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EXHIBIT 99.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of
September 21, 2001 ("FIRST AMENDMENT") is made by and among Xxxxxxx & Xxxxxx
Corporation, a Delaware corporation ("PARENT"); Xxxxxxx & Xxxxxx Products Co., a
Delaware corporation ("PRODUCTS"); JAII Acquisition Co., a Delaware corporation
("MERGER SUB"); Xxxxx XxXxxxxx ("XxXXXXXX"); Xxxx Fabrics Corporation, a
Delaware corporation ("SELLER"); and Xxxx Automotive Industries, Inc., a
Delaware corporation (the "COMPANY"), amending certain provisions of the
Agreement and Plan of Merger dated as of August 17, 2001, (the "MERGER
AGREEMENT") by and among Parent, Products, Merger Sub, XxXxxxxx, Seller and the
Company. Capitalized terms not otherwise defined herein have the meanings
assigned to such terms in the Merger Agreement.
WHEREAS, Parent, Products, Merger Sub, XxXxxxxx, Seller and the
Company have agreed to modify certain terms and conditions of the Merger
Agreement as specifically set forth in this First Amendment.
NOW THEREFORE, in consideration of the premises and mutual
agreements contained herein and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENTS TO AGREEMENT
1.1. The last sentence of Section 3.3 of the Merger Agreement is
hereby amended to read as follows:
"The "DEBT REPAYMENT AMOUNT" shall mean the $55,000,000 (which
amount shall include all principal, premium, interest, fees, charges,
costs, expenses and other obligations, contingent or otherwise,
relating thereto) for which the Company has indemnified Seller
pursuant to the Restructuring."
1.2. The last sentence of Section 4.5(b) of the Merger Agreement is
hereby amended to read as follows:
"As of the Effective Time, the Debt Repayment Amount will not
exceed $55,000,000."
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1.3. The last sentence of the first paragraph of Section 8.7 of the
Merger Agreement is hereby amended to read as follows:
"At the time of Closing, the Debt Repayment Amount shall not
exceed $55,000,000 (inclusive of all principal, premium, interest,
fees, charges, costs, expenses and other obligations, contingent or
otherwise, relating thereto)."
1.4. Clause (i) of the second paragraph of Section 6.13 of the Merger
Agreement is hereby amended by inserting the following immediately after the
term "Supply Agreement" in such clause:
"(including, without limitation, its right to sell "seconds" to
bona fide seconds dealers and "close-outs" as provided therein)".
1.5. The reference to "Supply and Looms Agreement" in the definition
of "Supply Agreement" is hereby amended to "Supply Agreement".
ARTICLE II
PROVISIONS OF GENERAL APPLICATION
2.1. Except as otherwise expressly provided by this First Amendment,
all of the terms, conditions and provisions to the Merger Agreement remain
unaltered. The Merger Agreement and this First Amendment shall be read and
construed as one agreement.
2.2. If any of the terms of this First Amendment shall conflict in any
respect with any of the terms of the Merger Agreement, the terms of this First
Amendment shall be controlling.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their duly authorized officers all as of the day and
year first above written.
XXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title:
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title:
JAII ACQUISITION CO.
By: /s/ Xxxxxx X. Xxxxxxx
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Name:
Title:
XXXX AUTOMOTIVE INDUSTRIES, INC.
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
Title: President
XXXX FABRICS CORPORATION
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
Title: Chief Executive Officer
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/s/ Xxxxx XxXxxxxx
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Xxxxx XxXxxxxx
