Exhibit 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
APPLIED DIGITAL SOLUTIONS, INC.,
DIGITAL ANGEL CORPORATION,
MEDICAL ADVISORY SYSTEMS, INC. AND
DIGITAL ANGEL ACQUISITION CO.
DATED AS OF MARCH 26, 2002
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this
"Amendment") is made and entered into as of March 26, 2002, by and among
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Applied Digital Solutions, Inc., a Missouri corporation ("ADSX"), Digital
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Angel Corporation, a Delaware corporation and wholly owned subsidiary of
ADSX ("DA"), Medical Advisory Systems, Inc., a Delaware corporation ("MAS"),
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and Digital Angel Acquisition Co., a Delaware corporation and wholly owned
subsidiary of MAS ("Acquisition Subsidiary").
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Recitals
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WHEREAS, the parties entered into an Agreement and Plan of Merger
(the "Agreement") on November 1, 2001;
WHEREAS, the parties desire to enter into this Amendment in order
to amend the Agreement on the terms hereinafter set forth; and
WHEREAS, capitalized terms used herein but not defined shall have
the meaning set forth in the Agreement.
NOW, THEREFORE, in consideration of the premises contained herein
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto mutually agree as follows.
1. All references to "Acquisition Subsidiary" and "Acquisition
Subsidiary, Inc." in the Merger Agreement shall be to Digital Angel
Acquisition Co., a Delaware corporation and wholly-owned subsidiary of MAS.
2. Section 4.18 of the Agreement is amended and restated in its
entirety as follows:
4.18 Investment Intent. Immediately following the Closing, in
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connection with the Third Amended and Restated Term Credit Agreement among
ADSX, IBM Credit Corporation, and the Digital Angel Share Trust, ADSX will
transfer the MAS Common Stock acquired in the Merger to the Digital Angel
Share Trust. Other than the foregoing, ADSX is acquiring the shares of MAS
Common Stock as set forth in this Agreement for its own account and not with
a view to their distribution within the meaning of Section 2(11) of the
Securities Act.
3. Section 5.8 of the Agreement is amended and restated in its
entirety as follows:
5.8 Tax Treatment. MAS shall use its reasonable best efforts to
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cause the Merger and the Contribution to qualify as, and will not take any
action which to its knowledge could reasonably be expected to prevent the
Merger and the Contribution from qualifying as either (x) a transfer to a
corporation controlled by the transferors within the meaning of section
351(a) of the Code or (y) a reorganization under Section 368(a) of the Code.
Prior to the Effective Time, MAS
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shall provide tax counsel to MAS and ADSX rendering an opinion under Section
8.1.5 below with such certificates concerning such factual matters as such
counsel identifies are relevant to its opinion and will use its reasonable
best efforts to obtain such a certificate from any stockholder of MAS
identified by such counsel.
4. Section 6.7 of the Agreement is amended and restated in its
entirety as follows:
6.7 Tax Treatment. ADSX shall use its reasonable best efforts to
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cause the Merger and Contribution to qualify as, and will not take any
action which to its knowledge could reasonably be expected to prevent the
Merger from qualifying as either (x) a transfer to a corporation controlled
by the transferors within the meaning of section 351(a) of the Code or (y) a
reorganization under Section 368(a) of the Code. Prior to the Effective
Time, ADSX shall provide tax counsel to MAS and ADSX rendering an opinion
under Section 8.1.5 below with such certificates concerning such factual
matters as such counsel identifies are relevant to its opinion and will use
its reasonable best efforts to obtain such a certificate from any
stockholder of ADSX identified by such counsel.
5. Exhibit C Consent of IBM Credit Corporation is amended in
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its entirety as attached.
6. Exhibit D Registration Rights Agreement is amended in its
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entirety as attached.
7. Except as expressly stated herein, the terms and conditions of
the Merger Agreement shall remain in full force and effect unchanged, and
the same are hereby ratified, confirmed and reaffirmed in all respects.
8. This Amendment shall be governed by and construed in accordance
with the laws of Delaware, without giving effect to applicable conflict of
laws principles.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
and delivered by their respective duly authorized officers as of the date
first above written, provided, that such signatures may be executed on
counterparts which together shall constitute a single instrument.
APPLIED DIGITAL SOLUTIONS, INC. MEDICAL ADVISORY SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxx
Title: Chief Operating Officer President
DIGITAL ANGEL CORPORATION DIGITAL ANGEL ACQUISITION CO.
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer President
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