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EXHIBIT 2(b)
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (the "Amendment"),
dated as of September 29, 1997, amends that certain Agreement and Plan of Merger
(the "Merger Agreement") dated as of September 5, 1997, by and among
XXXXXX-FIELD HEALTH PRODUCTS, INC., a Delaware corporation ("Buyer") , GFHP
ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of Buyer
("Sub") and XXXXX ENTERPRISES, INC., a Delaware corporation ("Target").
W I T N E S S E T H:
WHEREAS, each of the Buyer, Sub and Target has entered into the Merger
Agreement; and
WHEREAS, each of Buyer, Sub and Target desires to amend the Merger
Agreement to correct certain matters, as set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements contained herein the parties hereto agree as follows:
1. Section 6.23 of the Merger Agreement is hereby deleted and replaced
in its entirety with the following:
"6.23 VOTE REQUIRED. The affirmative vote of a majority of the
votes cast by the holders of the outstanding shares of Buyer
Capital Stock entitled to vote and voting as a single class is
the only vote of the holders of any class or series of capital
stock of Buyer required to approve the issuance of shares of
Buyer Common Stock pursuant to the Merger (including the
shares to be issued in connection with the performance of the
obligations set forth in Section 3.5), as and to the extent
required by Law, by the provisions of any governing
instruments, or by the rules of the NYSE."
2. The fourth sentence of Section 8.1 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
"Buyer shall call a Stockholders' Meeting, to be held as soon
as reasonably practicable after the Registration Statement is
declared effective by the SEC, for the purpose of voting upon
the issuance of shares of Buyer Common Stock pursuant to the
Merger, and such other related matters as it deems appropriate
(including, without limitation, the adoption of an amendment
to increase the number of shares that may be issued under the
Buyer's Incentive Program by 1,500,000)."
3. The second sentence of Section 9.1(a) of the Merger Agreement is
hereby deleted and replaced in its entirety with the following:
"The stockholders of Buyer shall have approved the issuance of
shares of Buyer Common Stock pursuant to the Merger (including
the shares to be issued in connection with the performance of
the obligations set forth in Section 3.5), as and to the
extent required by Law, by the provisions of any governing
instrument, or by the rules of the NYSE."
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4. Section 11.1(b) of the Merger Agreement is amended to delete the
term "Buyer Plan Amendment" and the related reference in Section 11.1(b) to
Section 8.1.
5. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6. This Amendment shall be governed by and construed in accordance with
the Laws (as such term is defined in the Merger Agreement) of the State of
Delaware, without regard to any applicable conflicts of Laws.
7. Except as specifically amended hereby, the Merger Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, each of Buyer, Sub and Target has caused this
Amendment to be executed on its behalf by its duly authorized officers as of the
day and year first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: s/s Xxxxx Xxxxxxxx
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Chairman of the Board and Chief Executive Officer
GFHP ACQUISITION CORP.
By: s/s Xxxxx Xxxxxxxx
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Chairman of the Board and Chief Executive Officer
XXXXX ENTERPRISES, INC.
By: s/s J. Xxx Xxxxx
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Chairman of the Board
