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AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment") is made
and entered into as of May 1, 1999, by and among D'ARTAGNAN ASSOCIATES, INC., a
Delaware corporation ("APG Sub"), AUTOMOTIVE PERFORMANCE GROUP, INC., a Delaware
corporation ("APG"), D'ARTAGNAN ASSOCIATES, INC., a California corporation
("D'Artagnan") and the shareholders of D'Artagnan (individually, a "Shareholder"
and collectively, the "Shareholders").
WITNESSETH
WHEREAS, pursuant to that certain Agreement and Plan of Merger entered
into as of May 1, 1999 (the "Agreement"), D'Artagnan merged with and into APG
Sub, a wholly-owned subsidiary of APG;
WHEREAS, the respective boards of directors of APG, APG Sub and
D'Artagnan have determined that the amendment of certain provisions of the
Agreement, in order to more properly reflect the intentions of the parties and
upon the terms and subject to the conditions set forth in this Amendment, is
advisable, and have approved said amendments in accordance with the terms and
conditions set forth herein; and
WHEREAS, APG, D'Artagnan and the Shareholders desire to amend the
Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
A. Section 3.1 of the Agreement is hereby deleted in its entirety and the
following is hereby inserted in its place and stead:
3.1 Merger Consideration. On the Effective Date, by virtue of the
Merger and subject to the conditions set forth in Article VIII hereof:
(a) The record shareholders of each of the outstanding shares
of D'Artagnan Common Stock shall become entitled to receive ten thousand
(10,000) shares of APG Common Stock, representing in the aggregate 1,000,000
shares of APG Common Stock.
(b) The record shareholders of each of the outstanding shares
of D'Artagnan Common Stock shall also become entitled to receive an additional
ten thousand (10,000) shares of APG Common Stock, representing in the aggregate
an additional 1,000,000 shares of APG Common Stock ("Contingent Stock"), subject
to the following conditions:
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(i) A total of 250,000 shares of the Contingent Stock
(2,500 shares of APG Common Stock for each share of D'Artagnan Common Stock)
will become available for release to the Shareholders on each of August 1, 2000,
August 1, 2001, August 1, 2002 and August 1, 2003 (each a "Release Date" and
collectively the "Release Timetable").
(ii) Subject to the Release Timetable, the Contingent
Stock will be released to the Shareholders only if on any date after the date of
this Agreement, the closing price of APG Common Stock, as quoted on any
generally recognized exchange or quotation system that lists the APG Common
Stock, is at least $2.40 per share (the "Trigger Price"). If the Trigger Price
is attained on any date after any Release Date(s), then any shares subject to
such prior Release Date(s) shall be released to the Shareholders on the date the
Trigger Price is attained. Any shares subject to release on any Release Date(s)
after the date the Trigger Price is attained shall be released to the
Shareholders on such subsequent Release Date(s).
(iii) Notwithstanding the foregoing provisions of
this Section 3.1(b), in the event of a sale or other disposition (whether by
merger, reorganization, liquidation or otherwise) of substantially all of the
stock or assets of APG ("Capital Event"), all Contingent Stock shall be released
to the Shareholders immediately prior to the Capital Event.
(iv) Upon the satisfaction of any of the conditions
set forth in this Section 3.1(b), APG shall issue to the Shareholders, pro-rata
in accordance with their respective ownership of D'Artagnan Common Stock,
certificates evidencing the Contingent Stock so released.
(v) Notwithstanding any provisions of this Section
3.1(b) to the contrary, the Shareholders' rights with respect to the Contingent
Stock at all times after the date of this Agreement shall include, without
limitation, the right to vote the Contingent Stock and all dividend rights with
respect to the Contingent Stock, as if the Contingent Stock were fully released
and issued to the Shareholders pro-rata in accordance with their respective
ownership of D'Artagnan Common Stock. If APG pays any dividends with respect to
APG Common Stock prior to the actual release and issuance of all of the
Contingent Stock to the Shareholders, then APG shall deposit the Shareholders'
proportionate entitlement to such dividends with respect to any unreleased
Contingent Stock in a separate bank for the benefit of the Shareholders. Any
such dividends shall thereafter be released to the Shareholders in accordance
with the release of such unreleased Contingent Stock under the foregoing
provisions of this Section 3.1(b).
(c) Each share (if any) of D'Artagnan Common Stock then held
in the treasury of D'Artagnan shall be cancelled, and no payment shall be paid
nor other consideration received with respect thereto.
(d) Each share of APG Common Stock and each share of the
common stock of APG Sub issued and outstanding on the Effective Date shall
remain issued and outstanding.
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B. Except as amended hereby, all other provisions of the Agreement are ratified
and confirmed.
C. This Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, APG, D'Artagnan and the Shareholders have caused
this Amendment to be executed as of the date first written above by their
respective officers and representatives thereunto duly authorized.
AUTOMOTIVE PERFORMANCE GROUP, INC.
By: /s/ Xxxx Xxxxxx
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Its: Secretary
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ATTEST:
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D'ARTAGNAN ASSOCIATES, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
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ATTEST: Its: Secretary
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D'ARTAGNAN ASSOCIATES, INC.,
a California corporation
By:
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Xxxx X. Xxxxxxx
ATTEST: Its: President
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Xxxxxxx X. Xxxxxxx, Secretary
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XXXX X. XXXXXXX
XXXXXXX CHILDREN'S TRUST
By:
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Xxxx X. Xxxxxxx, Co-Trustee
By:
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Xxxxxxx X. Xxxxxxx, Co-Trustee
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