AMENDMENT NO. 1
AMENDMENT
NO. 1
This
Amendment No. 1, dated December 5, 2005 (this "Amendment"), amends the Agreement
and Plan of Merger, (the "Agreement"), dated as of August 22, 2005, by and
among
REFAC, a Delaware corporation (“Parent”), USV Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger Sub”), U.S. Vision,
Inc., a Delaware corporation (the “Company”), Palisade Concentrated Equity
Partnership, L.P., a Delaware limited partnership, Xxxxxxx X. Xxxxxxxx, Xx.,
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, III, Pinnacle Advisors
Limited, a New York corporation, WRS Advisors III, LLC, a New York limited
liability company, and Xxxx Xxxxxxxxx. Capitalized terms used but not defined
herein shall have the meanings set forth in the Agreement
WHEREAS,
Parent, Merger Sub, the Company and the Stockholders entered into the
Agreement;
WHEREAS,
pursuant to Section 9.03 of the Agreement,
the
Agreement
may be
amended by an instrument in writing signed on behalf of Parent, Merger Sub
and
the Company;
WHEREAS,
the parties desire to amend the Agreement
on the
terms hereinafter set forth.
NOW,
THEREFORE, Parent, Merger Sub and the Company, intending to be legally bound,
hereby agree to the following amendment to the Agreement:
1. Amendment
to Section 9.01(b)(i).
Section
9.01(b)(i) is hereby amended and restated in its entirety as follows:
"
if the
Merger is not consummated on or before April 30, 2006; provided that the right
to terminate this Agreement under this Section 9.01(b) shall not be available
to
any party whose failure to fulfill any obligation under this Agreement has
been
the cause of, or results in, the failure of the Merger to occur on or before
such date;"
2. Limited
Effect.
Except
as expressly specified herein, the terms and provisions of the Agreement shall
continue and remain in full force and effect and shall remain the valid and
binding obligation of the parties thereto in accordance with its terms.
3. Counterparts.
This
Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to
the
other parties.
4. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to the principles of conflicts of laws
thereof.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have duly executed this
Amendment, all as of the date first written above.
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By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Chief Executive Officer
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USV
MERGER SUB, INC.
By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
President
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U.S.
VISION, INC.
By:
/s/
Xxxxxx X. Xxxx, III
Name:
Xxxxxx X. Xxxx, III
Title:
Chief Financial Officer
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