EXHIBIT 2.2
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AMENDMENT NUMBER 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NUMBER 1, dated May 21, 2004 (this "AMENDMENT"), amends that
certain AGREEMENT AND PLAN OF MERGER, dated as of May 7, 2004 (the "MERGER
AGREEMENT"), by and among XXXXxx.Xxx, Inc., a Delaware corporation ("PARENT"),
CDK Merger Corp., a Delaware corporation and a wholly owned subsidiary of Parent
("MERGER SUB"), and Miletos, Inc., a Delaware corporation (the "COMPANY"), and
Xxxxxxx Xxxxxxxx, in his individual capacity and as representative (the
"REPRESENTATIVE") of the following stockholders of the Company (collectively,
the "DESIGNATED COMPANY STOCKHOLDERS"): Xxxxx Xxxxxxxx, Xxxxx Holdings LLC,
Xxxxxxx Xxxxxxxx Family Limited Partnership and Xxxxx Xxxxxxxx Family
Partnership, Ltd., as follows:
1. DEFINED TERMS. Capitalized terms set forth in this Amendment that are
not otherwise defined herein shall have the meanings ascribed to such terms in
the Merger Agreement.
2. PARENT STOCK AMOUNT. The Parent Stock Amount defined in Section 2.1(b)
of the Merger Agreement is hereby increased from 15,840,575 to 16,340,575. In
addition, the paragraph following Section 5.11 of the Merger Agreement and
preceding Article VI (relating to the issuance of 500,000 shares in addition to
the Merger Consideration) is hereby deleted from the Merger Agreement.
3. MILETOS ESCROW AGREEMENT. The number of shares of Parent Company Stock
referred to in Section 2.1(d) of the Merger Agreement to be delivered to the
Miletos Escrow Agent to be held pursuant to the Miletos Escrow Agreement shall
be equal to _____________ shares. The foregoing adjustment is explained as
follows: the original amount of 2,000,000 shares to be delivered to the Miletos
Escrow Agent is being increased by 1,250,000 shares (the so called "Set Aside
Shares") and reduced by _________ shares, such reduction reflecting certain
settlements occurring prior to Effective Time with certain former members of
Enikia, LLC and certain claimants of Enikia, LLC, including, without limitation,
certain "bridge" and other lenders.
4. EXCHANGE PROCEDURES. The second sentence of Section 2.2(a) of the Merger
Agreement is amended in its entirety to read as follows: "Parent shall instruct
the Transfer Agent to issue and deliver certificates representing the shares of
Parent Common Stock to be delivered to the Company Stockholders and the
respective Escrow Agents in the name of the Company Stockholders appearing in
the stock register of the Company immediately prior to the Effective Time upon
presentation of certificates evidencing outstanding Company Shares (the
"CERTIFICATES")."
5. ACTIONS TAKEN BY PARENT PRIOR TO THE EFFECTIVE TIME. The reference to
"the Company" in Section 5.3(d) of the Merger Agreement is amended to reflect
"the Parent".
6. "THREE YEAR COMPENSATION PLAN". Section 5.10 of the Merger Agreement is
amended in its entirety to read as follows:
"ADDITIONAL OPTION PLAN. In addition to, and not in limitation of those
stock options and other incentives described in Sections 5.2 and 5.4 above
(including the Schedules referenced therein), promptly, and in any event within
30 days after the Effective Time, Surviving Corporation and Parent shall
authorize and adopt a stock option plan reserving Parent Common Shares for
issuance upon exercise of options granted thereunder which amount to 5% of
amount of Parent Common Shares, on a fully diluted basis, outstanding
immediately after the Effective Time, and providing for the issuance of both
"incentive stock options" and "nonqualified options"."
Except as modified by this Amendment, the terms and conditions of the
Merger Agreement shall remain in full force and effect and this Amendment shall
be deemed a part thereof.
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IN WITNESS WHEREOF, Parent, Merger Sub, the Company and the Member
Representative have caused this Amendment to be executed under seal as of the
date first written above by their respective officers thereunto duly authorized.
XXXXXX.XXX, INC.
By: /s/ Xxxxxx X.Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President
CDK MERGER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President
MILETOS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: President
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, as Representative
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