMPANY to the
STOCKHOLDERS (the "STOCKHOLDER Loans"). Any debts and
liabilities of the COMPANY in excess of such amount shall be
assumed by and shall become the obligation of the
STOCKHOLDERS. CEI shall be entitled to deduct from the amount
of cash otherwise to be paid to the STOCKHOLDERS pursuant to
Section 2.1 at the Funding and Consummation Date the amount of
such excess. To the extent that CEI does not so deduct any
such amounts, the STOCKHOLDERS shall promptly pay such debts
and liabilities as and to the extent requested by the
Surviving Corporation from time to time. For purposes of this
Section 1.5, the dollar limitation on debts and liabilities to
be assumed by the Surviving Corporation shall not apply to
liabilities representing trade payables for goods and services
incurred in the ordinary course of business, which shall be
assumed by the Surviving Corporation. Notwithstanding the
foregoing, and except as provided above, none of the debts and
liabilities assumed by the Surviving Corporation shall include
any debts or liabilities owed by the COMPANY to any of the
STOCKHOLDERS, including, without limitation, any liabilities
in respect of accrued compensation and benefits or interest.
In addition, the Surviving Corporation shall forgive up to
$70,000 of indebtedness owed by Xxx Xxxxxx to the COMPANY;
provided, that the amount of the STOCKHOLDER Loans to be
assumed by the Surviving Corporation shall be reduced by any
indebtedness so forgiven.
5. Amendment to Section 7.3 to the Agreement. Section 7.3 of the
Agreement is hereby amended by deleting the word "or" from the end of clause (x)
thereof and adding the following to the end of clause (xi) thereof:
; or (xii) make any payment or distribution of any kind to any
of its STOCKHOLDERS, including any payments in respect of
salary or earnings of the COMPANY, other than (A) payments in
respect of salaries not to exceed $7,083 per month in the
aggregate to all such STOCKHOLDERS (pro rated for partial
months) and (B) payments in such amount as may be required to
enable the STOCKHOLDERS to pay all applicable federal, state
and local income Taxes arising from the earnings of the
COMPANY for the period from May 9, 1997 through the Funding
and Consummation Date.
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6. Amendment to Section 1.3(iii) of the Agreement. Section 1.3(iii) of
the Agreement is hereby amended by deleting the phrase "W. Xxxxxxxx Xxxxxxxxxxx"
in the third line thereof and inserting in lieu thereof the phrase "Xxxxxx X.
Xxxxxxxx".
7. Amendment to Section 1.3(iv) to the Agreement. Section 1.3(iv) of
the Agreement is hereby amended by deleting the phrase "W. Xxxxxxxx Xxxxxxxxxxx"
in the third to fourth lines thereof, and inserting in lieu thereof the phrase
"Xxxxxx X. Xxxxxxxx".
8. Effect on Agreement. The Agreement shall continue in full force and
effect as amended by this Amendment. From and after the date hereof, all
references to the Agreement shall be deemed to mean the Agreement as amended by
this Amendment.
9. Governing Law. This Amendment shall be construed in accordance with
the laws of the State of New York without reference to its conflicts of law
provisions.
10. Counterparts. This Amendment may be executed simultaneously in two
or more counterparts, each of which shall be an original, and all of which
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
COLLECTIBLES USA, INC.
By /s/ XXXXXX XXXXXXXX
--------------------------------------------------
Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
XXXXXX ACQUISITION CORP.
By /s/ XXXXXX XXXXXXXX
--------------------------------------------------
Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
XXXXXX STORES, INC.
By /s/ XXX X. XXXXXX
--------------------------------------------------
Name: XXX X. XXXXXX
Title: PRESIDENT
XXX AND XXX XXXXXX, as tenants by the entirety:
/s/ XXX X. XXXXXX /s/ XXX X. XXXXXX
---------------------- ----------------------
Xxx X. Xxxxxx Xxx X. Xxxxxx
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