EXHIBIT 2.2
EXECUTION COPY
AMENDMENT NO. 1
TO THE AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER is made
as of April 14, 2003 (this "Amendment") by and between EMP Group L.L.C., a
Delaware limited liability company (the "Company"), and EMP Merger Corporation,
a Delaware corporation (the "Merger Corp"), and amends that certain Agreement
and Plan of Merger dated as of February 24, 2003 (the "Merger Agreement"), by
and between the Company and Merger Corp. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in the Merger
Agreement.
WHEREAS, the Company and Merger Corp are parties to the Merger
Agreement;
WHEREAS, the Company and Merger Corp wish to amend the Merger
Agreement in connection with the consummation of the Merger; and
WHEREAS, pursuant to Section 8.6 of the Merger Agreement, all
amendments to or waivers of any provision of the Merger Agreement may be made by
a written instrument signed by (i) the Company and (ii) Merger Corp.
NOW, THEREFORE, for good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto covenant and agree as follows:
1. Amendments to Merger Agreement. Upon execution hereof,
the Merger Agreement shall be amended as follows:
(a) Section 2.2(c) shall be amended by deleting the
reference to "0.913" therein and replacing the same with "0.9131;"
(b) Section 3.2(a) shall be amended by deleting the
reference to "65,368.857" therein and replacing the same with "64,468.857;" and
(c) Section 6.3(b) shall be deleted in its entirety and
replaced with the following:
"An authorized person on behalf of the Company shall have
delivered to Merger Corp an executed certification confirming the matters set
forth in Section 6.3(a)."
2. References to the Merger Agreement. All references in
the Merger Agreement to "this Agreement," and to all other words referring to
the Merger Agreement (such
as "herein," "hereto," "herewith" and "hereunder"), shall be deemed to mean and
refer to the Merger Agreement, as amended by this Amendment.
3. Effectiveness of Amendment. This Amendment has been
executed, in accordance with the terms of Section 8.6 of the Merger Agreement,
by the Company and Merger Corp and shall become effective upon execution.
4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
5. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6. Facsimile Signatures. Any signature page delivered by a
fax machine or telecopy machine shall be binding to the same extent as an
original signature page, with regard to any agreement subject to the terms
hereof or any amendment thereto. Any party who delivers such a signature page
agrees to later deliver an original counterpart to any party which requests it.
7. Entire Agreement. This Amendment, the Contribution
Agreement, the Merger Agreement and the terms and provisions hereof and thereof
constitute the entire agreement among the parties pertaining to the subject
matter hereof and thereof and supersede any and all prior or contemporaneous
agreements relating to the subject matter hereof or thereof. Except as expressly
amended hereby, the Merger Agreement shall remain unchanged and in full force
and effect. To the extent any terms or provisions of this Amendment conflict
with those of the Merger Agreement, the terms and provisions of this Amendment
shall control. This Amendment shall be deemed part of and is hereby incorporated
into the Merger Agreement.
[Remainder of Page Intentionally Left Blank]
2
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
Counterpart Signature Page
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Agreement and Plan of Merger to be duly executed by as of the day and year first
above-written.
EMP GROUP L.L.C.
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Person
EMP MERGER CORPORATION
By: /s/ Xxxxxxx X. XxXxxx
-------------------------
Name: Xxxxxxx X. XxXxxx
Title: President
