EXHIBIT 2.2(a)
Version 11/11/02
FIRST AMENDMENT
TO AGREEMENT AND PLAN
OF
MERGER
BETWEEN
KC ACQUISITION CORPORATION,
a New Jersey corporation,
CRITICOM IDC CORP.,
a New Jersey corporation,
CRITICOM INTERNATIONAL CORPORATION,
a Minnesota corporation,
AND
THE SHAREHOLDERS OF
CRITICOM INTERNATIONAL CORPORATION,
a Minnesota corporation,
Dated as of November 11, 2002
-1-
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "First
Amendment"), is made and entered into effective as of November 11, 2002
("Effective Date"), by and among KC Acquisition Corporation, a New Jersey
corporation (the "Buyer") and Criticom IDC Corp., a New Jersey corporation and a
wholly-owned subsidiary of the Buyer (the "Surviving Corporation") and the
former Shareholders of Criticom International Corporation (the "Former Criticom
Shareholders"). The Buyer, the Surviving Corporation, and the Former Criticom
Shareholders are referred to collectively herein as the "Parties" and
individually a "Party".
Whereas, the Parties have completed their contemplated tax-free forward
subsidiary merger of Criticom International Corporation with and into the
Surviving Corporation on or about September 26, 2002, in accordance with the
Parties Agreement and Plan of Merger dated September 26, 2002 (the "Agreement of
Merger"). The Parties have determined it to be in their mutual best interest to
amend their Agreement of Merger and by this First Amendment to the Agreement of
Merger hereby amend the prior Agreement of Merger as set forth herein.
Now, therefore, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, the Parties hereby agree
as follows:
ARTICLE 1.
DEFINITIONS
1.1 Defined terms used in this First Amendment shall have the meanings
set forth or described in the Agreement of Merger.
ARTICLE 2.
EFFECT ON AGREEMENT OF MERGER
2.1 Except as specifically set forth herein, all other agreements of
the Parties contained in the Agreement of Merger shall remain in full force and
effect, but amended as provided herein.
-2-
ARTICLE 3.
AMENDMENT TO AGREEMENT OF MERGER
3.1 Amendment to Article 2.3.6(B) of the Agreement of Merger. Article
2.3.6(B) of the Agreement of Merger is hereby amended and substituted with the
following instead of Article 2.3.6(B) as contained in the Agreement of Merger:
"(B). The parties intend to be part of a public offering of shares of
IAS Holdings to the public pursuant to an Initial Public Offering ("IPO") after
Closing. The timing and actual terms of such an IPO shall be subject to changes
in market conditions. Based upon the current outline of the IPO, a total of
Seven Million (7,000,000) shares are to be distributed amongst the shareholders
of IAS Holdings prior to the IPO (the "IPO Shares"), with Six Million Three
Hundred Fifteen Thousand Two Hundred Forty Seven (6,315,247) IPO Shares divided
between the present shareholders of Buyer exclusive of the Former Criticom
Shareholders (Xxxxxx Few, Xxxxxxx XxXxxx and Xxxxx Xxxxx) and Six Hundred Eighty
Four Thousand Seven Hundred Fifty Three (684,753) of the IPO Shares divided
amongst the Former Criticom Shareholders. In addition, in the event the IPO
occurs and the shares of IAS Holdings are distributed as set forth in this
Section 2.3.6(B), the Former Criticom Shareholders may earn additional post-IPO
Shares of IAS Holdings as detailed on Schedule 2.3.6(B) attached. There shall be
no such additional shares earned or issued if the IPO does not occur and IAS
Holdings fails to become a publicly traded company. To the extent that the terms
of the IPO change and the share ownership interests of all shareholders of Buyer
are changed, the change to all shareholders shall apply pro rata to all such
shareholders of IAS Holdings at that time, including proportional change in the
shares to be distributed amongst all the shareholders as well as a proportional
change in the numbers of shares represented by the potential additional shares
which may be earned by the Former Criticom Shareholders herein. Preemptive
Rights shall not apply to this event, except that to the extent other
shareholders of Buyer exclusive of the Former Criticom Shareholders receive the
right to buy shares in the IPO the Former Criticom Shareholders shall receive a
pro rata right based upon their respective percentage stock interests in Buyer,
to the extent otherwise set forth in the Shareholder Rights and Voting Agreement
between the Parties."
3.2 Amendment to Schedule 2.3.6 to the Agreement of Merger. Schedule
2.3.6 to the Agreement of Merger is hereby amended and substituted with the
following instead of Schedule 2.3.6 as contained in the Agreement of Merger:
"SCHEDULE 2.3.6(B)
EARNING OF ADDITIONAL IPO SHARES OF IAS HOLDINGS
Subject to the terms of the share "earn out" program detailed below,
the Former Criticom Shareholders may earn additional post-IPO Shares of IAS
Holdings based upon the performance of the Surviving Corporation as the
subsidiary of a publicly traded corporation, as follows:
During the period of 1/1/03 through 12/31/03, if at any time during
that calendar year the earnings before interest, taxes, depreciation and
amortization ("EBITDA") of the Surviving Corporation as separately determined
shall reach a threshold of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00), the Former Criticom Shareholders shall divide amongst them in
proportion to their respective percentage stock interests in the Buyer, a total
of Two Hundred Sixty Three Thousand post-IPO shares of IAS Holdings. To the
extent that the share ownership interests of all shareholders change from the
initial share ownership numbers projected in Section 2.3.6(B.) above, the number
of shares which may be earned herein shall be increased or decreased, as the
case may be in that same proportional change. The EBITDA of the Surviving
Corporation shall be determined as a separate operating entity from time to time
during the applicable time period by the accountants for the company in
accordance with generally accepted accounting principles as consistently
applied."
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ARTICLE 4
MISCELLANEOUS AND GENERAL
4.1 Counterparts. This First Amendment may be executed in counterparts
and by different parties on different counterparts with the same effect as if
the signatures thereto were on the same instrument. Further, this document may
be executed by facsimile signatures, which shall be deemed original signatures
for purposes of this First Amendment. This First Amendment shall be effective
and binding upon all parties hereto as of the date when all parties have
executed a counterpart of this First Amendment.
4.2 Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New Jersey, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
4.3 Entire Agreement; Assignment. This First Amendment constitutes the
entire agreement among the Parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the Parties with respect to the subject matter hereof, and shall not be
assigned by operation of law or otherwise.
4.4 Parties in Interest. This First Amendment shall be binding upon and
inure solely to the benefit of each Party hereto and their respective heirs,
executors, administrators, successors and permitted assigns, and nothing in this
First Amendment, express or implied, is intended to or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
4.5 Captions. The article, section and paragraph captions herein are
for convenience of reference only, do not constitute part of this First
Amendment and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
4.6 Advice of Counsel. Each Party represents and warrants that in
executing this First Amendment:
4.6.1 Such Party has had the opportunity to obtain independent
accounting, financial, investment, legal, tax and other appropriate advice;
-4-
4.6.2 The terms of this First Amendment have been carefully read
by such Party and its consequences explained to such Party by his, her or its
independent advisors;
4.6.3 Such Party fully understands the terms and consequences of
this First Amenment;
4.6.4 Such Party has not relied on any inducements, promises or
representations made by the other Party (except those expressly set forth
herein) or the accountants, attorneys or other agents representing or serving
the other Party;
4.6.5 Such Party has made its own independent determinations as to
the tax effect upon such Party without reliance upon any other party to any
extent; and
4.6.6 Such Party's execution of this First Amendment is free and
voluntary.
4.7 Representation of the Target. The Former Criticom Shareholders
agree that Xxxx Xxxxx shall have the authority on behalf of the Former Criticom
Shareholders to accept and give notices hereunder and act on behalf of the
Former Criticom Shareholders in respect of all matters or actions required of
the Former Criticom Shareholders after the date hereof.
[Rest of Page Intentionally Left Blank]
-5-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto and shall be effective as
of the date first hereinabove written.
THE BUYER:
KC ACQUISITION CORPORATION,
a New Jersey corporation
By: /s/ Xxxxxx X. Few /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- --------------------------
Name: Xxxxxx X. Few Xxxxxxx X. Xxxxxxxx
---------------------------
Title: President
-------------------------- /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
THE SURVIVING CORPORATION:
CRITICOM IDC CORP.,
a New Jersey corporation
By: /s/ Xxxxxx X. Few
-----------------------------
Name: Xxxxxx X. Few
---------------------------
Title: President
--------------------------
FORMER CRITICOM SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Speed
--------------------------
Xxxxx X. Speed
-6-
Version 2/03/03
SECOND AMENDMENT
TO AGREEMENT AND PLAN
OF
MERGER
BETWEEN
KC ACQUISITION CORPORATION,
a New Jersey corporation,
CRITICOM IDC CORP.,
a New Jersey corporation,
CRITICOM INTERNATIONAL CORPORATION,
a Minnesota corporation,
AND
THE SHAREHOLDERS OF
CRITICOM INTERNATIONAL CORPORATION,
a Minnesota corporation,
Dated as of February 3, 0000
-0-
XXXXXX XXXXXXXXX
TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Second
Amendment"), is made and entered into effective as of February 3, 2003
("Effective Date"), by and among KC Acquisition Corporation, a New Jersey
corporation (the "Buyer") and Criticom IDC Corp., a New Jersey corporation and a
wholly-owned subsidiary of the Buyer (the "Surviving Corporation") and the
former Shareholders of Criticom International Corporation (the "Former Criticom
Shareholders"). The Buyer, the Surviving Corporation, and the Former Criticom
Shareholders are referred to collectively herein as the "Parties" and
individually a "Party".
Whereas, the Parties have completed their contemplated tax-free forward
subsidiary merger of Criticom International Corporation with and into the
Surviving Corporation on or about September 26, 2002, in accordance with the
Parties Agreement and Plan of Merger dated September 26, 2002 (the "Agreement of
Merger") and on or about November 11, 2002, determined it to be in their mutual
best interests to amend their Agreement of Merger by the First Amendment to Plan
and Agreement of Merger (the "First Amendment"). The Parties have determined it
to be in their mutual best interests to further amend and supplement their
Agreement of Merger and the First Amendment by this Second Amendment to the
Agreement of Merger and hereby amend and supplement the prior Agreement of
Merger and First Amendment as set forth herein.
Now, therefore, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, the Parties hereby agree
as follows:
ARTICLE 1.
DEFINITIONS
1.1 Defined terms used in this Second Amendment shall have the meanings
set forth or described in the Agreement of Merger.
ARTICLE 2.
EFFECT ON AGREEMENT OF MERGER
2.1 Except as specifically set forth herein, all other agreements of
the Parties contained in the Agreement of Merger and First Amendment shall
remain in full force and effect, but amended as provided herein.
-2-
ARTICLE 3.
AMENDMENT TO AGREEMENT OF MERGER AND FIRST AMENDMENT
3.1 Amendment to Article 2.3.6(B) of the Agreement of Merger. Article
2.3.6(B) of the Agreement of Merger and as amended in the First Amendment is
hereby further amended and substituted with the following instead of Article
2.3.6(B) as contained in the Agreement of Merger:
"(B). The parties intend to be part of a public offering of shares of
IAS Holdings (or other new company name chosen for the IPO, called "IAS
Holdings" for the purposes hereof) to the public pursuant to an Initial Public
Offering ("IPO") after Closing. The timing and actual terms of such an IPO shall
be subject to changes in market conditions. Based upon the current outline of
the IPO, a total of Three Million One Hundred Eighty One Thousand Eight Hundred
Eighteen (3,181,818) shares are to be distributed amongst the shareholders of
IAS Holdings prior to the IPO (the "IPO Shares"), with Two Million Eight Hundred
Seventy Thousand (2,870,000) IPO Shares divided between the present shareholders
of Buyer exclusive of the Former Criticom Shareholders (Xxxxxx Few, Xxxxxxx
XxXxxx and Xxxxx Xxxxx) and Three Hundred Eleven Thousand Eight Hundred Eighteen
(311,818) of the IPO Shares divided amongst the Former Criticom Shareholders. In
addition, in the event the IPO occurs and the shares of IAS Holdings are
distributed as set forth in this Section 2.3.6(B), the Former Criticom
Shareholders may earn additional post-IPO Shares of IAS Holdings as detailed on
Schedule 2.3.6(B) attached. There shall be no such additional shares earned or
issued if the IPO does not occur and IAS Holdings fails to become a publicly
traded company. To the extent that the terms of the IPO change and the share
ownership interests of all shareholders of Buyer are changed, the change to all
shareholders shall apply pro rata to all such shareholders of IAS Holdings at
that time, including proportional change in the shares to be distributed amongst
all the shareholders as well as a proportional change in the numbers of shares
represented by the potential additional shares which may be earned by the Former
Criticom Shareholders herein. Preemptive Rights shall not apply to this event,
except that to the extent other shareholders of Buyer exclusive of the Former
Criticom Shareholders receive the right to buy shares in the IPO the Former
Criticom Shareholders shall receive a pro rata right based upon their respective
percentage stock interests in Buyer, to the extent otherwise set forth in the
Shareholder Rights and Voting Agreement between the Parties."
3.2 Supplement to Article 2.3.6 of the Agreement of Merger. Article
2.3.6 of the Agreement of Merger and as amended the First Amendment is hereby
further amended and supplemented by adding a new Article 2.3.6(C) to the
Agreement of Merger as follows:
"(C). As set forth in Article 2.3.6(B) above, the parties intend to be
part of a public offering of shares of IAS Holdings (or other new company name
chosen for the IPO, called "IAS Holdings" for the purposes hereof) to the public
pursuant to an Initial Public Offering ("IPO") after Closing. In addition to
shares of stock in such IPO, the plans for the IPO include at present options to
the current shareholders. Based upon the current outline of the IPO, total
options to purchase Nine Hundred Nine Thousand (909,000) shares are to be
distributed amongst the shareholders of IAS Holdings prior to the IPO (the "IPO
Share Options"), with Eight Hundred Two Thousand Seven Hundred Seventeen
(802,717) IPO Share Options divided between the present shareholders of Buyer
exclusive of the Former Criticom Shareholders (Xxxxxx Few, Xxxxxxx XxXxxx and
Xxxxx Xxxxx) and One Hundred Six Thousand Two Hundred Eighty Three (106,283) of
the IPO Share Options divided amongst the Former Criticom Shareholders. These
IPO Share Options will vest as follows: (1) 30% will vest and be immediately
exercisable on the first anniversary of the IPO; (2) 30% will vest and be
immediately exercisable on the second anniversary of the IPO; and (3) 40% will
vest and become immediately exercisable on the third anniversary of the IPO. The
exercise price for these IPO Share Options will be equal to the per share
offering price for the IPO plus a 20% premium. There shall be no such IPO Share
Options earned or issued if the IPO does not occur and IAS Holdings fails to
become a publicly traded company. To the extent that the terms of the IPO change
and the share options of all shareholders of Buyer are changed, the change to
all shareholders shall apply pro rata to all such shareholders of IAS Holdings
at that time, including proportional change in the share options to be
distributed amongst all the shareholders."
-3-
3.3 Amendment to Schedule 2.3.6 to the Agreement of Merger. Schedule
2.3.6 to the Agreement of Merger as amended in the First Amendment is hereby
further amended and substituted with the following instead of Schedule 2.3.6 as
contained in the Agreement of Merger and as amended in the First Amendment:
"SCHEDULE 2.3.6(B)
EARNING OF ADDITIONAL IPO SHARES OF IAS HOLDINGS
Subject to the terms of the share "earn out" program detailed below,
the Former Criticom Shareholders may earn additional post-IPO Shares of IAS
Holdings based upon the performance of the Surviving Corporation as the
subsidiary of a publicly traded corporation, as follows:
During the period of 1/1/03 through 12/31/03, if at any time during
that calendar year the earnings before interest, taxes, depreciation and
amortization ("EBITDA") of the Surviving Corporation as separately determined
shall reach a threshold of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00), the Former Criticom Shareholders shall divide amongst them in
proportion to their respective percentage stock interests in the Buyer, a total
of Sixty Eight Thousand One Hundred Eighty Two (68,182) post-IPO shares of IAS
Holdings. To the extent that the share ownership interests of all shareholders
change from the initial share ownership numbers projected in Section 2.3.6(B.)
above, the number of shares which may be earned herein shall be increased or
decreased, as the case may be in that same proportional change. The EBITDA of
the Surviving Corporation shall be determined as a separate operating entity
from time to time during the applicable time period by the accountants for the
company in accordance with generally accepted accounting principles as
consistently applied."
-4-
ARTICLE 4
MISCELLANEOUS AND GENERAL
4.1 Counterparts. This Second Amendment may be executed in counterparts
and by different parties on different counterparts with the same effect as if
the signatures thereto were on the same instrument. Further, this document may
be executed by facsimile signatures, which shall be deemed original signatures
for purposes of this Second Amendment. This Second Amendment shall be effective
and binding upon all parties hereto as of the date when all parties have
executed a counterpart of this Second Amendment.
4.2 Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New Jersey, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
4.3 Entire Agreement; Assignment. This Second Amendment constitutes the
entire agreement among the Parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the Parties with respect to the subject matter hereof, and shall not be
assigned by operation of law or otherwise.
4.4 Parties in Interest. This Second Amendment shall be binding upon
and inure solely to the benefit of each Party hereto and their respective heirs,
executors, administrators, successors and permitted assigns, and nothing in this
Second Amendment, express or implied, is intended to or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Second Amendment.
4.5 Captions. The article, section and paragraph captions herein are
for convenience of reference only, do not constitute part of this Second
Amendment and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
4.6 Advice of Counsel. Each Party represents and warrants that in
executing this Second Amendment:
4.6.1 Such Party has had the opportunity to obtain independent
accounting, financial, investment, legal, tax and other appropriate advice;
4.6.2 The terms of this Second Amendment have been carefully read
by such Party and its consequences explained to such Party by his, her or its
independent advisors;
4.6.3 Such Party fully understands the terms and consequences of
this Second Amendment;
4.6.4 Such Party has not relied on any inducements, promises or
representations made by the other Party (except those expressly set forth
herein) or the accountants, attorneys or other agents representing or serving
the other Party;
-5-
4.6.5 Such Party has made its own independent determinations as to
the tax effect upon such Party without reliance upon any other party to any
extent; and
4.6.6 Such Party's execution of this Second Amendment is free and
voluntary.
4.7 Representation of the Target. The Former Criticom Shareholders
agree that Xxxx Xxxxx shall have the authority on behalf of the Former Criticom
Shareholders to accept and give notices hereunder and act on behalf of the
Former Criticom Shareholders in respect of all matters or actions required of
the Former Criticom Shareholders after the date hereof.
[Rest of Page Intentionally Left Blank]
-6-
IN WITNESS WHEREOF, this Second Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto and shall be
effective as of the date first hereinabove written.
THE BUYER:
KC ACQUISITION CORPORATION,
a New Jersey corporation
By: /s/ Xxxxxx X. Few /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- --------------------------
Name: Xxxxxx X. Few Xxxxxxx X. Xxxxxxxx
---------------------------
Title: President
-------------------------- /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
THE SURVIVING CORPORATION:
CRITICOM IDC CORP.,
a New Jersey corporation
By: /s/ Xxxxxx X. Few
-----------------------------
Name: Xxxxxx X. Few
---------------------------
Title: President
--------------------------
FORMER CRITICOM SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
---------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Speed
--------------------------
Xxxxx X. Speed
-7-
