AMENDMENT NO. 1
This Amendment No. 1, dated November__, 2005 (this "Amendment"), amends
the Agreement and Plan of Merger, (the "Agreement"), dated as of August 22,
2005, by and among REFAC, a Delaware corporation ("Parent"), OptiCare Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), OptiCare Health Systems, Inc., a Delaware corporation (the
"Company"), solely with respect to Sections 6.06 and 6.07, Xx. Xxxx Xxxxxxxxx,
whose principal address is 0 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, solely
with respect to Section 6.06, Xxxxx Xxxxxxxxx, whose address is 0 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000, and, solely with respect to Sections 6.01(a),
(d), (e) and (g), 6.02(c), 6.04, 6.06 and 7.03(a)(ii), Palisade Concentrated
Equity Partnership, L.P., a Delaware limited partnership. Capitalized terms used
but not defined herein shall have the meanings set forth in the Agreement
WHEREAS, Parent, Merger Sub and the Company entered into the
Agreement;
WHEREAS, pursuant to Section 8.03 of the Agreement, the
Agreement may be amended by an instrument in writing signed on behalf of Parent,
Merger Sub and the Company;
WHEREAS, the parties desire to amend the Agreement on the
terms hereinafter set forth.
NOW, THEREFORE, Parent, Merger Sub and the Company, intending
to be legally bound, hereby agree to the following amendments to the Agreement:
1. Amendment to Section 8.01(b)(i). Section 8.01(b)(i) is hereby
amended and restated in its entirety as follows:
"the Merger is not consummated on or before April 30, 2006;
provided that the right to terminate this Agreement under this Section
8.01(b) shall not be available to any party whose failure to fulfill
any obligation under this Agreement has been the cause of, or results
in, the failure of the Merger to occur on or before such date; or"
2. Limited Effect. Except as expressly specified herein, the terms and
provisions of the Agreement shall continue and remain in full force and effect
and shall remain the valid and binding obligation of the parties thereto in
accordance with its terms.
3. Counterparts. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
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4. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have duly
executed this Amendment, all as of the date first written above.
REFAC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
OPTICARE MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
OPTICARE HEALTH SYSTEMS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
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