1
Exhibit 10.1
AMENDMENT NO. 2
This AMENDMENT NO. 2, dated as of September 1, 2000 (this
"AMENDMENT"), to the First Amended and Restated Agreement and Plan of Merger,
dated as of March 10, 2000, as amended by Amendment No. 1 dated as of May 11,
2000 (the "MERGER AGREEMENT"; capitalized terms used but not defined herein have
the meanings given to them in the Merger Agreement), is entered into among
Envision Development Corporation, a Florida corporation ("HOLDINGS"),
xxxxxxxxxx.xxx, inc., a Florida corporation ("XXXXXXXXXX.XXX"), Envision
Acquisition Corporation, a Massachusetts corporation ("EAC"), Envision
Development Corporation, a Massachusetts corporation ("ENVISION"), and the
stockholders of Envision listed on Schedule I to the Merger Agreement (the
"STOCKHOLDERS").
WHEREAS, the parties hereto desire to amend the Merger
Agreement on the terms provided herein;
WHEREAS, the Boards of Directors of Holdings and Envision have
approved this Amendment;
WHEREAS, each of the stockholders of Envision immediately
prior to the Effective Time, by their execution of this Amendment, hereby
unanimously consent to the terms of this Amendment;
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENT TO SECTION 1.6.2(a). Section 1.6.2(a) of the
Merger Agreement is amended by deleting it in its entirety and inserting in lieu
thereof the following:
" (a) Subject to the provisions of this Article 1,
each share of Common Stock, without par value, of Envision
("ENVISION STOCK") issued and outstanding immediately prior to
the Effective Time (except for Envision Stock canceled
pursuant to Section 1.6.2(b)) shall be converted into and
become the right to receive 1.91815 (the "EXCHANGE RATIO")
shares of Holdings Common Stock for an aggregate of 1,467,956
shares in accordance with Exhibit A hereto; provided that if
the Closing Price is less than $12.00, then the Exchange Ratio
shall be adjusted to equal the quotient obtained by dividing
(i) $24,000,000 divided by the Closing Price by (ii) 765,298.
The Exchange Ratio shall be further adjusted to reflect the
effect of any stock split, reverse split, stock dividend,
reorganization, recapitalization or similar transactions
(collectively, "STOCK Splits")."
2. EFFECTIVE DATE; NO OTHER AMENDMENTS. Each of the parties
hereto agrees that the amendments to the Merger Agreement contained in this
Amendment shall be effective upon execution of this Amendment by each party
hereto. Except as expressly amended by this
2
Amendment, the provisions of the Merger Agreement are ratified and confirmed by
the parties and shall remain in full force and effect. All references in the
Merger Agreement to "this Agreement" shall be read as references to the Merger
Agreement, as amended by this Amendment.
3. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts
exclusive of its choice of law rules.
4. COUNTERPARTS. This Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
[Remainder of page intentionally left blank.]
-2-
3
IN WITNESS WHEREOF, the undersigned have each caused this
Amendment No. 2 to be executed as of the date first written above.
ENVISION DEVELOPMENT CORPORATION, a
Florida corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Operating
Officer
ENVISION ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
-3-
4
ENVISION DEVELOPMENT CORPORATION, a
Massachusetts corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
Address: 00 Xxx Xxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxx Xxxxx
--------------------------------------------
Xxxx Xxxxx
Address: 000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
-4-
5
LMMK TRUST
By: /s/ Xxxxxxx X. Unima
----------------------------------------
Xxxxxxx X. Xxxxx, Trustee
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx
Address: 0 Xxxxx Xxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxxxxxx X. Xxxxx
Address: 0 Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxx Sr.
--------------------------------------------
Xxxx Xxxxxxx, Sr.
Address: 00 Xxxxxxx Xxxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxx
Address: 00 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxx
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
/s/ Xxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
-5-
6
/s/ Xxxx Xxxxxxx
--------------------------------------------
Xxxx Xxxxxxx
Address: 0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxxxx Xxxxxxx
Address: 000 Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
-6-
