EXHIBIT 2.1
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AMENDMENT NUMBER 2
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NUMBER 2, dated January 19, 2005 (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, except that, as a consequence of the consummation of the
Merger, Merger Sub and Miletos have combined and are now known as Arkados, Inc.
(herein "Arkados").
2. SCHEDULE 5.7. Section 4 of Schedule 5.7 to the Merger Agreement is
amended in its entirety to read as follows:
"Parent will discharge liabilities to the IRS, State tax authorities,
and the Department of Labor, to the extent such liabilities, penalties and
interest are asserted against the Representative or any of the Designated
Company Stockholders arising from their relationship with the Company's
predecessor relating to such company's payroll, but in an aggregate not
exceeding $1.2 million, including interests and penalties."
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.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Parent, Arkados and the 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/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: CEO
ARKADOS, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: CEO
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, individually and as
Representative of the Designated
Stockholders
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