EXECUTION COPY
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AMENDMENT NO. 3
TO THE AGREEMENT AND PLAN OF MERGER
Amendment No. 3, dated June 7, 2004 (this "AMENDMENT"), to the Agreement
and Plan of Merger, dated as of May 12, 2004, by and among SpectaGuard
Acquisition LLC, a Delaware limited liability company ("PARENT"), BPS LLC, a
Delaware limited liability company ("MERGER SUB"), Xxxxxx Protective Services
Incorporated, a Georgia corporation (the "COMPANY") and Xxxxxxx Xxxxxx Rice,
Sr., an individual resident of the State of Georgia ("RICE") and the other
shareholder signatories thereto (collectively, with Rice, the "SHAREHOLDERS"),
as amended by Amendment No. 1, dated May 21, 2004, and Amendment No. 2, dated
May 27, 2004 (the "AGREEMENT"). Capitalized terms not otherwise defined herein
have the respective meanings set forth in the Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 16.7 of the Agreement, Parent, Merger Sub, the
Company and Rice, as the authorized representative of the Shareholders, desire
to amend the Agreement as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. Amendment to Section 1.2 of the Agreement. Section 1.2 of the Agreement
is hereby amended by replacing the date "July 30, 2004" at the end of such
section with the date "August 13, 2004".
2. Miscellaneous.
(a) Effect on Agreement. The Agreement shall continue in full force
and effect as amended by this Amendment and this Amendment
constitutes the entire agreement of the parties with respect to
the matters set forth herein and there are no other agreements,
commitments or understandings among the parties with respect to
the matters set forth herein. In the event of any conflict or
inconsistency between the provisions of this Amendment and the
provisions of the Agreement, the provisions of this Amendment
shall govern and control. Each and every other term, condition,
covenant, representation, warranty and provision set forth in the
Agreement shall remain in full force and effect in accordance
with the terms of the Agreement. From and after the date hereof,
all references in the Agreement to the "Agreement" shall be
deemed to mean the Agreement as amended by this Amendment.
(b) Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
(c) Interpretation. The headings used in this Amendment have been
inserted for convenience of reference only and do not define or
limit the provisions hereof.
(d) Governing Law. Except to the extent that the laws of any
jurisdiction or organization of any Party hereto, or any other
jurisdiction, are mandatorily applicable to the Merger and to
matters arising under or in connection with this Amendment, this
Amendment shall be governed by and construed in accordance with
the Laws of the State of Georgia.
(e) Amendment. This Amendment may be amended, supplemented or
modified only by a written instrument duly executed by or on
behalf of each Party hereto.
(f) Severability. If any provision of this Amendment is held to be
illegal, invalid or unenforceable under any present or future
Law, and if the rights or obligations of any Party hereto under
this Amendment will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this
Amendment will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part
hereof and (c) the remaining provisions of this Amendment will
remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance
herefrom.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have signed this Amendment as
of the date first set out above.
SPECTAGUARD ACQUISITION LLC
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
BPS LLC
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
XXXXXX PROTECTIVE SERVICES INCORPORATED
By: /s/ Xxxxxxx Xxxxxx Rice, Sr.
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Name: Xxxxxxx Xxxxxx Xxxx, Sr.
Title:
SHAREHOLDERS' REPRESENTATIVE
By: /s/ Xxxxxxx Xxxxxx Rice, Sr.
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Name: Xxxxxxx Xxxxxx Xxxx, Sr.
