FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT (this "Amendment"), dated as of January 16,
1997, to Agreement and Plan of Merger, dated as of December 27, 1996,
by and among CYBEX International, Inc., a New York corporation
("CYBEX"), ▇▇▇▇▇▇▇ Inc., a Delaware corporation ("▇▇▇▇▇▇▇"), and CAT'S
TAIL, INC., a direct wholly-owned subsidiary of CYBEX and a Delaware
corporation (the "Company") (the "Merger Agreement").
WHEREAS, CYBEX, ▇▇▇▇▇▇▇ and the Company desire to amend the
Merger Agreement in order to correct certain errors and/or eliminate
certain ambiguities in the Merger Agreement;
WHEREAS, capitalized terms not otherwise defined herein have
the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto hereby agree as
follows:
SECTION 1. Amendments. The Merger Agreement is hereby
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amended as follows:
(a) Sections 2.2, 7.9(c) and 7.11 of the Merger Agreement are
amended by deleting each reference to "Effective Date" and
substituting therefor "Effective Time".
(b) Section 6.1(g) of the CYBEX Disclosure Schedule is amended
by adding the following: "CYBEX may secure by letter of credit or
otherwise the balance of the payments due to J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under
his employment agreement with the Company".
(c) Section 7.5 of the Merger Agreement is amended by deleting
each reference to "DGCL" and substituting therefor "New York Business
Corporation Law".
(d) Section 7.7 of the Merger Agreement is amended to delete the
"(a)" that immediately precedes the heading "Certain Employee
Agreements".
(e) Section 7.9 of the Merger Agreement is amended to insert an
"(a)" immediately following the heading "Stock Option and Other Stock
Plans".
(e) Section 7.9 of the Merger Agreement is amended to insert an
"(a)" immediately following the heading "Stock Option and Other Stock
Plans".
(f) Sections 7.5, 7.7 and 7.9(b) of the Merger Agreement are
amended by deleting each reference to "the Company" and substituting
therefor "CYBEX".
(g) Section 8.1(c) of the Merger Agreement is amended to read in
its entirety as follows:
Statutory Approvals. All waiting periods applicable to
the consummation of the Merger under the HSR Act shall have
expired or been terminated and all approvals of, or filings with,
any Governmental Authority required to consummate the
transactions contemplated hereby shall have been obtained or
made, other than immaterial approvals and filings, the failure to
obtain or make which would have no material adverse effect on
CYBEX or ▇▇▇▇▇▇▇ or, following the Effective Time, CYBEX.
(h) The Index of Principal Terms of the Merger Agreement is
amended by deleting the reference to the term "Final Order".
SECTION 2. Miscellaneous.
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(a) Except as specifically amended above, the Merger Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(b) This Amendment may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
(c) This Amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts executed in and to be fully performed in such State, without
giving effect to its conflicts of law rules or principles.
(d) This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, CYBEX, ▇▇▇▇▇▇▇ and the Company have
caused this Amendment to be signed by their respective officers
thereunto duly authorized as of the date first written above.
CYBEX INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board
CAT'S TAIL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
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