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EXHIBIT 2.3
AMENDMENT NO. 2 TO MERGER AGREEMENT
This Amendment No. 2 (the "AMENDMENT"), made and entered into this
12th day of February 1996, is by and among AMRE, Inc., a Delaware corporation
("AMRE"), AMRE Acquisition, Inc., a Delaware corporation and a newly formed,
wholly owned subsidiary of AMRE ("MERGER SUB"), and Facelifters Home Systems,
Inc., a Delaware corporation (the "COMPANY"), which is the successor in
interest, by way of merger, to Facelifters Home Systems, Inc., a New York
corporation and amends that certain Agreement and Plan of Merger, made and
entered into the 31st day of October 1995, by and among AMRE, Merger Sub and
the Company, as amended on the 12th day of December, 1995 (the "MERGER
AGREEMENT"). Capitalized terms used and not defined herein shall have the
meanings assigned to them in the Merger Agreement.
PRELIMINARY STATEMENTS
AMRE, Merger Sub and the Company desire to amend the Merger Agreement
as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
STATEMENT OF AMENDMENT
1. Amendatory Provisions.
a. Section 3.2(a) to the Merger Agreement is amended and restated
in its entirety to read as follows:
(a) The authorized capital stock of the Company
consists of 15,000,000 shares of Company Common Stock, par
value $0.01 per share, and 1,000,000 shares of preferred
stock, par value $0.01 per share (the "COMPANY PREFERRED
STOCK"). As of October 15, 1995, there were 3,396,572 shares
of Company Common Stock and no shares of Company Preferred
Stock issued and outstanding. The Company has no outstanding
bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or
exercisable for securities having the right to vote) with the
stockholders of the Company on any matter. All issued and
outstanding shares of Common Stock are duly authorized,
validly issued, fully paid, nonassessable and free of
preemptive rights. Except as disclosed in the Company Reports
or the Company Disclosure Letter and except for the intended
issuance by the Company of Company Options for up to 19,900
Shares, in the aggregate, to certain employees of the Company,
(i) there are no outstanding or authorized subscriptions,
options, warrants, calls, rights (including
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any preemptive rights), commitments, or other agreements of
any character whatsoever which obligate or may obligate the
Company to issue or sell any additional shares of its capital
stock or any securities convertible into or evidencing the
right to subscribe for any shares of its capital stock or
securities convertible into or exchangeable for such shares,
(ii) there are no outstanding or authorized stock
appreciation, phantom stock, profit participation or similar
plans or contracts or rights with respect to the Company or
any of its subsidiaries which are effective as of the date
hereof or which have been executed or agreed to as of the date
hereof with an effective date after the date hereof, and (iii)
there are no stockholders' agreements, voting trusts, proxies
or other agreements or understandings with respect to the
voting of the capital stock of the Company or any of its
subsidiaries to which the Company or any of its subsidiaries
is or are a party which are presently effective or have been
executed or agreed to as of the date hereof and provide for an
effective date after the date hereof or to which any officer
or director of the Company or any stockholder owned or
controlled by such officer or director is or will be a party
in accordance with the terms hereof.
b. Section 3.7 to the Merger Agreement is amended and restated in
its entirety to read as follows:
3.7 Absence of Certain Changes or Events. Except
as disclosed in the Company Reports, and the Company Financial
Statements, the Company Disclosure Letter or as required to
effect the Reincorporation, and except in connection with the
issuance of Company Options to purchase 19,900 Shares to
certain employees of the Company and for changes arising from
the public announcement of the transactions contemplated by
this Agreement, since June 30, 1995, the Company has conducted
its business only in the ordinary course of business and there
has not been (i) any material change in the Company or any
development or combination of developments of which any of its
executive officers has actual knowledge which has resulted or
is reasonably likely to result in a material adverse effect on
the Company; (ii) any declaration, setting aside or payment of
any dividend or other distribution with respect to its capital
stock, except for quarterly dividends paid and to be paid in
accordance with the Company's past practice and at a level no
greater than $0.005 per share; (iii) any material change in
its accounting principles, practices or methods; (iv) any
termination by the Company of the employment of any department
head or officer of the Company or entered into (A) any written
employment agreement or (B) any oral employment agreement not
terminable without penalty by any party thereto upon 60 days
notice; (v) any material increase in the rate of compensation
or bonus payments payable or to become
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payable to any of the Company's officers or directors
(including, without limitation, any payment of or promise to
pay any bonus or special compensation); (vi) any purchase,
redemption, issuance, sale or other acquisition or disposition
of any of its shares of capital stock or other equity
securities, or agreement to do so, or any grant of any
options, warrants or other rights to purchase or convert any
obligation into any shares of the Company's capital stock or
any evidence of indebtedness or other securities; (vii) any
transaction between the Company and any Affiliate (as defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended) of the Company; and (viii) any agreement entered into
by the Company.
c. Section 4.1(b) to the Merger Agreement is amended and restated
in its entirety to read as follows:
(b) The Company shall not, directly or
indirectly, do any of the following except as appropriate for
the reincorporation of the Company in the State of Delaware:
(i) authorize for issuance, issue, sell, pledge, deliver, or
agree or commit to issue, sell, pledge or deliver (whether
through the issuance or grant of options, warrants,
commitments, subscriptions, rights to purchase or otherwise)
any capital stock of the Company or securities or rights
convertible into or exchangeable for, shares of capital stock
or securities convertible into or exchangeable for such
shares; (ii) pledge, dispose of or encumber, except in the
ordinary course of business, any assets of the Company
(including any indebtedness owed to it or any claims held by
it); (iii) amend or propose to amend its Certificate of
Incorporation or bylaws or similar organizational documents;
(iv) split, combine or reclassify any shares of its capital
stock or declare, set aside or pay any dividend or
distribution, payable in cash, stock, property or otherwise,
with respect to any of its capital stock; (v) redeem, purchase
or otherwise acquire or offer to redeem, purchase or otherwise
acquire any capital stock of the Company; (vi) transfer any
assets or liabilities to any subsidiary; or (vii) authorize or
propose any of the foregoing or enter into any contract,
agreement, commitment or arrangement to do any of the
foregoing; provided, however, that nothing in this Section
4.1(b) shall prohibit the Company from issuing any capital
stock of the Company upon the exercise of outstanding options
nor prohibit the Company from granting to certain of the
Company's employees, in the aggregate, Company Options for
19,900 Shares;
d. Section 7.1(b) to the Merger Agreement is amended and restated
in its entirety to read as follows:
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(b) by either of the Boards of Directors of
Merger Sub or the Company if the Effective Time shall not have
occurred within sixty (60) days after AMRE files its annual
report on Form 10-K for the fiscal year ended December 31,
1995 with the Securities and Exchange Commission; provided,
however, that the right to terminate under this Section 7.1(b)
shall not be available to any party whose failure to fulfill
any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Effective Time to occur on or
before such date;
2. Existing Agreement. Except as expressly amended hereby, all
of the terms, covenants and conditions of the Merger Agreement (i) are ratified
and confirmed, (ii) shall remain unamended and not waived and (iii) shall
continue in full force and effect.
3. Governing Law. This Amendment shall be governed in all
respects, including validity, interpretation and effect, by the internal laws
of the State of Delaware without giving effect to the principles of conflict of
laws thereof.
4. Counterparts. This Amendment may be executed in one or more
counterparts. 5. Enforceability. If any provision of this
Amendment shall be held to be illegal, invalid or
unenforceable under any applicable law, then such contravention or invalidity
shall not invalidate the entire Amendment or the Merger Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it
legal, valid and enforceable, then this Amendment and the Merger Agreement
shall be construed as if not containing the provision held to be invalid, and
the rights and obligations of the parties shall be construed and enforced
accordingly.
IN WITNESS WHEREOF, AMRE, Merger Sub and the Company have caused this
Amendment to be executed as of the date first written above.
AMRE, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: /s/ Xxxxxx X. Xxxxxx
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Title: President and Chief
Executive Officer
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AMRE ACQUISITION, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: /s/ Xxxxxx X. Xxxxxx
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Title: President and Chief
Executive Officer
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FACELIFTERS HOME SYSTEMS, INC.,
a Delaware corporation
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
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Title: Chief Executive
Officer
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