ICI FORM OF AMENDMENT
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Amendment No. 1 ("Amendment No. 1") dated as of
May 21, 1995, amending the Agreement and Plan of Merger,
dated as of April 30, 1995 ("Agreement"), among Grow
Group, Inc., a New York corporation (the "Company"),
Imperial Chemical Industries PLC, a corporation organized
under the laws of England ("Buyer"), and GDEN
Corporation, a New York corporation and an indirect
wholly owned subsidiary of Buyer ("Merger Subsidiary").
WHEREAS, the parties hereto desire to amend the
Agreement in certain respects in accordance with Section
11.03 of the Agreement;
NOW, THEREFORE, in consideration of the mutual
agreements herein contained and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein
and not otherwise defined herein shall have the meaning
provided therefor in the Agreement.
2. Amendments to Agreement. The Agreement is
hereby amended as set forth in this Section 2:
(i) Section 1.01 of the Agreement is
amended to add the following new paragraphs (c) and (d):
(c) Pursuant to an offer to
purchase, dated May 4, 1995 (the "Offer to
Purchase"), Merger Subsidiary has offered
to purchase all of the outstanding Shares
at a price of $18.10 per Share, net to the
seller in cash (the "Offer"). On or prior
to the close of business on May 23, 1995,
Buyer shall cause Merger Subsidiary to
amend and supplement the Offer to Purchase
to (i) increase the price being offered
pursuant to the Offer from $18.10 to
$22.00 per Share (the "New Offer Price"),
net to the seller in cash, subject to any
amounts required to be withheld under
applicable federal, state, local, or
foreign income tax regulations, and (ii)
extend the expiration date of the Offer to
the date which is ten (10) business days
subsequent to the date that such amendment
and supplement to the Offer to Purchase is
first filed with the SEC (the "Expiration
Date"); provided, however, that if the
Minimum Condition has not been satisfied
by the Expiration Date, Buyer and Merger
Subsidiary agree to extend the Expiration
Date for one or more periods for up to an
aggregate of 30 calendar days until the
Minimum Condition is satisfied. The Offer
as amended pursuant to the provisions
hereof is herein referred to as the
"Amended Offer" and unless the context
otherwise requires, all references in the
Agreement to the "Offer" shall mean the
"Amended Offer" and all references in the
Agreement to the "Offer Price" shall mean
the "New Offer Price".
(d) On the date the Offer is
amended, Buyer and Merger Subsidiary shall
file (i) with the SEC an amendment to the
Tender Offer Statement on Schedule 14D-1
filed on May 4, 1995 (such Schedule 14D-1
together with all other amendments and
supplements thereto, the "Schedule 14D-
1"), which shall include as exhibits a
supplement to the Offer to Purchase (the
"Supplement") and a revised letter of
transmittal which provides for the Amended
Offer; and (ii) with the Attorney General
of the State of New York, an Amendment
with respect to the Registration Statement
filed on May 4, 1995 in accordance with
the Security Takeover Disclosure Act.
Buyer and the Company each agrees promptly
to correct any information provided by it
for use in the Offer Documents if and to
the extent that it shall have become false
or misleading in any material respect.
Buyer agrees to take all steps necessary
to cause the Offer Documents as so
corrected to be filed with the SEC and
with the Attorney General of the State of
New York and to be disseminated to holders
of the Shares, in each case as and to the
extent required by applicable federal and
state laws. The Company and its counsel
shall be given a reasonable opportunity to
review and comment on the amended Offer
Documents, including the Supplement, prior
to their being filed with the applicable
authorities.
(ii) Section 1.02 of the Agreement is
amended to add the following new paragraphs (d) and (e):
(d) The Company hereby consents
to the Amended Offer and represents that
its Board of Directors at a meeting duly
called and held on May 21, 1995, (i) has
determined that the Amended Offer is fair
to, and in the best interests of, the
stockholders of the Company; (ii) has
approved this Amendment No. 1 and the
Amended Offer; and (iii) has resolved to
recommend approval and adoption of this
Amendment No. 1 and acceptance of the
Amended Offer by the Company's
stockholders; provided that such
recommendation may be withdrawn, modified
or amended if, in the opinion of the Board
of Directors, after consultation with
independent legal counsel, such
recommendation would be inconsistent with
its fiduciary duties to the Company's
stockholders under applicable law. The
Supplement may contain reference to the
recommendation of the Board of Directors
that the Company's stockholders accept the
Amended Offer. The Company shall promptly
file with the SEC and mail to the holders
of Shares an amendment to the
Solicitation/Recommendation Statement on
Schedule 14D-9 previously filed on behalf
of the Company with the SEC (the "Schedule
14D-9 Amendment"), which amendment shall
reflect such recommendation of the Board
of Directors.
(e) The Company agrees promptly
to correct any information in the Schedule
14D-9 Amendment which shall have become
false or misleading in any material
respect and take all steps necessary to
cause the Schedule 14D-9 Amendment as so
corrected to be filed with the SEC and
disseminated to holders of Shares, as and
to the extent required by applicable law.
Buyer and its counsel shall be given a
reasonable opportunity to review and
comment on the Schedule 14D-9 Amendment
prior to its being filed with the
applicable authorities.
(iii) Section 2.05(a), clause (i) of the
Agreement is hereby amended to read in its entirety as
follows:
(i) the excess, if any, of the Merger
Consideration over the applicable exercise
price of such Option by
(iv) Section 11.04 of the Agreement is
hereby amended to add the following new paragraph (c) at
the end of Section 11.04:
(c) The Company agrees to pay
Buyer in respect of Buyer's expenses and
lost opportunity costs an amount in
immediately available funds equal to
$16,000,000 promptly, but in no event
later than two business days, after the
occurrence of the events specified below
in both clauses (A) and (B):
(A) A Trigger Event within the
meaning of and as specified in Section
11.04(b) of this Agreement shall have
occurred at any time from or after the
date hereof and, as a result thereof, this
Agreement is terminated, and (B) within
six months after such termination of this
Agreement has occurred, an Acquisition
Transaction shall have been consummated
with any Person (as defined in Sections
3(a)(9) and 13(d)(3) of the Exchange Act)
other than Buyer or a subsidiary or other
Affiliate (as defined in Rule 12b-2 under
the Exchange Act) of Buyer.
For purposes of this Section,
"Acquisition Transaction" shall mean (i) a
merger or consolidation, or any similar
business combination transaction,
involving the Company; (ii) a purchase,
lease or acquisition of all or
substantially all of the assets of the
Company and its subsidiaries taken as a
whole; or (iii) the purchase or
acquisition by any Person of securities
representing more than 50% of the then
outstanding Shares.
4. Miscellaneous. Except as expressly amended
hereby, the terms and conditions of the Agreement shall
continue in full force and effect. This Amendment No. 1
is limited precisely as written and shall not be deemed
to be an amendment to any other term or condition of the
Agreement or any of the documents referred to therein.
Wherever "Agreement" is referred to in the Agreement or
in any other agreements, documents and instruments, such
reference shall be to the Agreement as amended hereby.
4. Counterparts. This Amendment No. 1 may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original but
all of which taken together shall constitute one and the
same agreement.
5. Governing Law. This Amendment No. 1 shall
be governed by and construed in accordance with the laws
of the State of New York without giving effect to the
provisions thereof relating to conflicts of law.
IN WITNESS WHEREOF, this Amendment No. 1 has
been duly executed and delivered by the Company, Buyer
and Merger Subsidiary on the date first above written.
GROW GROUP, INC.
By:/s/ R. Banks
Name: Russell Banks
Title: President & CEO
IMPERIAL CHEMICAL INDUSTRIES PLC
By:/s/ John Thompson
Name: John Thompson
Title: Attorney-in-Fact
GDEN CORPORATION
By:/s/ John Thompson
Name: John Thompson
Title: President