Exhibit 2.2
AMENDMENT NO. 1
TO THE
XXXXXXXXX XXXXXX INC.
PLAN OF MERGER AND EXCHANGE AGREEMENT
AMENDMENT NO. 1, dated as of September 30, 1999 (this
"AMENDMENT"), to the Plan of Merger and Exchange Agreement, dated as of August
2, 1999 (the "MERGER AND EXCHANGE AGREEMENT"), by and among (i) Xxxxxxxxx Xxxxxx
Inc., a Delaware corporation (the "COMPANY"); (ii) Xxxxxxxxx Xxxxxx Sub Inc., a
New York corporation ("MERGER SUB"); (iii) Xxxxxxxxx Xxxxxx Management Inc., a
New York corporation ("NBMI"); (iv) Xxxxxxxxx Xxxxxx, LLC, a Delaware limited
liability company ("NB LLC"); (v) the Principals; and (vi) the Family
Affiliates. Capitalized terms used herein without definition shall have the
meanings assigned thereto in the Merger and Exchange Agreement.
W I T N E S S E T H :
WHEREAS, the parties listed in the Preamble have entered into
the Merger and Exchange Agreement; and
WHEREAS, the parties thereto desire to amend the Merger and
Exchange Agreement in order to increase the total number of shares of the
Company to be distributed to all of the Principals and Family Affiliates without
altering the relative amount of shares to be distributed to each Principal and
Family Affiliate;
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth and as set forth in the Merger and Exchange
Agreement, the parties hereto hereby agree as follows:
1. AMENDMENT. (a) Section 1.4(c) is hereby amended by
replacing the number 8,270,281 with the number 8,314,507.
(b) Section 2.1(c) is hereby amended by replacing the number
34,229,719 with the number 34,412,766.
2. EFFECTIVENESS OF AMENDMENT. The provisions of this
Amendment will become effective when signed by the Company, Merger Sub, NBMI and
Founder Stockholders that, pursuant to the Merger and Exchange Agreement, will
receive more than 50% of the Founder Shares.
3. CONFIRMATION OF MERGER AND EXCHANGE AGREEMENT. Except as
set forth in this Amendment, the terms, conditions and agreements set forth in
the Merger and Exchange Agreement are hereby ratified and confirmed and shall
continue in full force and effect.
4. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original and which together
shall constitute one and the same agreement.
IN WITNESS THEREOF, the parties have executed and delivered
this Amendment as of the date first written above.
XXXXXXXXX XXXXXX INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President, Chief Executive Officer
XXXXXXXXX XXXXXX SUB INC.
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President
XXXXXXXXX XXXXXX MANAGEMENT
INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
XXXXXXXXX XXXXXX, LLC
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Managing Principal and
Chief Executive Officer
The foregoing Amendment
is hereby agreed to by the undersigned
as of September 30, 1999.
/s/Xxxxxxx X. Xxxxxxxx
/s/Xxxxxx X. Xxxxx
/s/Xxxx X. Xxxxxx
/s/Xxxxxx X. Xxxxxx
/s/Xxxxxxx Xxxxxx
/s/Xxxxxxx X. Xxxxxx
/s/Xxxxxxx Xxxxxxx
/s/Xxxxxxxx X. Xxxx
/s/Xxxxxx X. D'Alelio
/s/Xxxxxxxxx X'Xxxx
/s/Xxxxxxx Xxxxxx
/s/Xxxxxxx X. Xxxxxxxx
/s/Xxxxxx X. English
/s/Xxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxxxxx
/s/Xxxxxx X. Xxxxx
/s/Xxxxxx X. Xxxxxxxxx
/s/Xxxxxxxx X. Xxxxxxxx
/s/Xxxx X. Xxxxxxxxx
/s/Xxx X. Xxxxxxx
/s/Xxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxx
/s/Xxxxxxx X. Xxxxx
/s/Xxxxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxxx
/s/Xxx X. Xxxxxxxxxxxx
/s/Xxxxx Xxxxxxx
/s/Xxxxxxx X. Xxxx
/s/Xxxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxx
/s/Xxxxxxxxxxx X. Xxxxxxxx
/s/Xxxxxxxx Xxxx III
/s/Xxxxxx Xxxxx
/s/Xxxxxx X. XxXxxxxx
/s/Xxxxxx XxXxxxxx
/s/Xxxxxx X. Xxxxxxxxx
/s/Xxxx X. Xxxxxx
/s/Xxx X. Xxxxxxxxx
/s/Xxxxxx X. Xxxxxx
/s/Xxxxxx X. Xxxxxxx
/s/Xxxxxx X. Xxxxxx
/s/Xxxxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxxx
/s/C. Xxxx Xxxxxxxx
/s/Xxxxx X. Risen
/s/Xxxxxx X. Xxxxxxxxxx
/s/J. Xxxx Xxxxxxxxxxxxx, Xx.
/s/Xxxxxx X. Xxxxxxxx
/s/Xxxxxxxx X. Silver
/s/Xxxx X. Xxxxxx
/s/R. Xxxxxx Xxxxxx
/s/Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
/s/Xxxxxxx X. Xxxxx
/s/Xxxx Xxxxx
/s/Xxxxxxx X. Xxxxxx
/s/Xxxxxxxxx X. Xxxxxxx
/s/Xxxxxx X. Xxxxxx
/s/Xxxxx Xxxxxxx
/s/Xxxxx X. Xxxxxxx
/s/Xxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxxxx, Xx.
/s/Xxxxxx X. Xxxx
/s/Xxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxx
/s/Xxxxxxxx Xxxxxxxx
/s/Xxxxxx X. Xxxxxxxxx
/s/Xxxxx X. Xxxxx, III
/s/Xxxxxxxx Xxxxxxx
XXXXXXX X. XXXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx X. Xxxxxxxx Associates, Inc.,
its general partner
By: /s/Xxxxxxx X. Xxxxxxxx
President
XXXXX ASSOCIATES, L.P.
By: Xxxxx Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxx
President
BERLIN ASSOCIATES, L.P.
By: Berlin Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxxx
President
XXXXXX ASSOCIATES, L.P.
By: Xxxxxx Associates, Inc., its general partner
By: /s/Xxxxxxx Xxxxxx
President
CANTOR ASSOCIATES, L.P.
By: Cantor Associates, Inc., its general partner
By: /s/Xxxxxxx X. Xxxxxx
President
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its general partner
By: /s/Xxxxxxx Xxxxxxx
President
EGENER ASSOCIATES, L.P.
By: Egener Associates, Inc., its general partner
By: /s/Xxxxxxx Xxxxxx
President
FRANCFORT 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/Xxxxxxx Francort
Trustee
/s/Xxxxxxxx Xxxxxxxxx
Trustee
GANEK ASSOCIATES, L.P.
By: Ganek Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxx
President
GIULIANO ASSOCIATES, L.P.
By: Giuliano Associates, Inc., its general partner
By: /s/Xxxxxxxx Xxxxxxxx
President
XXXXXXXXX ASSOCIATES, L.P.
By: Xxxxxxxxx Associates, Inc., its general partner
By: /s/Xxxx X. Xxxxxxxxx
President
KAMEN ASSOCIATES, L.P.
By: Kamen Associates, Inc., its general partner
By: /s/Xxxxxxx X. Xxxxx
President
XXXXXX ASSOCIATES, L.P.
By: Xxxxxx Associates, Inc., its general partner
By: /s/Xxxxxxx X. Xxxxxx
President
XXXXXXXXXXXX ASSOCIATES, L.P.
By: Xxxxxxxxxxxx Associates, Inc., its general partner
By: /s/Xxx X. Xxxxxxxxxxxx
President
LAINOFF ASSOCIATES, L.P.
By: Lainoff Associates, Inc., its general partner
By: /s/Xxxxx Xxxxxxx
President
LASSER ASSOCIATES, L.P.
By: Lasser Associates, Inc., its general partner
By: /s/Xxxxxx Xxxxxx
President
XXXXXXXX XXXX III ASSOCIATES, L.P.
By: Xxxxxxxx Xxxx III Associates, Inc.,
its general partner
By: /s/Xxxxxxxx Xxxx III
President
McKERROW ASSOCIATES, L.P.
By: McKerrow Associates, Inc., its general partner
By: /s/Xxxxxx XxXxxxxx
President
XXXXXXXXX ASSOCIATES, L.P.
By: Xxxxxxxxx Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxxxxxx
President
NEUBERGER ASSOCIATES, L.P.
By: Neuberger Associates, Inc., its general partner
By: /s/Xxx X. Xxxxxxxxx
President
XXXXXX ASSOCIATES, L.P.
By: Xxxxxx Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxxx
President
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxxxx
President
XXXXXXX 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/Xxxxxx X. Xxxxxxx
Trustee
/s/Xxxxxx X. Xxxxxxx
Trustee
POTTER ASSOCIATES, L.P.
By: Potter Associates, Inc., its general partner
By: /s/Xxxxxxx X. Xxxxxx
President
XXXXXXXX XX ASSOCIATES, L.P.
By: Xxxxxxxx XX Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxxxxx
President
XXXXXXXX XX ASSOCIATES, L.P.
By: Xxxxxxxx XX Associates, Inc., its general partner
By: /s/Xxxxxx X. Xxxxxxxx
President
XXXXXX XXXXXX XXXXXX 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/R. Xxxxxx Xxxxxx
Trustee
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its general partner
By: /s/Xxxxx X. Xxxxxxx
President
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its general partner
By: /s/Xxxxxxx Xxxxxxx
Trustee
XXXXXXX 1998 TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/Xxxxxxx Xxxxxxx
Trustee
XXXXXXX ASSOCIATES, L.P.
By: Xxxxxxx Associates, Inc., its general partner
By: /s/Xxxxx Xxxxxxx
President
XXXXX X. XXXXXX 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/Xxxxx X. Xxxxxx
Trustee
/s/Xxxxx Xxxxxx
Trustee
XXXXXX 1998 GST TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/Xxxxx Xxxxxx Xxxxxx
Trustee
/s/Xxxxx Xxxx Xxxxxx
Trustee
WEINER 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/Xxxx X. Xxxx
Vice President
/s/Xxxxx X. Xxxxxx
Trustee
/s/Xxxxxx X. Xxxxxx
Trustee
/s/Bintoar Palar
Trustee
XXXXXXXX ASSOCIATES, L.P.
By: Xxxxxxxx Associates, Inc., its general partner
By: /s/Xxxxxxxx Xxxxxxxx
President
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its general partner
By: /s/Xxxxxxxx Xxxxxxx
President
