EXHIBIT 2.3
AMENDMENT NO. 2 TO
MERGER AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 2 TO MERGER AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is entered into as of July 22, 1999, by and among STRATEGICUS
PARTNERS INC., an Oregon corporation ("Strategicus"), NET VALUE HOLDINGS, INC.,
a Delaware corporation ("NVH") and XXXXXXX XXXXX.
On June 21, 1999, the parties executed and delivered a Merger Agreement and
Plan of Reorganization and on July 8, 1999 the parties executed and delivered an
Amendment No. 1 to Merger Agreement and Plan of Reorganization (collectively the
"Agreement"). This Amendment modifies certain of the terms and conditions
contained in the Agreement.
NOW THEREFORE, the parties agree as follows:
1. Defined Terms. Unless given a different meaning herein, all
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capitalized terms used in this Amendment shall have the meanings ascribed to
them in the Agreement.
2. Continuing Effectiveness. Except as expressly modified herein, all of
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the terms, conditions, covenants and exhibits set forth in the Agreement remain
in full force and effect among the parties.
3. Conversion of Strategicus Stock. The terms and conditions set forth
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in Section 3.1 of the Agreement are hereby deleted and shall be replaced with
the following:
At the Effective Time, all of the issued and outstanding shares of
common stock of Strategicus, no par value ("Strategicus Stock"),
issued and outstanding immediately prior to the Effective Time (each,
a "Share" and collectively, the "Shares") shall, by virtue of the
Merger and without any action on the part of Strategicus or the holder
be converted into, and become exchangeable for 2,311,460 validly
issued, fully paid and nonassessable shares of Series A Preferred
Stock, par value $.001 per share, of the Surviving Corporation and
7,524,628 validly issued, fully paid and nonassessable shares of
common stock, par value $.001 per share, of the Surviving Corporation
("NVH Stock"), subject to the vesting provisions set forth in Section
3.2 hereof (collectively, the "Merger Consideration"). Each holder of
Strategicus Stock (collectively, the "Strategicus Stockholders" and
each a "Strategicus Stockholder") shall be required to surrender his
share certificate or certificates to NVH, or its transfer agent, on
the Effective Time or as soon as practicable thereafter and shall
receive such shares of NVH Stock as is set forth beside the name of
such Strategicus Stockholder on Schedule 3.1. NVH shall, in exchange
for the Strategicus Stock owned by Xxxxxxx Xxxxx, issue and deliver to
Xxxxxxx Xxxxx the entire Merger Consideration to which he is entitled
at the Effective Time as set forth herein,
including NVH Shares which will vest over the next twenty-four months
pursuant to the vesting schedule set forth in Section 3.2. Each stock
certificate which NVH issues to Xxxxxxx Xxxxx for any shares of NVH
Stock which have not vested pursuant to the vesting schedule in
Section 3.2 shall contain appropriate restrictive legends regarding
the vesting of such NVH Stock and NVH shall instruct its transfer
agent to place a stop order on such certificate in accordance with the
vesting schedule set forth below. NVH shall, in exchange for the
Strategicus Stock owned by each of Xxxx Xxxx, Xxxxxxx Xxxxxx and Xxxxx
Xxxxxx, issue and deliver to each of Xxxx Xxxx, Xxxxxxx Xxxxxx and
Xxxxx Xxxxxx a stock certificate representing the portion of the
Merger Consideration which vests immediately pursuant to the vesting
schedule set forth in Section 3.2. NVH will deposit with a mutually
satisfactory escrow agent forty-eight (48) stock certificates for
equal amounts of NVH Stock issued to each of Xxxx Xxxx, Xxxxxxx Xxxxxx
and Xxxxx Xxxxxx representing in the aggregate the total Merger
Consideration which does not vest immediately pursuant to the vesting
schedule set forth in Section 3.2. NVH shall instruct its transfer
agent to place a stop order on each of these certificates in
accordance with the vesting schedule set forth below. The escrow agent
shall deliver a stock certificate to each of Xxxx Xxxx, Xxxxxxx Xxxxxx
and Xxxxx Xxxxxx within ten (10) days after their ownership interest
in the shares represented by such certificate has vested pursuant to
the vesting schedule set forth in Section 3.2.
4. Vesting Schedule. The terms and conditions set forth in Section 3.2
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of the Agreement are hereby deleted and shall be replaced with the following:
Notwithstanding the delivery of the NVH Stock to the Strategicus
Stockholders, their ownership of the NVH Stock is subject to the
following vesting schedule:
Strategicus Stockholders Vesting Schedule
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Xxxxxxx Xxxxx 12.75% of the NVH Stock to which Xxxxxxx
Xxxxx is entitled upon consummation of
the Merger shall vest at the Effective
Time, and the remainder of the NVH Stock
shall vest in equal amounts beginning on
the last day of the month following the
Effective Time and continuing on the
last day of each month thereafter over a
period of 24 months;
Xxxxx Xxxxxx 6.4% of the NVH Stock to which Xxxxx
Xxxxxx is entitled upon consummation of
the Merger shall vest at the Effective
Time, and the remainder of the NVH Stock
shall vest in equal amounts beginning on
the last day of the month following the
Effective Time and
continuing on the last day of each month
thereafter over a period of 48 months;
Xxxx Xxxx 6.4% of the NVH Stock to which Xxxx Xxxx
is entitled upon consummation of the
Merger shall vest at the Effective Time,
and the remainder of the NVH Stock shall
vest in equal amounts beginning on the
last day of the month following the
Effective Time and continuing on the
last day of each month thereafter over a
period of 48 months;
Xxxxxxx Xxxxxx 6.4% of the NVH Stock to which Xxxxxxx
Xxxxxx is entitled upon consummation of
the Merger shall vest at the Effective
Time, and the remainder of the NVH Stock
shall vest in equal amounts beginning on
the last day of the month following the
Effective Time and continuing on the
last day of each month thereafter over a
period of 48 months.
Upon vesting of each installment of the NVH Stock, each Strategicus
Stockholder's ownership of his vested NVH Stock shall be free and clear of all
rights, claims, offsets, deductions and liens of NVH.
If the employment of Xxxxxxx Xxxxx is terminated pursuant to Sections 6.1
(a) through 6.1 (d) of his Employment Agreement with NVH, then he shall forfeit
and forever lose all right, title and interest in and to the NVH Stock which is
not vested as of the date of termination of his employment, and he shall
promptly surrender to NVH all share certificates for NVH Stock which has not
vested. If Xxxxxxx Xxxxx terminates his employment pursuant to Sections 6.1 (e)
or 6.1 (f) of his Employment Agreement with NVH, then all NVH Stock to which he
is entitled to receive pursuant to this Agreement shall immediately vest as of
the date of termination of his employment. If the consulting agreement of
either of Xxxxxxx Xxxxxx or Xxxx Xxxx is terminated pursuant to Section 5 of his
respective Consulting Agreement with NVH, then he shall forfeit and forever lose
all right, title and interest in and to the NVH Stock which has not vested as of
the date of termination of his consulting agreement. If the consulting
agreement of Xxxxx Xxxxxx is terminated pursuant to Section 5 of his Consulting
Agreement with NVH, then he shall forfeit and forever lose all right, title and
interest in and to the NVH Stock which has not vested as of the date which is 60
days after the date of termination of his Consulting Agreement.
5. The following subsections of Section 7.1 of the Agreement are hereby
deleted and shall be replaced with the following:
7.1.4 Employment Agreement. NVH shall have entered into a mutually
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acceptable Employment Agreement to be effective as of the Effective
Time with Xxxxxxx Xxxxx.
7.1.5 Consulting Agreements. NVH shall have entered into mutually
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acceptable Consulting Agreements to be effective as of the Effective
Time with each of Xxxx Xxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxxxx.
6. The following subsection 7.1.7 shall be added to the Agreement:
7.1.7 Closing of Investment Transactions with Partner Companies.
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Strategicus shall have closed its pending transactions with (i) Asia
CD, Inc. whereby Strategicus will purchase 1,000,000 shares of Asia
CD, Inc.'s Series A Preferred Stock representing an approximate 12%
equity ownership interest of Asia CD, Inc. (assuming the exercise by
Strategicus of its conversion rights related to Asia CD, Inc.'s Series
A Preferred Stock) for a purchase price of $1,000,000, and (ii)
Xxxxxxx000.xxx, Inc. whereby Strategicus will purchase an approximate
10% equity ownership interest of Xxxxxxx000.xxx, Inc. for a purchase
price of $100,000.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
NVH: NETVALUE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
STRATEGICUS: STRATEGICUS PARTNERS INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
SCHEDULE 3.1
TO
MERGER AGREEMENT AND PLAN OF REORGANIZATION
NVH Stock to Strategicus Shareholders
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Series A Preferred Stock Common Stock
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Xxxxxxx Xxxxx 577,865 1,881,157
Xxxx Xxxx 577,865 1,881,157
Xxxxx Xxxxxx 577,865 1,881,157
Xxxxxxx Xxxxxx 577,865 1,881,157
