AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (this "AMENDMENT"), dated as of February 15, 2001, to the
Agreement and Plan of Merger, dated as of January 18, 2001 (the "AGREEMENT"), by
and between XxXxxxxxx & Co Inc. and XXXX XXXX XxXXXXX Financial Services, Inc.
WHEREAS, the parties desire to amend the Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, representations and covenants contained herein, the parties hereto
agree as follows:
1. Except as specifically amended herein, the Agreement, and each and every
term thereof, shall remain in full force and effect. All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Agreement. All references in the Agreement to the "Agreement" shall be deemed to
refer to the Agreement, as amended by this Amendment.
2. Each Party represents and warrants that it has all requisite corporate
power and authority to enter into this Amendment.
3. Each of clauses (xi) and (xiv) in the definition of "ADJUSTED NET BOOK
VALUE" in Section 1.1 of the Agreement is amended to read in its entirety as
follows:
"53% of the aggregate amount of the benefits payable under the Deferred
Compensation Plan (not including interest) and the Retention Bonus Pool;"
4. Section 2.7(e) of the Agreement is amended to read in its entirety as
follows:
"(e) ASSUMPTION OF OPTIONS. Subject to the ratification by the
Stockholders in the manner required by Section 280G(b)(5)(B) of the Code, which
ratification shall not have been withdrawn prior to the Effective Time, Target
and each Option Holder shall enter, on or before the Closing Date, into an
amendment substantially in the form annexed hereto as EXHIBIT C (an "OPTION
AMENDMENT") of the agreement pursuant to which such Option Holder was granted
his option to purchase shares of Target Common Stock (each, a "TARGET OPTION").
Under the Option Amendments, each Target Option which is outstanding and
unexercised immediately prior to the Effective Time shall be converted at the
Effective Time into an option (a "PURCHASER OPTION") to purchase 98.778 shares
of Purchaser Common Stock per share of Target Common Stock underlying such
Target Option."
5. Section 2.8 of the Agreement is amended to read in its entirety as
follows:
"Section 2.8 RETENTION BONUS POOL. Subject to the approval by the
Stockholders in the manner required by Section 280G(b)(5)(B) of the Code, which
approval shall not have been withdrawn prior to the Effective Time, Purchaser
shall succeed, as of the Effective Time, to Target's liabilities and obligations
under the retention bonus pool to be adopted by Target on or before the Closing
Date (the "RETENTION BONUS POOL"). The Retention Bonus Pool shall be in an
amount equal to $9,000,000, which shall be paid to the employees listed on
SCHEDULE 2.8 as bonus compensation on the third anniversary of the Closing Date.
The portion of the Retention Bonus Pool payable to each such employee shall be
determined by the majority vote of a committee consisting of Xxxxxx X. Xxxxxx,
Xxxxxx X. Xxxx, Xx. and Xxxxxxx XxXxxxxxx (or, in each case, the successor
appointed by such individual), which determination shall be final, binding and
conclusive on Purchaser and each such employee. Notwithstanding the foregoing
provisions of this SECTION 2.8, (i) any such employee whose employment with
Purchaser or one of its Affiliates is terminated for Cause or who voluntarily
terminates his employment for reasons other than Good Reason shall no longer be
eligible to participate in the
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Retention Bonus Pool, and (ii) any payment out of the Retention Bonus Pool shall
be subject to the limitations on such payments set forth in the Series A
Preferred Stock Certificate of Designation."
6. Section 2.9 of the Agreement is amended to read in its entirety as
follows:
"Section 2.9 DEFERRED COMPENSATION PLAN. Subject to the approval by the
Stockholders in the manner required by Section 280G(b)(5)(B) of the Code, which
approval shall not have been withdrawn prior to the Effective Time, Purchaser
shall succeed, as of the Effective Time, to Target's liabilities and obligations
under the Deferred Compensation Plan in substantially the form attached hereto
as Exhibit D to be adopted by Target on or before the Closing Date (the
"DEFERRED COMPENSATION PLAN")."
7. This Amendment may not be amended except by an instrument in writing
signed by all the Parties.
8. This Amendment shall be governed by and interpreted and construed in
accordance with the laws of the State of Delaware, without reference to its
conflicts of laws provisions.
9. This Amendment may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Amendment shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the Parties reflected hereon as the signatories.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
XXXXXXXXX & CO INC.
By: /s/ Xxxxxx X.X. XxXxxxxxx, XX
--------------------------------------
Name: Xxxxxx X.X. XxXxxxxxx, XX
Title: Chairman, Chief Executive
Officer
and President
XXXX XXXX XXXXXXX FINANCIAL SERVICES,
INC.
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: President
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