AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of June
2, 2004 (this "Amendment"), is made and entered into by and among Luxottica
Group S.p.A., an Italian corporation ("Parent"), Colorado Acquisition Corp., a
Delaware corporation and an indirect wholly-owned subsidiary of Parent ("Merger
Sub"), and Xxxx National Corporation, a Delaware corporation (the "Company").
Capitalized terms used herein but otherwise not defined shall have the meaning
given to such terms in the Merger Agreement (as defined below).
WHEREAS, Parent, Merger Sub and the Company have entered into that
certain Agreement and Plan of Merger, dated as of January 23, 2004 (the "Merger
Agreement"), which contemplates the merger of Merger Sub with and into the
Company upon the terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger
Agreement as set forth below;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
AMENDMENT TO MERGER AGREEMENT
1.1 DEFINITION OF MERGER PRICE. Notwithstanding anything to the
contrary in the Merger Agreement, if, on or prior to July 20, 2004, the Company
shall have held its 2004 annual meeting of stockholders to vote on the election
of directors and at such meeting the condition set forth in Section 6.01(a) of
the Merger Agreement shall have been satisfied, references in the Merger
Agreement to "Merger Price" shall mean the sum of (a) $22.50 in cash plus (b) an
additional amount in cash, rounded to the nearest cent, equal to (x) $22.50,
multiplied by (y) 0.04, multiplied by (z) a fraction, the numerator of which is
the number of days that shall have elapsed from the date upon which the
condition set forth in Section 6.01(a) of the Merger Agreement shall have been
satisfied to and including the Closing Date, and the denominator of which is
365.
ARTICLE II
MISCELLANEOUS
2.1 NO WAIVER. Nothing in this Amendment shall constitute a waiver by
Parent, Merger Sub or the Company of any breach or default on the part of any
party to the Merger Agreement.
2.2 GOVERNING LAW; JURISDICTION. The provisions of Section 8.05 of the
Merger
Agreement shall apply to this Amendment as if references to "Agreement" therein
were to this Amendment.
2.3 NO OTHER AGREEMENTS. This Amendment together with the Merger
Agreement (as amended by this Amendment and including the documents and
instruments referred to therein), the Confidentiality Agreement and the letter
agreement dated April 23, 2004 between Parent and the Company constitute the
entire agreement of the parties with respect to the subject matter hereof and
thereof and supersedes all prior agreements or understandings, both written and
oral, between the parties with respect to the subject matter hereof and thereof.
2.4 EFFECT. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise alter, modify, amend or in any way affect any of
the representations, warranties, terms, conditions, obligations, covenants or
agreements contained in the Merger Agreement, all of which shall continue in
full force and effect in accordance with their respective terms. For the
avoidance of doubt, the execution, delivery and effectiveness of this Amendment
shall not constitute a reaffirmation, remaking, withdrawal or modification as of
the date of this Amendment of any of the representations, warranties or
covenants of any party hereto.
2.5 COUNTERPARTS; EXECUTION AND DELIVERY BY FACSIMILE. This Amendment
may be executed in two or more counterparts, each of which shall be deemed to be
an original, but all of which shall constitute one and the same agreement. This
Amendment may be executed and delivered by facsimile, with such delivery to be
as effective as delivery of an originally executed counterpart hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto caused this Amendment to be
duly executed as of the date first above written.
LUXOTTICA GROUP S.P.A.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
COLORADO ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
and Treasurer
XXXX NATIONAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: President and
Chief Executive Officer
