AMENDMENT NO. 2 TO AGREEMENT AND
PLAN OF REORGANIZATION AND CONSENT
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF REORGANIZATION AND
CONSENT (the "Amendment") is entered into as of July 6, 1999 by MJK Holdings,
Inc. ("MJK"), NM Holdings, Inc. ("NM"), and NM Merger Co. ("NM Merger").
WHEREAS, MJK, NM and NM Merger entered into an Agreement and Plan of
Reorganization dated March 25, 1999 as amended May 7, 1999 ("the Agreement");
and
WHEREAS, MJK and NM desire to delete certain conditions to their
obligations to close the transaction contemplated by the Agreement as such
conditions were not feasible, required, or could not be completed by the Closing
Date of the transaction;
NOW, THEREFORE, it is hereby agreed by and between the parties as
follows:
1. The second sentence of Section 2.4(b) shall be revised and
amended to provide as follows: "In lieu thereof, NM shall pay to the owner
thereof cash equal to the pro rata market price of a share of NM Common Stock
based on the last reported closing sales price of the NM Common Stock on the
Effective Date as reported on the Over the Counter Bulletin Board." Any other
references to the "NASDAQ Small Cap Market" in connection with payment for
fractional shares shall be similarly revised and amended accordingly.
2. Section 7.1(d) of the Agreement is hereby deleted and of no
further legal effect.
3. Section 7.2(e) of the Agreement is hereby deleted and of no
further legal effect. Any other references to the term "Fairness Opinion" set
forth in the Agreement shall be deleted and be of no legal effect.
4. The words "Surviving Corporation" in Section 7.1(c)(iii) shall be
replaced with "NM" and the reference to "Section 356(a)(1)(B)" in the same
section shall be changed to "Section 354(a)(1)."
5. The parties hereto acknowledge that NM's common stock was
delisted from NASDAQ Small Cap Market System effective May 7, 1999 and presently
trades on the Over the Counter Bulletin Board. As a result thereof, the parties
hereto hereby amend Section 7.3(a) of the Agreement to except out the
representation contained in the last sentence of Section 4.3 from the
representations and warranties of NM made at and as of the Effective Date.
6. Except as hereinabove supplemented and amended, all of the terms,
covenants and conditions of the Agreement, as amended May 7, 1999, shall remain
in full force and effect, are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
MJK HOLDINGS, INC. NM HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
Senior Vice President President and
Chief Executive Officer
NM MERGER CO.
By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
President and
Chief Executive Officer
