AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF ORGANIZATION
AMENDMENT NO. 1, dated as of November 28, 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"), ANIMATION USA ACQUISITION CORP., a Delaware corporation ("Newco"),
ANIMATION USA, INC., a Washington 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 "Xxxxxx X.
Xxxxxxxx".
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 "Xxxxxx
X. Xxxxxxxx", and by deleting the phrase "Xxxxx X. Xxxxxx" in the fourth to
fifth lines thereof and inserting in lieu thereof the phrase "Xxxxxx X.
Xxxxxxxx".
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 debt, as evidenced
by any promissory note, bond, debenture or other similar instrument
("Indebtedness"), of the Company assumed by the Surviving
Corporation shall not exceed $125,000 (the "Allowable
Indebtedness"). In the event the Indebtedness exceeds the Allowable
Indebtedness, such excess 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 Indebtedness 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
Indebtedness assumed by the Surviving Corporation shall not apply
to liabilities representing trade payables for goods, accrued
and/or deferred compensation, services incurred in the ordinary
course of business and those disclosed on Schedule 5.10, which
shall be assumed by the Surviving Corporation.
4. Amendment to Section 12.1(ii) of the Agreement. The parties hereto
acknowledge and agree that notwithstanding Section 12.1(ii) of the Agreement,
the Agreement has remained in full force and effect since October 31, 1997
through the date hereof and 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 "July 31, 1998".
5. 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.
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. 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 payments in respect of salaries not to
exceed $4,167 per month in the aggregate to all such STOCKHOLDERS
(prorated for partial months).
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.
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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
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Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
ANIMATION USA ACQUISITION CORP.
By /s/ XXXXXX XXXXXXXX
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Name: XXXXXX XXXXXXXX
Title: CHAIRMAN
ANIMATION USA, INC.
By /s/ XXXXX X. VICE
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Name: XXXXX X. VICE
Title: PRESIDENT
/s/ XXXXX X. VICE
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Xxxxx Vice
/s/ XXXXX XXXX
------------------------------------
Xxxxx Xxxx
/s/ XXXXXXX X. VICE
------------------------------------
Xxxxxxx X. Vice
/s/ XXXX VICE
------------------------------------
Xxxx Vice
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XXXXXXX X. VICE REVOCABLE TRUST
By: /s/ XXXXXXX X. VICE
---------------------------------
Name:
Title: TRUSTEE
/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
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