AMENDMENT NO. 5 TO AGREEMENT AND
PLAN OF MERGER
AMENDMENT NO. 5,
dated as of January 16, 2007 (this “ Fifth
Amendment ”), to the Agreement and Plan of Merger, dated
as of October 19, 2006, by and among APN Holding Company,
Inc., a Delaware corporation (“ Parent ”), APN
Mergersub, Inc., a Florida corporation and a wholly owned direct
subsidiary of Parent (“ MergerSub ”), and
Applica Incorporated, a Florida corporation (the “
Company ”), as amended by Amendment No. 1, dated
December 14, 2006, by Amendment No. 2, dated
December 22, 2006, by Amendment No. 3, dated
December 27, 2006, and by Amendment No. 4, dated
January 3, 2007 (as amended, the “ Merger
Agreement ”). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Merger
Agreement.
WHEREAS, pursuant
to, and subject to the limitations set forth in, Section 9.2
of the Merger Agreement, the Merger Agreement may be amended,
modified, or supplemented only by the written agreement of the
parties thereto;
WHEREAS, Parent
and MergerSub have conditioned their willingness to increase the
Merger Consideration on an increase in the Apple Termination Fee,
and in order to induce Parent and MergerSub to increase the Merger
Consideration and in consideration therefor, the Company has agreed
to increase the Apple Termination Fee; and
WHEREAS, the
parties hereto wish to amend the Merger Agreement as set forth
below.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein, the receipt and adequacy of which are hereby acknowledged,
the parties hereby agree as follows:
(a)
Merger Consideration . Section 3.1(a) of the Merger
Agreement is hereby amended by deleting the word
“$7.75” in both instances and replacing each with the
word “$8.25”.
(b)
Apple Termination Fee . Section 8.3(a) of the Merger
Agreement is hereby amended by (i) deleting the words
“$4.0 million” and replacing them with the words
“$7.0 million” and (ii) deleting the words
“$2.0 million” and replacing them w
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