Exhibit 2.2
AMENDMENT NO. 1
TO THE
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
PLAN OF MERGER AND EXCHANGE AGREEMENT
AMENDMENT NO. 1, dated as of September 30, 1999 (this
"AMENDMENT"), to the Plan of Merger and Exchange Agreement, dated as of August
2, 1999 (the "MERGER AND EXCHANGE AGREEMENT"), by and among (i) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Inc., a Delaware corporation (the "COMPANY"); (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sub Inc., a
New York corporation ("MERGER SUB"); (iii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc., a
New York corporation ("NBMI"); (iv) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC, a Delaware limited
liability company ("NB LLC"); (v) the Principals; and (vi) the Family
Affiliates. Capitalized terms used herein without definition shall have the
meanings assigned thereto in the Merger and Exchange Agreement.
W I T N E S S E T H :
WHEREAS, the parties listed in the Preamble have entered into
the Merger and Exchange Agreement; and
WHEREAS, the parties thereto desire to amend the Merger and
Exchange Agreement in order to increase the total number of shares of the
Company to be distributed to all of the Principals and Family Affiliates without
altering the relative amount of shares to be distributed to each Principal and
Family Affiliate;
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth and as set forth in the Merger and Exchange
Agreement, the parties hereto hereby agree as follows:
1. AMENDMENT. (a) Section 1.4(c) is hereby amended by
replacing the number 8,270,281 with the number 8,314,507.
(b) Section 2.1(c) is hereby amended by replacing the number
34,229,719 with the number 34,412,766.
2. EFFECTIVENESS OF AMENDMENT. The provisions of this
Amendment will become effective when signed by the Company, Merger Sub, NBMI and
Founder Stockholders that, pursuant to the Merger and Exchange Agreement, will
receive more than 50% of the Founder Shares.
3. CONFIRMATION OF MERGER AND EXCHANGE AGREEMENT. Except as
set forth in this Amendment, the terms, conditions and agreements set forth in
the Merger and Exchange Agreement are hereby ratified and confirmed and shall
continue in full force and effect.
4. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original and which together
shall constitute one and the same agreement.
IN WITNESS THEREOF, the parties have executed and delivered
this Amendment as of the date first written above.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President, Chief Executive Officer
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SUB INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT
INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Principal and
Chief Executive Officer
The foregoing Amendment
is hereby agreed to by the undersigned
as of September 30, 1999.
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/s/▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Associates, Inc.,
its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
BERLIN ASSOCIATES, L.P.
By: Berlin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
CANTOR ASSOCIATES, L.P.
By: Cantor Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
EGENER ASSOCIATES, L.P.
By: Egener Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
FRANCFORT 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇▇ Francort
Trustee
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Trustee
GANEK ASSOCIATES, L.P.
By: Ganek Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
GIULIANO ASSOCIATES, L.P.
By: Giuliano Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
KAMEN ASSOCIATES, L.P.
By: Kamen Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President
LAINOFF ASSOCIATES, L.P.
By: Lainoff Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
President
LASSER ASSOCIATES, L.P.
By: Lasser Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇▇▇ III ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇ III Associates, Inc.,
its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇ III
President
McKERROW ASSOCIATES, L.P.
By: McKerrow Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
NEUBERGER ASSOCIATES, L.P.
By: Neuberger Associates, Inc., its general partner
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
POTTER ASSOCIATES, L.P.
By: Potter Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ 1998 TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇ 1998 GST TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Trustee
WEINER 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/Bintoar Palar
Trustee
▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President