EXHIBIT 2-3
POST-CLOSING AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
POST-CLOSING AMENDMENT, dated as of May 2, 1997, to Agreement and Plan
of Merger, dated as of April 9, 1996 (the "Merger Agreement"), by and among
Xxxxx Xxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, as Holder
Representative, NYMA, Inc., and NYMA Acquisition, Inc.
WITNESSETH
WHEREAS, the Closing under the Merger Agreement has occurred;
WHEREAS, Xxxx Xxxxx and the Estate of Xxxxxxx Xxxxxxx have assigned
all of their respective right, title and interest in the Merger Consideration
(as defined in the Merger Agreement) to the remaining Holders;
WHEREAS, Xxxxx Xxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, as
Holder Representative, and NYMA, Inc. (as the Surviving Corporation) have agreed
the Merger Agreement be amended as set forth below.
AGREEMENT
In consideration of the premises and of the mutual covenants of the
parties hereto, it is hereby agreed as follows:
Section 1. AMENDMENT AND RESTATEMENT OF SUBPARAGRAPH 2.2(b)(II) OF THE
MERGER AGREEMENT. SUBPARAGRAPH 2.2(b)(ii) of the Merger Agreement is hereby
amended and restated to read in its entirety as follows:
(ii) Each Holder of the outstanding Company Shares as of the Effective
Time of the Merger (a "HOLDER") listed on SCHEDULE A-1 hereto shall be entitled
to receive (A) such Holder's Applicable Percenta ge (as defined below) of the
Closing Cash Consideration and Contingent Payments, respectively and (B) the
Notes in the principal amount equal to such Holder's Applicable percentage in of
the principal amount of Notes included in the Total Consideration. A Holder's
"APPLICABLE PERCENTAGE" shall mean, with respect to any Holder, the percentage
listed on SCHEDULE A-1 hereto, alongside such Holder's name.
Section 2. ADDITION OF SCHEDULE A-1 OF THE MERGER AGREEMENT. The
Merger Agreement is hereby amended by adding a new SCHEDULE A-1, as attached
hereto.
Section 3. LIMITATION ON AMENDMENT. Except as expressly provided
herein, the Merger Agreement shall continue to be, and shall remain, in full
force and effect. Except as expressly provided herein, this First Amendment
shall not be deemed to be a waiver or, or consent to, or a modification or
amendment of, any other term or condition of the Agreement.
Section 4. SEVERABILITY. If any provision of this Amendment shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Amendment shall be affected and
shall remain in full force and effect.
Section 5. CAPTIONS; COUNTERPARTS. The captions in this Amendment are
for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Section 6. CONSTRUCTION. This Amendment shall be construed and
enforced in accordance with the laws of the State of Maryland.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
NYMA, INC.
By: /s/ Xxxxx Xxx
_________________________
Xxxxx Xxx
Chairman and CEO
HOLDER REPRESENTATIVE
By: /s/ Xxxxx Xxxxxxx
_________________________
Xxxxx Xxxxxxx
XXXXX XXX
/s/ Xxxxx Xxx
____________________________
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
____________________________
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
____________________________
NYMA ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxx
------------------------
Name:
Title:
