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AMENDMENT TO
RESTATED AGREEMENT AND PLAN OF MERGER
AGREEMENT made effective as of February 14, 1997, by and between THL
Transaction I Corp. ("THL I") and Syratech Corporation (the "Company").
WHEREAS, the undersigned entered into the Restated Agreement and Plan of
Merger dated November 27, 1996, effective as of October 23, 1996 (the
"Agreement");
WHEREAS, on December 31, 1996 the Company, THL I and Xxxxxxx Xxxxxxxx
entered into separate agreements with each of Xxxx Xxxxxx, Xxxxxx X. Xxxxxx and
E. Xxxxx Xxxxxxxx (each an "Executive Party") pursuant to which (i) Xx. Xxxxxxxx
agreed to contribute to the Company (a) on December 31, 1996, 31,812 shares of
Syratech Common Stock, (b) on January 14, 1997, 31,884 shares of Syratech Common
Stock and (c) on January 14, 1998, the largest number of whole shares of
Syratech Common Stock as shall have an aggregate value of approximately $99,991
and (ii) on each of the dates of contribution of such shares of Syratech Common
Stock by Xx. Xxxxxxxx to the Company, such shares were to be canceled and the
Company was to issue to each Executive Party, as compensation, that number of
shares of Syratech Common Stock that would be equal to the Executive Party's pro
rata share of the number of shares of Syratech Common Stock contributed to the
Company on such date by Xx. Xxxxxxxx;
WHEREAS, Section 2.1(c)(ii) of the Agreement provides that Xx. Xxxxxxxx
shall be entitled to retain 714,400 shares of fully paid and nonassessable
shares of Syratech Common Stock following the Merger;
WHEREAS, Section 7.2(e) of the Agreement provides that the Company shall
enter into financing arrangements at the Closing pursuant to commitment letters
attached thereto as Schedule 7.2(e), or such other financing arrangements as the
Company and THL I agree, which arrangements are not materially more onerous; and
WHEREAS, Section 8.3 of the Agreement provides that the Agreement may be
amended by the parties at any time before any required approval of matters
presented in connection with the merger by the stockholders of the Company by an
instrument in writing signed on behalf of each of the parties.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises contained herein, and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the undersigned hereby agree as
follows:
1. Section 2.1(a) shall be deleted in its entirety and shall be replaced
by the following:
"(a) Capital Stock of THL I. The shares of Common Stock of THL I
issued and outstanding immediately prior to the Effective Time shall be
converted into such aggregate number of shares of Company Common Stock as
equals 3,131,780 less the aggregate number of shares of Company Common
Stock (not to exceed 781,250) retained by existing stockholders of the
Company (other than Management Stockholders) pursuant to Section 2.1(c)(ii)
and Section 2.2 and 2.3. The shares of Preferred Stock of THL I issued and
outstanding immediately prior to the Effective Time shall be converted into
the same number of shares of Series A Preferred Stock of the Company.
2. Section 2.1(c)(ii) shall be deleted in its entirety and shall be
replaced by the following:
"(ii) (x) for 528,472 shares of Company Common Stock held by Xx.
Xxxxxxx Xxxxxxxx, be entitled to retain the same number of fully paid and
nonassessable shares of Company Common Stock ("Xxxxxxxx Rollover Shares"),
for 35,232 shares of Company Common Stock held by Xx. Xxxxxxxx, such 35,232
shares be contributed to the capital of the Company simultaneously with the
Merger, and for each other share of Company Common Stock held by Xx.
Xxxxxxxx, the right to receive in cash from the Company following the
Merger, $28.00 per share and (y) for an aggregate of 123,766 shares of
Company Common Stock held by other members of Management (a "member of
Management" shall be any person who is listed as an executive officer of
the Company in the Company's 1996 Proxy Statement) of the Company as set
forth in Schedule 2.1 hereto, be entitled to retain the same number of
fully paid and nonassessable
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shares of Company Common Stock (such 123,766 shares of Company Common Stock
to be retained by members of Management are referred to herein as the
"Management Rollover Shares"); and"
3. Section 2.2(a) shall be deleted in its entirety and shall be replaced
by the following:
"2.2 Company Common Stock Elections. (a) Each person who, on or
prior to the Election Date referred to in Section 2.2(c) below, is a record
holder of shares of Company Common Stock will be entitled, with respect to
up to 35% of such holder's shares, to make an unconditional election (a
"Non-Cash Election") on or prior to such Election Date to retain Non-Cash
Election Shares, on the basis hereinafter set forth."
4. Section 2.3 shall be deleted in its entirety and shall be replaced by
the following:
"2.3 Proration.
(a) Notwithstanding anything in this Agreement to the contrary, the
aggregate number of shares of Company Common Stock (other than Xxxxxxxx Rollover
Shares and Management Rollover Shares) which shall be entitled to retain Company
Common Stock at the Effective Time of the Merger shall not exceed 868,250.
(b) If the number of Electing Shares exceeds 868,250, then each Electing
Share shall be entitled to retain Non-Cash Election Shares or shall be converted
into the right to receive cash in accordance with the terms of Section 2.1(e) in
the following manner:
(i) A proration factor (the "Non-Cash Proration Factor") shall be
determined by dividing 868,250 by the total number of Electing Shares.
(ii) The number of Electing Shares covered by each Non-Cash Election
which are entitled to retain Non-Cash Election Shares shall be determined
by multiplying the Non-Cash Proration Factor by the total number of
Electing Shares covered by such Non-Cash Election, rounded down to the
nearest whole number.
(iii) All Electing Shares, other than those shares which are entitled
to retain Non-Cash Election Shares in accordance with Section 2.3(b)(ii),
shall be converted into cash (on a consistent basis among shareholders who
made the election referred to in Section 2.1(c)(i), pro rata to the number
of shares as to which they made such election) as if such shares were not
Electing Shares in accordance with the terms of Section 2.1(c)(iii).
(c) If the number of Electing Shares is less than 868,250 then all Electing
Shares shall be entitled to retain Company Common Stock in accordance with the
terms of Section 2.1(c)(i)."
5. Section 6.3(f)(ii) shall be deleted in its entirety and shall be
replaced with the following:
"(ii) Subject to the Company having received the proceeds of the
financing described in Section 7.2(e) on terms satisfactory to THL I, THL I
at closing will be capitalized with an equity contribution of (a) up to
$18,000,000 of preferred stock and (b) $100,216,960 of common stock, less
the product of (x) $32.00 and (y) the aggregate number of shares retained
by stockholders (not to exceed 781,250) other than Management
Stockholders). THL I will be under no obligation pursuant to the preceding
sentence unless and until the Company receives the proceeds of the
financing described in Section 7.2(e), or such other financings as may be
contemplated by Section 7.2(e), on terms consistent with the commitment
letters referenced in Section 7.2(e). In addition, THL I will be under no
obligation under any circumstances to be capitalized with equity of more
than $18,000,000 preferred stock and $100,216,960 common stock. In no event
shall it be required that THL I be capitalized with such amounts of equity
prior to the Closing."
6. Attached hereto as Schedule 7.2(e) are commitment letters to provide
financing for the Merger (the "Commitment Letters"), which the parties agree are
not materially more onerous than those attached as Schedule 7.2(e) to the
Agreement. The Commitment Letters replace any and all commitment letters to
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provide financing for the Merger attached as Schedule 7.2(e) to the Agreement.
The Company hereby agrees that, upon consummation of the Merger, it shall assume
any and all obligations of THL I pursuant to the terms of the Commitment
Letters.
7. Exhibit A to the Agreement shall be deleted in its entirety and shall
be replaced by Exhibit A attached hereto.
8. Except as expressly set forth above, the parties ratify and confirm all
other terms of the Agreement, which remain in full force and effect as of the
date hereof.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties below have caused this Agreement to be duly
executed by persons duly authorized, all as of the date first written above.
THL TRANSACTION I CORP.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: President
SYRATECH CORPORATION
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Vice President and General
Counsel
EXECUTED BY THE UNDERSIGNED
SOLELY FOR THE PURPOSES OF REAFFIRMING HIS OBLIGATION UNDER
SECTION 2.1(c)(ii) OF THE AGREEMENT
/s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx
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SCHEDULE 2.1
MANAGEMENT ROLLOVER SHARES
Xx. Xxxx Xxxxxx.............................. 48,232 shares
Xx. Xxxxxx Xxxxxx............................ 41,132 shares
Mr. E. Xxxxx Xxxxxxxx........................ 30,875 shares
Xx. Xxxx X. Xxxxxxxx......................... 3,527 shares
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TOTAL:............................. 123,766 shares
