Exhibit 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"AMENDMENT"), dated as of October 26, 2001, by and among Warburg, Xxxxxx Private
Equity VIII, L.P., a Delaware limited partnership (the "Purchaser"), MSN
Holdings, Inc., a Delaware corporation (the "SELLER).
WHEREAS, the Purchaser and the Seller have entered into that
certain Agreement and Plan of Merger, dated as of August 20, 2001 (the "ORIGINAL
MERGER AGREEMENT"), with MSN Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of the Purchaser ("ACQUISITION"), and the stockholders
of the Seller identified on Schedule I the Original Merger Agreement (the
"PRINCIPAL STOCKHOLDERS"), relating to the merger of Acquisition with and into
the Seller; and
WHEREAS, Purchaser and Seller desire to amend the Original
Merger Agreement as set forth herein; and
WHEREAS, by executing this Amendment, the Purchaser and the
Seller are providing the requisite consent to the amendment of the Original
Merger Agreement pursuant to Section 16.9 thereof.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I.
EFFECTIVENESS AND EFFECT
The provisions set forth in this Amendment shall be deemed to
be, and shall be construed as part of, the Original Merger Agreement. All
references to the Original Merger Agreement in the Original Merger Agreement or
in any other agreement, document or instrument delivered in connection therewith
or pursuant thereto shall be deemed to refer to the Original Merger Agreement as
amended by this Amendment. Except as amended hereby, the Original Merger
Agreement shall remain in full force and effect. This Amendment shall become
effective when approved by the Purchaser and the Seller as set forth in Section
16.9 of the Original Merger Agreement.
ARTICLE II.
AMENDMENT OF ORIGINAL
MERGER AGREEMENT
SECTION 2.1. RETAINING STOCKHOLDERS.
Schedule II of the Original Merger Agreement is hereby amended
and restated to read in its entirety as set forth in Schedule II to this
Amendment.
SECTION 2.2. OPTION PLAN.
Section 7.16 of the Original Merger Agreement is hereby and
amended and restated in its entirety to read as follows:
"7.16 OPTION PLAN. The Seller shall take all actions necessary
to cause the Seller's Amended and Restated Option Plan to be amended, in a form
reasonably acceptable to the Purchaser, in such a manner as to provide for each
option holder to be vested and exercisable immediately prior to the Effective
Time in 57.5% of the total gross value of all outstanding options held by such
option holder in such a manner that options which were granted first in time
shall be accelerated prior to those that were granted later in time."
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. DEFINED TERMS.
Capitalized terms used but not defined in this Amendment are
defined in the Original Merger Agreement.
SECTION 3.2. SEVERABILITY.
If any one or more of the provisions of this Amendment is held
invalid, illegal or unenforceable, the remaining provisions of this Amendment
shall be unimpaired, and the invalid, illegal or unenforceable provision shall
be replaced by a mutually acceptable valid, legal and enforceable provision that
comes closest to the intent of the parties.
SECTION 3.3. HEADINGS.
The headings in this Amendment are for reference only and
shall not affect the interpretation of this Amendment.
SECTION 3.4. BINDING EFFECT.
This Amendment shall be binding upon and inure to the benefit
of the parties and their respective successors and legal representatives.
SECTION 3.5. GOVERNING LAW; JURISDICTION AND VENUE.
This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflict of laws principles. THE PARTIES HERETO IRREVOCABLY ELECT AS THE SOLE
JUDICIAL FORUM FOR THE ADJUDICATION OF ANY MATTERS ARISING UNDER OR IN
CONNECTION WITH THIS AMENDMENT, AND CONSENT TO THE JURISDICTION OF, THE COURTS
OF THE STATE OF NEW YORK LOCATED IN NEW YORK, NEW YORK.
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SECTION 3.6. COUNTERPARTS.
This Amendment may be executed by the parties in separate
counterparts, each of which when executed and delivered shall be an original,
but all counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies each signed by less than all, but
together signed by all of the parties.
[The remaining portion of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized representative as of the date
hereof.
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
By: WARBURG PINCUS & CO., its
general partner
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
MSN HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
[Signature Page to Merger Agreement Amendment]
SCHEDULE II
NAME OF RETAINING STOCKHOLDER
-----------------------------
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx, Xx.
SSP Investment Partners, L.P.
Omena Holdings Limited Partnership
Omena Investments Limited Partnership
Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxxx Healthcare Fund II, X.X.
Xxxxx Jaffray Healthcare Fund III, X.X.
XXX Xxxxxxxx Xxxxxxx Xxxxxxxxxxx
XXX Management Limited Partnership
KSL Investments Limited Partnership
KSL Holdings Limited Partnership
PGD Investments Limited Partnership
PGD Holdings Limited Partnership
