EXHIBIT 2.2
AMENDMENT
TO
FIRST AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Amendment is made as of June , 2000, by and among 724
Solutions Inc., a corporation amalgamated under the laws of Ontario ("724
Solutions"), Sapphire Merger Sub, Inc. a California corporation ("Merger Sub"),
Xxxxxxx.xxx, Inc., a California corporation ("Ezlogin"), and Xxxxxxxxx
Xxxxxxxxx, as the Shareholders' Agent.
WHEREAS, the parties to this Amendment entered into a First Amended and
Restated Agreement and Plan of Merger and Reorganization (the "Merger
Agreement") dated as of May 9, 2000, and wish to amend the Merger Agreement as
herein provided. Terms used herein without definition are as defined in the
Merger Agreement.
NOW, THEREFORE, in consideration of the covenants and representations set
forth herein, and for other good and valuable consideration, the parties hereto
agree as follows:
1. Merger Consideration; Exchange Ratio.
(a) The proviso in the first sentence of Section 1.6(a) of the Merger
Agreement is hereby revised in its entirety to read as follows:
provided, that the maximum number of shares of 724 Solutions
Common Stock to be issued in exchange for the acquisition by 724
Solutions of all outstanding shares of Ezlogin Capital Stock and
all Ezlogin Convertible Securities (including, if applicable, 724
Solutions Common Stock to be reserved for issuance upon exercise
of Ezlogin Options assumed by 724 Solutions), and, if applicable,
the termination of all outstanding Ezlogin Options, shall be equal
to One Million Ninety Five Thousand Four Hundred Twenty One
(1,095,421), reduced as a result of any Dissenting Shares and
shares cancelled pursuant to Section 1.6(b), and increased as a
result of the issuance of any Additional Ezlogin Options or shares
of Ezlogin Common Stock issuable upon the early exercise thereof
in accordance with Section 4.2(e)(iv) (the "Merger
Consideration").
(b) The definition of "Exchange Ratio" in Annex I to the Merger
Agreement is hereby revised in its entirety to read as follows:
"Exchange Ratio" means a number equal to the quotient obtained by
dividing (i) One Million Ninety Five Thousand Four Hundred Twenty
One (1,095,421) unregistered shares of 724 Solutions Common Stock
by (ii) the Total Outstanding Shares.
(c) The definition of "724 Solutions Stock Price" in Annex I to the
Merger Agreement is hereby revised in its entirety to read as follows:
"724 Solutions Stock Price" means U.S. $40.5750.
2. Additional Amendments.
(a) Section 5.11 of the Merger Agreement is hereby amended as follows:
(i) The number "100,000" in Section 5.11(a)(i) is hereby revised in
its entirety to be "123,229".
(ii) The number "75,000" in Section 5.11(a)(ii) is hereby revised in
its entirety to be "92,421".
(b) Section 5.20 of the Merger Agreement is hereby amended as follows:
(i) The preamble to Section 5.20 is hereby amended in its entirety to
read as follows:
Notwithstanding anything in this Agreement to the
contrary, in the event, and only in the event, (A) 724
Solutions shall not have received a favorable
determination in the Fairness Hearing and a Permit
covering all of the shares of 724 Solutions Common Stock
to be issued in the Merger such that the issuance
qualifies for exemption under the 3(a)(10) Exemption; or,
(B) if earlier, any of (i) the California Commissioner of
Corporations shall not have scheduled the Fairness Hearing
such
that it will have occurred prior to June 19, 2000; or
(ii) the California Commissioner of Corporations shall
have notified 724 Solutions that a Fairness Hearing will
not be held prior to June 19, 2000; or (iii) 724 Solutions
shall have not received the Permit by June 19, 2000 (as
such date may be adjusted pursuant to the below, the
"Failed Fairness Hearing Date"); provided, that if each
party who has executed and delivered a Voting Agreement on
or prior to the date hereof executes and delivers an
agreement, agreeing to extend the termination date of such
Voting Agreement, pursuant to Section 9(l) thereof, beyond
June 30, 2000 (such date, as it may be extended, the
"Termination Date"), the Failed Fairness Hearing Date may
be also extended by the same number of calendar days by
which the Termination Date was extended, but provided,
further, that in no instance shall the Termination Date be
later than August 7, 2000, or the Failed Fairness Hearing
Date be later than July 24, 2000 (each instance in (i),
(ii) and (iii) above being collectively referred to herein
as a "Failed Fairness Hearing"); or, if earlier,
(C) Ezlogin shall have notified 724 Solutions of a request
by, or Ezlogin having obtained Knowledge of the intent of,
any of the Xxxxxx 1995 Charitable Remainder Unitrust,
Poitevin Investments Ltd., Tan Investment Trust, Angel
Investors, L.P., Angel (Q) Investors, L.P. or Angel
Investors, Q. L.P. to effect a Transfer any of their
shares of Ezlogin Capital Stock, or any of such
Shareholders shall have attempted to Transfer any shares
of Ezlogin Capital Stock held by them (a "Restricted
Transfer"):
(ii) The first sentence of Section 5.20(a)(i) is hereby revised in
its entirety to read as follows:
Ezlogin shall, immediately after the date of the earliest
of 724 Solutions' receipt of an unfavorable determination
in the Fairness Hearing, a Failed Fairness Hearing, an
attempted Restricted Transfer or Ezlogin's notice to 724
Solutions of Ezlogin's receipt of a request to, or
obtaining Knowledge of an intent to, effect a Restricted
Transfer, take all action necessary in accordance with
California Law and its Articles of Incorporation and
Bylaws to call, give notice of, convene and hold the
Ezlogin Shareholders Meeting or, if requested by 724
Solutions, to secure the written consent of its
Shareholders as soon as possible, but in no event later
than the earliest of (w) five (5) days after the date of
such unfavorable determination in the Fairness Hearing;
(x) five (5) days after receipt of the notice from the
California Commissioner of Corporations referred to in
subsection (ii) of the preamble of this Section 5.20;
(y) five (5) days after the Failed Fairness Hearing Date;
and (z) five (5) days after an attempted Restricted
Transfer or receipt of notice from Ezlogin of a request to
or Knowledge of an intent to effect a Restricted Transfer.
(iv) The phrase "or in the event of a Failed Fairness Hearing or an
attempted Restricted Transfer or receipt of notice from Ezlogin of a
request to or Knowledge of an intent to effect a Restricted Transfer" is
hereby inserted in the second line of Section 5.20(a)(ii), following
"Fairness Hearing".
(c) The phrase "each of Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx" in the first
and second lines of Section 5.22 of the Merger Agreement is hereby replaced
by the words "Xxxxxxx Xxxxxxx".
(d) Section 6.3(o) is hereby amended as follows:
(i) The phrase "or in the event of a Failed Fairness Hearing or an
attempted Restricted Transfer or receipt of notice from Ezlogin of a
request to or Knowledge of an intent to effect a Restricted Transfer" is
hereby inserted at the end of the preamble of Section 6.3(o).
(ii) The words "and each Shareholder as of the Effective Time shall
have executed and delivered a 724 Solutions Securities Holders
Questionnaire and Agreement (the "Investor Questionnaire")" are hereby
added to the end of Section 6.3(o)(i).
(iii) The words "customary investor questionnaire" in the proviso of
Section 6.3(o)(iii) are hereby deleted in their entirety and replaced
with the words "Investor Questionnaire".
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(e) The words "June 30, 2000" in the second line of Section 7.1(a) of
the Merger Agreement are hereby replaced with "the Termination Date, as such
date may be extended pursuant to Section 5.20, but in no instance shall the
Termination Date be later than August 7, 2000".
(f) Schedule 5.15(b) to the Merger Agreement is hereby amended as
follows:
(i) The name "Xxxxx Xxxxxxxxxxx" is hereby deleted in its entirety
and replaced with the name "Xxxxx Ehndai".
(ii) The name "Xxxxxxx Xxxxx" is hereby deleted in its entirety and
replaced with the name "Xxxxxxx Xxxxxxx".
(g) A new Section 5.23 is hereby inserted as follows:
5.23 Notice of Transfers. Ezlogin shall not effect any Restricted
Transfer except following at least fifteen (15) days' prior written
notice to 724 Solutions. Ezlogin shall notify 724 Solutions in writing
immediately upon obtaining any Knowledge of any intent by any of the
Xxxxxx 1995 Charitable Remainder Unitrust, Poitevin Investments Ltd., Tan
Investment Trust, Angel Investors, L.P., Angel (Q) Investors, L.P. or
Angel Investors, Q. L.P. to Transfer to any other party any of their
shares of Ezlogin Capital Stock.
3. Miscellaneous.
(a) Except as set forth above, the Merger Agreement remains in full
force and effect.
(b) This Amendment may be executed in one or more counterparts and
delivered by facsimile, 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.
(c) This Amendment shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of California, without
regard to conflict of laws. Each of the parties hereto irrevocably consents
to the exclusive jurisdiction of any court located within the States of
California or New York, in connection with any matter based upon or arising
out of this Amendment or the matters contemplated herein, agrees that
process may be served upon them in any manner authorized by the laws of the
States of California or New York for such persons and waives and covenants
not to assert or plead any objection that they might otherwise have to such
jurisdiction and such process. EACH OF THE PARTIES IRREVOCABLY WAIVES THE
RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO
THIS AMENDMENT AND THE TRANSACTION AGREEMENTS OR THE ENFORCEMENT OF ANY
PROVISION OF THIS AMENDMENT OR THE TRANSACTION AGREEMENTS.
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Ezlogin, Merger Sub and 724 Solutions each have caused
this Amendment to be executed and delivered by their respective officers
thereunto duly authorized and Shareholders' Agent has executed and delivered
this Amendment, all as of the date first written above.
XXXXXXX.XXX INC.
By: __________________________________
Name:
Title:
724 SOLUTIONS INC.
By: __________________________________
Name:
Title:
SAPPHIRE MERGER SUB, INC.
By: __________________________________
Name:
Title:
SHAREHOLDERS' AGENT
By: __________________________________
XXXXXXXXX XXXXXXXXX
[SIGNATURE PAGE TO AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION]
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