Exhibit (d)(2)
--------------
AMENDMENT NO. 1 TO
THE AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of October 23, 2000, by and among Deutsche Bank AG, an
Aktiengesellschaft organized and existing under the laws of the Federal Republic
of Germany ("Parent"), Deutsche Acquisition Corp., a Delaware corporation and an
indirect wholly-owned subsidiary of Parent ("Purchaser"), and National Discount
Brokers Group, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Parent, Purchaser and Company are parties to that
certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of
October 11, 2000;
WHEREAS, on October 23, 2000, the Supervisory Board
(Aufsichtsrat) of Parent has adopted a resolution approving the Offer and the
Merger;
WHEREAS, in accordance with Section 8.04 of the Merger
Agreement, the parties hereto wish to amend the Merger Agreement as provided
herein;
NOW THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements set forth herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
I. DEFINITIONS
Capitalized terms used and not defined herein, but defined in
the Merger Agreement, shall have the respective meanings ascribed to them in the
Merger Agreement.
II. AMENDMENTS
SECTION 2.1. The reference in the fourth line of Section
1.01(a)(i) of the Merger Agreement to "seven business days" is hereby replaced
with a reference to "eight business days".
SECTION 2.2. The reference in Section 8.01(d) of the Merger
Agreement to "Regulation 14D under the Exchange Act" is hereby replaced with a
reference to "Section 1.01 hereof".
SECTION 2.3. The condition "approval of the Offer or the
Merger by Parent's Supervisory Board (Aufsichtsrat) shall not have been
obtained" contained in clause (iii) of EXHIBIT A - CONDITIONS TO THE OFFER shall
be deleted in its entirety.
SECTION 2.4. Clause (iv) of EXHIBIT A - CONDITIONS TO THE
OFFER shall be renumbered and shall become clause (iii).
SECTION 2.5. Exhibit A-1 to Schedule 6.12 is hereby amended to
read in its entirety as Exhibit A-1 attached to this Amendment.
III. MISCELLANEOUS
SECTION 3.1. (a) Other than as set forth in Sections 2.1
through 2.5, this Amendment does not modify, change or delete any other term,
provision, representation, warranty or covenant (the "Provisions") relating to
or contained in the Merger Agreement, and all such Provisions remain in full
force and effect. For the avoidance of doubt, all references in the Merger
Agreement to "the date hereof" or "the date of this Agreement" shall continue to
be references to the date October 11, 2000.
(b) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York (except to the extent that
provisions of the DGCL are mandatorily applicable), without giving effect to the
choice of law provisions thereof. This Amendment may be executed in
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.
(c) This Amendment and any of the provisions hereof may not be
amended, altered or added to in any manner except by a document in writing and
signed by each party.
2
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed on its behalf, all at or on the day and year first
above written.
DEUTSCHE BANK AG
By: /s/ Thomas A. Curtis
---------------------------
Name: Thomas A. Curtis
Acting as Attorney-in-Fact of
Edson Mitchell, Member of
Management Board, and of
Onder Unsal, Vice President
DEUTSCHE ACQUISITION CORP.
By: /s/ Kevin E. Parker
---------------------------
Name: Kevin E. Parker
Title: President
By: /s/ Thomas A. Curtis
---------------------------
Name: Thomas A. Curtis
Title: Vice President
NATIONAL DISCOUNT BROKERS
GROUP, INC.
By: /s/ Frank E. Lawatsch, Jr.
---------------------------
Name: Frank E. Lawatsch, Jr.
Title: Executive Vice President,
Secretary and General Counsel
3