AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION (this
"Amendment") is made as of October 16, 2000, by and among Predictive Systems,
Inc., a Delaware corporation ("Acquiror"), Salmon Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub"),
Synet Service Corporation, a Minnesota corporation that will be reincorporated
as a Delaware corporation ("Target"), Xxxxxxx X. Xxxxxxxxxx and Xxxx Xxxxxxxxx
(Messrs. Xxxxxxxxxx and Greenwood, the "Principal Stockholders"), and Xxxxxxx X.
Xxxxxxxxxx, as Stockholders' Agent.
WHEREAS, Acquiror, Merger Sub, Target and the Principal Stockholders
entered into that certain Agreement and Plan of Reorganization, dated September
25, 2000 (the "Agreement"); and
WHEREAS, Acquiror, Merger Sub, Target and the Principal Stockholders
desire to amend certain provisions of the Agreement as provided below;
NOW THEREFORE, for good and valuable consideration and in consideration
of the promises and conditions contained herein, the parties hereby agree as
follows:
1. Recital A of the Agreement is hereby amended and restated to
read as follows:
"A. The Boards of Directors of Target, Acquiror and Merger Sub believe it is in
the best interests of their respective companies and the stockholders of their
respective companies that Target and Merger Sub combine into a single company
through the statutory merger of Target with and into Merger Sub (the "Merger")
and, in furtherance thereof, have approved the Merger.
2. Section 1.1 of the Agreement is hereby amended and restated to
read as follows:
"1.1 The Merger. At the Effective Time (as defined in Section 1.2) and subject
to and upon the terms and conditions of this Agreement, the Certificate of
Merger attached hereto as Exhibit A (the "Certificate of Merger") and the
applicable provisions of the Delaware General Corporation Law ("DGCL"), Target
shall be merged with and into Merger Sub, the separate corporate existence of
Target shall cease and Merger Sub shall continue as the surviving corporation.
Merger Sub as the surviving corporation after the Merger is hereinafter
sometimes referred to as the "Surviving Corporation."
3. Section 1.6(a)(i) of the Agreement is hereby amended and
restated to read as follows:
"(i) At the Effective Time, the total amount of consideration (consisting of
Acquiror Common Stock valued as set forth below and cash) to be paid by Acquiror
(including Acquiror Common Stock to be reserved for issuance upon exercise of
unexpired and unexercised options outstanding to purchase Target Common Stock
assumed by Acquiror pursuant to 1.6(c), whether vested or unvested ("Target
Options")) in exchange for all outstanding shares of Target Common Stock and the
assumption of Target Options shall be (A) 2,161,921, multiplied by the closing
market price of the Acquiror Common Stock on the trading day immediately
preceding the Effective Date as quoted on the Nasdaq National Market (the
"Closing Price"), plus (B) nine million dollars ($9,000,000) (such sum, the
"Total Consideration"). The maximum consideration to be issued and paid by
Acquiror for the Target Common Stock, the assumption of the Target Options and
the payment of Target's fees to Xxxxxxxxx Xxxxxxxx set forth on Schedule 2.20
shall be 2,161,921 shares of Acquiror Common Stock and nine million dollars
($9,000,000) cash."
4. Section 1.6(a)(iii) and (iv) are hereby amended and restated
to read as follows:
"(iii) The Target Class A Stockholder Consideration shall be comprised of (A)
four million dollars ($4,000,000), (B) the Pro Rata A Portion multiplied by five
million dollars ($5,000,000) (the sum of (A) and (B), the "Class A Cash
Consideration"), and (C) a number of shares of Acquiror Common Stock (the "Class
A Stock Consideration") obtained by dividing (x) the amount by which the Target
Class A Stockholder Consideration exceeds the Class A Cash Consideration by (y)
the Closing Price. Notwithstanding the foregoing, the Class A Cash Consideration
shall be reduced for purposes of Section 1.6(a)(v) by $618,920.80 (Target's fees
payable to Xxxxxxxxx Xxxxxxxx as set forth on Schedule 2.20) multiplied by the
Pro Rata A Portion. The "Pro Rata A Portion" shall be the number of shares of
Class A Common Stock outstanding divided by the total number of shares of Target
Common Stock outstanding.
(iv) The Target Class B Stockholder Consideration shall be comprised of (A) the
Pro Rata B Portion multiplied by five million dollars ($5,000,000) (the "Class B
Cash Consideration"), and (B) a number of shares of Acquiror Common Stock (the
"Class B Stock Consideration") obtained by dividing (x) the amount by which the
Target Class B Stockholder Consideration exceeds the Class B Cash Consideration
by (y) the Closing Price. Notwithstanding the foregoing, the Class B Cash
Consideration shall be reduced for purposes of Section 1.6(a)(v) by $618,920.80
(Target's fees payable to Xxxxxxxxx Xxxxxxxx as set forth on Schedule 2.20)
multiplied by the Pro Rata B Portion. The "Pro Rata B Portion" shall be the
number of shares of Class B Common Stock outstanding divided by the total number
of shares of Target Common Stock outstanding.
5. Section 1.6(a)(vii) is hereby deleted in its entirety.
6. Section 1.7(a)(i)(A) shall be amended and restated to read as
follows:
"(A) the Closing Price, multiplied by 2,161,921, plus"
7. Section 5.22 is hereby amended and restated to read as
follows:
"5.22 Subsidiary. All capital stock outstanding of Synet Deutschland
Servicegesellschaft (the "Subsidiary") not owned by Target shall be redeemed
prior to the Effective Time such that at the Effective Time, the Subsidiary
shall be wholly-owned by Target."
8. The last sentence of Section 7.3 is hereby amended and
restated to read as follows:
"The Surviving Corporation shall pay all fees and expenses of Xxxxxxxxx Xxxxxxxx
set forth on Schedule 2.20 hereto, which amount shall not exceed $618,920.80."
9. No Other Modification. Except as expressly provided herein,
this Amendment does not in any way change, modify, delete or
amend any of the provisions of the Agreement, and all such
provisions shall remain in full force and effect.
10. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of Delaware.
11. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
PREDICTIVE SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
SALMON ACQUISITION CORPORATION
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
SYNET SERVICE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
PRINCIPAL STOCKHOLDER:
/s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
PRINCIPAL STOCKHOLDER:
/s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
STOCKHOLDERS' AGENT:
/s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
