Exhibit 2.2
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT (this "First Amendment"), dated as of June 8, 2004, to the
Agreement and Plan of Merger (the "Merger Agreement"), dated as of May 1, 2004,
by and among Titan Holdings, Inc., a Delaware corporation (the "Company"),
Micron Holdings, Inc., a Delaware corporation ("Parent") and Micron Merger
Corporation, a Delaware corporation and wholly owned subsidiary of Parent
("Acquisition Sub"). All capitalized terms which are used but not otherwise
defined herein shall have the meanings specified to such terms in the Merger
Agreement.
WHEREAS, the Company, Parent and Acquisition Sub are parties to the Merger
Agreement, pursuant to which Acquisition Sub will merge with and into the
Company, with the Company surviving the merger as a wholly owned subsidiary of
Parent, on the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to Section 9.8 of the Merger Agreement, the Company, Parent
and Acquisition Sub desire to amend the Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Section 2.5(b). Section 2.5(b) of the Merger Agreement is hereby
amended to delete "$25,000,000" in the first sentence thereof and insert in its
place "$28,000,000".
2. Section 10.1; No Effect on Merger Consideration.
(a) Section 10.1. Section 10.1 of the Merger Agreement is hereby
amended by deleting the defined terms set forth below and replacing them in
their entirety as set forth below:
"Deemed Aggregate Option Exercise Price" means the aggregate
exercise price of all options to purchase shares of Common Stock
that are outstanding immediately prior to the Effective Time
(whether or not such options are vested and whether or not such
options are exercisable prior to the Effective Time); provided,
however, that any and all options with respect to which the
holder(s) thereof effect a cashless exercise on the date on which
the Effective Time occurs shall nonetheless be deemed outstanding
immediately prior to the Effective Time for the purposes of this
definition and the definition of "Fully Diluted Shares".
"Fully Diluted Shares" means the number of shares of Common Stock
(excluding any shares of Common Stock issued in respect of options
that have been exercised on the date on which the Effective Time
occurs pursuant to a cashless exercise) plus the number of shares of
Common Stock issuable upon the exercise of all outstanding options
to purchase shares of Common Stock (including options deemed
outstanding pursuant to the proviso to the definition of "Deemed
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Aggregate Option Exercise Price") (it being understood and agreed
that the determination of the number of shares of Common Stock
issuable upon the exercise of any such outstanding option shall
assume such option is not exercised pursuant to a cashless
exercise), whether or not vested or exercisable prior to the
Effective Time, in each case outstanding immediately prior to the
Effective Time, it being agreed that at least five Business Days
prior to the Closing Date the Company will provide to Parent the
number, and a summary of, the Fully Diluted Shares; provided,
however, that the term "Fully Diluted Shares" shall include all
Company Stock to be contributed by the Continuing Stockholders
pursuant to the Continuing Stockholder Contribution.
(b) No Effect on Merger Consideration. For the avoidance of doubt,
the parties understand and agree that neither the foregoing revised definitions
nor the cashless exercise of options on the date on which the Effective Time
occurs shall in any way increase the Common Stock Merger Consideration or the
Per Share Common Stock Merger Consideration payable to holders of Common Stock
and holders of options to purchase shares of Common Stock to an amount greater
than such holders would have received if no cashless exercise of options had so
occurred.
3. Exhibit 7. Exhibit 7 to the Merger Agreement is hereby amended in its
entirety to read as set forth on Exhibit 1 hereto.
4. Continued Force and Effect. The parties hereto hereby acknowledge and
confirm that (i) this First Amendment shall not constitute a waiver, amendment
or modification of any provision of the Merger Agreement not expressly referred
to herein, (ii) except as expressly amended or modified herein, the provisions
of the Merger Agreement are and shall remain in full force and effect, and (iii)
from and after the date hereof, all references to the Merger Agreement or to
"this Agreement", "hereto", "thereto", or words of similar import in the Merger
Agreement or referring to the Merger Agreement shall be deemed to mean the
Merger Agreement as amended by this First Amendment.
5. Counterparts. This First Amendment may be executed simultaneously or in
two (2) or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute and be the same instrument.
6. Governing Law. The parties hereto agree that this First Amendment shall
be governed by, and construed in all respects in accordance with, the internal
laws of the State of Delaware, without regard to the laws of any other
jurisdiction that might be applied because of the conflicts of laws principles
of the State of Delaware.
7. Amendments. This First Amendment and any of the provisions hereof may
not be amended, altered or added to in any manner except by a document in
writing and signed by each party hereto.
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8. Captions; Articles and Sections. The captions contained in this First
Amendment are for reference purposes only and are not part of this First
Amendment. Unless otherwise indicated, all references to particular Articles or
Sections shall mean and refer to the referenced Articles and Sections of the
Merger Agreement, as amended by this First Amendment.
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IN WITNESS WHEREOF, this First Amendment has been executed on behalf of each of
the parties hereto as of the date first written above.
TITAN HOLDINGS, INC.
By: /s/ John C. Kennedy
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Name: John C. Kennedy
Title:
MICRON HOLDINGS, INC.
By: /s/ David R. Mitchell
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Name: David R. Mitchell
Title: Vice President
MICRON MERGER CORPORATION
By: /s/ David R. Mitchell
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Name: David R. Mitchell
Title: Vice President
Exhibit 1
(Amended Exhibit 7 to the Merger Agreement)
PROJECT MICRON
SUMMARY TERM SHEET
CONTINUING STOCKHOLDER'S CONTRIBUTION
Prior to the Effective Time, John C. Kennedy ("Kennedy") and Micron Holdings,
Inc. ("Company") shall enter into a Contribution Agreement (herein so called)
providing for a exchange of certain shares of common stock of Titan Holdings,
Inc. by Kennedy for shares of common stock of the Company. The Contribution
Agreement shall contain customary terms and conditions, including, without
limitation, those described below.
CONTINUING
STOCKHOLDER John C. Kennedy
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CONTRIBUTION Number of shares with a value equal to $28mm based
SHARES upon the Common Stock Merger Consideration shall be
exchanged. There will be no holdback, escrow, post-closing
indemnification or other post-closing adjustments with
regards to the contribution by Kennedy.
EXCHANGE Shares of common stock of the Company representing
SHARES a percentage equal to $28mm divided by the total amount of
consideration contributed by all stockholders (as of
immediately prior to the effective time of the Merger),
subject to dilution only for the options (described in the
Option Program for Senior Management term sheet attached
to the Stockholders' Agreement term sheet).
EMPLOYMENT As a condition to Kennedy's obligation to make
AGREEMENT the contribution, the Company shall enter into an
employment agreement with Kennedy as CEO of the Company on
terms customary for executives similarly situated.
STOCKHOLDERS' As a condition to the contribution by Kennedy, the Company,
AGREEMENT Transportation Resource Partners, LP (with affiliates,
"TRP"), GS Capital Partners 2000, L.P. (with
affiliates, "GSCP") and Kennedy shall enter into a
Stockholders' Agreement substantially on the terms set
forth on the Stockholders' Agreement Term Sheet.