EXHIBIT 2.2
AMENDMENT AND WAIVER TO
AGREEMENT AND PLAN OF MERGER
This Amendment and Waiver to Agreement and Plan of Merger (this
"Amendment") is made and entered into as of January 25, 2002, by and among SG
Merger Corp., a Florida corporation ("SG"), Ecometry Corporation, a Florida
corporation (the "Company"), Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxx (each of the
parties hereto being referred to individually as a "Party" and collectively as
the "Parties").
RECITALS
WHEREAS, the Parties entered into that Agreement and Plan of Merger
dated as of October 25, 2001 (the "Merger Agreement") (initially capitalized
terms which are used herein which are not otherwise defined herein shall have
the meanings assigned to such terms in the Merger Agreement);
WHEREAS, Syngistix, Inc., a Delaware corporation ("Syngistix"), has
indicated that it would be willing to make an Acquisition Proposal under certain
circumstances;
WHEREAS, in order to induce Syngistix to make such an Acquisition
Proposal, the Parties desire to amend the Merger Agreement, and SG desires to
waive certain rights under the Merger Agreement, as set forth below.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. Notwithstanding anything to the contrary contained in the Merger
Agreement, including without limitation, Section 5.3 thereof, the Company may
negotiate and enter into the Agreement and Plan of Merger dated as of January
25, 2002 attached hereto as Exhibit A (the "Syngistix Merger Agreement"). The
execution and delivery by the Company of the Syngistix Merger Agreement, and
actions taken by the Company which are reasonably necessary or advisable for the
Company and/or its affiliates to perform its obligations thereunder shall not
constitute a breach by the Company and/or its affiliates under the Merger
Agreement or give SG the right in and of itself to terminate the Merger
Agreement or to claim a breach of any provision of the Merger Agreement or,
except as provided in paragraph 5 below, to collect the Termination Fee in
accordance with Section 7.6 of the Merger Agreement. No breach of any
representation, warranty, covenant or agreement contained in the Merger
Agreement which results from, or is caused by, any action by the Company and/or
its affiliates which is reasonably necessary or advisable for the Company and/or
its affiliates to perform its obligations under the Syngistix Merger Agreement
shall constitute a breach of the Merger Agreement by the Company and/or its
affiliates, including without limitation, (i) any withdrawal, modification or
amendment by the Company or its Board of Directors of its approval or
recommendation of the Merger Agreement or any of the transactions contemplated
therein (or any public announcement of its intention to do so), which
withdrawal, modification or amendment is as a result of, or caused by, or
related to, any approval or recommendation of the Syngistix Merger Agreement;
(ii) any approval or recommendation by the Company or its Board of Directors of
the Syngistix Merger Agreement or any of the transactions contemplated therein;
(iii) any resolution by the Company or its Board of Directors to do any of the
foregoing; or (iv) any failure by the Company or its Board of Directors not to
recommend rejection of the Syngistix Merger Agreement or any of the transactions
contemplated therein. Notwithstanding the foregoing, the agreements and waivers
of SG Merger in the two preceding sentences shall not apply if and to the extent
that the Syngistix Merger Agreement is amended after the date hereof without the
express written consent of SG and such amendments contain conditions to closing,
covenants, agreements or other terms that shall materially affect the business,
operations or financial condition of the Company or impose any material
obligations on or create any material liabilities for the Company following
termination of such agreement.
2. Section 7.2 (a) of the Merger Agreement is hereby amended by
deleting the date "February 28, 2002" and substituting therefor the date "July
31, 2002."
3. SG hereby waives any noncompliance by the Company with the second
sentence of Section 5.3(c) of the Merger Agreement with respect to the Syngistix
Merger Agreement.
4. Notwithstanding anything to the contrary contained in Article VII of
the Merger Agreement, the Merger Agreement shall terminate immediately prior to
the consummation by the Company of a merger with Syngistix (the "Syngistix
Merger") pursuant to the Syngistix Merger Agreement and the relevant provisions
of the FBCA (such termination to be automatic and without further action on the
part of any party thereto). Any portion of the Termination Fee not theretofor
paid to SG pursuant to paragraph 5 hereof shall become due and payable
immediately thereafter.
5. Each of Xxxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxx (the "Stockholders")
agrees that, during the period from the date of this Amendment through May 31,
2002:
(a) At any meeting of stockholders of the Company, however
called, such Stockholder shall (unless otherwise directed in writing by
Parent) cause all outstanding shares of Company Common Stock that such
Stockholder owns or is otherwise entitled to vote or direct the voting
of as of the record date fixed for such meeting to be voted in favor of
the approval and adoption of the Syngistix Merger Agreement and the
approval of the Syngistix Merger, and in favor of each of the other
actions contemplated by the Syngistix Merger Agreement.
(b) In the event written consents are solicited or otherwise
sought from stockholders of the Company with respect to the approval or
adoption of the Syngistix Merger Agreement, with respect to the
approval of the Syngistix Merger or with respect to any of the other
actions contemplated by the Syngistix Merger Agreement, such
Stockholder shall (unless otherwise directed in writing by Parent)
cause to be executed, with respect to all outstanding shares of Company
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Common Stock that such Stockholder owns or is otherwise entitled to
vote or direct the voting of as of the record date fixed for the
consent to the proposed action, a written consent or written consents
to such proposed action.
(c) Such Stockholder shall, within five days of Parent's
request, execute and deliver to Parent a proxy which shall be
irrevocable to the fullest extent permitted by law, with respect to the
shares of Company Common Stock that such Stockholder owns or is
otherwise entitled to vote or direct the voting of as of the record
date, granting Parent or one or more of Parent's officers the
irrevocable right and proxy to vote such shares in favor of the
approval of the Syngistix Merger and the approval of the Syngistix
Merger, and in favor of the other actions contemplated by the Syngistix
Merger Agreement.
(d) Such Stockholder shall, at his own expense, perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Parent the power to carry out and
give effect to the provisions of this Section 3.
The agreements contained in this Section 5 shall terminate
automatically if (a) the Syngistix Merger Agreement shall be terminated or (b)
the Company's Board of Directors, acting upon the recommendation of the
Independent Committee, shall approve, recommend or enter into Company
Acquisition Agreement with respect to, or shall have consummated, any Superior
Acquisition Proposal.
6. Notwithstanding anything to the contrary contained in this
Amendment, as promptly as practicable after the execution and delivery of the
Syngistix Merger Agreement, the Company shall pay to SG its reasonably
documented fees and expenses incurred to date in connection with the
transactions contemplated by the Merger Agreement; the amount of such fees and
expenses shall be deducted from the amount of any Termination Fee payable to SG
in accordance with Section 7.6 of the Merger Agreement and paragraph 3 of this
Amendment.
7. In the event that the Company enters into the Syngistix Merger
Agreement and such agreement is terminated for any reason other than the closing
of the transactions contemplated by the Syngistix Merger Agreement, the
Company's and SG's obligations under the Merger Agreement shall continue
unimpaired and the Company and SG shall perform all their respective obligations
under, and comply with all the terms, covenants and agreements contained in, the
Merger Agreement, including, without limitation, the agreement contained in
Section 2.3 of the Merger Agreement.
8. Except to the extent expressly set forth in this Amendment, the
Merger Agreement, as amended by this Amendment, and the rights and obligations
of the Parties thereunder shall remain in full force and effect in accordance
with its terms.
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9. This Amendment shall be governed by and construed in accordance with
the laws of the State of Florida, without regard to the principles of conflicts
of laws thereof.
10. The Parties hereto agree that they have been represented by counsel
during the negotiation and execution of this Amendment and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
11. This Amendment may be executed in one or more 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, it being understood that all Parties need not
sign the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed, all as of the date first written above.
SG MERGER CORP.
By: /s/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
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Title: PRESIDENT
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ECOMETRY CORPORATION
By: /s/ XXXX XXXXXX
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Name: XXXX XXXXXX
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Title: PRESIDENT
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/s/ XXXXXXX X. XXXXX
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XXXXXXX X. XXXXX
/s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
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