EXHIBIT 2.2(b)
TILION MERGER TERMINATION AGREEMENT
This TILION MERGER TERMINATION AGREEMENT (this "Termination Agreement"),
dated as of September 20, 2002, is entered into by and among TILION, INC., a
Delaware corporation ("Tilion"), SYNQUEST, INC., a Georgia corporation
("SynQuest"), and Ticket Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of SynQuest ("Merger Sub").
RECITALS:
WHEREAS, Tilion, SynQuest and Merger Sub are parties to an Agreement and
Plan of Merger, dated as of August 30,2002 (the "Merger Agreement");
WHEREAS, the Merger Agreement contemplated that Tilion would be merged with
and into MergerSub, in a merger transaction (the "Merger") in which shareholders
of Tilion would receive shares of SynQuest's newly created Series A Convertible
Preferred Stock, par value $0.01 per share ("Series A Preferred Stock");
WHEREAS, the parties have agreed that it is in the best interests of their
respective shareholders, in lieu of the Merger, for Tilion to purchase shares of
Series A Preferred Stock for cash, and then to liquidate Tilion so that the
shareholders of Tilion will receive such shares of Series A Preferred Stock;
WHEREAS, to effect the foregoing, Tilion, SynQuest and MergerSub and their
respective Boards of Directors have determined that it is in their respective
best interests to terminate the Merger Agreement, except to the extent provided
in this Termination Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants made herein, the parties hereto agree
as follows:
1. TERMINATION OF MERGER AGREEMENT. Pursuant to Sections 9.1(c) of the
Merger Agreement, Tilion, SynQuest and Merger Sub hereby terminate the Merger
Agreement, with the effects described in Section 9.2 of the Merger Agreement,
except that the provisions of Section 10.2 of the Merger Agreement shall be
superceded by Section 4 hereof. Tilion, SynQuest and Merger Sub hereby agree
that there has been no breach by any party of any of such party's
representations, warranties, covenants or agreements set forth in the Merger
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF TILION. Tilion represents and
warrants to SynQuest and Merger Sub that Tilion has all requisite corporate
power and authority to enter into this Termination Agreement and to take the
actions contemplated hereby. The execution and delivery of this Termination
Agreement and the actions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Tilion, including approval of the
Tilion Board of Directors. This Termination Agreement has been duly executed and
delivered by Tilion and constitutes a valid and binding agreement of Tilion,
enforceable against it in accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OF SYNQUEST AND MERGER SUB. SynQuest
and Merger Sub represent and warrant to Tilion that each of SynQuest and Merger
Sub has all requisite corporate power and authority to enter into this
Termination Agreement and to take the actions contemplated hereby. The execution
and delivery of this Termination Agreement and the actions contemplated hereby
have been duly authorized by all necessary corporate action on the part of each
of SynQuest and Merger Sub, including approval of the SynQuest Board of
Directors. This Termination Agreement has been duly executed and delivered by
each of SynQuest and Merger Sub and constitutes a valid and binding agreement of
each of SynQuest and Merger Sub, enforceable against each of them in accordance
with its terms.
4. EXPENSES. Provided that Tilion completes its purchase of 5,200,000
shares of Series A Preferred Stock, all expenses incurred by Tilion in
connection with the preparation and execution of (i) the Merger Agreement and
(ii) this Termination Agreement, including, in both cases, all fees and expenses
of agents, representatives, counsel and accountants shall be deemed expenses
incurred by Tilion in connection with its investment in SynQuest and shall be
reimbursed by SynQuest to Tilion following SynQuest's receipt of the
consideration payable by Tilion to SynQuest in connection with Tilion's purchase
of 5,200,000 shares of Series A Preferred Stock.
5. MISCELLANEOUS.
(a) If any term or other provision of this Termination Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Termination Agreement nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, Tilion, SynQuest and Merger
Sub will negotiate in good faith to modify this Termination Agreement so as to
effect the original intent of the parties as closely as possible so that the
transactions contemplated hereby are, to the greatest extent possible,
consummated as originally contemplated.
(b) This Termination Agreement is governed by and must be construed in
accordance with the laws of the State of Georgia, without reference to conflicts
of laws principles.
(c) This Termination Agreement may be executed in one or more
counterparts, any of which are to be considered one and the same agreement and
effective when counterparts have been signed and delivered by each of Tilion,
SynQuest and Merger Sub, it being understood that each of the parties need not
sign the same counterpart.
(d) Capitalized terms used in this Termination Agreement and not defined
have the meanings given to such terms in the Merger Agreement.
[Signatures begin on following page]
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TILION MERGER TERMINATION AGREEMENT
IN WITNESS WHEREOF, the parties have executed and delivered this
Termination Agreement as of the date set forth above.
TILION, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
SYNQUEST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
TICKET ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Executive Vice President
