EXHIBIT 2.2
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 18, 2004
This AMENDMENT NO. 1 ("Amendment No. 1"), to that certain Agreement and
Plan of Merger, dated as of February 18, 2004 (the "Agreement"), is made this
2nd day of March, 2004, by and among NBC Holdings Corp., a Delaware corporation
(the "Parent"), New NBC Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Parent ("Merger Sub"), NBC Acquisition Corp., a
Delaware corporation (the "Company"), certain Selling Stockholders named therein
and HWH Capital Partners, L.P., a Delaware limited partnership, acting in its
capacity as the Stockholder Representative. Unless otherwise defined herein,
capitalized terms used herein shall have the respective meanings set forth in
the Agreement, and the Agreement shall be amended to incorporate any additional
definitions provided for in this Amendment No. 1.
WHEREAS, the Parent, the Merger Sub, the Company, the Selling Stockholders
and the Stockholder Representative have entered into the Agreement, pursuant to
which Merger Sub shall merge with and into the Company (the "Merger"), and as a
result of the Merger, the separate corporate existence of Merger Sub shall cease
and the Company shall continue as the surviving corporation of the Merger; and
WHEREAS, the parties to the Agreement wish to amend the Agreement to
modify the terms upon which the transactions contemplated by the Agreement may
be effectuated;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
made herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Agreement in accordance with Section 10.11 thereof as follows:
1. AMENDMENT OF SECTION 7.2(F). The Agreement is hereby amended by
substituting the following subsection (f) for the subsection (f) that presently
appears in Section 7.2:
"(f) the Company shall have obtained or made all required
Company Consents and Notices other than those listed as items 7, 8, 9, 10,
11, 12 and 13 on Section 3.4 of the Company Disclosure Schedule."
2. AMENDMENT OF SECTION 10.2; DEFINITION OF "AGGREGATE MERGER
CONSIDERATION". The Agreement is hereby amended by substituting the following
definition of "Aggregate Merger Consideration" for the corresponding definition
that presently appears in Section 10.2:
""Aggregate Merger Consideration" means the amount equal to
(a) (i) the Equity Value Per Share multiplied by (ii) the Adjusted
Fully-Diluted Common Stock Number, minus (b) $98,848, related to the costs
associated with the Company's purchase and maintenance of the Tail
Insurance Policy, minus (c) $62,500, related to the filing fees associated
with the filings under the HSR Act related to the transactions
contemplated by this Agreement, minus (d) fifty percent (50%) of any
pre-payment premiums, penalties or similar amounts incurred by the Company
and the Principal Subsidiary in connection with the prepayment of the
Public/Bank Debt in
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connection with the Closing, minus (e) $116,225, related to the solvency
opinion addressed to the Company and the Stockholder Representative which
is obtained with respect to the transactions contemplated hereby, minus
(f) the amount of all fees, costs and expenses of legal counsel, financial
advisors and other consultants engaged by or at the direction of the
Selling Stockholders related to the transactions contemplated hereby
(including any fees and expenses of Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx LLP and JPMorgan, other than those fees and expenses of JPMorgan
related to the Parent's new financing), and minus (g) the amount of
$1,500,000."
3. AMENDMENT OF SECTION 10.2; DEFINITION OF "AVERAGE NET REVOLVER
BALANCE". The Agreement is hereby amended by substituting the following
definition of "Average Net Revolver Balance" for the corresponding definition
that presently appears in Section 10.2:
""Average Net Revolver Balance" means the amount of (i) the
average outstanding revolver balance under the Credit Agreement as of the
last day of each of the immediately preceding 52 weeks, minus (ii) the
average outstanding Cash balance as of the last day of each of the
immediately preceding 52 weeks, and plus (iii) $1,500,000. For the
purposes of this definition, items (i) and (ii) shall be adjusted for the
impact of any acquisitions, divestitures and voluntary prepayments of
Indebtedness occurring during the 52-week period immediately preceding the
Closing Date (excluding any prepayments made in connection with the
Merger) to give pro forma effect as if such transaction occurred on the
first day of such period. In addition, for purposes of calculating Average
Net Revolver Balance for any period which includes any week during the
52-week period that precedes December 10, 2003, item (ii) shall be
adjusted to increase the Cash balance by $24,500,000 for each week of the
52-week period that precedes December 10, 2003. In addition, for purposes
of calculating Average Net Revolver Balance, item (ii) shall be adjusted
to (x) decrease the Cash balance by the amount of $14,263,760 (the amount
of the excess cash flow payment made on September 29, 2003) for each week
of the 52-week period that precedes September 29, 2003, (y) increase the
Cash balance by $125,000 (the amount of the fee paid by the Company with
respect to the filings made under the HSR Act related to the transactions
contemplated by this Agreement) for each week of the 52-week period that
follows February 6, 2004, and (z) to increase the Cash balance by the
amount of any additional cash payments made by the Company after the
Agreement Date in respect of fees and expenses incurred in furtherance of
the Merger (to the extent such fees and expenses would not have been
incurred but for the consummation of the Merger), including, but not
limited to, the cost of obtaining the Tail Insurance Policy, for each week
of the 52-week period that follows the date of such payment. The Average
Net Revolver Balance may be either a positive or negative number."
4. AMENDMENT OF EXHIBITS REFERENCED IN SECTION 7.2(H), SECTION 7.2(I) AND
SECTION 7.2(N). The Agreement is hereby amended by substituting the exhibits
attached hereto as Exhibit C-1, Exhibit C-2 and Exhibit C-3 for the
corresponding exhibits that are presently attached to the Agreement.
5. AMENDMENT OF EXHIBIT D; INSTRUMENT OF ACCESSION. The Agreement is
hereby amended by substituting the Form of Instrument of Accession attached
hereto as Exhibit A for the Form of Instrument of Accession attached to the
Agreement as Exhibit D.
6. AMENDMENT OF COMPANY DISCLOSURE SCHEDULE. Section 3.5(c)(iv) of the
Company Disclosure Schedule is hereby amended in its entirety to read as set
forth on Schedule 1 hereto.
7. NO OTHER AMENDMENTS. Except to the extent amended hereby, all of the
definitions, terms, provisions and conditions set forth in the Agreement are
hereby ratified and confirmed and shall
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remain in full force and effect. The Agreement and this Amendment No. 1
shall be read and construed together as a single agreement and the term
"Agreement" shall henceforth be deemed a reference to the Agreement as
amended by this Amendment No. 1. This Amendment No. 1 may be signed in any
number of counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same instrument. In
making proof of this Amendment No. 1, it shall not be necessary to produce
or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be
executed and delivered by their duly authorized representatives, all as of the
day and year written above.
PARENT:
NBC HOLDINGS CORP.
By:
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Name: Xxxx X. Xxxx
Title: President
MERGER SUB:
NEW NBC ACQUISITION CORP.
By:
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Name: Xxxx X. Xxxx
Title: President
COMPANY:
NBC ACQUISITION CORP.
By:
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Name: Xxxx X. Xxxxxxxx
Title: President
STOCKHOLDER REPRESENTATIVE:
HWH CAPITAL PARTNERS, L.P.
By: HWH, L.P., its general partner
By: HWH Incorporated, its general partner
By:
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Name:
Title:
EXHIBIT A
INSTRUMENT OF ACCESSION
TO
AGREEMENT AND PLAN OF MERGER, DATED FEBRUARY 18, 2004,
AS AMENDED BY
AMENDMENT NO. 1, DATED _________ __, 2004
Reference is hereby made to that certain Agreement and Plan of Merger,
dated as of February 18, 2004, by and among (i) NBC Holdings Corp., a Delaware
corporation, (ii) New NBC Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Parent, (iii) NBC Acquisition Corp., a Delaware
corporation, (iv) the Selling Stockholders identified therein and (v) HWH
Capital Partners, L.P., a Delaware limited partnership, as the Stockholder
Representative, as amended by Amendment No. 1 to the Agreement and Plan of
Merger, dated as of _________, 2004 (the "Merger Agreement"). Capitalized terms
used and not defined herein shall have the respective meanings ascribed thereto
in the Merger Agreement.
In accordance with Section 6.14 of the Merger Agreement, the undersigned
hereby agrees that, from and after the date hereof, the undersigned has become a
party to the Merger Agreement in the capacity of a Selling Stockholder and is
entitled to all the benefits under, and is subject to all of the obligations,
restrictions and limitations set forth in, the Merger Agreement that are
applicable to the Selling Stockholders. This Instrument of Accession shall take
effect and shall become a part of the Merger Agreement immediately upon
execution.
For purposes of Section 10.1 of the Merger Agreement, the address for
notices to the undersigned Selling Stockholder shall be as follows:
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Executed under seal as of the date set forth below under the laws of the
State of New York.
SELLING STOCKHOLDER
Print Name:
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Signature:
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SCHEDULE 1
AMENDMENT TO SECTION 3.5(C)(IV) OF THE COMPANY DISCLOSURE SCHEDULE
Section 3.5(c)(iv): The Number of Securities to be contributed to the Parent
pursuant to the Contribution and Exchange Agreement is as follows:
NAME NUMBER OF SHARES
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Xxxx Xxxxxxxx 4,000
Xxxxx Xxxxx 2,000
Xxxxxx Xxxxx 2,000
Xxxxx Major 1,747.2
Xxx Xxxxx 900
Xxxxxx Xxxxx 357
Xxxxx Xxxxxxxx 20
Xxxxx Xxxxxx 819
Xxxxxx Xxxxx 20
Xxxxxx Xxxxxxx 000
Xxxx Xxxxx 310
Xxxx Xxxxxxxxxx 50
Xxxxxx Xxxxxxx 10
Xxxxx Xxxxxxxx 50
Xxxxx Xxxxxxx 94
Xxxxx Xxxxxx 94
Xxxxxxx Xxxxxxxxxx 20
Xxxxxx Xxxxxxxxx 46
Xxxxxxx Xxxxx 32
Xxxxxx Xxxxxx 5
Xxxxxxx Xxxxxxxx 17
Xxxxxxxx Xxxxxxxxx 1
Xxxxx Xxxxxxxx 1
Xxxxx Xxxxxx 4,125
Weston Presidio Capital III, L.P. 109,898.3
Weston Presidio Capital IV, L.P. 261,434.1
WPC Entrepreneur Fund, L.P. 5,422.0
WPC Entrepreneur Fund II, L.P. 4,138.6
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TOTAL 397,711.2
