Exhibit 2.2
AMENDMENT, EXTENSION AND RELEASE AGREEMENT
THIS AMENDMENT, EXTENSION AND RELEASE AGREEMENT (this "Agreement") is
entered into as of the 30th day of July, 1999, by and among GREASE MONKEY
HOLDING CORPORATION, a Utah corporation (the "Grease Xxxxxx"), XX 0000, INC., a
Florida corporation ("QL 3000") and E. XXXXXXX XXXXXX, XX. ("Xxxxxx").
RECITALS
A. Grease Monkey and QL 3000 have entered into an Agreement and Plan of
Merger, dated March 26, 1999 (the "Merger Agreement").
B. The Merger Agreement provides that Grease Monkey may terminate the
Merger Agreement if the transactions contemplated thereby have not been
consummated on or before July 24, 1999.
C. The parties hereto desire to extend the July 24, 1999 termination date
to the later of (a) the date ten business days after Grease Monkey holds a
special meeting, or any adjournment thereof, of its shareholders for the purpose
of obtaining approval under the URBCA for the Merger, and (b) October 31, 1999
(the "Termination Date").
D. The parties hereto desire to ensure that Grease Monkey will not suffer
undue hardship or damages as a result of such extension or in the event that the
transactions are not consummated by the Termination Date.
AGREEMENT
In consideration of the mutual covenants and obligations contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. EXTENSION. Section 7.3.2 of the Merger Agreement is hereby amended to
replace the phrase "within 120 days after the execution of this Agreement" with
the phrase "on or before the later of (a) the date ten business days after
Grease Monkey holds a special meeting, or any adjournment thereof, of its
shareholders for the purpose of obtaining approval under the URBCA for the
Merger, and (b) October 31, 1999."
2. ESCROW DEPOSIT. Upon the execution of this Xxxxxxxxx, XX 0000 shall
deposit or cause to be deposited in an escrow account at U.S. Bank National
Association,
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Denver, Colorado, the sum of $400,000.00 (the "Escrow Deposit"). At the
Effective Time (if the Effective Time occurs) the Escrow Deposit shall be
transferred to the Paying Agent and shall be used as part of the Merger
Consideration. If (a) all of the conditions to QL 3000's obligations under
the Merger Agreement have not been satisfied or waived by QL 3000 or (b)
Grease Monkey defaults in the observance or performance of one or more of its
covenants or agreements under the Merger Agreement, which default is not
cured within ten (10) days after Grease Monkey has notice thereof, except for
defaults which, individually or in the aggregate, would not have a Combined
Material Adverse Effect or materially impair the ability of the parties to
consummate the transactions contemplated by the Merger Agreement pursuant to
its terms, and Grease Monkey or QL 3000 elects to terminate the Merger
Agreement, or (c) Grease Monkey terminates the Merger Agreement pursuant to
Section 7.3.3 thereof, then the Escrow Deposit shall be returned to QL 3000
(or its designee). If on or after the Termination Date (a) all of the
conditions to QL 3000's obligations under the Merger Agreement have been
satisfied or waived by QL 3000, (b) the Effective Date has not occurred (for
reasons other than Grease Monkey's failure to close) by the end of the fifth
business day following the date on which the last of such conditions was
satisfied or waived and (c) Grease Monkey terminates the Merger Agreement or
if Grease Monkey terminates the Merger Agreement pursuant to Section 7.3.1
thereof, then the Escrow Deposit shall be forfeited to Grease Monkey. If (a)
(i) the Effective Time does not occur on or before the Termination Date
because Grease Monkey has materially breached its representations, warranties
or covenants contained in the Merger Agreement (other than a breach of a
representation or warranty as to which Grease Monkey had no control or
knowledge), or (ii) the shareholders of Grease Monkey vote to reject the
Merger or (iii) all of the conditions to Grease Monkey's obligations under
the Merger Agreement have been satisfied or waived by Grease Monkey and the
Effective Time has not occurred (for reasons other than QL 3000's failure to
close) by the end of the fifth business day following the date on which the
last of such conditions was satisfied or waived, and (b) QL 3000 shall have
not materially breached any of its representations, warranties or covenants
contained in the Merger Agreement, then QL 3000 may terminate the Merger
Agreement and will be entitled to liquidated damages from Grease Monkey in
the amount of $400,000.00; provided; however, that Grease Monkey shall not be
required to pay liquidated damages if Grease Monkey terminates the Merger
Agreement pursuant to Section 7.3.3 thereof. The parties agree that the
provisions regarding the Escrow Deposit and liquidated damages are an
integral part of this Agreement, and that, without these provisions, the
parties would not enter into this Agreement.
3. EXCLUSIVE REMEDY. The forfeiture of the Escrow Deposit and payment of
liquidated damages provided for in Section 2 hereof shall be the sole and
exclusive respective remedies for the breach of any representation, warranty or
covenant in the Merger Agreement or related thereto, including the commitment by
Xxxxxx to provide financing.
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4. DELETED CONDITION. Section 6.9 of the Merger Agreement is hereby
deleted.
5. DISSENTING SHARES. Section 6.8 of the Merger Agreement is hereby
amended to replace the number "20%" with the number "25%".
6. DISCLOSURE SCHEDULE. The Disclosure Schedule is hereby amended to
include the items listed on Schedule 1 hereof. QL 3000 hereby waives,
discharges and releases Grease Monkey from any claim of breach of the Merger
Agreement relating to the transactions listed on such Schedule 1.
7. REAFFIRMATION OF COMMITMENT LETTER. Xxxxxx hereby reaffirms his
unconditional commitment to provide or cause to be provided all necessary debt
and equity financings to complete the merger described in the Merger Agreement.
8. STATUTORY MERGER ELECTION. QL 3000 hereby irrevocably elects the form
of statutory merger described in the Merger Agreement. Grease Monkey shall not
be required to enter into the agreement attached as Exhibit A to the Merger
Agreement.
9. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
10. DEFINED TERMS. Capitalized terms used but not defined herein shall
have the meaning ascribed to them in the Merger Agreement.
11. BOARD APPROVAL. This Agreement shall be of no force or effect until
approved by the Board of Directors of Grease Monkey. Unless and until such
approval occurs, Grease Monkey shall not be deemed to have waived any provision
of the Merger Agreement, including, without limitation, its right to terminate
the Merger Agreement pursuant to Section 7.3.2 thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
GREASE MONKEY HOLDING QL 3000, INC., a Florida corporation
CORPORATION, a Utah corporation
By /s/ Xxxxx Xxxxxxx By /s/ E. Xxxxxxx Xxxxxx, Xx.
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Name: Xxxxx Xxxxxxx Name: E. Xxxxxxx Xxxxxx, Xx.
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Title: Chief Executive Officer Title: Chairman
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SCHEDULE 1
The registrant agrees to furnish supplementally a copy of this schedule to the
Commission upon request.
