EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
AMONG
SYNERGY 2000, INC.,
AND
MER RESORTS, INC.,
AND
MYRIAD GOLF RESORT, INC.
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the
"First Amendment"), among Synergy 2000, Inc., a Delaware corporation ("Parent");
MER Resorts, Inc., a Delaware corporation and a subsidiary of Parent ("Sub");
and Myriad Golf Resort, Inc., an Alberta, Canada corporation ("Company"), is
entered into as of this 23rd day of March, 2004. Parent, Sub and Company are
referred to, collectively, as the "Parties."
RECITALS
A. The Parties entered into the Agreement and Plan of Merger dated
February 24, 2004 (the "Reorganization Agreement"), to effect a Merger of the
Company into Sub in accordance with the Reorganization Agreement, the Delaware
General Corporation Law and the Business Corporations Act of the Province of
Alberta, Canada.
B. The Parties wish to extend the Closing Date set forth in the
Reorganization Agreement to provide the Company with sufficient additional time
to secure the Requisite Stockholder Approval (as defined in the Reorganization
Agreement") in accordance with the terms and conditions of the Business
Corporations Act of the Province of Alberta, Canada, subject, in each case, to
the terms and conditions set forth in this First Amendment.
AGREEMENT
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
1. AMENDMENT.
Concurrent with the execution and delivery of this First
Amendment, the Parties hereby extend the Closing Date as described in Section
7(a)(ii)(B) and Section 7(a)(iii)(B) of the Reorganization Agreement for a
period of approximately sixty (60) days to May 24, 2004, to provide the Company
with sufficient additional time for the Company to secure the Requisite
Stockholder Approval (as defined in the Reorganization Agreement) pursuant to
Section 5(c)(ii) of the Reorganization Agreement resulting from the holding of a
Special Company Meeting (as defined in the Reorganization Agreement) in
accordance with the terms and conditions of the Business Corporations Act of the
Province of Alberta, Canada.
2. GENERAL PROVISIONS.
(a) CONTINUED EFFECTIVENESS OF REORGANIZATION AGREEMENT. Except as
expressly amended hereby, the Reorganization Agreement shall continue in full
force and effect in accordance with the provisions thereof. As used in the
Reorganization Agreement, the term "Agreement" shall, unless the context
otherwise specifically requires, mean the Reorganization Agreement as amended by
this First Amendment.
(b) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party; PROVIDED,
HOWEVER, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its
reasonable best efforts to advise the other Party prior to making the
disclosure).
(c) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) ENTIRE AGREEMENT. The Agreement (including the documents referred
to herein), constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they relate in any way to the subject
matter hereof.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of facsimile), each of which shall be deemed an
original but all of which together will constitute one and the same instrument.
25
(g) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given (i) when delivered
personally to the recipient, (ii) one business day after being sent to the
recipient by reputable overnight courier service (charges prepaid), (iii) one
business day after being sent to the recipient by facsimile transmission or
electronic mail, or (iv) four business days after being mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid,
and addressed to the intended recipient as set forth below:
IF TO PARENT OR SUB, TO:
Synergy 2000, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, ▇▇., President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO COMPANY TO:
Myriad Golf Resort, Inc.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
CANADA
Attention: ▇▇▇▇▇ Hawrelechko, President &
Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
Fraser ▇▇▇▇▇▇ Casgrain LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Q.C.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
(j) AMENDMENTS AND WAIVERS. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; PROVIDED, HOWEVER,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Delaware General Corporation Law and the
CL. No amendment of any provision of this Agreement shall be valid unless the
same shall be in writing and signed by both of the Parties. No waiver by any
Party of any provision of this Agreement or any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
valid unless the same shall be in writing and signed by the Party making such
waiver nor shall such waiver be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
default, misrepresentation, or breach of warranty or covenant.
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) EXPENSES. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
(m) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
26
(n) INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO SUBJECT MATTER OF THIS TRANSACTION.
[SIGNATURES ON FOLLOWING PAGE]
27
IN WITNESS WHEREOF, Parent, Sub and the Company have caused
this Agreement, to be signed by their respective officers thereunto duly
authorized, all as of the date first above written.
SYNERGY 2000, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
MER RESORTS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: President
MYRIAD GOLF RESORT, INC.
By: /s/ ▇▇▇▇▇ Hawrelechko
-----------------------------
Name: ▇▇▇▇▇ Hawrelechko
Title: President & CEO
28
