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Execution Copy
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
PLAN OF MERGER AND EXCHANGE AGREEMENT
Dated August 18, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
MERGER OF MERGER SUB INTO NBMI ........................................ 2
1.1 The Merger ..................................................... 2
1.2 Effective Time ................................................. 3
1.3 Organizational Matters ......................................... 3
1.4 Effect on Capital Stock ........................................ 3
1.5 Exchange of Shares ............................................. 4
1.6 Existing Stockholders Agreement ................................ 4
1.7 NBMI Shareholder Approval; No Appraisal Rights ................. 4
1.8 Merger Sub Shareholder Approval ................................ 5
ARTICLE II
EXCHANGE OF NB LLC INTERESTS .......................................... 5
2.1 The Exchange ................................................... 5
2.2 Termination of Rights .......................................... 6
2.3 Consent of Executive Committee ................................. 6
2.4 Consent to Transaction; No Appraisal Rights .................... 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT STOCKHOLDERS ......... 6
3.1 Organization, Authorization and Validity of Basic Agreements ... 6
3.2 Title .......................................................... 7
3.3 No Conflicts ................................................... 7
3.4 Investment Purpose ............................................. 7
3.5 Access to Information .......................................... 8
3.6 Evaluation of and Ability to Bear Risks ........................ 8
3.7 No Liabilities in Excess of Tax Basis .......................... 8
3.8 No Dispositions ................................................ 8
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY, MERGER SUB AND NBMI .... 9
4.1 Organization and Good Standing .................................. 9
4.2 Capital Stock; Preemptive Rights ................................ 9
4.3 Authorization and Validity of Agreements ........................ 10
4.4 No Conflicts; Consents .......................................... 10
4.5 Purchase for Investment ......................................... 10
4.6 No Prior Operations ............................................. 10
ARTICLE V
COVENANTS ............................................................. 11
5.1 No Transfers Prior to Closing ................................... 11
5.2 Tax Matters ..................................................... 11
5.3 Further Assurances .............................................. 11
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY, MERGER SUB,
NBMI AND OF THE MANAGEMENT STOCKHOLDERS .............................. 11
6.1 Conditions to the Obligations of the Parties .................... 11
6.2 Conditions to the Obligations of the Company, Merger Sub and NBMI 12
6.3 Conditions to the Obligations of the Management Stockholders .... 13
ARTICLE VII
THE CLOSING ........................................................... 13
7.1 Closing Date .................................................... 13
7.2 Closing Deliveries .............................................. 13
ARTICLE VIII
DEFINITIONS............................................................ 13
ARTICLE IX
POWER OF ATTORNEY...................................................... 16
Section 9.1 Authority.................................................. 16
Section 9.2 Terms...................................................... 17
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ARTICLE X
MISCELLANEOUS......................................................... 18
10.1 Notices......................................................... 18
10.2 Termination..................................................... 18
10.3 Obligations of Management Stockholders.......................... 19
10.4 Amendments; Waivers............................................. 19
10.5 Severability.................................................... 19
10.6 Representatives, Successors and Assigns......................... 19
10.7 Governing Law................................................... 20
10.8 Specific Performance............................................ 20
10.9 Arbitration..................................................... 20
10.10 Submission to Jurisdiction; Waiver of Immunity.................. 21
10.11 Execution in Counterparts....................................... 21
10.12 Entire Agreement................................................ 21
Schedule I
Schedule II
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PLAN OF MERGER AND
EXCHANGE AGREEMENT
This PLAN OF MERGER AND EXCHANGE AGREEMENT (this
"Agreement") is dated as of August 18, 1998, by and among (i) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Inc., a Delaware corporation (the "Company"); (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sub Inc., a
New York corporation ("Merger Sub"); (iii) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Management
Incorporated, a New York corporation ("NBMI"); (iv) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC, a
Delaware limited liability company ("NB LLC"); (v) the Principals (as defined
below) listed on Schedule I hereto; and (vi) the Family Affiliates (as defined
below) listed on Schedule II hereto. Capitalized terms used herein have their
respective meanings set forth in Article VIII of this Agreement.
W I T N E S S E T H :
WHEREAS, the Principals and Family Affiliates (together, the "Man-
agement Stockholders") own all of the limited liability company interests in NB
LLC, and the Principals are the only shareholders of NBMI;
WHEREAS, the Company is a Delaware corporation having authorized
capital of 250,000,000 shares of common stock, par value $.01 (the "Common
Stock"), of which no shares are issued and outstanding on the date hereof, and
5,000,000 shares of preferred stock, par value $.01, of which no shares are
issued and outstanding on the date hereof;
WHEREAS, Merger Sub is a wholly-owned subsidiary of the Company;
WHEREAS, the Company, Merger Sub, NBMI and the Principals, in their
capacity as shareholders of NBMI, desire to have Merger Sub merge with and into
NBMI (the "Merger") on terms and conditions and for the consideration described
in this Agreement;
WHEREAS, in furtherance of such Merger, the Boards of Directors of
the Company, Merger Sub and NBMI and the shareholders of NBMI have approved the
Merger upon terms and subject to the conditions set forth in this Agreement;
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WHEREAS, the Management Stockholders desire to exchange their
respective interests in NB LLC for shares of Common Stock (the "Exchange") on
the terms and for the consideration described in this Agreement;
WHEREAS, the Executive Committee of NB LLC has consented to the
Exchange;
WHEREAS, as a result of the Merger and Exchange, NB LLC and NBMI
will become wholly-owned direct subsidiaries of the Company and Merger Sub would
cease to exist; and
WHEREAS, for U.S. federal income tax purposes, it is intended that
the Exchange will qualify as a tax-free exchange under Section 351 of the
Internal Revenue Code of 1986, as amended (the "Code") and that the Merger will
qualify as a reorganization within the meaning of Sections 368(a)(1)(A) and
368(a)(2)(E) of the Code.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions herein contained and for good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
MERGER OF MERGER SUB INTO NBMI
1.1 The Merger. In accordance with and subject to the terms and pro
visions of this Agreement and the BCL, at the Effective Time: (i) Merger Sub
shall be merged with and into NBMI, the separate existence of Merger Sub shall
cease and NBMI shall be the surviving corporation (the "Surviving Corporation")
and shall continue its corporate existence under the laws of New York under the
name "▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc."; (ii) all rights, privileges,
immunities, powers, purposes, franchises, properties and assets of Merger Sub
and NBMI shall vest in the Surviving Corporation; and (iii) all debts,
liabilities, obligations, restrictions, disabilities and duties of Merger Sub
and NBMI shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Surviving Corporation. Merger Sub will use its
best efforts to ensure that the foregoing liabilities of Merger Sub described in
(iii) will, on the Closing Date, be transferred to the Surviving Corporation.
The Merger shall have the effects set forth in Section 906 of the BCL.
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1.2 Effective Time. Upon the terms and subject to the conditions of
this Agreement, following the satisfaction or waiver of the conditions set forth
in Article VI, NBMI and Merger Sub shall execute and file a Certificate of
Merger (together with any other documents required by applicable law to
effectuate the Merger) with the Secretary of State of the State of New York in
accordance with applicable provisions of the BCL. Prior to such time, a closing
(the "Closing") will be held in accordance with Article VII hereof. The Merger
shall become effective simultaneously with the filing of such Certificate of
Merger pursuant to Section 906 of the BCL. The date and time when the Merger
shall become effective is referred to in this Agreement as the "Effective Time."
1.3 Organizational Matters. (a) Certificate of Incorporation. The
Amended and Restated Certificate of Incorporation of NBMI, as in effect
immediately prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable law.
(b) By-Laws. The NBMI By-Laws as in effect immediately prior to the
Effective Time shall be the by-laws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law.
(c) Directors and Officers. From and after the Effective Time, the
directors and officers of NBMI immediately prior to the Effective Time shall be
the directors and officers, respectively, of the Surviving Corporation, each to
hold office in accordance with the certificate of incorporation and by-laws of
the Surviving Corporation until his or her successor is elected or appointed, as
the case may be, and qualified or until his or her earlier death, resignation,
disqualification or removal.
1.4 Effect on Capital Stock. As of the Effective Time, by virtue of
the Merger and without any action on the part of any holder of shares of NBMI
Stock or the Company:
(a) Capital Stock of Merger Sub. Each issued and outstanding share
of capital stock of Merger Sub shall be converted into and become one
fully paid and nonassessable share of common stock, par value $0.01 per
share, of the Surviving Corporation;
(b) Cancellation of Treasury Stock. Each NBMI Share that is owned by
NBMI shall automatically be canceled and retired and shall cease to exist,
and no consideration shall be delivered in exchange therefor;
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(c) Conversion of NBMI Common Stock. Each share of NBMI Stock (other
than shares held in the treasury of NBMI) shall be converted into the
right to receive from the Company the number of shares of Common Stock
equal to the quotient of (i) 24,721,350 divided by (ii) the number of
shares of NBMI issued and outstanding (other than shares held in the
Treasury of NBMI) at the Effective Time (the "Merger Consideration"); and
(d) No Rights as Stockholders. The holders of certificates
representing shares of NBMI Stock shall as of the Effective Time cease to
have any rights as stockholders of NBMI and, except as aforesaid, their
sole right shall be the right to receive their share of the Merger
Consideration, as determined and paid in the manner set forth in this
Agreement.
1.5 Exchange of Shares. From and after the Effective Time, each
holder of an outstanding certificate or certificates which prior thereto
represented outstanding shares of NBMI Stock (the "Certificates") shall, upon
surrender to the Company of such Certificates (accompanied by all requisite
stock transfer stamps) and acceptance thereof by the Company, be entitled to the
Merger Consideration into which the aggregate number of shares of NBMI Stock
previously represented by such Certificate or Certificates surrendered shall
have been converted pursuant to this Agreement. Until surrendered in accordance
with the provisions of this Section 1.5, from and after the Effective Time, each
Certificate (other than Certificates representing former shares of NBMI Stock
held in the treasury of the Surviving Corporation) shall represent for all
purposes only the right to receive a portion of the Merger Consideration as
determined and paid in the manner set forth in this Agreement. After the
Effective Time there shall be no transfers on the stock transfer books of the
Surviving Corporation of the shares of NBMI Stock that were outstanding
immediately prior to the Effective Time.
1.6 Existing Stockholders Agreement. NBMI and the Principals, being
all of the parties to the Stockholders' Agreement of NBMI dated as of December
31, 1990 (the "NBMI Stockholders' Agreement"), hereby agree that, effective as
of the Effective Time, without any further action of any Person, such agreement
shall be terminated.
1.7 NBMI Shareholder Approval; No Appraisal Rights. Each Principal,
in his or her capacity as a shareholder of NBMI, in accordance with Article IV,
section 5 of the NBMI By-Laws and section 615 of the BCL, which provide for
actions by written consent, hereby (i) consents to and approves the Merger, (ii)
waives any right to notice of any shareholder action and (iii) waives any right
to receive payment of the fair value or other rights and benefits that may be
available to shareholders of a New York corporation pursuant to section 623 of
the BCL.
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1.8 Merger Sub Shareholder Approval. The Company in its capacity as
sole shareholder of Merger Sub in accordance with section 1.9 of the By-Laws of
Merger Sub and section 615 of the BCL, hereby (i) consents to and approves the
Merger and (ii) waives any right to notice of any shareholder action.
ARTICLE II
EXCHANGE OF NB LLC INTERESTS
2.1 The Exchange. (a) Assignment of NB LLC Interests. Each
Management Stockholder hereby assigns and delivers to the Company all right,
title and interest in, to and with respect to the NB LLC Interest held by such
Management Stockholder, including without limitation (i) all allocations of
profits and losses (and all distributions of cash or other property) in respect
of such NB LLC and (ii) all other rights otherwise accruing to the Management
Stockholder by virtue of owning such NB LLC Interest. From and after the
Effective Time, the entire capital account and share of profits and losses of
each Management Stockholder shall be deemed to be the capital account and share
of profits and losses of the Company, and the Management Stockholders shall have
no further interest or rights of any kind in or with respect to any of the NB
LLC Interests.
(b) Acceptance, Etc. The Company hereby accepts the assignment of
the NB LLC Interests and assumes and agrees to perform and be bound by any and
all of the conditions, covenants and obligations of the Management Stockholders
pursuant to the NB LLC Agreement as if the Company had executed the NB LLC
Agreement originally with respect to the NB LLC Interests. At the Effective
Time, the Company shall become the sole member of NB LLC, and each Management
Stockholder shall be released from all obligations under the NB LLC Agreement.
(c) Exchange of Common Stock. Immediately after the Effective Time,
each Management Stockholder shall receive in consideration for the exchange of
such Management Stockholder's NB LLC Interest, the number of shares of Common
Stock equal to the product of 71,278,650 and such Management Stockholder's
Operations Percentage (as defined in the NB LLC Agreement).
2.2 Termination of Rights. Each Management Stockholder hereby
affirms and agrees that, from and after the Effective Time, such Management
Stockholder shall have no rights under the NB LLC Agreement, including, without
limitation, any rights under Section 13 thereof relating to a sale of NB LLC
and/or an NB Group Affiliate (as defined in the NB LLC Agreement) and/or a
division of NB LLC.
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2.3 Consent of Executive Committee. By its execution hereof, NB LLC
acknowledges that the Executive Committee of NB LLC approves of the form of this
Agreement, acknowledges receipt of a duly executed copy of the same, consents to
the assignment of all of the NB LLC Interests to the Company in accordance with
Section 4.5 of the NB LLC Agreement and consents to the admission of the
Company as a New Member of NB LLC in accordance with Section 4.7 of the NB LLC
Agreement.
2.4 Consent to Transaction; No Appraisal Rights. Each of the under
signed Management Stockholders, together constituting all of the holders of
limited liability company interests in NB LLC, hereby assents to the terms,
conditions and trans actions contemplated hereby and acknowledges that such
Management Stockholder shall not, as a result of such terms, conditions and
transactions, have any right to receive payment of the fair value of any
interest such Member may be deemed to have in ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Trust Company
or otherwise be entitled to any other rights and benefits referred to in
Section 143-a(4) of the New York Banking Law, as amended, or otherwise as may be
deemed to result from NB LLC's ownership of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Trust Company of
Delaware.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE MANAGEMENT STOCKHOLDERS
Each Management Stockholder hereby severally represents and warrants
to the Company as follows:
3.1 Organization, Authorization and Validity of Basic Agreements.
(a) Entities. If such Management Stockholder is not a natural person, (i) such
Management Stockholder is duly formed or organized, validly existing and in good
standing under the laws of the jurisdiction in which such Management Stockholder
was formed or organized; (ii) such Management Stockholder has the full legal
right, power and authority required to enter into and deliver this Agreement and
the Stockholders Agreement and to consummate the transactions contemplated
hereby and thereby; and (iii) this Agreement and the Stockholders Agreement have
been duly authorized, executed and delivered by such Management Stockholder, and
each is a legal, valid and binding obligation of such Management Stockholder
enforceable against such Management Stockholder in accordance with their terms.
(b) Natural Persons. If such Management Stockholder is a natural
person, (i) such Management Stockholder is of sound mind and has full legal
capacity to enter
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into, execute and deliver this Agreement and the Stockholders Agreement and
perform his or her obligations hereunder and thereunder, and (ii) this Agreement
and the Stockholders Agreement have been duly executed and delivered by such
Management Stockholder and are legal, valid and binding obligations of such
Management Stockholder enforceable against such Management Stockholder in
accordance with their terms.
3.2 Title. Such Management Stockholder owns, beneficially and of
record, the NB LLC Interest held by such Management Stockholder free and clear
of any Liens; at the Effective Time, the Company will acquire good and valid
title to such NB LLC Interest, free and clear of any Liens other than any Lien
created by the Company; and, if such Management Stockholder is a Principal, such
Management Stockholder owns, beneficially and of record, the number of shares of
NBMI Stock set forth opposite such Management Stockholder's name on Schedule I
free and clear of any Liens other than any Lien created by the Company.
3.3 No Conflicts. Except for the applicable requirements under the
HSR Act, the rules and regulations of the NYSE, the New York Banking Law and the
Delaware banking law, the execution, delivery and performance of this Agreement
and the Ancillary Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with, contravene, result in a
violation or breach of or default under (with or without the giving of notice or
the lapse of time or both), permit any party to terminate, amend or accelerate
the provisions of, or result in the imposition of any Lien (or any obligation to
create any Lien) upon any of the property or assets of such Management
Stockholder under (a) any Contract to which such Management Stockholder is a
party or by which any of its property or assets may be bound or (b) any
provision of any partnership agreement, trust agreement or other organizational
document of any such Management Stockholder that is not a natural person.
3.4 Investment Purpose. Such Management Stockholder is acquiring
shares of Common Stock under this Agreement for its own account for investment
purposes, and not with a view to, or for resale in connection with, any
distribution thereof other than in compliance with the Securities Act and other
applicable securities laws. Such Management Stockholder acknowledges that it
must bear the economic risk of an investment in the Management Shares for an
indefinite period of time because, among other reasons, the Management Shares
have not been registered under the Securities Act and, therefore, such shares
cannot be sold unless subsequently registered under the Securities Act or an
exemption from such registration is available. Such Management Stockholder
understands that the Management Shares will be subject to the provisions of a
Stockholders Agreement, which defines certain rights of the stockholders of the
Company and provides certain restrictions on the transferability of the
Management
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Shares. Such Management Stockholder also acknowledges that transfers of the
Management Shares are further restricted by applicable United States federal and
state and foreign securities laws.
3.5 Access to Information. Such Management Stockholder understands
the risks of, and other considerations relating to, its acquisition and
ownership of the Management Shares. Such Management Stockholder has been
provided an opportunity to ask questions of, and has received answers
satisfactory to it from, the Company and its representatives regarding the
Management Shares, and has obtained any and all additional information from the
Company and its representatives that such Management Stockholder deems necessary
regarding the Management Shares.
3.6 Evaluation of and Ability to Bear Risks. Such Management
Stockholder has such knowledge and experience in financial affairs that it is
capable of evaluating the merits and risks of, and other considerations relating
to, the ownership of the Management Shares, and has not relied in connection
with its acquisition of the Management Shares upon any representations,
warranties or agreements other than those set forth in this Agreement. Such
Management Stockholder's financial situation is such that it can afford to bear
the economic risk of holding the Management Shares for an indefinite period of
time, and such Management Stockholder can afford to suffer the complete loss of
its investment in the Shares.
3.7 No Liabilities in Excess of Tax Basis. Such Management Stock
holder's tax basis in its NB LLC Interests, is equal to or greater than such
Management Stockholder's share of NB LLC's liabilities determined under Section
752 of the Code.
3.8 No Dispositions. No Management Stockholder has any present plan,
intention or arrangement to dispose of any of the Management Shares to be
received by such Management Stockholder except as described in any registration
statement on Form S-1 to be filed by the Company in respect of an initial public
offering of its shares. For purposes of this Section 3.8, a disposition shall
include a Transfer and shall include any other transaction (including, without
limitation, a short-sale-against-the-box, forward sale, equity swap or other
derivative contract) which transfers a substantial portion of the opportunity
for gain and risk of loss with respect to such Management Shares to a person who
was not a Management Stockholder immediately prior to the date hereof.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY, MERGER SUB AND NBMI
The Company, Merger Sub and NBMI jointly and severally represent and
warrant to the Management Stockholders as follows:
4.1 Organization and Good Standing. Each of the Company, Merger Sub
and NBMI is a corporation duly organized, validly existing and in good standing
under the laws of, in the case of the Company, the State of Delaware and, in the
case of Merger Sub and NBMI, the State of New York. NBMI was organized under the
name "Cedar Street Consultants, Inc." on October 27, 1970.
4.2 Capital Stock; Preemptive Rights. (a) Capital Stock. The
authorized capital stock of the Company consists of 250,000,000 shares of Common
Stock of which no shares are currently issued and outstanding, and 5,000,000
shares of preferred stock, par value $.01, of which no shares are currently
issued and outstanding. The authorized capital stock of Merger Sub consists of
100 shares of common stock, par value $.01, of which all shares are currently
issued and outstanding. The authorized capital stock of NBMI consists of 34,484
shares of NBMI Stock of which 12,192 shares are currently issued and
outstanding. The Management Shares when so issued will be duly and validly
authorized and issued, fully paid and nonassessable.
(b) Preemptive Rights. Except for the NBMI Stockholders' Agreement,
there are no preemptive or similar rights on the part of any Person with respect
to the issuance of any shares of capital stock of the Company, Merger Sub or
NBMI. Except for this Agreement, the NBMI Stockholders' Agreement and the
Stockholders Agreement, there are no subscriptions, options, warrants or other
similar rights, agreements or commitments of any kind obligating the Company,
Merger Sub or NBMI to issue or sell, or to cause to be issued or sold, or to
repurchase or otherwise acquire, any shares of its capital stock or any
securities convertible into or exchangeable for, or any options, warrants or
other similar rights relating to, any such shares.
4.3 Authorization and Validity of Agreements. Each of the Company,
Merger Sub and NBMI has all requisite corporate power and authority to execute
and deliver this Agreement and, in the case of the Company, the Stockholders
Agreement, to perform their obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and, in the case of the Company, the Stockholders
Agreement, the performance by each of the Company, Merger Sub and NBMI of their
obligations hereunder and thereunder and the
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consummation of the transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action of the Company, Merger Sub and
NBMI. This Agreement and the Stockholders Agreement constitute legal, valid and
binding obligations of the Company, Merger Sub and NBMI enforceable against the
Company, Merger Sub and NBMI, respectively, in accordance with their respective
terms.
4.4 No Conflicts; Consents. Except for the applicable requirements
under the HSR Act, the rules and regulations of the NYSE, the New York Banking
Law and the Delaware banking law, the execution, delivery and performance of
this Agreement by the Company, Merger Sub and NBMI and the Stockholders
Agreement by the Company and the consummation by the Company, Merger Sub and
NBMI of the trans actions contemplated hereby and thereby do not and will not
conflict with, contravene, result in a violation or breach of or default under
(with or without the giving of notice or the lapse of time, or both), permit any
party to terminate, amend or accelerate the provisions of, or result in the
imposition of any Lien (or any obligation to create any Lien) upon any of the
property or assets of the Company, Merger Sub and NBMI under (a) any Contract to
which any of the Company, Merger Sub and NBMI is a party or by which any of
their property or assets may be bound or (b) any provision of the certificate of
incorporation or the bylaws of the Company, Merger Sub and NBMI.
4.5 Purchase for Investment. The Company is acquiring the NB LLC
Interests solely for investment, with no present intention to resell the NB LLC
Interests. The Company hereby acknowledges that the NB LLC Interests have not
been registered pursuant to the Securities Act and may not be transferred in the
absence of such registration or an exemption therefrom under the Securities Act.
4.6 No Prior Operations. Neither the Company nor Merger Sub has
had any operations or assets prior to the date hereof.
ARTICLE V
COVENANTS
5.1 No Transfers Prior to Closing. From and after the date of this
Agreement and prior to the Closing, no Management Stockholder shall Transfer all
or any portion of its interest in an NB LLC Interest or any shares of NBMI Stock
held by such Management Stockholder without the prior written consent of the
Company.
5.2 Tax Matters. (a) Merger. The parties intend the Merger to
qualify as a reorganization under Sections 368(a)(1)(A) and 368(a)(2)(E) of the
Code; each party
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and its affiliates shall use all reasonable efforts to cause the Merger to so
qualify; no party nor any affiliate thereof shall take any action that would
reasonably be expected to cause the Merger not to so qualify; and the parties
will take the position for all purposes that the Merger so qualifies.
(b) Exchange. The parties intend the Exchange to qualify as an
exchange under Section 351 of the Code; each party and its affiliates shall use
all reasonable efforts to cause the Exchange to so qualify; no party nor any
affiliate thereof shall take any action that would reasonably be expected to
cause the Exchange not to so qualify; and the parties will take the position for
all purposes that the Exchange so qualifies.
5.3 Further Assurances. Each party hereto shall execute and deliver
such instruments and take such other actions prior to or after the Closing as
any other party may reasonably request in order to carry out the intent of this
Agreement, including without limitation obtaining any required consents or
approvals from third parties, and hereby agrees to use their respective
reasonable best efforts to consummate the Exchange and the Merger at the
earliest practicable time.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY,
MERGER SUB, NBMI AND OF THE MANAGEMENT STOCKHOLDERS
6.1 Conditions to the Obligations of the Parties. The obligations of
the Company, Merger Sub, NBMI and the Management Stockholders to consummate the
transactions contemplated hereby are subject to the fulfillment (or waiver by
the Company, Merger Sub, NBMI and a Majority in Interest) of each of the
following conditions prior to the Closing:
(a) All conditions to the closing of the IPO pursuant to the
applicable underwriting agreements (other than any conditions that the
Closing and Effective Time shall have occurred) shall have been satisfied.
(b) The consent of, or any required notice to, the NYSE, the New
York Banking Department and the applicable Delaware banking authority, and
all material regulatory, governmental and other third party approvals or
notices required in the judgment of the Company for the consummation of
the transactions contemplated by this Agreement shall have been obtained
or made;
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(c) In respect of any required notification pursuant to the HSR Act,
the applicable waiting period and any extension thereof shall have expired
or been terminated; and
(d) The consummation of the transactions contemplated hereby shall
not have been precluded by any order, decree, judgment or injunction of a
court of competent jurisdiction or other governmental or regulatory
authority, and there shall not have been any action taken or any statute,
rule or regulation enacted, promulgated or deemed applicable to, the
transactions contemplated hereby by any court, governmental agency or
regulatory or administrative authority that makes consummation of such
transactions illegal.
6.2 Conditions to the Obligations of the Company, Merger Sub and
NBMI. The obligations of the Company, Merger Sub and NBMI under this Agreement
to consummate the transactions contemplated hereby are subject to the
fulfillment (or waiver by the Company) of the following condition prior to the
Closing:
(a) The representations and warranties of the Management
Stockholders contained in or made pursuant to this Agreement shall be
deemed to have been made again at and as of the Closing and shall then be
true and accurate in all material respects, and each of the Management
Stockholders shall have performed and complied in all material respects
with all agreements required by this Agreement to be performed or complied
with by each of them prior to or at he Closing; and
(b) The Stockholders Agreement substantially in the form of Exhibit
A hereto (the "Stockholders Agreement") shall have executed and delivered
by each of the Management Stockholders to the Company.
6.3 Conditions to the Obligations of the Management Stockholders.
The obligations of the Management Stockholders under this Agreement to
consummate the transactions contemplated hereby are subject to the fulfillment
(or waiver in writing by a Majority in Interest) of the following condition
prior to the Closing:
(a) All representations and warranties of the Company, Merger Sub
and NBMI in this Agreement shall be deemed to have been made again at and
as of the Closing and shall then by true and accurate in all material
respects, and the Company, Merger Sub and NBMI shall have performed and
complied in all material respects with all agreements required by this
Agreement to be performed or complied with by it prior to or at the
Closing; and
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(b) The Stockholders Agreement shall have been executed and
delivered by the Company to each of the Management Stockholders.
ARTICLE VII
THE CLOSING
7.1 Closing Date. The Closing shall take place at the offices of
Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on such date
as the Company shall determine by notice as soon as practicable following
satisfaction or waiver of all of the conditions required to be satisfied (or
waived) pursuant to Article VI for the purpose of confirming the Merger and the
Exchange.
7.2 Closing Deliveries. At the Closing, (a) the Principals will
deliver the Certificates in accordance with Section 1.6(a); (b) the Company
shall issue shares of Common Stock required to be delivered under Articles I and
II of this Agreement to a nominee designated by the Company, which nominee shall
hold such shares in accordance with the Stockholders Agreement; and (c) the
parties will make such other deliveries as are contemplated by this Agreement to
be made at the Closing.
ARTICLE VIII
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"AMEX" has the meaning set forth in Section 10.7(b).
"BCL" means the New York Business Corporation Law.
"Certificates" has the meaning set forth in Section 1.5.
"Closing" has the meaning set forth in Section 7.1.
"Code" has the meaning set forth in the recitals to this Agreement.
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"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Contract" means any contract, agreement, indenture, letter of
credit, mortgage, security agreement, pledge agreement, deed of trust,
bond, note, guarantee, surety obligation, warranty, license, franchise,
permit, power of attorney, lease, instrument or other agreement.
"Effective Time" has the meaning set forth in Section 1.2.
"Exchange" has the meaning set forth in the recitals to this
Agreement.
"Executive Committee" means the executive committee of NB LLC or any
Person or Persons authorized by such executive committee to perform any
action, approve any matter or make any determination permitted to be
taken, approved or determined by the Executive Committee under this
Agreement.
"Family Affiliates" means the Persons listed on Schedule II hereto.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"IPO" means the initial public offering of the Common Stock of the
Company.
"Lien" means any claim, lien, pledge, deed of trust, option, charge,
security interest, hypothecation, encumbrance, right of first offer,
voting trust, proxy, right of third parties or other restriction or
limitation of any nature whatsoever.
"Majority in Interest" means Management Stockholders that, pursuant
to the terms of this Agreement, will receive more than 50% of the
Management Shares.
"Management Shares" means, with respect to any Management
Stockholder, the shares of Common Stock received or to be received by such
Management Shareholder pursuant to the terms of this Agreement.
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"Management Stockholders" has the meaning set forth in the recitals
to this Agreement.
"Merger" has the meaning set forth in the recitals to this
Agreement.
"Merger Consideration" has the meaning set forth in Section 1.4(c).
"Merger Sub" has the meaning set forth in the preamble to this
Agreement.
"NASD" has the meaning set forth in Section 10.7(c).
"NB LLC" has the meaning set forth in the preamble to this
Agreement.
"NB LLC Agreement" means the Limited Liability Company Agreement of
NB LLC, dated as November 1, 1996, as amended by the First Amendment
thereto, dated as of August 3, 1998.
"NB LLC Interest" means a limited liability company interest in NB
LLC held by any member thereof, including without limitation all right,
title and interest of such member in the capital, allocations of profit
and loss, distributions of cash and property and all other rights
otherwise accruing to such Person pursuant to the NB LLC Agreement.
"NBMI" has the meaning set forth in the preamble to this Agreement.
"NBMI By-Laws" means the Amended and Restated By-Laws of NBMI.
"NBMI Stock" shall mean the common stock, par value $.01, of NBMI.
"NBMI Stockholders' Agreement" has the meaning set forth in Section
1.6.
"NYSE" means the New York Stock Exchange.
"Person" means any natural person or any firm, partnership, limited
liability partnership, association, corporation, limited liability
company, trust, business trust, governmental authority or other entity.
"Principals" means the Persons listed on Schedule I hereto.
"Stockholders Agreement" has the meaning set forth in Section
6.2(b).
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"Surviving Corporation" has the meaning set forth in Section 1.1.
"Transfer" means, with respect to any shares of capital stock,
directly or indirectly, (i) to sell, assign, transfer, pledge, convey,
distribute, mortgage, encumber, hypothecate or otherwise dispose, whether
by gift, for consideration or for no consideration or (ii) to grant any
proxy or voting rights, or enter into any voting agreement or trust.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE IX
POWER OF ATTORNEY
Section 9.1 Authority. (a) Each Management Stockholder hereby makes,
constitutes and appoints the Secretary of the Company, and any successor
thereof, with full power of substitution and resubstitution, his, her or its
true and lawful attorney for his, her or it and in his, her or its name, place
and stead and for his, her or its use and benefit, to execute and deliver:
(i) the Stockholders Agreement, with such changes and alteration as
may be approved by the Executive Committee;
(ii) if such Management Stockholder has provided notice to the
Executive Committee that such Management Stockholder desires to
participate in the IPO, (x) one or more underwriting agreements among the
Company, underwriters and the Management Stockholders participating in the
IPO and (y) a power-of-attorney to be used in connection with the IPO, in
all cases substantially in the form approved by the Executive Committee;
(iii) all stock powers, instruments of assignment, endorsements and
other documents necessary, appropriate, advisable or convenient to
facilitate or consummate the sale of Common Stock in accordance with
Article III of the Stockholders Agreement; and
(iv) all other agreements, instruments, acknowledgments, filings,
receipts, powers-of-attorney, endorsements, stock powers, other
instruments of assignment and other documents of any kind that the
Executive Committee shall deem necessary, appropriate, advisable or
convenient to facilitate or consummate the Exchange, the Merger or the
IPO.
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(b) Each Management Stockholder authorizes such attorney-in-fact to
take any further action which such attorney-in-fact shall consider necessary,
appropriate, advisable or convenient in connection with any of the foregoing,
hereby giving such attorney-in-fact full power and authority to do and perform
each and every act or thing whatsoever requisite, appropriate, advisable or
convenient to be done in and about the foregoing as fully as such Management
Stockholder might or could do if personally present, and hereby ratifying and
confirming all that such attorney-in-fact shall lawfully do or cause to be done
by virtue hereof.
Section 9.2 Terms. The power of attorney granted pursuant to Sec-
tion 9.1 (a) is a special power of attorney coupled with an interest and, until
terminated in accordance with Section 10.2, is irrevocable and (b) may be
exercised by such attorney-in-fact by listing all of the Management Stockholders
executing any agreement, instrument, acknowledgment, filing, receipt,
power-of-attorney and other document with the single signature of such
attorney-in-fact acting as attorney-in-fact for all of them.
ARTICLE X
MISCELLANEOUS
10.1 Notices. (a) All notices, requests, demands, waivers and other
communications to be given by any party hereunder shall be in writing and shall
be (i) mailed by first-class, registered or certified mail, postage prepaid,
(ii) sent by hand delivery or reputable overnight delivery service or (iii)
transmitted by telecopy (provided that a copy is also sent by reputable
overnight delivery service) addressed, in the case of any Principal, to him or
her at the address set forth on Schedule I, in the case of any Family Affiliate,
to it at the address set forth on Schedule II or, in the case of the Company,
Merger Sub or NBMI, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Secretary, or, in each case, to such other address as may be specified in
writing to the other parties hereto.
(b) All such notices, requests, demands, waivers and other
communications shall be deemed to have been given and received (i) if by
personal delivery or telecopy, on the day of such delivery, (ii) if by
first-class, registered or certified mail, on the fifth Business Day after the
mailing thereof or (iii) if by reputable overnight delivery service, on the day
delivered.
10.2 Termination. (a) This Agreement may be terminated at any time
prior to the consummation of the transactions contemplated hereby:
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(i) after March 31, 1999, by the Company, Merger Sub, NBMI or a
Majority in Interest by written notice if the Closing has not occurred for
any reason other than a breach of this Agreement by the terminating party;
(ii) by the Company, Merger Sub or NBMI, if there has been a
material breach by any of the Management Stockholders of a material
agreement, representation or warranty contained in this Agreement which
has not been cured after notice from the Company;
(iii) by a Majority in Interest, if there has been a material breach
by the Company, Merger Sub or NBMI of a material agreement, representation
or warranty contained in this Agreement which has not been cured after
notice from a Majority in Interest; or
(iv) by mutual consent of the Company, Merger Sub, NBMI and a
Majority in Interest.
(b) In the event of the termination of this Agreement in accordance
with Section 10.2(a), this Agreement shall become void and have no effect,
without any liability to any person in respect hereof or of the transactions
contemplated hereby on the part of any party hereto, or any of its directors,
officers, officers, representatives, stockholders or affiliates, except for any
liability resulting from such party's willful and material breach of this
Agreement.
10.3 Obligations of Management Stockholders. The obligations of the
Management Stockholders under this Agreement shall be several and shall not be
joint and several.
10.4 Amendments; Waivers. The provisions of this Agreement may not
be amended or modified except by a writing signed by the Company, Merger Sub,
NBMI and a Majority in Interest, provided that the Company may amend this
Agreement, without the consent of any other Person, to cure any ambiguity or to
correct or supplement any provisions of this Agreement that may be incomplete or
inconsistent with any other provisions contained herein. The failure of any
party at any time or times to require performance of any provision of this
Agreement shall in no manner affect the rights at a later time to enforce the
same. No waiver by any party of the breach of any term contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any such
breach or the breach of any other term of this Agreement.
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10.5 Severability. If the final determination of an arbitral body or
a court of competent jurisdiction declares, after the expiration of the time
within which judicial review (if permitted) of such determination may be
perfected, that any term or provision hereof is invalid or unenforceable, (a)
the remaining terms and provisions hereof shall be unimpaired and (b) the
invalid or unenforceable term or provision shall be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
10.6 Representatives, Successors and Assigns. Each Principal shall
cause his or her Family Affiliate to comply with the terms and provisions of
this Agreement. This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their respective legatees, legal
representatives, successors and assigns; provided that Management Stockholders
may not in any manner whatsoever assign, delegate or otherwise Transfer any of
their rights or obligations under, or with respect to the Merger Consideration
or the Company Stock to be received through the Exchange pursuant to, this
Agreement except with the prior written consent of the Company.
10.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICT OF LAWS PRINCIPLES OR RULES THEREOF).
10.8 Specific Performance. (a) Each of the parties hereto
acknowledges that it will be impossible to measure in money the damage to the
Company, Merger Sub, NBMI or the Management Stockholders if any party hereto
fails to comply with the provisions of Article I or II or Section 5.1 and each
party hereto agrees that in the event of any such failure, neither the Company,
nor Merger Sub, nor NBMI nor any Management Stockholder will have an adequate
remedy at law. Therefore, the Company, Merger Sub, NBMI and each Management
Stockholder, in addition to all of the other remedies which may be available,
shall have the right to equitable relief, including, without limitation, the
right to enforce specifically the provisions of Article I and II and Section 5.1
by obtaining injunctive relief against any violation thereof, or otherwise or
(b) All claims for specific performance of one or more provisions of
this Agreement, including all such claims with respect to the obligations
hereunder to consummate the Exchange and the Merger, shall be resolved
exclusively by litigation before a court of competent jurisdiction located in
the State of New York.
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10.9 Arbitration.Except for claims for specific performance brought
in accordance with Section 10.8, all disputes, differences, and controversies
arising out of or in any way related to this Agreement shall be submitted:
(a) to the NYSE to be heard and decided under the terms of this
Agreement and the then applicable rules of the NYSE or, if those rules as
interpreted by the NYSE do not permit the disputes, differences and
controversies to be submitted to the NYSE for arbitration; then
(b) to the American Stock Exchange (the "AMEX") in New York, New
York, to be heard and decided under the terms of this Agreement and the
then applicable rules of the AMEX or, if those rules as interpreted by the
AMEX do not permit the disputes, differences and controversies to be
submitted to the AMEX for arbitration; then
(c) to the National Association of Securities Dealers, Inc. (the
"NASD") in New York, New York, to be heard and decided under the terms of
this Agreement and the then applicable rules of the NASD or, if the
disputes, differences and controversies are not eligible for submission to
the NASD for arbitration under those rules as interpreted by the NASD;
then
(d) to the American Arbitration Association in New York, New York;
to be heard and decided under the terms of this Agreement and in accordance with
the then applicable rules of the hearing body by a panel of three arbitrators
(unless the rules of the hearing body shall require a different number of
arbitrators) chosen in accordance with the then applicable rules of the hearing
body. The decision of the arbitrators shall be final and binding upon the
parties, and an order may be entered upon the award of the arbitrators in any
court of competent jurisdiction.
10.10 Submission to Jurisdiction; Waiver of Immunity. Each
Management Stockholder, for itself and its successors and assigns, hereby
irrevocably waives (a) any objection, and agrees not to assert, as a defense in
any arbitration or legal or equitable action, suit or proceeding against such
Management Stockholder arising out of or relating to this Agreement or any
transaction contemplated hereby or the subject matter of any of the foregoing,
that (i) it is not subject thereto or that such action, suit or proceeding may
not be brought or is not maintainable before such arbitral body or in said
courts, (ii) the venue thereof may not be appropriate and (iii) the internal
laws of the State of New York do not govern the validity, interpretation or
effect of this Agreement, (b) any immunity from jurisdiction to which it might
otherwise be entitled in any such arbitration, action, suit or proceeding which
may be instituted in any state or federal court
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in the State of New York in accordance with Section 10.8 or before any arbitral
body in accordance with Section 10.9 and (c) any immunity from the maintaining
of an action against it to enforce any judgment for money obtained in any such
arbitration, action, suit or proceeding and, to the extent permitted by
applicable law, any immunity from execution.
10.11 Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute but one and the same instrument.
10.12 Entire Agreement. This Agreement, including the Schedules and
Exhibits hereto, contains the entire understanding of the parties with respect
to the subject matter hereof, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
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IN WITNESS THEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SUB INC.
By:/s/C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ MANAGEMENT
INCORPORATED
By:/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
By:/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
27
The foregoing Plan of Merger and Exchange
Agreement is hereby agreed to by the undersigned
as of August 18, 1998.
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/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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28
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/s/▇▇▇▇▇ ▇. Risen
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ Silver
/s/▇▇▇▇ ▇. ▇▇▇▇▇
/s/R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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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
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▇▇▇▇▇▇ 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
30
▇▇▇▇▇▇ 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
31
▇▇▇▇▇▇▇ 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
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
President
By: /s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1998 TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
32
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
33
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
34
SCHEDULE I
Name and Address* of Principal Number of NBMI Shares
------------------------------ ---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 110
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 790
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 263
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 105
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 457
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 110
▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 157
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 153
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 75
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 52
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 304
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 78
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 139
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 123
▇▇▇ ▇. ▇▇▇▇▇▇▇ 259
▇▇▇▇ ▇. ▇▇▇▇▇▇ 129
▇▇▇▇▇▇▇ ▇▇▇▇ 5
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 50
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 321
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 65
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 86
▇▇▇▇▇ ▇▇▇▇▇▇▇ 356
▇▇▇▇▇▇ ▇▇▇▇▇▇ 71
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 35
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 273
▇▇▇▇▇▇▇▇ ▇▇▇▇ III 555
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 272
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 101
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 355
---
* Unless otherwise indicated, the address of each Principal is c/o Neuberger
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 200
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 263
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 93
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 166
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 73
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 213
C. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 55
▇▇▇▇▇ ▇. Risen 50
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 6
J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ 60
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,503
▇▇▇▇▇▇▇▇ Silver 25
▇▇▇▇ ▇. ▇▇▇▇▇ 592
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 104
▇▇▇▇▇▇ ▇▇▇▇▇▇ 50
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 132
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 62
▇▇▇▇ ▇▇▇▇▇ 162
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 92
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 7
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1
▇▇▇▇▇ ▇▇▇▇▇▇▇ 161
▇▇▇▇▇ ▇▇▇▇▇▇▇ 21
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 98
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ 31
▇▇▇▇▇▇ ▇. ▇▇▇▇ 178
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 39
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 733
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 500
------
Total 12,192
======
36
SCHEDULE II
Name and Address* of Family Affiliate
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇ Associates, L.P.
Berlin Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, L.P.
Francfort 1998 Grantor Retained Annuity Trust
Ganek Associates, ▇.▇.
▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇ Associates, L.P.
Kamen Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, L.P.
▇▇▇▇▇▇▇▇ ▇▇▇▇ III Associates, ▇.▇.
▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust
Potter Associates, ▇.▇.
▇▇▇▇▇▇▇▇ ES Associates, ▇.▇. ▇▇▇▇▇▇▇▇ CS Associates, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ 1998 Trust
--------
* Unless otherwise indicated, the address of each Family Affiliate is c/o
Neuberger & ▇▇▇▇▇▇ Trust Company of Delaware, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
37
▇▇▇▇▇▇▇ Associates, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust
▇▇▇▇▇▇ 1998 GST Trust
Weiner 1998 Grantor Retained Annuity Trust
▇▇▇▇▇▇▇▇ Associates, L.P.
Zicklin Associates, L.P.
2