Exhibit 2.2
AMENDMENT NO. 2
TO
AGREEMENT FOR EXCHANGE OF CORPORATE STOCK
This Amendment No. 2 (the "Amendment") to the Agreement for Exchange of
Corporate Stock dated August 31, 2001 (the "Agreement"), as amended by
Amendment No. 1 dated September 13, 2001 ("Amendment No. 1"), is entered
into effective as of the 7th day of November, 2001 by and among Whitemark
Homes, Inc., a Colorado corporation (the "Buyer"), Xxxx Xxxxxxxx, Xxxxx
Xxxxxxxx and Xxxx Xxxxxxxx (each a "Seller" and collectively the "Sellers"),
each of the newly formed first-tier wholly owned subsidiaries of Buyer set
forth on the signature pages hereto under the caption "Merger Subs" (each a
"Merger Sub" and collectively the "Merger Subs"), and each of the
corporations directly owned by the Sellers and set forth on the signature
pages hereto under the caption "Target Corps" (each a "Target Corp" and
collectively the "Target Corps").
RECITALS
WHEREAS, Buyer and Sellers entered into the Agreement on August 31, 2001
which generally provided for the acquisition by Buyer of North Florida
Consulting, Inc., a Florida corporation, and certain other corporations
related thereto or affiliated therewith (collectively referred to in the
Agreement as the "Corporation") as set forth on Exhibit A to the Agreement,
in exchange for the issuance to Sellers of shares of common stock of the
Buyer;
WHEREAS, the Agreement was amended by Amendment No. 1 to extend the
dates for mutual exchange by the parties of the exhibits to the Agreement;
WHEREAS, for federal income tax purposes Buyer and Sellers intend for
the acquisition to qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and
the regulations promulgated thereunder, and Buyer, Merger Subs, Sellers and
Target Corps intend, by approving resolutions authorizing the Agreement, as
amended, to adopt the Agreement as a plan of reorganization within the
meaning of Section 368(a) of the Code and the regulations promulgated
thereunder;
WHEREAS, Buyer, Sellers, each Merger Sub and each Target Corp intend for
this Agreement, as amended, to constitute an agreement and plan of merger
with respect to each Merger Sub and each Target Corp whereby individual
Merger Subs shall be merged with and into individual Target Corps as set
forth herein, and each Merger Sub and each Target Corp shall become a party
to the Agreement, as amended;
WHEREAS, capitalized terms used but not defined in this Amendment shall
have the meanings previously given them in the Agreement, and references to
sections herein shall pertain to the corresponding sections of the
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements,
representations and warranties set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as
follows:
AGREEMENT
1. Amendments to the Agreement:
(a) Section 3 of the Agreement is hereby amended and restated in its
entirety to provide as follows:
3. The Mergers.
(a) Subject to the terms and conditions herein set forth in
this Agreement, and in accordance with the Florida Business
Corporation Act, there shall occur the following separate
mergers (each a separate "Merger" and collectively referred to
herein as the "Mergers") whereby each Merger Sub set forth below
shall be merged with and into the respective Target Corp set
forth opposite the respective Merger Sub's name, with each
Merger to be deemed to occur at the Effective Time (as defined
below) for such Merger:
Merger Sub: Merger Direction: Target Corp:
-------------------------- ------------------- ------------------------
Whitemark/LPG Acquisition merge with and into LPG Inc.
Corporation
Whitemark/Panhandle merge with and into Panhandle Development Inc.
Acquisition Corporation
Whitemark/Emerald merge with and into Emerald Beach Corporation
Acquisition Corporation
Whitemark/NFC merge with and into North Florida Consulting
Acquisition Corporation Inc.
Whitemark/Magnolia merge with and into Magnolia Landing
Acquisition Corporation Development Inc.
Whitemark/Sea Oats merge with and into Sea Oats Properties Inc.
Acquisition Corporation
Whitemark/Sunshine merge with and into Sunshine Development
Acquisition Corporation Group Inc.
Whitemark/Destin merge with and into Destin Parks Inc.
Acquisition Corporation
Whitemark/Torel merge with and into Torel Inc.
Acquisition Corporation
Whitemark/Alstar merge with and into Alstar Development
Acquisition Corporation Group Inc.
Following each Merger, the separate corporate existence of the
respective Merger Sub shall cease and the respective Target Corp
shall continue as the surviving corporation (the "Surviving
Corporation") of such Merger and shall succeed to and assume all
the rights and obligations of the respective Merger Sub in
accordance with the Florida Business Corporation Act.
(b) Effective Time. Promptly after the closing of this
Agreement, the parties shall execute and file separate articles
of merger ("Articles of Merger") with the Florida Department of
State for each Merger and shall make all other filings or
recordings required under the Florida Business Corporation Act
for each Merger, with all Articles of Merger for all Mergers to
be filed with the Florida Department of State on the same day.
Each Merger shall become effective at such time as the Articles
of Merger for such Merger are duly filed with the Florida
Department of State (the time that each separate Merger becomes
effective being hereinafter referred to as the "Effective Time")
for such Merger.
(c) Effects of Each Merger. At and after the
Effective Time for such Merger, each Merger shall have the
effects as provided under the Florida Business Corporation Act.
Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights,
privileges, powers and franchises of the respective Target Corp
and respective Merger Sub shall be vested in the respective
Surviving Corporation, and all debts, liabilities, obligations
and duties of the respective Target Corp and respective Merger
Sub shall become the debts, liabilities, obligations and duties
of the respective Surviving Corporation.
(d) Articles of Incorporation for Each Surviving
Corporation. The articles of incorporation of the Target Corp
for each Merger as in effect at the Effective Time for such
Merger shall be the articles of incorporation of the respective
Surviving Corporation until thereafter changed or amended as
provided therein or by applicable law.
(e) Bylaws for Each Surviving Corporation. The bylaws of
the Target Corp for each Merger as in effect at the Effective
Time for such Merger shall be the bylaws of the respective
Surviving Corporation until thereafter changed or amended as
provided therein or by applicable law.
(f) Directors of Each Surviving Corporation. The directors
of Target Corp for each Merger immediately prior to the
Effective Time for such Merger shall be the directors of the
respective Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
(g) Officers of Each Surviving Corporation. The officers of
Target Corp for each Merger immediately prior to the Effective
Time for such Merger shall be the officers of the respective
Surviving Corporation, until the earlier of their resignation or
removal or until their respective successors are duly elected
and qualified, as the case may be.
(h) Effect on Capital Stock. At the Effective Time for each
Merger, by virtue of such Merger:
(i) Conversion of Stock of Target Corps. The total
number of shares of the respective Target Corp's capital
stock issued and outstanding immediately prior to the
Effective Time for such Merger shall be automatically
converted into the Sellers' right to receive a proportionate
amount, based on the relative value of such Target Corp to
all Target Corps, of the shares of common stock of the Buyer
to be issued to Sellers as set forth in Section 5. No cash,
property or assets of Buyer shall be used to pay, directly
or indirectly, any debts or obligations, however evidenced,
of any of the Target Corps to any of the Sellers nor shall
Buyer assume or pay any of the liabilities of any of the
Target Corps in a manner in which would permit the Target
Corps to pay or satisfy any of such obligations to the
Sellers; other than with respect to any indemnification by
Buyer or Sellers as provided in this Agreement with respect
to any payments by Sellers under their guarantee obligations
for bona fide debts or obligations of Target Corps as
disclosed or identified in the exhibits to this Agreement.
At the Effective Time for each such Merger, all such shares
of the capital stock of the respective Target Corp shall
cease to be outstanding and shall automatically be canceled
and retired and shall cease to exist, and the Sellers shall
thereafter cease to have any rights with respect to such
shares of capital stock of each Target Corp.
(ii) Capital Stock of Each Merger Sub. Each share of
common stock of each Merger Sub issued and outstanding
immediately prior to the Effective Time for the respective
Merger of such Merger Sub with and into the respective
Target Corp shall be automatically converted into and become
one fully paid and nonassessable share of common stock of
the Surviving Corporation, and thus each Surviving
Corporation shall become a wholly owned subsidiary of the
Buyer.
(b) Section 4 of the Agreement is hereby amended and
restated in its entirety to provide as follows:
4. Closing.
(a) Closing Date. Closing shall occur on or before November
8, 2001.
(b) Time and Place. Closing shall occur at a time and place
mutually agreeable to by the parties. In the absence of an
agreement, the closing shall occur at the offices of the Sellers
in Destin, Florida.
(c) Closing Conditions and Securities Law Matters. Buyer's
obligation to close upon the terms of this Agreement shall be
specifically conditioned upon the fulfillment, to Buyer's
satisfaction, or written waiver by Buyer of each of the
following:
(i) At closing, Buyer shall acquire each Surviving
Corporation through the Mergers set forth in Section 3,
pursuant to which each Surviving Corporation shall become a
wholly owned subsidiary of Buyer. The manner of acquisition
of the Corporation shall be a reorganization under Section
368(a) of the Code and the regulations promulgated
thereunder. On the closing date, Buyer shall deliver to
Sellers shares of common stock of the Buyer as set forth in
Section 5. Such shares will not have been registered under
the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to an exemption from registration based in
part upon the representations of the Sellers below, and thus
shall be "restricted securities," as that term is defined
under Rule 144 promulgated by the SEC under the Securities
Act, and shall be subject to the limitations on transfer set
forth in Rule 502(d) promulgated under the Securities Act.
Each stock certificate for the shares issued to Sellers
shall have a legend printed thereon which refers to Rule 144
and states that the securities have not been registered
under the Securities Act and cannot be transferred without
registration under the Securities Act or an exemption
therefrom. In connection with the foregoing, each Seller
acknowledges and represents and warrants that:
(A) Such Seller is an "Accredited Investor," as that
term is defined in Rule 501(a) promulgated under the
Securities Act;
(B) Such Seller understands the substantial risks
and uncertainties of an investment in the shares,
including the risk that such Seller may not be able to
readily liquidate an investment in the shares when
desired, and such Seller has had ample opportunity to
fully investigate and make inquiries of Buyer as to any
facts or circumstances which may be material to the
acquisition by Seller of the shares of Stock of Buyer
pursuant to this Agreement and desires no further
information from Buyer in connection therewith; and
(C) Such Seller is acquiring the shares to be issued
to him solely for his own account, as principal, for
investment purposes only and not with a view to any
"distribution" of the shares, as that term is used in
the Securities Act.
Together with the delivery of the stock to Sellers, the
parties shall enter into an agreement at closing which will
allow the Sellers to the extent they do not already have
that right pursuant to the percentage ownership of stock
they have, to appoint at least one member to the Boards of
Directors of Buyer and North Florida Consulting, Inc., with
the remainder of the Boards to be selected by all of the
shareholders of Buyer in the manner provided in its Bylaws.
This right of appointment shall exist for so long as Sellers
own five percent or more of the outstanding shares of Buyer.
(ii) The determination by Buyer that the Businesses
have obtained or are capable of obtaining, within a time
period acceptable to Buyer, all of the permits, development
approvals, governmental approvals or other regulatory
actions which may be necessary to permit the construction,
development and sale of the Properties constituting the
Businesses in a manner consistent with the plans and
specifications previously prepared for them by Sellers and
presented to Buyer.
(iii) Satisfactory confirmation of anticipated
presales, including reservations, together with confirmation
of the deposits associated therewith, which may have been
obtained for portions of the Properties which have been
offered for sale to purchasers in the ordinary course of
business.
(iv) The closing shall be further contingent upon the
truth, satisfaction, and fulfillment of each and every one
of the representations and warranties or other agreements of
the parties contained within the terms of this Agreement.
(d) Exchange at Closing. At the closing, Buyer shall
deliver to the Sellers, in such manner as the three Sellers
shall direct at closing, certificates representing, in the
aggregate, the total number of shares of common stock of the
Buyer to be issued to the Sellers as set forth in Section 5(a),
and the Sellers shall exchange and surrender to Buyer all
certificates (properly endorsed for transfer or accompanied by
corresponding irrevocable stock powers that have been duly
executed) representing all issued and outstanding shares of
capital stock of each Target Corp immediately prior to the
Effective Time for the Merger with respect to such Target Corp,
and all minute books and other corporate records and documents
for each Target Corp, including all certificates representing
any equity ownership interest that such Target Corp may hold in
any other entity.
(c) Section 5 of the Agreement is hereby amended and restated in its
entirety to provide as follows:
5. Merger Consideration by Buyer and Method of Payment. In
consideration of Buyer's acquisition of the Corporation pursuant to
the Mergers under this Agreement, Buyer shall issue the following
consideration to the Sellers:
Buyer shall issue to Sellers a total of the greater of Five
Million (5,000,000) shares of the common stock of Buyer, or
ninety-five percent (95%) of the number of shares owned by Xxxxx
Xxxxx ("White Shares") at time of stock delivery to Sellers,
which shall constitute the consideration value for the
Corporation and shall be issued on the closing date as set forth
in Section 4. Notwithstanding the foregoing, the White Shares
shall not include any shares purchased by Xxxxx Xxxxx after the
Effective Date on the open market. The White Shares shall
include any stock acquired by Xxxxx Xxxxx by virtue of any stock
splits, other than stock splits on purchased shares after the
Effective Date. The parties hereto acknowledge that certain
liabilities of the Corporation, as listed on Exhibits G and
Exhibit H, which Exhibit H for purposes of this Agreement shall
be a composite of the information set forth on Exhibits H-1, H-2
and H-3 attached hereto, and will not be satisfied prior to
Closing and that Buyer is acquiring the Corporation subject to
such liabilities of the Corporation. Buyer further acknowledges
that transfer of certain portions of the Stock subject to such
liabilities is conditioned on the approval of the holders of
such liabilities. Buyer shall pay those liabilities described
in Exhibit "R" within the time frames described thereon; and
(d) The following subsections shall be added to the representations
and warranties of Sellers under Section 12 of the Agreement:
(ff) Authority of Target Corps. Each Target Corp is a Florida
corporation and has all requisite corporate power and authority to
enter into this Agreement, as amended, and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by each Target Corp of this Agreement, as amended, and
the consummation by each Target Corp of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of the respective Target Corp. This
Agreement, as amended, has been duly executed and delivered by each
Target Corp and constitutes a valid and binding agreement of each
Target Corp, enforceable against each Target Corp in accordance with
its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors generally.
(gg) Non-Contravention by Target Corps. The execution,
delivery and performance by each Target Corp of this Agreement, as
amended, and the consummation by each Target Corp of the
transactions contemplated hereby do not and will not contravene or
conflict with the articles of incorporation or bylaws of the
respective Target Corp.
(e) The following subsections shall be added to the representations
and warranties of Buyer under Section 13 of the Agreement:
(s) Organization and Standing of Merger Subs. Each Merger Sub
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Florida. Each Merger Sub is
a first-tier wholly owned subsidiary of Buyer.
(t) Authority of Merger Subs. Each Merger Sub has all requisite
corporate power and authority to enter into this Agreement, as
amended, and to consummate the transactions contemplated hereby.
The execution, delivery and performance by each Merger Sub of this
Agreement, as amended, and the consummation by each Merger Sub of
the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the respective Merger
Sub. This Agreement, as amended, has been duly executed and
delivered by each Merger Sub and constitutes a valid and binding
agreement of each Merger Sub, enforceable against each Merger Sub in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors generally.
(u) Non-Contravention by Merger Subs. The execution, delivery
and performance by each Merger Sub of this Agreement, as amended,
and the consummation by each Merger Sub of the transactions
contemplated hereby do not and will not contravene or conflict with
the articles of incorporation or bylaws of the respective Merger
Sub.
(v) No Business Activities by Merger Subs. No Merger Sub has
conducted any activities other than in connection with the
organization of the respective Merger Sub, the negotiation and
execution of this Agreement, as amended, and the consummation of the
transactions contemplated hereby. No Merger Sub has any
subsidiaries.
(w) Acknowledgment of Redemption Agreement. Buyer hereby
acknowledges that Xxxx Xxxxxxxx has entered into redemption
agreements with the following Target Corps prior to closing: LPG
Inc.; Panhandle Development Inc; Emerald Beach Corporation; North
Florida Consulting Inc.; Magnolia Landing Development Inc.; Sea Oats
Properties Inc.; Sunshine Development Group Inc.; and Destin Parks
Inc. Buyer hereby further acknowledges receipt of copies of the
redemption agreements.
2. Merger Subs and Target Corps are Parties. By executing this
Amendment No. 2, each Merger Sub and each Target Corp. shall become a party
to the Agreement.
3. Remainder of Agreement Remains in Effect. Except as specifically
set forth in this Amendment, the remainder of the Agreement not modified by
this Amendment shall remain in full force and effect, without any amendment
or modification thereto.
4. Counterparts and Facsimile Signatures. This Amendment may be
executed in any number of counterparts, and signature pages may be delivered
by telefax. [Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties to this Amendment No. 2 to the Agreement
for Exchange of Corporate Stock have duly executed this Amendment effective
as of the 7th day of November, 2001.
BUYER:
WHITEMARK HOMES, INC.,
a Colorado corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
MERGER SUBS:
WHITEMARK/LPG ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/PANHANDLE ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/EMERALD ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/NFC ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/MAGNOLIA ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/SEA OATS ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/SUNSHINE ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/DESTIN ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/TOREL ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
WHITEMARK/ALSTAR ACQUISITION CORPORATION,
a Florida corporation
By: __/s/ XXXXX WHITE___________________
Xxxxx Xxxxx, President
SELLERS:
__/s/ XXXX ADKINSON___________________
Xxxx Xxxxxxxx
__/s/ XXXXX ADKINSON__________________
Xxxxx Xxxxxxxx
__/s/ XXXX ADKINSON____________________
Xxxx Xxxxxxxx
TARGET CORPS:
LPG INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
PANHANDLE DEVELOPMENT INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
EMERALD BEACH CORPORATION,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
NORTH FLORIDA CONSULTING INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
MAGNOLIA LANDING DEVELOPMENT INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
SEA OATS PROPERTIES INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
SUNSHINE DEVELOPMENT GROUP INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
DESTIN PARKS INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
TOREL INC.,
a Florida corporation
By: __/s/ XXXXX ADKINSON_______________
Xxxxx Xxxxxxxx, President
ALSTAR DEVELOPMENT GROUP INC.,
a Florida corporation
By: __/s/ XXXX ADKINSON________________
Xxxx Xxxxxxxx, President
