EXHIBIT 99(E)
FORM OF
AMENDMENT NO. 1 TO AMENDED AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AMENDED AGREEMENT AND PLAN OF MERGER dated as
of October 18, 1995 (this "AMENDMENT") is among BRW STEEL CORPORATION, a
Delaware corporation ("BARCO"), B & L ACQUISITION CORPORATION, a Delaware
corporation and a wholly owned subsidiary of BarCo ("SUB"), and BLISS & XXXXXXXX
INDUSTRIES INC., a Delaware corporation (the "COMPANY");
W I T N E S S E T H:
WHEREAS, BarCo, Sub and the Company are parties to the Amended
Agreement and Plan of Merger dated as of October 4, 1995 (the "MERGER
AGREEMENT") pursuant to which BarCo has agreed to acquire all of the outstanding
shares of the Company's Common Stock, $.01 par value per share, at a price of
$9.50 per share;
WHEREAS, the Merger Agreement provides that the Company shall file, no
later than October 18, 1995, with the Securities and Exchange Commission
("COMMISSION") under the Securities Exchange Act of 1934, a proxy statement or
information statement, as appropriate (the "PROXY STATEMENT");
WHEREAS, BarCo, Sub and the Company have agreed to extend the time by
which the Proxy Statement must be filed with the Commission to October 20, 1995;
WHEREAS, the Merger Agreement provides that BarCo and the Company may
terminate the Merger Agreement if the conditions to the obligations of the
parties have not been satisfied or the Closing shall not have otherwise taken
place by January 15, 1996;
WHEREAS, BarCo, Sub and the Company have agreed to extend the date by
which conditions must be satisfied and the Closing shall have occurred to
January 31, 1996; and
WHEREAS, BarCo, Sub and the Company have agreed to certain other
matters incidental to the consummation of the transactions contemplated by the
Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained and other good and valuable consideration had
and received, the parties to the Merger Agreement hereby agree as follows:
SECTION 1. DEFINED TERMS. All capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms in the Merger
Agreement.
SECTION 2. AMENDMENTS TO MERGER AGREEMENT. The Merger Agreement
is hereby amended as follows:
2.02. SECTION 4.1 of the Merger Agreement is hereby amended by
amending and restating the first sentence of such section in its entirety as
follows:
"The Company shall file, no later than October 20, 1995, with the
Commission under the Exchange Act, and shall use its best efforts to
have cleared by the Commission, and no later than five business days
after such clearance shall mail to its stockholders, a proxy statement
or information statement, as appropriate, and all amendments and
supplements thereto required by law (the "Proxy Statement"), with
respect to the Special Meeting (as such term is defined in
Section 4.2)."
2.02. SECTION 6.1(b)(vii) of the Merger Agreement is hereby
amended by amending and restating such section in its entirety as follows:
"(vii) the conditions to the obligations of BarCo set forth in
Article 5 have not been satisfied by January 31, 1996;"
2.03. SECTION 6.1(c)(i) of the Merger Agreement is hereby amended
by amending and restating such section in its entirety as follows:
"(i) if the Closing shall not have taken place by January 31, 1996;
or"
2.04. SECTION 6.1(c)(iii) of the Merger Agreement is hereby
amended by amending and restating such section in its entirety as follows:
"(iii) if the conditions to the obligations of the Company set forth
in Article 5 have not been satisfied by January 31, 1996; or"
2.05. SECTION 6.1(d)(i) of the Merger Agreement is hereby amended
by amending and restating such section in its entirety as follows:
"(i) if a court of competent jurisdiction or a governmental,
regulatory or administrative agency or commission shall have issued an
order, decree or ruling or taken any other action, in each case
restraining, enjoining or otherwise prohibiting the Merger which is
still in effect on January 31, 1996; or"
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2.06. SECTION 6.2(c) of the Merger Agreement is hereby amended by
amending and restating such section in its entirety as follows:
"(c) if the Board of Directors of the Company terminates this
Agreement and abandons the Merger on account of the failure by BarCo
to consummate the Merger by January 31, 1996 and all other conditions
set forth in Article 5 hereof are satisfied, then the Company shall
receive from BarCo as liquidated damages the sum (the "Company Damages
Amount") of $2,000,000, unless BarCo shall have previously terminated
under Sections 6.1(b) or (d) hereof."
SECTION 3. DISBURSING AGENT. BarCo, Sub and the Company hereby
select United States Trust Company of New York as the Disbursing Agent under
Section 1.5 of the Merger Agreement.
SECTION 4. EMPLOYMENT AGREEMENTS. From and after the Effective
Time, the Surviving Corporation shall assume and agree to perform the Employment
Agreements, dated May 11, 1990, between the Company and each of the executives
of the Company who are parties thereto, each as in effect as of October 4, 1995
(the "Employment Agreements") in the same manner and to the same extent that the
Employer (as defined in the Employment Agreements) would be required to perform
if the Merger had not taken place.
SECTION 5. MISCELLANEOUS.
5.01. APPLICABLE LAW. This Amendment and the legal relations
between the parties hereby shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to the conflict of laws rules
thereof.
5.02. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall be deemed to be one and the same instrument.
5.03. SECTION HEADINGS. The descriptive headings contained herein
are for convenience of reference only and shall not effect in any way the
meaning or interpretation of this Amendment.
5.04. RATIFICATION. The Merger Agreement as hereby amended is in
all respects ratified and confirmed, and all of the rights and powers created
thereby or thereunder shall be and remain in full force and effect.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto on the date
first above written.
BRW STEEL CORPORATION
By:
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Co-Chairman
B & L ACQUISITION CORPORATION
By:
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President
BLISS & XXXXXXXX INDUSTRIES INC.
By:
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President, Chief Executive Officer
and Chairman of the Board
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