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EXHIBIT 99(c)(11)
AMENDMENT
TO THE
AGREEMENT AND PLAN OF MERGER
AMENDMENT dated as of January 27, 1997, to the Agreement and Plan of
Merger, dated as of December 17, 1996 (the "Agreement"), by and among PCA
International, Inc., a North Carolina corporation ("Parent"), ASI Acquisition
Corp., a North Carolina corporation and a wholly owned subsidiary of Parent (the
"Purchaser") and American Studios, Inc., a North Carolina (the "Company").
WHEREAS, Parent, the Purchaser and the Company desire to amend Section 1.4
and Section 2.5(a) of the Agreement, all on the and terms and conditions
hereinafter set forth; and
WHEREAS, all capitalized terms used herein without definition shall have
their respective meanings in the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 1.4 of the Agreement is hereby amended to read in its entirety
as follows:
Section 1.4 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.5 hereof), the Company
and the Purchaser shall consummate a merger (the "Merger") pursuant to which (a)
the Company shall be merged with and into the Purchaser and the separate
corporate existence of the Company shall thereupon cease, (b) the Purchaser
shall be the successor or surviving corporation in the Merger (sometimes
hereinafter referred to as the "Surviving Corporation")
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and shall continue to be governed by the laws of the State of North Carolina,
and (c) the separate corporate existence of the Purchaser with all its rights,
privileges, immunities, powers and franchises shall continue unaffected by the
Merger, except as set forth in this Section 1.4. Pursuant to the Merger, (x) the
Articles of Incorporation of the Purchaser, as in effect immediately prior to
the Effective Time, shall be the articles of incorporation of the Surviving
Corporation until thereafter amended as provided by law and such Articles of
Incorporation, and (y) the Bylaws, as in effect immediately prior to the
Effective Time, shall be the bylaws of the Surviving Corporation until
thereafter amended as provided by law, such Articles of Incorporation and such
Bylaws. The Merger shall have the effects specified in the NCBCA.
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2. Section 2.5(a) of the Agreement is hereby amended to read in its
entirety as follows:
Section 2.5 Company Plans.
(a) The Company shall, effective as of the earlier of (i) the
Effective Time or (ii) the day immediately following the expiration date of
the Offer (if at such time the Shares tendered and not withdrawn pursuant
to the Offer equal 80% or more) (such earlier date referred to herein as
the "Acceleration Time"), cause each outstanding employee stock option to
purchase Shares (an "Employee Option") granted under the Company's 1992
Stock Option Plan and the Company's Equity Compensation Plan (the "Employee
Option Plans") and each outstanding non-employee director option to
purchase Shares ("Director Options" and, collectively with Employee
Options, "Options") granted under the Company's Stock Option Plan for
Non-Employee Directors (together with the Employee Option Plans, the
"Option Plans"), to optionees who hold (A) only Options having an exercise
price less than the Offer Price or (B) Options having an exercise price
less than the Offer Price and Options having an exercise price equal to or
in excess of the Offer Price, whether or not then exercisable or vested, to
become fully exercisable and vested.
(b) The Company shall, effective as of the Effective Time, cause each
outstanding Option, held by optionees who hold only Options having an
exercise price equal to or in excess of the Offer Price ("Specified
Options"), whether or not then exercisable or vested, to become fully
exercisable and vested.
(c) Concurrently with the execution hereof, the Company has evidenced
to the Purchaser the agreement of each optionee under the Option Plans to
the cancellation of all outstanding Options as of the Acceleration Time
(or, in the case of Specified Options at the Effective
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Time), in consideration for which (except to the extent that Parent or the
Purchaser and the holder of any such Option otherwise agree), at the
Acceleration Time, Parent will cause the Company (or, at Parent's option,
the Purchaser and, in the event the Company is unable to do so, the
Purchaser (which obligation of the Purchaser Parent agrees to fund on a
timely basis)) to pay to such holders of Options an amount in respect
thereof equal to the product of (A) the excess, if any, of the Offer Price
over the exercise price of each such Option and (B) the number of Shares
previously subject to the Option immediately prior to its cancellation
(such payment to be net of withholding taxes). The Company shall at the
Effective Time cancel any Specified Options and pay to the holders of such
Specified Options an amount not in excess of $100 per optionee.
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3. The Agreement, as amended hereby, is in all respects ratified and
confirmed, and shall continue to be in full force and effect.
4. This Amendment shall be governed by and construed in accordance
with the laws of the State of North Carolina without giving effect to the
principles of conflicts of law thereof.
5. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Company have caused
this Amendment to be signed by their representative officers thereunto duly
authorized as of the date first written above.
PCA INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
ASI ACQUISITION CORP.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
AMERICAN STUDIOS, INC.
By: /s/ J. Xxxxxx Xxxx, Xx.
Name: J. Xxxxxx Xxxx, Xx.
Title: CEO and President