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EXHIBIT 2.2
FIRST AMENDMENT TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
This First Amendment to Amended and Restated Agreement and Plan of
Reorganization ("First Amendment") is made effective as of January 25, 1999,
between Space Electronics Incorporated, a Delaware corporation (the "Company"),
the shareholders of the Company listed on the signature page to the Merger
Agreement ("Principal Shareholders"), MT Acquisition Corporation, a Delaware
corporation ("Newco"), and Xxxxxxx Technologies, Inc., a Delaware corporation
("Xxxxxxx"), with reference to the following facts:
A. The Company, the Principal Shareholders, Newco and Xxxxxxx entered
into an Amended and Restated Agreement and Plan of Reorganization dated as of
November 25, 1999 (the "Merger Agreement"), whereby at the Effective Time,
Newco, a wholly-owned subsidiary of Xxxxxxx, shall merge with and into the
Company such that the separate existence of Newco shall cease and the Company
shall become a wholly-owned subsidiary of Xxxxxxx (the "Merger").
B. The parties to the Merger Agreement wish to amend the Merger
Agreement to provide for, among other items: (i) shareholder approval of the
Merger by written consent action, (ii) explicit anti-dilution protection to the
Company shareholders if Xxxxxxx sets a record date for an anticipated stock
split prior to the Effective Time, (iii) the determination of the "Designated
Xxxxxxx Stock Price" as of the (twenty) 20 trading days ending on, and
including, January 26, 1999, and (iv) a final allocation of the fees and
expenses associated with Xxxxxx Xxxxxxxx, L.L.P.;s services as a broker and for
separately invoiced accounting services.
C. Terms with initial capital letters used in this First Amendment and
not otherwise defined herein shall have the same meanings set forth in the
Merger Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Modification to Merger Agreement: The Merger Agreement is hereby
amended and modified as follows:
1.1 The sixth recital on page 1 of the Merger Agreement shall be
deleted in its entirety and replaced with the phrase:
"WHEREAS, the Principal Shareholders shall have entered into Voting
Agreements with Xxxxxxx dated the date of this First Amendment, pursuant
to which they have agreed to execute written consents approving the
Merger; and"
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1.2 The definition of "Designated Xxxxxxx Stock Price" in
Section 1.7(a) of the Merger Agreement shall be deleted in its entirety and
replaced with the following:
"Designated Xxxxxxx Stock Price" shall mean the average of the closing
sale prices (last trade) of Xxxxxxx Common Stock on the Nasdaq National Market
for the twenty (20) trading days ending on and including January 26, 1999.
1.3 There shall be added to the Merger Agreement new Section
1.14 which shall read as follows:
"1.14 Pre-Effective Time Adjustments. If between the date of this
Agreement and the Effective Time, the outstanding shares of Xxxxxxx
Common Stock shall have been changed into a different number of shares
or a different class by reason of any reclassification,
recapitalization, split-up, stock split, combination, exchange of shares
or similar readjustment, or a stock dividend thereon shall be declared
with a record date prior to the Effective Time, the number of shares or
class of Xxxxxxx Common Stock to be issued and delivered in the Merger
in exchange for each of the outstanding Shares as provided in this
Agreement shall be appropriately adjusted."
1.4 The Exchange Ratio and the number of Escrowed Shares for the
SEi Stockholders is set forth on Schedule A attached hereto.
1.5 There shall be added to the Merger Agreement new Section
1.15 which shall read as follows:
"1.15 Post-Effective Time Adjustments. If between the Effective Time and
the date the last non-dissenting shareholder of the Company surrenders
his Company share certificates and becomes a record holder of Xxxxxxx
Common Stock (the "Surrender Date"), the outstanding shares of Xxxxxxx
Common Stock shall have been changed into a different number of shares
or a different class by reason of any reclassification,
recapitalization, split-up, stock split, combination, exchange of shares
or similar readjustment, or a stock dividend thereon shall be declared
with a record date prior to the Surrender Date, then the shares or
options of Company capital stock yet to be surrendered in exchange for
Xxxxxxx capital stock as provided in this Agreement shall be
appropriately adjusted."
1.6 Section 5.8 of the Merger Agreement shall be deleted in its
entirety and replaced with the following:
"5.8 Distribution of Information Statement; Shareholders' Approval. The
Company shall take all action necessary in accordance with applicable
law to
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obtain the consent to the Merger of its shareholders at the earliest
possible time after the Fairness Hearing and the issuance of a Permit
and Certificate of Issuance of Permit for the issuance of the Exchange
Shares for the purpose of approving the Merger. The Company shall submit
an Information Statement to its shareholders, and its Board of Directors
shall recommend to the shareholders, and continue to recommend until the
completion of the Informational Session to be held after the issuance of
a Permit and Certificate of Issuance of Permit for the issuance of the
Exchange Shares, the adoption of this Agreement and the consent to the
Merger. The Company shall use all reasonable efforts to obtain all
approvals of the shareholders necessary for the approval and adoption of
the Merger under the Delaware General Corporation Law and its
Certificate of Incorporation and Bylaws."
1.7 Section 8.3 to the Merger Agreement shall be deleted in its
entirety and replaced with the following:
Section 8.3. Consents. The Company shall have obtained the written
consent to this Agreement, and the transactions contemplated herein, of
the holders of at least ninety percent (90%) of the issued and
outstanding shares of SEi common stock.
1.8 The word "Proxy" in subsections 10.1(b) and 10.1(c) shall be
replaced with the word "Information."
2. Other Provisions Unmodified. Except as expressly modified hereby, the
rights, obligations and terms of the Merger Agreement shall remain unmodified
and in full force and effect. In the event of a conflict between the First
Amendment and the Merger Agreement, the First Amendment shall be controlling.
3. Counterparts. This First Amendment may be executed in several
counterparts, and all so executed shall constitute an agreement, binding on all
the parties hereto, notwithstanding that all of the parties are not signatory to
the original or the same counterpart.
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IN WITNESS WHEREOF, this First Amendment is effective as of the date
first set forth above.
SPACE ELECTRONICS, INC. XXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxxxx, Xxxx Xxxxxxxx,
Chief Executive Officer Chief Financial Officer
PRINCIPAL SHAREHOLDERS: MT ACQUISITION CORPORATION
* By: /s/ Xxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxxxx Xxxx Xxxxxxxx,
Chief Financial Officer
*
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Xxxxx X. Xxxxxxx
*
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Xxxx X. Xxxxxxx
*
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W. Xxx Xxxxxx, Ph.D.
*
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Xxxxx X. Xxxxxxxxxx
*
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Xxxxx Xxxxxx
*
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Xxxx Xxxxxx
*By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Attorney-in-Fact
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SCHEDULE A
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