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"), ARA ACQUISITION CORP., a Delaware corporation ("Newco") AMERICAN ROYAL
ARTS CORP., a Delaware 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(i) of the Agreement. Section 1.3(i) of the
Agreement is hereby amended by deleting the phrase "the COMPANY" in the first
line thereof and inserting in lieu thereof the phrase "NEWCO".
2. 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".
3. 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".
4. 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".
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
ARA ACQUISITION CORP.
By /s/ XXXXXX XXXXXXXX
---------------------------------
Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
AMERICAN ROYAL ARTS CORP.
By /s/ XXXXX XXXXXXXXX
---------------------------------
Name: XXXXX XXXXXXXXX
Title: PRESIDENT
/s/ XXXXXX XXXXXXXXX
------------------------------------
Xxxxxx Xxxxxxxxx
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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"), ARA
ACQUISITION CORP., a Delaware corporation ("Newco"), AMERICAN ROYAL ARTS CORP.,
a Delaware 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 1.5 to the Agreement. Section 1.5 of the
Agreement is hereby amended by adding the following sentence to the end thereof:
Notwithstanding the foregoing, the amount of all Debts and
Liabilities (as hereinafter described) of the COMPANY assumed
by the Surviving Corporation shall not exceed $625,000,
together with interest thereon, which amount is owed by the
COMPANY to the STOCKHOLDER and will be paid by the Surviving
Corporation to the STOCKHOLDER (the "Stockholder Repayment
Amount") on the Funding and Consummation Date; provided, that
the Surviving Corporation also shall assume liabilities owed
by the COMPANY to the STOCKHOLDER incurred solely in
connection with the acquisition of assets reasonably required
in connection with the relocation of the COMPANY's principal
place of business to 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxx Xxxx 00000. Any Debts and Liabilities of the COMPANY in
excess of $625,000 plus accrued interest thereon shall be
assumed by and shall become the obligation of the STOCKHOLDER.
CEI shall be entitled to deduct
from the amount of cash otherwise to be paid to the
STOCKHOLDER 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 STOCKHOLDER
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 term "Debts and
Liabilities" shall include all obligations for the payment of
money but shall expressly exclude all accounts payable,
customer deposits and all other liabilities of the Company
incurred in the ordinary course of business, including, but
not limited to, liabilities incurred in connection with
certain barter transactions and a capitalized phone lease.
Upon payment of the Stockholder Repayment Amount to the
STOCKHOLDER on the Funding and Consummation Date, none of the
Debts and Liabilities assumed by the Surviving Corporation
shall include any obligation for the payment of money owed by
the COMPANY to the STOCKHOLDER, including, without limitation,
any such obligation in respect of accrued compensation and
benefits or interest.
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 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.
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 (1) payments in
respect of salaries not to exceed $7,083 per month (pro rated
for partial months) in the
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aggregate to all such STOCKHOLDERS, (2) 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 June 1,
1997 through the Funding and Consummation Date and (3)
$75,000, representing earnings of the COMPANY for the month of
May 1997.
6. Amendment to Schedule 7.3 to the Agreement. Schedule 7.3 of the
Agreement is hereby amended by adding the following to the end thereof:
The COMPANY shall be entitled to make capital expenditures and
incur liabilities representing acquisitions of assets
reasonably required in connection with the relocation of the
COMPANY's principal place of business to 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000.
7. 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".
8. 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".
9. 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.
10. 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.
11. 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
ARA ACQUISITION CORP.
By /s/ XXXXXX XXXXXXXX
----------------------------------
Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
AMERICAN ROYAL ARTS CORP.
By /s/ XXXXX XXXXXXXXX
----------------------------------
Name: XXXXX XXXXXXXXX
Title:
/s/ XXXXXX XXXXXXXXX
------------------------------------
Xxxxxx Xxxxxxxxx
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