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EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of August
10, 2000 (this "Amendment") is entered into by and among Xxxxxxxxxxxx.xxx, Inc.,
a Delaware corporation ("FRT"), Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of FRT ("Sub"), and XxxXxxx.xxx, Inc., a Delaware
corporation ("RedChip"), amending that certain Agreement and Plan of Merger,
dated as of June 6, 2000, by and between FRT and RedChip (the "Merger
Agreement"). All capitalized terms used but not defined in this Amendment shall
have the meanings ascribed to them in the Merger Agreement.
RECITALS
WHEREAS, FRT and RedChip have entered into the Merger Agreement
pursuant to which Sub, a wholly-owned subsidiary of FRT, will merge with and
into RedChip (the "Merger"), upon the terms and subject to the conditions set
forth herein, and in accordance with the applicable provisions of the Delaware
General Corporation Law (the "DGCL"); and
WHEREAS, FRT, Sub and RedChip have agreed to amend the Merger Agreement
pursuant to this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the Merger Agreement as follows:
AGREEMENT
Section 1. Additional Parties. By its execution of the Amendment, as of
the date hereof, Sub adopts and becomes a party to the Merger Agreement, and
agrees to perform all of its obligations and agreements as set forth therein. By
and subject to the terms of this Amendment, the parties hereto acknowledge and
agree that the term "Sub," as defined in the Recitals to the Merger Agreement,
is hereby amended to mean FRT Merger Sub, Inc., a Delaware corporation.
Section 2. Stock Options. Section 2.6(c) of Article II of the Merger
Agreement is hereby amended and restated in its entirety to read as follows:
"(c) Options. All outstanding RedChip Options as of the date
of this Agreement are set forth on Schedule 2.6(c) attached hereto.
Each outstanding RedChip Option granted under the RedChip Stock Option
Plan shall, in accordance with the terms of the RedChip Stock Option
Plan, at the Effective Time, become fully vested and exercisable at the
exercise price and for the number of shares of RedChip Stock set forth
in the respective RedChip Stock Option Agreements under which they were
granted. Any shares of RedChip Stock for which such RedChip Options are
exercised prior to the Effective Time shall be deemed to be issued and
outstanding immediately prior to the Effective Time, even if
certificates evidencing such RedChip Stock have not been issued by
RedChip and, at the Effective Time, such shares of RedChip Stock shall
be converted into Merger Shares in accordance with Section 2.6 hereof,
subject to the provisions of Section 2.6(h) hereof, related to
fractional shares. Except to the extent exercised prior to
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the Effective Time as provided in the foregoing sentence, at the
Effective Time, each outstanding RedChip Option shall terminate and
shall cease to represent the right to acquire shares of RedChip Stock.
FRT shall grant to each holder of RedChip Options who did not exercise
his or her RedChip Options prior to the Effective Time (and which were
terminated at the Effective Time) options (the "Substitute Options") to
purchase the number of shares of FRT Stock as the holder of such
RedChip Options would have been entitled to receive pursuant to the
Merger had such holder exercised such RedChip Options in full
immediately prior to the Effective Time, at a price per share equal to
the result of dividing the per share exercise price of such RedChip
Option by the Exchange Ratio (rounded to the nearest full cent);
provided, however, the parties hereto acknowledge that any Substitute
Options issued pursuant to the FRT Stock Option Plan shall be subject
to stockholder approval which may be required in order to increase the
number of shares available pursuant to awards granted under the FRT
Stock Option Plan. In the event that FRT does not obtain stockholder
approval to increase its option pool under the FRT Stock Option Plan,
FRT shall grant the Substitute Options pursuant to individual stock
option agreements, and not pursuant to the FRT Stock Option Plan. The
Substitute Options shall vest as follows: (i) for the RedChip Options
which were vested immediately prior to the Effective Time (without
regard to the acceleration of vesting due to the Merger), the
Substitute Options shall be immediately exercisable at the time of
grant and (ii) for the RedChip Options which were unvested immediately
prior to the Effective Time (without regard to the acceleration of
vesting due to the Merger), the Substitute Options shall vest over the
shorter period of (x) the two year period beginning at the Effective
Time and (y) the vesting schedule of the original RedChip Options
(without regard to any acceleration thereof). Notwithstanding the
foregoing, the number of and the per share exercise price of each
RedChip Option which is an "incentive stock option" (as defined in
Section 422 of the Code) shall be adjusted in accordance with the
requirements of Section 424 of the Code, as necessary in order for such
RedChip Option to be an "incentive stock option." Accordingly, with
respect to any incentive stock options, fractional shares of FRT Stock
shall be rounded down to the nearest whole number of shares and, where
necessary, the per share exercise price shall be rounded up to the
nearest cent."
Section 3. Warrants. Section 2.6(d) of Article II of the Merger
Agreement is hereby amended and restated in its entirety to read as follows:
"(d) Warrants. Concurrently with the Closing, FRT shall
deliver Substitute Warrant Agreements to the holders of RedChip
Warrants representing the right to acquire, on terms and conditions
reasonably acceptable to FRT, the number of shares of FRT Stock as the
holder of such RedChip Warrants who did not exercise his or her RedChip
Warrant prior to the Effective Time would have been entitled to receive
pursuant to the Merger had such holder exercised such RedChip Warrant
in full immediately prior to the Effective Time, at a price per share
equal to the result of dividing the per share exercise price of such
RedChip Warrant by the Exchange Ratio (rounded to the nearest full
cent). Notwithstanding the above, in the event any holder of RedChip
Warrants exercises such Warrants prior to the Effective Time, such
holder shall not be entitled to receive a Substitute Warrant
Agreement."
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Section 4. Stockholder Approval of Increase to FRT Stock Option Plan.
Notwithstanding anything else to the contrary in the Merger Agreement or this
Amendment, the Substitute Options shall be issued subject to the approval by the
stockholders of FRT of an increase in the number of shares which may be offered
pursuant to the FRT Stock Option Plan.
Section 5. Prior Affiliation with Digital Offerings, Inc. Section 4.14
of Article IV of the Merger Agreement is hereby amended and restated in its
entirety to read as follows:
"Prior Affiliated Groups. For all tax years prior to and
including the year ended March 31, 2000, FRT has not been a member of
an affiliated group of corporations within the meaning of Section 1504
of the Code. FRT owns 100% of a Foreign Corporation (as defined in the
Code) which is specifically excluded from the definition of affiliated
group of corporations under Section 1504(b)(3) of the Code.
Accordingly, for tax years prior to and including the year ended March
31, 2000, FRT has not filed a federal consolidated return. FRT does
file a combined unitary return with its wholly owned Foreign
Corporation subsidiary with the State of California and single entity
returns with other states in which FRT is required to file. Subsequent
to the fiscal year ended March 31, 2000 and prior to the Closing Date,
FRT has incorporated a wholly owned subsidiary, Digital Offerings,
Inc., which is now a member of the FRT affiliated group. This newly
established subsidiary will elect to be included in a federal
consolidated return and California combined report with FRT for the
fiscal year ending March 31, 2001."
Section 6. Exchange Ratio. The parties hereto agree that the Exchange
Ratio has been adjusted in accordance with Section 2.6(f) of the Merger
Agreement and that the Exchange Ratio, for all purposes in the Merger Agreement
and this Amendment, shall equal .3935408.
Section 7. Execution in Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall for all purposes be deemed to be
an original and all such counterparts shall together constitute but one and the
same instrument.
Section 8. Ratification and Reaffirmation of the Merger Agreement.
Except as hereby expressly amended, the Merger Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
Section 9. Governing Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of Delaware.
Section 10. Interpretation. In the event of any conflict between the
provisions of the Merger Agreement and the provisions of this Amendment, the
provisions of this Amendment shall control.
Section 11. Binding Effect. This Amendment shall inure to the benefit
of and shall be binding upon the parties and their respective successors and
assigns.
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IN WITNESS WHEREOF, each party hereto has executed this Amendment or
caused this Amendment to be duly executed on its behalf by its officer thereunto
duly authorized, as of the day and year first above written.
XXXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Co-Chief Executive Officer
FRT MERGER SUB, INC.,
a Delaware corporation
By: /s/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Co-Chief Executive Officer
XXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
Title: Chairman of the Board
IN HIS CAPACITY AS THE
STOCKHOLDER REPRESENTATIVE:
/s/ XXXXX XXXX
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Xxxxx Xxxx
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