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EXHIBIT 2.2
FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
This First Amendment to the Agreement and Plan of Merger (the "Amendment") is
made and entered into as of August 24, 2001, by and among Xxxxxxxxx.xxx, Inc., a
Delaware corporation ("BUYER"), Homestore Consumer Information Corp., a Delaware
corporation ("SUB"), iPlace, Inc., a Delaware corporation ("COMPANY") and the
stockholders of Company (the "STOCKHOLDERS") listed on the signature pages to
the Agreement (as defined below). Certain capitalized terms used but not defined
in this Amendment have the meaning ascribed to them in the Agreement.
WHEREAS, Buyer, on behalf of itself and a wholly-owned subsidiary of
Buyer to be formed in Delaware, Company and the Stockholders have entered into
that certain Agreement and Plan of Merger dated as of August 7, 2001 (the
"AGREEMENT");
WHEREAS, Sub has been formed as a wholly-owned subsidiary of Buyer in
Delaware pursuant to the Agreement;
WHEREAS, in accordance with Section 251 of the General Corporation Law
of the State of Delaware, Sub must be a party to the Agreement; and
WHEREAS, Buyer, Company and the Stockholders desire to amend the
Agreement in order to add Sub as a party to the Agreement, among the other
amendments set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Amendment of Agreement. The Agreement is hereby amended as follows:
a. Sub is hereby included as a party to the Agreement as "Sub"
(as defined in the Agreement).
b. Section 1.4(f) is hereby amended to read as follows: "No
fractional share of Buyer Common Stock will be issued in the
Merger. In lieu of any fractional shares that would be issued
pursuant to the Merger, an amount of cash shall be paid equal
to such fractional shares multiplied by the Fair Market Value
of Buyer Shares."
c. The reference to "U.S.$72,000,000" appearing in clause (i) in
Section 1.5(a) is hereby amended to read "U.S.$73,000,000."
d. The reference to "U.S.$67,000,000" appearing in clause (iii)
in Section 1.5(b) is hereby amended to read "U.S.$68,000,000."
e. The last sentence of Section 1.6 is hereby amended to read as
follows: "If, at the end of each three (3) month period during
the remaining term of the Yahoo! License Agreement, Yahoo! has
not terminated such agreement, then Company and Buyer shall
jointly instruct the Escrow Agent to disburse to Stockholders
one-quarter of the total number of original number of Buyer
Shares included in the Yahoo! Escrow Deposit; provided, that
if at any time after Closing the Yahoo! Consent is obtained,
the Yahoo! Escrow Deposit will be promptly released to
Stockholders."
f. The fourth sentence of Section 1.11 is hereby amended to read
as follows: "In addition, at the option of Buyer, if the Fair
Market Value of Buyer Shares is less than $18 per share, then
Buyer may pay cash in lieu of all or any portion of the Buyer
Shares that would otherwise be payable under Section 1.5(a);
provided, however, that if the payment of such cash would
cause the conditions in Section 5.11 and 6.7 to not be met,
then the Parties agree that the Parties will restructure the
Merger, which may include, without limitation, having the
transaction be in the form of a taxable merger; provided,
further, that if Buyer elects to pay cash as described in this
Section 1.11, the Cash Portion of the Purchase Price shall be
between seventy (70) percent and ninety (90) percent in cash
of the total Purchase Price."
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g. Section 11.4 is hereby amended to read as follows: "Except as
may be otherwise expressly set forth herein, each Party to
this Agreement will be responsible for his, her or its own
legal, accounting and other expenses, if any, attendant to the
negotiation and drafting of this Agreement and to the
transactions contemplated by this Agreement; provided, that
Company will be responsible for the reasonable legal,
accounting and other expenses incurred by Company directly in
evaluating, negotiating and effecting the Transactions (and
not any other transactions with any other parties) up to the
lesser of $3,500,000 or the cash on Company's balance sheet at
Closing."
2. Reaffirmation of Agreement. Except as provided in this Amendment,
the Agreement is not amended, modified or affected by this Amendment, and the
Agreement and the obligations of the parties hereto thereunder are hereby
ratified and confirmed in all respects by the parties hereto.
3. Binding Effect. This Amendment will benefit and bind the parties
hereto and their respective assigns, successors and legal representatives.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will constitute an original and all of which, when
taken together, will constitute one Amendment.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President, CFO and Assistant Secretary
IPLACE, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: CEO and President
HOMESTORE CONSUMER INFORMATION CORP.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President, CFO and Assistant Secretary
STOCKHOLDERS:
MEMBERWORKS INCORPORATED
By: /s/ Xxxxxx X.X. Xxxxxx
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Name: Xxxxxx X.X. Xxxxxx
Title: Senior Vice President and General Council
XXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
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XXXXXX XXXXX
By: /s/ Xxxxxx Xxxxx
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XXXXX XXXXX
By: /s/ Xxxxx Xxxxx
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XXXXXX TRUST
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Trustee
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