Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT is made as of May 7, 2001 by and among Tech-Creations, Inc.,
a Delaware corporation ("Tech"), iJoin, Inc., a Delaware corporation ("iJoin"),
and IJC Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of Tech ("Tech Sub"). Tech, iJoin and Tech Sub are referred to collectively
herein as the "Parties."
WHEREAS, the undersigned are the only parties to that certain Agreement and
Plan of Merger dated as of April 24, 2001, among Tech, iJoin and the Tech Sub
(as amended from time to time, the "Agreement"); and
WHEREAS, the parties wish to amend the Agreement to modify and clarify
certain provisions of the Agreement, as provided herein.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereby agree:
1. Section 2.06(a) and (c) of the Agreement is amended [italics] to provide
for the issuance of Series A Special Voting Preferred Stock by Tech for and in
exchange of the issued and outstanding shares of Special Voting Stock of iJoin,
and shall read in its entirety as follows:
"Section 2.06. Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of Tech, Tech Sub or iJoin:
(a) Every five (5) shares of iJoin Stock (the "iJoin Stock") issued
and outstanding, other than Dissenting Stock or shares of iJoin Stock held
in treasury, as of the Effective Time, shall automatically be converted
into the right, subject to Sections 2.07(e) hereof, to receive one (i)
fully paid, non assessable share of the Tech Common Stock (the "Exchange
Ratio"). Every share of iJoin special voting stock (the "iJoin Special
Voting Stock") issued and outstanding, as of the Effective Time, shall
automatically be converted into the right, subject to Sections 2.07(e)
hereof, to receive one (1) fully paid, non assessable share of the Tech
Series "A" Special Voting Preferred Stock (the "Tech Series A Preferred"),
having the rights and privileges set forth in the Certificate of
Designation authorizing the same.
* * *
(c) From and after the Effective Time, all shares of iJoin Stock and
iJoin Special Voting Stock shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
certificate previously representing any such shares shall thereafter
represent only the right, subject to Section 2.07(e) hereof, to be
exchanged for that number of shares of Tech Common Stock or Tech Series A
Preferred into which such shares of iJoin Stock and iJoin Special Voting
Stock were converted in the Merger, upon surrender of the certificate(s)
representing such shares in accordance with Section 2.07. Certificates
previously representing shares of iJoin Stock shall be exchanged for the
number of shares of Tech Common Stock determined by the Exchange Ratio and
the number of Tech Series A Preferred as determined pursuant to this
Section 2.06, as applicable, upon the surrender of such certificates in
accordance with the provisions of Section 2.07, without interest."
2. Section 2.07 of the Agreement is amended [italics] to provide for the
issuance of Series A Special Voting Preferred Stock by Tech for and in exchange
of the issued and outstanding shares of Special Voting Stock of iJoin, and shall
read in its entirety as follows:
"Section 2.07. Exchange of Certificates.
(a) Exchange Procedures. At the Closing, each holder of record of a
certificate or certificates (the "Certificates") which immediately prior to
the Effective Time represented issued and outstanding shares of iJoin Stock
and iJoin Special Voting Stock shall tender such Certificates, together
with stock powers, to Tech or its designated transfer or exchange agent.
Upon surrender of a Certificate for cancellation to Tech, together with
such duly executed stock power, the holder of such Certificate shall be
entitled to receive in exchange therefor the shares of Tech Common Stock or
Tech Series A Preferred, as applicable, which such holder has the right to
receive in respect of the shares of iJoin Stock or iJoin Special Voting
Stock formerly represented by such Certificates, together with any
dividends or other distributions to which such holder is entitled pursuant
to Section 2.07(b). The surrendered Certificates shall then be marked
canceled. In the event of a transfer of ownership of shares of iJoin Stock
or iJoin Special Voting Stock which is not registered in the transfer
records of iJoin, the shares of Tech Common Stock or Tech Series A
Preferred may be issued in accordance with this Article 2 to the transferee
if the Certificates representing such shares of iJoin Stock or iJoin
Special Voting Stock, as applicable, are presented to Tech, accompanied by
all documents required to evidence and effect such transfer and by evidence
that any applicable stock transfer taxes have been paid. Until surrendered
as contemplated by this Section 2.07(a), each Certificate shall be deemed
at any time after the Effective Time to represent only the right to receive
upon such surrender the number of shares of Tech Common Stock determined by
the Exchange Ratio or the number of shares of Tech Series A Preferred
pursuant to Section 2.06 hereof, as the case may be, and any dividends or
other distributions to which such holder is entitled pursuant to Section
2.07(b).
(b) Distributions with Respect to Unexchanged Shares of Tech Common
Stock. No dividends or other distributions declared or made after the
Effective Time with respect to Tech Common Stock or Tech Series A Preferred
with a record date after the Effective Time shall be paid to the holder of
any unsurrendered Certificate with respect to the shares of Tech Common
Stock or Tech Series A Preferred evidenced thereby until the holder of such
Certificate shall surrender such Certificate. Subject to the effect of
applicable laws, following surrender of any such Certificate, there shall
be paid to the holder of such Certificate, in addition to the shares of
Tech Common Stock or Tech Series A Preferred as provided in Section
2.07(a), without interest, the amount of dividends or other distributions
with a record date after the Effective Time theretofore paid with respect
to the whole shares of Tech Common Stock or Tech Series A Preferred
evidenced by such Certificate. There shall be paid to the holder of the
certificates representing whole shares of Tech Common Stock or Tech Series
A Preferred issued in exchange therefor, without interest: (i) promptly,
the amount of dividends or other distributions with a record date after the
Effective Time theretofore paid with respect to such whole shares of Tech
Common Stock or Tech Series A Preferred, and (ii) at the appropriate
payment date, the amount of dividends or other distributions, with a record
date after the Effective Time but prior to surrender and a payment date
occurring after surrender, payable with respect to such whole shares of
Tech Common Stock or Tech Series A Preferred, as the case may be.
(c) No Further Rights in iJoin Shares. The shares of Tech Common Stock
issued or paid upon conversion of the shares of iJoin Stock in accordance
with the terms hereof (including any cash paid or other distributions
pursuant to Sections 2.07(b)) shall be deemed to have been issued or paid
in full satisfaction of all rights pertaining to such shares of iJoin
Stock. The shares of Tech Series A Preferred issued or paid upon conversion
of the shares of iJoin Special Voting
Stock in accordance with the terms hereof (including any cash paid or other
distributions pursuant to Sections 2.07(b)) shall be deemed to have been
issued or paid in full satisfaction of all rights pertaining to such shares
of iJoin Special Voting Stock.
(d) Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the iJoin
stockholder claiming such Certificate to be lost, stolen or destroyed and,
if required by the Surviving Corporation, the posting by such iJoin
stockholder of a bond in such reasonable amount as the Surviving
Corporation may direct as indemnity against any claim that may be made
against it with respect to such Certificate, Tech will issue in exchange
for such lost, stolen or destroyed Certificate the number of shares of Tech
Common Stock determined by the Exchange Ratio or the number of shares of
Tech Series A Preferred as provided in Section 2.06 hereof, as the case may
be, and unpaid dividends and distributions on the shares of Tech Common
Stock or Tech Series A Preferred deliverable in respect thereof pursuant to
this Agreement.
(e) No Fractional Shares. No certificates or scrip evidencing
fractional shares of Tech Common Stock or Tech Series A Preferred shall be
issued upon the surrender for exchange of Certificates, but in lieu thereof
each stockholder of iJoin who would otherwise be entitled to receive a
fraction of a share of Tech Common Stock and/or Tech Series A Preferred,
after aggregating all fractional shares of Tech Common Stock and/or Tech
Series A Preferred which such holder would be entitled to receive under
Section 2.06, shall receive the next larger number of whole shares of Tech
Common Stock and/or Tech Series A Preferred to which such holder would
otherwise be entitled."
3. Section 2.08 of the Agreement is amended [italics] to provide for the
issuance of Series A Special Voting Preferred Stock by Tech for and in exchange
of the issued and outstanding shares of Special Voting Stock of iJoin, and shall
read in its entirety as follows:
"Section 2.08. Stock Transfer Books. At the Effective Time, the stock
transfer books of iJoin shall be closed and there shall be no further
registration of transfers of shares of iJoin Stock thereafter on the records of
iJoin. On or after the Effective Time, any Certificates presented to Tech for
any reason shall be converted into the number of shares of Tech Common Stock
determined by the Exchange Ratio and the number of shares of Tech Series A
Preferred as provided in Section 2.06 hereof, as the case may be, and any
dividends or other distributions to which they are entitled pursuant to Section
2.07(b) in accordance with the terms of this Agreement."
4. Section 3.03 of the Agreement is amended [italics] to provide (i) for
the authorization and issuance of shares of Special Voting Stock by iJoin and
(ii) for an additional 100,000 shares of iJoin Stock underlying options having
been previously granted by the Company, and shall read in its entirety as
follows:
"Section 3.03. Capitalization. iJoin's authorized capital stock consists of
25,000,000 shares of common stock ("iJoin Stock"), 2 shares of special voting
stock (the "iJoin Special Voting Stock") and 15,000,000 shares of preferred
stock ("iJoin Preferred"), as set forth on Section 3.03 (a) of the iJoin
Disclosure Schedule, which as of April 24, 2001: (i) 1,265,702 shares of iJoin
Stock are issued and outstanding, (ii) 2 shares of iJoin Special Voting Stock
and (iii) 4,000,000 shares of Series A iJoin Preferred are issued and
outstanding, 1,500,000 shares of Series B iJoin Preferred are issued and
outstanding and 3,574,000 shares of Series C iJoin Preferred are issued and
outstanding. Each share of iJoin Preferred is convertible into a share of common
stock, on a 1:1 basis. No iJoin Shares are held in treasury. All of the issued
and outstanding shares of iJoin Stock and iJoin Preferred have been duly
authorized, are validly issued, fully paid, and non-assessable. Except as set
forth in Section 3.03(b) of the
iJoin Disclosure Schedule, there are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require iJoin to issue,
sell, or otherwise cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to iJoin. Except as set forth in
Section 3.03(b) of the iJoin Disclosure Schedule, there are no voting trusts,
proxies, or other agreements or understandings with respect to the voting of the
capital stock of iJoin. iJoin has reserved 4,357,200 shares of iJoin Stock for
issuance pursuant to the exercise or exchange, as applicable, of outstanding
options, warrants and exchangeable shares and 9,074,000 shares of iJoin Stock
for issuance pursuant to the conversion of outstanding iJoin Preferred, as more
particularly listed in Section 3.03(b) of the iJoin Disclosure Schedule. Section
3.03(b) of the iJoin Disclosure Schedule shall set forth the date of grant,
exercise price, number of shares of iJoin Common Stock exercisable for and the
expiration date for each outstanding option and warrant of iJoin. Section
3.03(b) of the iJoin Disclosure Schedule shall also set forth each outstanding
option, warrant and other convertible security of iJoin that is subject to
registration rights.
5. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to such term in the Agreement.
6. The Agreement, as so amended by this Amendment, remains in full force
and effect.
7. This Amendment may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of
the date first above written.
TECH-CREATIONS, INC.
By:/s/WILLIAM H. RAGSDALE
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William H. Ragsdale, President
IJOIN, INC.
By:/s/BOB BAGGA
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Bob Bagga, Chief Executive Officer
IJC ACQUISITION CORP.
By:/s/WILLIAM H. RAGSDALE
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William H. Ragsdale, President