Exhibit 1.1
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT (the "AMENDMENT") to AGREEMENT AND PLAN OF MERGER dated
as of June 17, 2005 (the "MERGER AGREEMENT") is made and entered as of
February 17, 2006 by and among EarthShell Corporation ("PARENT"), a
Delaware corporation, EarthShell Triangle, Inc. ("MERGERCO"), a
Delaware corporation and wholly-owned subsidiary of Parent, ReNewable
Products, Inc., ("TARGET") a Delaware corporation, and ReNewable
Products, LLC, ("STOCKHOLDER") a Delaware limited liability
corporation and sole stockholder of Target.
RECITALS
--------
A. Parent, Mergerco, Target and Stockholder are parties to the
Merger Agreement.
B. Parent, Mergerco, Target and Stockholder desire to amend certain
provisions of the Merger Agreement.
AGREEMENTS
----------
Therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. DEFINED TERMS. Terms used herein with their initial letters
capitalized and not otherwise defined herein shall have the respective
meanings given such terms in the Merger Agreement.
2. AMENDMENT AND RESTATEMENT OF SECTION 9(c) OF THE MERGER
AGREEMENT. Section 59(c)) of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) by either Target or Parent if the Closing shall not
have occurred at or before 11:59 p.m., on December 31, 2006;
provided, however, that the right to terminate this
Agreement under this Section 9(c) shall not be available to
any party whose failure to fulfill any material obligation
under this Agreement has been the cause of or resulted in
the failure of the Closing to occur on or prior to the
aforementioned date."
3. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original and all of
which together will constitute one and the same instrument and will
1
become effective when one or more counterparts have been signed by
each party and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
IN WITNESS WHEREOF, the parties have executed this Amendment on
the date first above written.
EARTHSHELL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Chairman & CEO
By: ________________________________
Name:
Its:
EARTHSHELL TRIANGLE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Its:
ReNewable Products, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Its: Secretary & Treasurer
ReNewable Products LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Its: Secretary & Treasurer
3
