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Exhibit 2.2
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this
"Agreement") is made and entered into as of November 8, 1999, by and among
E-Sync Networks, Inc., a Delaware corporation ("Parent"), BLT Acquisition Corp.,
a New York corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), Braincraft Learning Technologies, Inc., a New York corporation
(the "Company"), Dan Stechow ("Stechow") and Kevin Marth ("Marth" and together
with Stechow, the "Stockholders"). The Parent, the Purchaser, the Company and
the Stockholders are collectively referred to as the "Parties" and each as a
"Party."
WHEREAS, the Parties are parties to an Agreement and Plan of Merger
dated as of September 27, 1999 (the "Original Agreement"); and
WHEREAS, the Parties desire to amend such agreement to (i) modify the
form of consideration given to the Stockholders in the Merger such that the
Stockholders receive increased Cash Consideration in lieu of the Note
Consideration, (ii) modify the formula used for the calculation of the Exchange
Ratio used for determining the number of Parent Shares into which the Reformed
Options are exercisable, and (iii) provide for a revised Exhibit L (the form of
Registration Rights Agreement), which revised form will reflect the addition of
certain parties to such Exhibit, among other things, each on the terms and
conditions stated herein and in the Original Agreement; and
WHEREAS, the Parties desire to consent to certain actions of the
Company prohibited by the terms of the Original Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used and not otherwise
defined in this Agreement shall have the meanings given to such terms in the
Original Agreement.
2. Section 1.2(a).
(a) Section 1.2(a) of the Original Agreement is hereby
amended by deleting such section in its entirety and replacing it with the
following:
"(a) At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof, each
share of issued and outstanding Common Stock, $.01 par value
per share, of the Company (the "Shares") shall cease to be
outstanding and shall be converted into the right to receive,
for each Share, an amount in cash equal to $0.25 (the "Cash
Consideration"), and that number of shares of Common Stock,
$.01 par value per share, of Parent (the "Parent Shares")
determined in accordance with Section 1.2(d) (the "Share
Consideration"), to be paid in accordance with Section 1.3 and
subject to the conditions stated herein. Notwithstanding the
use of the term "Note Consideration" herein, the Parties
acknowledge and agree that no promissory notes of the
Surviving
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Corporation will be issued in connection with the Merger."
(b) Section 1.2(b) of the Original Agreement is
hereby amended by deleting such section in its entirety and replacing it with
the following:
"(b) The aggregate Cash Consideration to be paid to
all stockholders, shall be two hundred fifty thousand
($250,000) dollars and is herein referred to as the "Aggregate
Cash Consideration."
(c) Section 1.2(c) of the Original Agreement is
hereby amended by deleting the first sentence of such section in its entirety
and replacing it with the following:
"The aggregate Note Consideration to be paid to all
stockholders shall be zero ($0) dollars and is herein referred
to as the "Aggregate Note Consideration." The Note
Consideration shall be issued in the form of Promissory Notes
of the Parent in the form attached hereto as Exhibit B
(collectively, the "Notes").
3. Section 1.3(f). Section 1.3(f) of the Original Agreement is
hereby amended by deleting the last sentence of the first paragraph of such
Section in its entirety and replacing it with the following sentence:
"The "Exchange Ratio" means the result of dividing the number
of Parent Shares representing the Aggregate Share
Consideration by 1,000,000."
4. Section 6.2(j). Section 6.2(j) of the Original Agreement is
hereby amended by deleting clause (ii) of the first sentence of such Section and
replacing it with the following:
"(ii) a certificate, in substantially the form of Exhibit I
hereto (the "Payroll Tax Certificate"), signed by the Company
and each Stockholder, certifying to the amount of federal,
state and local payroll taxes (inclusive of any penalties and
interest then due) due and owing as of the Closing Date and
all Liabilities, if any, related to the exclusion of J.
Robinson, an employee of the Company, from the Company's
ordinary payroll practices (the "Overdue Payroll Tax
Amount");"
5. Exhibit L. Exhibit L to the Original Agreement is hereby
amended and restated in its entirety as Exhibit L hereto.
6. Section 9.12. Section 9.12 is hereby amended to change the
cross reference stated therein by replacing the words "Section 5.9" with the
words "Section 5.8."
7. Consent. The Parties hereby consent to the following
actions by the Company for all purposes stated in the Original Agreement,
including with respect to the covenants of the Company set forth in Article V of
the Original Agreement:
(a) the payment by the Company of up to $29,000 to the
parties referred to in the Settlement Agreement in
furtherance of the settlement of the matters stated
therein;
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(b) the termination of Kevin Hendrickson and the payment
of up to $24,000 to Mr. Hendrickson in connection
therewith; and
(c) the payment of any Overdue Payroll Tax Amount.
8. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Connecticut
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Connecticut or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Connecticut.
9. Effective Date. In accordance with the terms of the
Original Agreement, this Agreement will become effective upon execution by all
Parties.
10. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 1 to the Agreement and Plan of Merger effective as of the day and year first
above written.
E-SYNC NETWORKS, INC.
By: /s/ Frank J. Connolly, Jr.
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Name: Frank J. Connolly, Jr.
Title: Chief Financial Officer
BLT ACQUISITION CORP.
By: /s/ Frank J. Connolly, Jr.
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Name: Frank J. Connolly, Jr.
Title: President
BRAINCRAFT LEARNING TECHNOLOGIES, INC.
By: /s/ Kevin Marth
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Name: Kevin Marth
Title: Vice President/COO
/s/ Dan Stechow
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Dan Stechow
/s/ Kevin Marth
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Kevin Marth
[Signature Page to Amendment No. 1]