EXHIBIT 2.2
AMENDMENT TO ACQUISITION AGREEMENT
AND
PLAN OF MERGER
This AMENDMENT is made as of the 22th day of August, 1997 by and
between TPG Holdings, Inc., a Delaware corporation ("TPG"), and Xxxx Industries,
Inc., a Delaware corporation ("Xxxx").
WHEREAS, TPG and Xxxx are parties to that certain Acquisition Agreement
and Plan of Merger dated as of June 6, 1997 (the "Merger Agreement"); and
WHEREAS, TPG and Xxxx have mutually agreed to amend certain terms of
the Merger Agreement in accordance with the terms thereof as set forth herein.
NOW, THEREAFTER, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree with each other as follows:
1. Amendments. The Merger Agreement is hereby amended as follows:
(a) Section 1.1 is hereby amended by adding in the appropriate
alphabetical order the following definitions:
"1997 TPG Net Income" is defined in Section 4.5(b).
"Cancelled Stock" is defined in Section 4.5(b).
"Escrow Agent" is defined in Section 4.5(a).
"Escrowed Stock" is defined in Section 4.5(a).
"Determination Date" is defined in Section 4.5(c).
"Released Stock" is defined in Section 4.5(b).
(b) Section 4.1(b) is hereby amended by adding to the end of the first
sentence therein after the words "TPG Exchange Ratio" the
following:
", subject further to the retention of the Escrowed Stock by the
Escrow Agent in accordance with Section 4.5."
(c) Section 4.3(b) is hereby amended by adding in subsection (i)
thereof after the words "TPG Exchange Ratio" the following:
", subject further to the retention of the Escrowed Stock by the
Escrow Agent in accordance with Section 4.5."
(d) Article 4 is hereby amended by adding a new Section 4.5 as
follows:
" 4.5 Escrowed Stock.
(a) Amount; Rights of Beneficial Owners. At the Closing, the
Surviving Corporation shall retain in its capacity as escrow agent
(the "Escrow Agent") an aggregate number of shares of the
Surviving Corporation Common Stock equal to fifty percent (50%) of
the shares of the Surviving Corporation Common Stock to be
delivered to each of the holders of TPG Common Stock and the
number of shares of Surviving Corporation Common Stock reserved
for issuance upon exercise of the TPG Options, such number of
shares to be rounded down to the nearest whole number (the
"Escrowed Stock"). From the Effective Time until the Determination
Date (i) holders of TPG Common Stock as of the Effective Time who
surrender their certificates evidencing shares of the TPG Common
Stock in accordance with the procedures set forth in Section 4.2
shall be entitled to delivery of certificate(s) representing
shares of the Surviving Corporation Common Stock to be issued to
such holder pursuant to Section 4.1(b), less such holder's pro
rata share of the Escrowed Stock, and (ii) except as otherwise set
forth herein, each holder of the TPG Common Stock as of the
Effective Time shall be considered the beneficial owner of his pro
rata portion of the Escrowed Stock and shall have all of the
rights of the holders of Surviving Corporation Common Stock with
respect thereto, including without limitation the right to vote on
all matters and the right to receive any distributions.
(b) 1997 TPG Net Income; Cancellation of Cancelled Stock. If
the net income after taxes, as calculated in accordance with
generally accepted accounting principles, of the business of TPG
and its Subsidiaries, as currently constituted, for the fiscal
year ending December 31, 1997, as determined by the Surviving
Corporation (the "1997 TPG Net Income"), is less than $4,000,000,
then the Surviving Corporation shall (i) immediately cancel the
Cancelled Stock, and (ii) deliver the number of shares of Escrowed
Stock not constituting the Cancelled Stock (the "Released Stock")
in accordance with Section 4.5(c). Upon cancellation, no person
shall have any interest in or rights to the Cancelled Stock. For
purposes of this Agreement, the term "Cancelled Stock" shall be
defined as that number of fully paid and nonassessable shares of
Surviving Corporation Common Stock calculated pursuant to the
following formula:
4,000,000 X
-------------------------------
4,000,000 - 1997 TPG Net Income + X = 4,151,402
(With X = the number of shares of Cancelled Stock);
provided, however, that if the 1997 TPG Net Income is $4,000,000
or
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more, then the number of shares constituting the Cancelled Stock
shall be shall be deemed to be 0, and if the 1997 TPG Net Income
is less than 0, then the 1997 TPG Net Income shall be deemed to be
0.
(c) Release. Within thirty (30) days after the date the 1997
TPG Net Income is finally determined (the "Determination Date"),
the Escrow Agent shall deliver to each of the holders of record as
of the Effective Time of the TPG Common Stock and to each of the
holders of record as of the Effective Time of the TPG Options
which have exercised all or any part of such TPG Options, a
certificate evidencing such Person's pro rata share of the
Released Stock, if any (with the Surviving Corporation making, in
good faith, any rounding determinations such that each such
Person's pro rata shares of the Released Stock equals a whole
number). Any shares of Surviving Corporation Common Stock that are
not delivered within thirty (30) days of the Determination Date
shall be held by the Surviving Corporation in escrow for the
benefit of holders of the TPG Options which have not yet exercised
such securities until such time that such TPG Options shall be
exercised or shall expire or terminate. Upon exercise of any such
TPG Options after the Determination Date, the Surviving
Corporation shall issue to the holder thereof such holder's pro
rata share of the Escrowed Stock as provided in this Section
4.3(c). Notwithstanding any provision of this Agreement, the
Released Stock shall be delivered only to those TPG Stockholders
of record as of the Effective Time and the holders of record of
the TPG Options as of the Effective Time and the right to receive
all or any part of the Released Stock may not be transferred or
assigned."
(e) Section 7.2(k) is hereby amended by deleting the number "$380,000"
in subsection (i) thereof and substituting in lieu of such number
the number "$420,000".
2. No Other Modifications. Except as amended hereby, the terms and conditions of
the Merger Agreement shall continue in full force and effect and are hereby in
all respects ratified and confirmed.
3. Counterparts. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Delaware without reference to the conflicts of law principles
therein.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
TPG HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXX INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
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