AMENDMENT NO. 3 TO PLAN AND AGREEMENT OF MERGER
AMENDMENT NO. 3, made and entered into as of November 7, 1996 (this
"Amendment"), to the PLAN AND AGREEMENT OF MERGER, dated as of April 24, 1996,
as amended by Amendment No. 1 and Amendment No. 2 made and entered into as of
June 28, 1996 and September 30, 1996, respectively (as so amended, the "Merger
Agreement"), by and between X. XXXXXXXX, INC., a New York corporation (the
"Company"), X. XXXXXXXX, INC. TRUST, a New York trust (the "Trust"), and XXXXXX
XXXXXXX CAPITAL MARKETS GROUP INC., a Delaware corporation wholly-owned by
Xxxxxx Xxxxxxx ("MSCMG").
W I T N E S S E T H:
WHEREAS, the Company and MSCMG have entered into the Merger Agreement; and
WHEREAS, the Company and MSCMG desire to amend the Merger Agreement to add
the Trust as a party thereto.
NOW, THEREFORE, the parties hereto agree as follows:
1. Trust as a Party to the Merger Agreement. By its execution hereof, the
Trust does hereby agree to become a party to, and by its execution hereof shall
become a party to, the Merger Agreement effective upon the Effective Time of the
Merger. On and after the Effective Time of the Merger, the Trust shall succeed
to the rights and obligations of the Company under the Merger Agreement.
2. Approval of this Amendment. All authorizations, approvals and consents
(including consents of the Boards of Directors) necessary for the execution and
delivery by the Company, the Trust and MSCMG of this Amendment have been given
or made.
3. Governing Law. This Amendment shall be construed and enforced in
accordance with and governed by the laws of the State of New York applicable to
contracts executed in and to be performed solely within such state.
4. Status of the Merger Agreement. All other terms and conditions of the
Merger Agreement shall remain in full force and effect, as amended hereby.
5. Miscellaneous. (a) Headings. All headings in this Amendment are for
convenience of reference only and are not intended to limit or affect the
meaning of any provision hereof.
(b) Counterparts. This Amendment may be executed in one or more
counterparts with the same effect as if the signatures to all such counterparts
were upon the same instrument, and all such counterparts shall constitute but
one instrument.
(c) Capitalized Terms. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the same meaning as such terms have in the
Merger Agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by a duly authorized officer and to become effective as of the day and year
first above written.
X. XXXXXXXX, INC.
By: /S/ XXXXX XXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
X. XXXXXXXX, INC. TRUST
By: /S/ XXXXX X. XXXXXXXX
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Name:
Title: Trustee
XXXXXX XXXXXXX CAPITAL MARKETS
GROUP INC.
By: /S/ XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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