FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as
of November 18, 1996 (this "Amendment"), is among Rose Hills Acquisition Corp.,
a Delaware corporation formerly known as Tudor Acquisition Corp.
("Acquisition"), Roses, Inc. a California corporation ("RI"), the stockholders
of Roses, Inc. (the "Stockholders"), and RH Mortuary Corporation, a Delaware
corporation ("RH Mortuary").
W I T N E S S E T H :
WHEREAS, Acquisition, RI and the Stockholders are parties to
that certain Agreement and Plan of Merger dated as of September 19, 1996 (the
"Merger Agreement"); and
WHEREAS, Acquisition desires to assign its rights and delegate
its obligations under the Merger Agreement to its wholly-owned subsidiary, RH
Mortuary, and RH Mortuary desires to accept and assume all such rights and
obligations; and
WHEREAS, the parties desire to substitute RH Mortuary for
Acquisition for all purposes under the Merger Agreement and to amend certain
other provisions of the Merger Agreement as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined
in the Merger Agreement are used herein as therein defined.
2. Substitution of RH Mortuary for Acquisition. The Merger
Agreement is hereby amended to substitute RH Mortuary for Acquisition for all
purposes of the Merger Agreement, and RH Mortuary hereby affirms and agrees to
be bound by the terms of the Merger Agreement as if it were Acquisition. The
parties agree that such substitution shall not impair RI's or the Stockholders'
rights or ability to draw on the Letter of Credit in accordance with its terms.
3. Amendment to Section 1.1. Section 1.1 of the Merger
Agreement is hereby amended by deleting therefrom the phrase "the Surviving
Corporation shall have the name Rose Hills, Inc." and substituting in lieu
thereof the phrase "the Surviving Corporation shall have the name RH Mortuary
Corporation".
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4. Amendment to Section 2.1. Section 2.1 of the Merger
Agreement is hereby amended by deleting it in its entirety and replacing it with
the following:
2.1 Certificate of Incorporation. The Articles of
Incorporation of RH Mortuary Corporation, a
California corporation attached as Exhibit A
hereto shall be the Articles of Incorporation of
the Surviving Corporation until duly amended in
accordance with the terms thereof and the CGCL.
5. Amendment to Section 2.2. Section 2.2 of the Merger
Agreement is hereby amended by deleting it in its entirety and replacing it with
the following:
2.1 By-Laws. The By-Laws of RH Mortuary Corporation,
a California corporation attached as Exhibit B
hereto shall be the ByLaws of the Surviving
Corporation until duly amended in accordance with
the terms thereof and the CGCL.
6. Amendment to Section 11.4. Section 11.4 of the Merger
Agreement is hereby amended by adding the following to the end of such Section:
"Notwithstanding the foregoing, in the case of Losses and Expenses
which are ultimately determined pursuant to Section 11.10 to be due to
actual fraud by the Company:
(a) the liability of BT Capital Partners, Inc.
under Section 11.1 for such Losses and Expenses shall
be subject to the Basket, the Cap and the time
limitations (as provided in Section 11.11); and
(b) in addition to any other liability the
Stockholders (other than BT Capital Partners, Inc.) may have
for such Losses and Expenses under Section 11.1 hereof, the
Stockholders (other than BT Capital Partners, Inc.), severally
in proportion to their respective Ownership Percentages, shall
be liable for the amount of such Losses and Expenses (if any)
for which BT Capital Partners, Inc. would otherwise be liable
under Section 11.1 but for application of the Basket, the Cap
and the time limitations as provided in the preceding clause
(a).
7. Amendment to Exhibit B. Exhibit B attached to the Merger
Agreement is hereby deleted in its entirety and replaced by Exhibit B attached
hereto.
8. No Other Amendments or Waivers. Except as expressly amended
hereby, the Merger Agreement shall continue to
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be, and shall remain, in full force and effect in accordance with its terms.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE.
10. This Amendment may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date set forth above.
ROSE HILLS ACQUISITION CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxx Xxx
------------------------------
Name: Xxxxx Xxx
Title: Secretary
RH MORTUARY CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxx Xxx
------------------------------
Name: Xxxxx Xxx
Title: Secretary
ROSES, INC., a California corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
THE STOCKHOLDERS OF ROSES, INC.
Cinco Pinos Unitrust
Rose and Elephant Unitrust
JANSU Unitrust
Xxxxx Charitable Remainder Unitrust #1
Xxxxx Charitable Remainder Unitrust #2
Xxxxx Charitable Remainder Unitrust #3
Xxxxx Charitable Remainder Unitrust for
"'Lil Dirk"
Xxxxx X. Xxxxx Charitable Remainder
Unitrust for "T"
Xxxxx X. Xxxxx Charitable Remainder
Unitrust for "Kids"
KAN Family Partnership Unitrust
Xxxxxx X. Xxxxxxxxx Unitrust
Xxxxxxx X. Xxxxxxxxx Unitrust
K/A Xxxxxxxxx Charitable Reminder
Unitrust
Ponderay Partners Unitrust
By: U.S. TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee for each of the
above-referenced trusts:
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
Xxxxxx X. and Xxxxxxx X. Xxxxxxx Living
Trust V/D/T
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
By: / /Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
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Xxxxx X. Xxxxx Family Trust V/D/T
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
BT Capital Partners, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Director
