PRIVILEGED AND CONFIDENTIAL
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
MADE BY AND AMONG
XXXXXXXX XXXX COMPANY,
a Texas close corporation,
XXXXXXXX XXXX COMPANY,
a Delaware corporation
TCC MERGER SUB, INC.,
a Delaware corporation,
CROW FAMILY PARTNERSHIP, L.P.,
CFH TRADE-NAMES, L.P.,
a Texas limited partnership,
and
X. XXXXXXXX XXXXXXXX
TO BE EFFECTIVE AS OF
NOVEMBER 20, 1997
PRIVILEGED AND CONFIDENTIAL
FIRST AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment"),
dated as of November 20, 1997, is made by and among Xxxxxxxx Xxxx Company,
a Texas close corporation ("Texas TCC"), Xxxxxxxx Xxxx Company, a Delaware
corporation ("Delaware TCC"), TCC Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Delaware TCC ("Merger Sub"), Crow Family Partnership,
L.P. ("Crow Family"), CFH TRADE-NAMES, L.P., a Texas limited partnership
("CFH"), and X. XxXxxxxx Xxxxxxxx. Texas TCC and Merger Sub are hereinafter
collectively referred to as the "Constituent Corporations."
PRELIMINARY STATEMENTS
A. Delaware TCC, Crow Family, X. XxXxxxxx Xxxxxxxx and the Constituent
Corporations are parties (the "Parties") to an Agreement and Plan of Merger (the
"Agreement") dated August 22, 1997, in which the Parties have outlined the
manner in which Merger Sub will be merged with and into Texas TCC, with Texas
TCC being the surviving corporation (the "Merger"). All capitalized terms used
but not otherwise defined in this Amendment shall have the meanings ascribed to
them in the Agreement.
B. Exhibit F to the Agreement is a Form of Trade Name License Agreement
(the "License Agreement") pursuant to which the owner of the Trademarks (as
defined in the License Agreement), or its designee, is to grant Delaware TCC
certain rights to use the Trademarks.
X. Xxxx Family and CFH are parties to an Assignment of Trademarks and
Tradenames Agreement (the "Tradenames Agreement") dated November ___, 1997, in
which Crow Family, as the owner of the Trademarks, has assigned licensing rights
in the Trademarks to CFH (the "Assignment").
D. In order to reflect the effect that the Assignment will have on the
transactions contemplated in the Agreement, the Parties have agreed to amend the
Agreement in the manner described below.
AGREEMENTS
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements set forth hereinafter and in the Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Section 4.2 shall be amended and restated in its entirety to read as
follows:
PRIVILEGED AND CONFIDENTIAL
4.2 STOCKHOLDERS AGREEMENT. Upon the terms and subject to the
conditions set forth herein, Delaware TCC, Crow Family, CFH and X. XxXxxxxx
Xxxxxxxx hereby covenant and agree with each other that at Closing they
shall execute, deliver and enter into a Stockholders Agreement
substantially in the form attached hereto as EXHIBIT C (the "Stockholders
Agreement").
2. Section 4.3 shall be amended and restated in its entirety to read as
follows:
4.3 CROW FAMILY TERMINATION AGREEMENT. Upon the terms and subject to
the conditions set forth herein, Texas TCC, CFH and Crow Family hereby
covenant and agree with each other that at the Closing they shall execute,
deliver and enter into a Termination and Release Agreement substantially in
the form attached hereto as EXHIBIT D (the "Crow Family Termination
Agreement").
3. Section 4.5 of the Agreement shall be amended and restated in its
entirety to read as follow:
4.5 MATTERS RELATING TO TRADE NAME LICENSE. CFH and Delaware TCC
hereby covenant and agree with each other and with Texas TCC that, upon the
terms and subject to the conditions set forth herein and pursuant to
Section 351 of the Code, at the Closing and immediately prior to the
Effective Time:
(a) ISSUANCE OF TRADE NAME SHARES. Delaware TCC shall issue to
CFH or its designee, and CFH or its designee shall acquire from Delaware
TCC, the Trade Name Shares, free and clear of all liens, security
interests, claims, rights of another and encumbrances of any kind or
character. At the Closing, Delaware TCC shall deliver to CFH or its
designee a share certificate representing the total number of Trade Name
Shares to be acquired by CFH or such designee hereunder, executed by a
duly-authorized officer of Delaware.
(b) TRADE NAME LICENSE AGREEMENT. In consideration for the
issuance of the Trade Name Shares at Closing, CFH hereby covenants and
agrees with Delaware TCC and Texas TCC that at the Closing, CFH shall, or
CFH shall cause its designee to, transfer certain intangible property to
Delaware TCC by executing, delivering and entering into a Trade Name
License Agreement with Delaware TCC in substantially the form attached
hereto as EXHIBIT F (the "Trade Name License Agreement").
4. The name "Crow Family" at the beginning of the fourth line of Section
4.8 shall be deleted and the name "CFH" shall be substituted in its place.
5. The form of Stockholders Agreement attached to this Amendment as
EXHIBIT C, shall for all purposes be substituted as EXHIBIT C to the Agreement.
PRIVILEGED AND CONFIDENTIAL
6. The form of Crow Family Termination Agreement attached to this
Amendment as EXHIBIT D shall for all purposes be substituted as EXHIBIT D to the
Agreement.
7. The form of Trade Name License Agreement attached to this Amendment as
EXHIBIT F shall for all purposes be substituted as EXHIBIT F to the Agreement.
8. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be one and the same instrument, and shall become
effective when one or more counterparts have been signed by each of the parties.
9. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW RULES THEREOF.
10. The section headings contained in this Amendment are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Amendment.
11. Except as amended hereby, the terms and provisions of the Agreement
shall remain in full force and effect and are hereby in all respects ratified
and confirmed by the parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
PRIVILEGED AND CONFIDENTIAL
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the parties hereto or by their duly-authorized officers on the date first
hereinabove written.
XXXXXXXX XXXX COMPANY,
a Texas close corporation
By: /s/ Xxxxxxx Xxx
-------------------------------------
Name: Xxxxxxx Xxx
-----------------------------------
Title: Executive Vice President
----------------------------------
XXXXXXXX XXXX COMPANY,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title:
----------------------------------
TCC MERGER SUB, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title:
----------------------------------
CROW FAMILY PARTNERSHIP, L.P.,
By: Crow Family, Inc., its general partner
By: /s/ M. Xxxxx Xxxxxx
-------------------------------------
Name: M. Xxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
/s/ X. XxXxxxxx Xxxxxxxx
----------------------------------------
X. XXXXXXXX XXXXXXXX
CFH TRADE-NAMES, L.P.
a Texas limited partnership
By: /s/ M. Xxxxx Xxxxxx
-------------------------------------
Name: M. Xxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
PRIVILEGED AND CONFIDENTIAL
EXHIBIT C
FORM
OF
STOCKHOLDERS AGREEMENT
PRIVILEGED AND CONFIDENTIAL
EXHIBIT D
FORM
OF
CROW FAMILY TERMINATION AGREEMENT
PRIVILEGED AND CONFIDENTIAL
EXHIBIT F
FORM
OF
TRADE NAME LICENSE AGREEMENT
