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Exhibit 2.2
AMENDMENT NO. 1
This AMENDMENT NO. 1, dated as of May 12, 2000 (this "Amendment"), to
the First Amended and Restated Agreement and Plan of Merger, dated as of March
10, 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 1 to the Merger Agreement (the
"Stockholders").
WHEREAS, the parties hereto desire to amend the Merger Agreement on
the terms provided herein;
WHEREAS, Section 10.4 of the Merger Agreement provides in relevant part
that the Merger Agreement may be amended by a written instrument signed by
Holdings, Envision and the holders of 66-2/3% of the outstanding shares of
capital stock of Envision;
WHEREAS, Xxxxxxx Xxxxx owned as of the date of the Merger Agreement
and owns as of the date hereof approximately 69.69% of the outstanding shares
of capital stock of Envision.
WHEREAS, the respective Boards of Directors of Holdings and Envision
have approved 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 1.97711 (the "Exchange Ratio") shares of
Holdings Common Stock for an aggregate of 1,513,072 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").
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2. Amendment to Section 5.13 and Section 7.8. Section 5.13 and Section
7.8 of the Merger Agreement regarding the election of Xxxxxxx Xxxxx as a
director of Holdings are each amended by deleting them in their entirety.
3. Amendments to Section 6.4 and Section 7.7. Section 6.4 and Section
7.7 of the Merger Agreement are each amended by deleting them in their entirety
and inserting in lieu thereof the following:
"Xxxxxxx Xxxxx and Holdings shall have entered into a mutually agreed
upon Employment Agreement for a term of one year commencing on the
Closing, pursuant to which Xxxxxxx Xxxxx shall be employed as
'Consultant' by Holdings, and Xxxxxxx Xxxxx shall have resigned in all
capacities at Envision as an officer or employee or both as of the date
hereof."
4. 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 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.
5. 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.
6. 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.
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IN WITNESS WHEREOF, the undersigned have each caused this Amendment
No. 1 to be executed as of the date first written above.
ENVISION DEVELOPMENT CORPORATION
By:
-----------------------------
Name: Xxxxxxx X. Patch
Title: President and Chief Executive Officer
XXXXXXXXXX.XXX, INC.
By:
-----------------------------
Name: Xxxxxxx X. Patch
Title: President and Chief Operating Officer
ENVISION ACQUISITION CORPORATION
By:
------------------------------
Name: Xxxxxxx X. Patch
Title: President
By:
------------------------------
Name: Xxxxxxx X. Patch
Title: Treasurer
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ENVISION DEVELOPMENT CORPORATION
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
------------------------------------------------
Xxxxxxx X. Xxxxx
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EXHIBIT A
Stockholder EDV Stock
----------- ---------
Xxxxxxx Xxxxx 1,054,440
Xxxx Wilcar 266,591
Xxxxxxx X. Xxxxx 119,294
Xxxx Xxxxxxxx 19,508
LMMK Trust 6,649
Xxxxxxxxxxx X. Xxxxx 13,313
Xxxx Xxxxxxx Sr. 3,327
Xxxxxx Xxxxxxxx 3,327
Xxxxxx Xxxxxxxx 13,313
Xxxx Xxxxxxxx 3,327
Xxxx Xxxxxxx 6,656
Xxxxxxxxx Xxxxxxx 3,327
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Totals: 1,513,072
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