Exhibit 2.1
AMENDMENT
AMENDMENT (this "Amendment") dated as of January 22, 2007 among Jacuzzi
Brands, Inc., a Delaware corporation, Jupiter Acquisition, LLC, a Delaware
limited liability company, and Jupiter Merger Sub, Inc., a Delaware corporation
and a wholly-owned subsidiary of Parent.
WHEREAS, the parties hereto are parties to the Agreement and Plan of
Merger dated as of October 11, 2006 (the "Merger Agreement"); and
WHEREAS, in connection with the settlement of certain purported
stockholder class action lawsuits relating to the transactions contemplated by
the Merger Agreement, the parties hereto desire to amend the Merger Agreement as
set forth herein (the Merger Agreement, as amended hereby, the "Amended Merger
Agreement").
NOW, THEREFORE, the parties hereto agree as follows:
Section 1 . Definitions. Each capitalized term used and not otherwise
defined herein shall have the meaning assigned to such term in the Merger
Agreement.
Section 2 . Amendment. (a) Section 11.04(b) of the Merger Agreement is
hereby amended by deleting the reference to "$25 million" set forth therein and
replacing it with "$22.5 million".
(b) Each of Section 11.04(b)(D), Section 11.04(b)(E) and Section
11.04(b)(F) of the Merger Agreement is hereby amended by deleting the reference
to "12 months" set forth therein and replacing it with "9 months".
Section 3 . Interpretation. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in the Merger
Agreement shall from and after the date hereof refer to the Amended Merger
Agreement. As used in the Amended Merger Agreement, the phrases "the date
hereof" and "the date of this Agreement", and any substantially similar phrase,
shall be deemed to refer to October 11, 2006.
Section 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 conflicts of law rules of such state.
Section 5 . Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Amendment
shall becomes effective immediately when each party hereto shall have received a
counterpart hereof signed by all of the other parties hereto.
Section 6 . Entire Agreement. The Amended Merger Agreement and the
Confidentiality Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both oral and written, between the parties with respect
hereto.
Section 7 . Binding Effect. Except to the extent expressly provided
herein, the Merger Agreement shall remain in full force and effect in accordance
with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
JACUZZI BRANDS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and
Secretary
JUPITER MERGER SUB, INC.
By:
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
JUPITER ACQUISITION, LLC
By:
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Name: Xxxxxx Xxxxxxxx
Title: Authorized Person
