FIRST AMENDMENT TO AGREEMENT OF MERGER
This First Amendment to Agreement of Merger is executed as of the
day of January, 1998 by and between EYEMAKERS, INC., a Nevada corporation
with its principal place of business located at 0000 XxXxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000 ("Eyemakers"), and BUDGET OPTICALS OF AMERICA, INC., a
Texas corporation with its principal place of business located at 000 Xxxxx
Xxx Xxxx, Xxxxxx Xxxxxxx, Xxxxx 00000 ("Budget Opticals").
RECITALS
A. On August 22, 1997, Eyemakers, Budget Opticals and EYEMAQ, INC., a
Texas corporation with its principal place of business also located at 0000
XxXxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Company"), executed an Agreement
of Merger (the "Merger Agreement") pursuant to which the Company merged with
and into Budget Opticals, with Budget Opticals remaining as the surviving
corporation and the wholly-owned subsidiary of Eyemakers. The separate
existence of the Company ceased as of December 31, 1997, the date on which
Articles of Merger were filed with the Secretary of State of Texas. The
Company is therefore not a party to this First Amendment to Agreement of
Merger, and all of its rights, duties and obligations have by operation of
law been vested in Budget Opticals as the surviving corporation in such
merger.
B. Eyemakers and Budget Opticals desire to amend the Merger Agreement
to clarify certain attributes of the Eyemakers Class B Preferred Stock, par
value $0.001 per share, to be received by the shareholders of Budget Opticals
pursuant to the merger.
NOW, THEREFORE, in consideration of the premises, the provisions and the
respective agreements hereinafter set forth, the parties hereto hereby agree
as follows:
AGREEMENTS
1. The second paragraph of Section 2.1.1 of the Merger Agreement is
hereby amended to read in its entirety as follows:
In consideration for the conversion of each share of Company
Common Stock into its pro rata portion of the then issued and
outstanding shares of Budget Opticals Common Stock, the
shareholders of Budget Opticals (the "Budget Opticals
Shareholders") shall receive, based upon their ownership interest
in the Budget Opticals Common Stock as set forth in Exhibit B,
their pro rata portion of (i) Fifty Thousand Dollars ($50,000.00)
to be transferred to the Budget Opticals Shareholders by individual
cashier's checks payable to the Budget Opticals Shareholders, and
(ii) Six Hundred Thousand (600,000) shares of Eyemakers' non-voting
Class B Preferred Stock, par value $0.001 per share, bearing a
dividend of Twenty-One and One-Fourth Cents ($0.2125) cents per
share per annum payable annually on the anniversary date of the
certificate therefor, being convertible by the holders thereof into
an equivalent number of shares of Eyemakers' common stock, par
value $0.001 per share (the "Eyemakers Common Stock"), and being
subject to redemption by Eyemakers at any time during the two-year
period commencing on the date of their issuance at a redemption
price of $7.50 per share (the "Class B Preferred"). Eyemakers
hereby grants to each Budget Opticals Shareholder the option,
exercisable at any time after the expiration of Two (2) years from
the date of issuance thereof, to cause Eyemakers to acquire any or
all shares of Class B Preferred held by them at a price of $4.25
per share. Notwithstanding the rights, privileges and attributes
of the Class B Preferred as described above, Budget Opticals
acknowledges that the Class B Preferred is subordinated in all
respects to Eyemakers' Series A Preferred Stock. It is the
intention of the parties that the merger would qualify as a
nontaxable transaction to the Budget Opticals Shareholders except
to the extent of the cash received pursuant to the provisions of
this paragraph.
2. This First Amendment shall be governed by the laws of the State of
Texas.
3. This First Amendment constitutes the final written expression of
this First Amendment to the Merger Agreement and is a complete and exclusive
statement of those terms. It supersedes all understandings and negotiations
concerning the matters specified herein.
IN WITNESS WHEREOF, the parties have executed this First Amendment and
caused the same to be duly delivered on their behalf on the day and year
hereinabove first set forth.
EYEMAKERS: EYEMAKERS, INC.
By: /s/ XXXXXX X. ORM III
Xxxxxx X. Orm III, O.D.
Chairman of the Board
BUDGET OPTICALS: BUDGET OPTICALS OF AMERICA, INC.
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
President
