Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Amendment"), dated December
10, 1996, among TSI Merger Sub, Inc., a New York Corporation ("Newco"), Town
Sports International, Inc., a New York Corporation (the "Company"), and the
shareholders of the Company named on the signature page hereof.
WHEREAS, the Company, Newco and certain shareholders and option holders
of the Company have entered into an Agreement and Plan of Merger dated as of
November 8, 1996 (the "Merger Agreement") whereby each of the parties
thereto have approved the merger of Newco with and into the Company upon the
terms and conditions set forth therein; and
WHEREAS, the Company, Newco and the Sellers now desire to amend the
Merger Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as
follows:
1. Except as otherwise defined in this Amendment, capitalized terms
shall have the same meanings as set forth in the Merger Agreement.
2. Unless specifically stated in this Amendment that certain words,
phrases or provisions of the Merger Agreement shall be deleted, partially or
in their entirety, the provisions of this Amendment shall be in addition to
the terms and conditions of the Merger Agreement.
3. Section 5.1(a) of the Merger Agreement is hereby amended by adding
the following to the end of the first sentence thereof: "or such approval
shall be obtained by means of the unanimous written consent of the
shareholders".
4. Section 6.2(e) is hereby amended by deleting the words "Xxxxxxx Breed
Xxxxxx & Xxxxxx, special counsel to the Sellers," and replacing them with the
words "Sucre, Arias, Xxxxxx & Xxxxx, counsel to Coranda S.A.,"
5. Exhibit D of the Merger Agreement is hereby deleted in its entirety
and is replaced with Exhibit D attached hereto.
6. Except as provided for in this Amendment, all other terms and
conditions of the Merger Agreement shall continue to be in full force and
effect as provided for in the Merger Agreement. The Merger Agreement, as
amended by
this Amendment, constitutes the entire agreement between the parties with
respect to the subject matter contained herein and therein.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
TOWN SPORTS INTERNATIONAL, INC. TSI MERGER SUB, INC.
By: /s/ X.X. Xxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: XX Xxxx Name: Xxxxxxx Xxxxxxx
Title: EVP Title: President
SHAREHOLDERS:
CORANDA S.A.
By:
--------------------------
Name: Xx. Xxxxxx Xxxxxx
Title: Attorney-in-Fact
/s/ Xxxxxxx de Orleans-Xxxxxx
-----------------------------
Xxxxxxx de Orleans-Xxxxxx
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this Amendment, constitutes the entire agreement between the parties with
respect to the subject matter contained herein and therein.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
TOWN SPORTS INTERNATIONAL, INC. TSI MERGER SUB, INC.
By: By:
---------------------- -----------------
Name: Name:
Title: Title:
SHAREHOLDERS:
CORANDA S.A.
By: /s/ Xx. Xxxxxx Xxxxxx
------------------------------
Name: Xx. Xxxxxx Xxxxxx
Title: Attorney-in-Fact
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Xxxxxxx de Orleans-Xxxxxx
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EXHIBIT D
Town Sports International, Inc.
UNANIMOUS WRITTEN CONSENT
of the
BOARD OF DIRECTORS
TO ACTION IN LIEU OF MEETING
Effective Date: As of October 31, 1996
Pursuant to the provisions of Section 708(b) and 902 of the Business
Corporation Law of the State of New York and consistent with the provisions
of the Certificate of Incorporation and By-Laws of Town Sports
International, Inc., a New York corporation (hereinafter referred to as the
"Corporation"), the undersigned, being all the members of the Board of
Directors of the Corporation, hereby consent to the adoption of the following
preambles and resolutions and to the taking of the actions contemplated
thereby, in each case, with the same force and effect as if presented to and
adopted at a meeting of the Board of Directors of the Corporation
(capitalized terms used in this instrument without definition shall have the
meanings attributed thereto in the Agreement and Plan of Merger (as defined
below)):
WHEREAS, it is advisable and in the best interests of the
Corporation that it merge with TSI Merger Sub, Inc., a New York
corporation (hereinafter referred to as "Newco") and that the Corporation
continue as the surviving entity following such merger, pursuant to the
terms and conditions set forth in the Agreement and Plan of Merger
described below; and
WHEREAS, in furtherance of the foregoing, it is advisable and in the
best interests of the Corporation that it enter into and perform its
obligations under that certain Agreement and Plan of Merger between the
Corporation, its shareholders and option holders named on the signature
page thereto, on the one hand, and Newco, on the other hand (hereinafter
referred to as the "Merger Agreement");
NOW THEREFORE, IT IS HEREBY
RESOLVED, that the form, terms and conditions of the Merger
Agreement, substantially in the form presented to the Board of Directors,
be and the same hereby is, in all respects authorized and approved;
RESOLVED, that the Chief Executive Officer, the President, any
Executive Vice President, the Treasurer, or the Secretary of the
Corporation, and any other person duly authorized to act in such capacity
be, and each of them hereby is, designated an "Authorized Officer" for
purposes of these resolutions, the Merger Agreement, and any other
documents and instruments necessary, proper or convenient to implement or
accomplish the transactions involved in, contemplated by or related to,
any thereof;
RESOLVED, that an Authorized Officer of the Corporation be, and each
such Authorized Officer hereby is, severally authorized, empowered and
directed, in the name and on behalf of the Corporation, to negotiate, on
behalf of the Corporation and to execute and deliver the Merger Agreement
with such changes, modifications, additions, deletions, amendments and/or
supplements as shall be approved by him, the execution and delivery
thereof to be conclusive evidence of the approval and the authority of
such Authorized Officer;
RESOLVED, that the Authorized Officers of the Corporation, be, and
each of them hereby is, severally authorized, empowered and directed, to
perform or to cause to be performed, in the name and on behalf of the
Corporation or otherwise, such other acts, to pay or to cause to be paid
on behalf of the Corporation such related expenses, and to execute and
deliver or cause to be executed and delivered such other notices,
requests, directions, consents, approvals, orders, applications,
certificates, agreements, undertakings, supplements, amendments, further
assurances or other instruments, documents or communications, under the
corporate seal of the Corporation or otherwise, as they or any of them
may deem to be necessary, advisable or convenient in order to carry into
effect the intent of the foregoing resolutions or to comply with the
requirements of the instruments approved and authorized by the foregoing
resolutions or to effectuate fully the transactions contemplated by the
foregoing resolutions, the execution and delivery thereof to be
conclusive evidence of the approval and the authority of such Authorized
Officer;
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RESOLVED, that any acts of any Authorized Officer of the Corporation
which acts would have been authorized by the foregoing resolutions except
that such acts were taken prior to the adoption of such resolutions, are
hereby severally ratified, confirmed, approved and adopted as the acts in
the name and on behalf of the Corporation;
RESOLVED, that the Merger Agreement and the merger and transactions
contemplated thereby, taken together, are hereby deemed to be fair to and
in the best interests of the shareholders of the Corporation;
RESOLVED, that the Options shall be treated in accordance with
Section 2.10 of the Merger Agreement subject to the approval of the
holders of the Options;
RESOLVED, that it is hereby recommended to the shareholders of the
Corporation that such shareholders approve and authorize the Merger
Agreement and the merger and transactions contemplated thereby in
accordance with Section 903 of the Business Corporation Law; and
RESOLVED, that the Secretary of the Corporation is hereby directed
to file a copy of this instrument with the minutes of proceedings of the
Corporation, as required by the Business Corporation Law.
This consent may be signed in counterparts, any of which may be by facsimile
provided that the originally executed document is immediately thereafter
forwarded to the secretary of the Corporation.
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IN WITNESS WHEREOF, the undersigned have executed this instrument as
of date and year first written above.
DIRECTORS:
/s/ Xxxxx Saint
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Xxxxx Saint
/s/ Xxxxxx De Orleans-Xxxxxx
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Xxxxxx De Orleans-Xxxxxx
/s/ Xxxxxxx De Orleans-Xxxxxx
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Xxxxxxx De Orleans-Xxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
/s/ Xx. Xxxxxx Xxxxxx
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Xx. Xxxxxx Xxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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