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EXHIBIT 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (the "Agreement") dated as of December 18, 1996 among
General Physics Corporation, a Delaware corporation ("General Physics"),
National Patent Development Corporation, a Delaware corporation ("Parent"), and
GPX Acquisition Inc., a Delaware corporation ("Newco").
W I T N E S S E T H :
WHEREAS, the Company has achieved an agreement in principle to settle
the action styled Dunlop x. Xxxxxx, Civil Action No. 15237-NC (the "Cause of
Action"), pending before the Court of Chancery of the State of Delaware in and
for New Castle County (the "Settlement"), the terms of which will be set forth
in a Memorandum of Understanding among counsel thereto (the "Memorandum of
Understanding");
WHEREAS, the Settlement provides for the amendment of certain
provisions of the Agreement and Plan of Merger, dated as of November 19, 1996
(the "Merger Agreement"), among General Physics, Newco and Parent, providing
for, among other things, (i) the merger of Newco with and into General Physics
and (ii) the issuance of the Common Stock of the Parent (capitalized terms not
otherwise defined in this Agreement are used as defined in the Merger
Agreement);
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
ARTICLE 1
AMENDMENTS; WAIVERS
SECTION 1.1. AMENDMENTS. Subject to Section 1.3 hereof, the Merger
Agreement is hereby amended as set forth in this Section 1.1. References to
Sections in this Agreement refer to Sections in the Merger Agreement unless
otherwise indicated.
(a) The third sentence of Section 2.1(b) is amended in its entirety and restated
as follows:
"The term "Exchange Ratio" means a ratio equal to 0.54, except
(A) in the event that the Parent Stock Price is less than $9.259, the
Parent may elect at its
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Agreement and Plan of Merger
option (without any obligation to do so) to increase the Exchange Ratio
to the Adjusted Exchange Ratio pursuant to the following formula:
(9.259 / the Parent Stock Price) x 0.54 = Adjusted Exchange
Ratio
(rounded to the nearest 1/100), provided that the Parent provides
notice of its election of such option (the "Parent Gross-Up Option") to
General Physics no later than the close of business on the second
trading day after the Test Date (such notice to specify the Adjusted
Exchange Ratio) and (B) in the event that the Parent Stock Price is
greater than $10.00, General Physics may elect at its option (without
any obligation to do so) to decrease the Exchange Ratio to the Adjusted
Exchange Ratio pursuant to the following formula:
(10.00 / the Parent Stock Price) x 0.54 = Adjusted Exchange
Ratio
(rounded to the nearest 1/100), provided that General Physics provides
notice of its election of such option (the "GPC Reduction Option") to
the Parent no later than the close of business on the second trading
day after the Test Date (such notice to specify the Adjusted Exchange
Ratio)."
(b) Section 2.1(c) is amended so that the reference to "$5.10" will read
"$5.20." Section 5.6 is amended so that the reference to "$5.10" will read
"$5.20".
(c) The parties agree that Xxxxxx Trust Company of New York shall act as the
Exchange Agent under the terms of the Merger Agreement.
(d) (i) Article 5 is amended to add the following:
"Section 5.15. Quarterly Dividends. In the event that the
Closing has not occurred prior to March 31, 1997, General Physics
intends to make its regular quarterly dividend with respect to the
quarter ended March 31, 1997, provided that funds are legally
available therefor and subject to the fiduciary obligations of the
Board of Directors of General Physics."
(ii) The second sentence of Section 9.1 is amended in its entirety and
restated as follows:
"This Section 9.1 shall not limit any covenant or agreement of
the parties which by its terms contemplated performance after the
Effective Time, including without limitation Section 5.7, Section 5.8,
Section 5.15 and the Affiliate Letters delivered pursuant to Section
5.12."
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(iii) Section 7.3 is amended to insert the words ", Section 5.15" after
the words "Section 5.14" appearing in such Section 7.3.
(e) Section 6.2(d) is amended in its entirety and restated as follows:
"(d) Fairness Opinion. The written opinion of Xxxxxxxxxxx &
Co, Inc., dated as of the Closing Date, to the effect that the Merger
Consideration to be received by the holders of GPC Common Stock (other
than National Patent) is fair to such holders from a financial point of
view, shall have been delivered on the Test Date and on the Closing
Date."
(f) Section 7.1(j) is amended in its entirety and restated as follows:
"(j) unless General Physics has exercised the GPC Reduction
Option, by the Parent on a date no earlier than the close of business
on the second trading day after the trading day which is five trading
days' prior to the day when the GPC Stockholders Meeting and the NPD
Stockholders Meeting are first scheduled to occur (the "Test Date"),
and no later than the close of business on the fourth trading day after
the Test Date, if, as of the Test Date the Parent Stock Price is
greater than $10.00; or"
(g) Section 7.1(k) is amended in its entirety and restated as follows:
"(k) unless the Parent has exercised the Parent Gross-Up
Option, by General Physics on a date no earlier than the close of
business on the second trading day after the Test Date and no later
than the close of business on the fourth trading day after the Test
Date, if, on the Test Date, the Parent Stock Price is less than
$9.259."
(h) The next-to-last sentence of Section 7.1 is amended in its entirety and
restated as follows:
"This Agreement will terminate without action taken by any
party hereto if (i) on the Test Date the Parent Stock Price is less
than $9.259, (ii) the Parent has not exercised the Parent Gross-Up
Option, and (iii) on a date no earlier than the close of business on
the second trading day after the Test Date and no later than the close
of business on the fourth trading day after the Test Date, the Special
Committee has withdrawn its approval or recommendation of this
Agreement or the Merger, such termination to be effective as of the
date such approval is withdrawn."
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(m) Section 7.1 is amended to include the following two sentences immediately
after the next-to last sentence of Section 7.1:
"If the Closing has not occurred prior to February 15, 1997,
the Parent will deliver to the Special Committee updated financial
statements for the most recent calendar month to the extent available.
In the event that each of the Special Committee provides a written
statement to the Parent that in its belief and opinion the financial
condition of the Parent on a consolidated basis has materially
deteriorated since the financial condition as reported in the
consolidated financial statements of the Parent as of September 30,
1996, then General Physics has the right to terminate the Agreement."
(n) The last sentence of Section 2.2(f)(ii) is amended to replace the words "GPC
Common Stock" with the words "NPD Common Stock."
SECTION 1.2. CONSENTS TO SETTLEMENT. The Parent and Newco each hereby
consents to the settlement by General Physics, and General Physics hereby
consents to the settlement by the Parent, of the case styled Dunlop x. Xxxxxx
pursuant to the terms set forth in the Memorandum of Understanding. Each party
further consents to the taking of any and all actions by any party as may be
required by the Memorandum of Understanding.
SECTION 1.3. UNILATERAL RESCISSION. Each of the amendments to the
Merger Agreement set forth in Section 1.1 hereof may be rescinded by the Parent
prior to the date of the NPD Special Meeting in the event that the Memorandum of
Understanding becomes null and void pursuant to the terms of Section 8 thereof
because the plaintiff's counsel in the Cause of Action has declared that the
Settlement is not fair and reasonable to the plaintiff. Any such rescission
shall be effective upon written notice from the Parent to General Physics, such
notice to indicate the amendments which are rescinded and to be given in
accordance with the terms of the Merger Agreement. In the event any such
amendments are rescinded, then the terms of the Merger Agreement shall thereupon
revert to their form without giving effect to such rescinded amendments as if
such terms had never been amended.
ARTICLE 2
GENERAL PROVISIONS
SECTION 2.1. AMENDMENT. Subject to the applicable provisions of the
DGCL, at any time prior to the Effective Time, the parties hereto may amend this
Agreement; provided, however, that after approval of the Merger by the
stockholders of General Physics and/or the
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Parent, no amendment shall be made that by law requires the approval of General
Physics' stockholders or the Parent's stockholders, as the case may be, without
the approval of such stockholders. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties.
SECTION 2.2. NO THIRD-PARTY BENEFICIARIES. This Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies.
SECTION 2.3. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to any conflicts of law rules thereof which might apply the laws of any other
jurisdiction).
SECTION 2.4. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, and any such assignment that is not
consented to shall be null and void; provided, that Newco may assign, in its
sole discretion, any or all of its rights, interests and obligations hereunder
to the Parent or to any wholly-owned Subsidiary of the Parent. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
SECTION 2.5. ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or any state court sitting in the City of
Wilmington, Delaware (any such federal or state court, a "Delaware Court"), in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Delaware Court in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement and
(b) agrees that it will not attempt to deny or defeat such personal jurisdiction
or venue by motion or other request for leave from any such Delaware Court.
SECTION 2.6. SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and
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enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
SECTION 2.7. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
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Agreement and Plan of Merger
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective officers or other representatives
thereunto duly authorized, all as of the date first written above.
GENERAL PHYSICS CORPORATION
By:_______________________________
Name:
Title:
NATIONAL PATENT DEVELOPMENT
CORPORATION
By:_______________________________
Name:
Title:
GPX ACQUISITION INC.
By:_______________________________
Name:
Title:
[Signature Page to Amendment No. 1]
