AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of the 26th day of September 2001, by and
among Next Generation Technology Holdings, Inc., a Delaware corporation, Next
Generation Acquisition, Corp., a Delaware corporation, XxxxxxxXxxxxxx.xxx, Inc.,
a Delaware corporation, and Xxxx Xxxxxxxx and Xxxx Xxxxx.
W I T N E S S E T H:
WHEREAS, the undersigned have entered into an Agreement and Plan of
Merger dated as of September 18, 2001 (the "Merger Agreement").
WHEREAS, the parties to the Merger Agreement have determined that it
is in their interests to amend the Merger Agreement on the terms set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, the parties to
the Merger Agreement hereby agree as follows:
1. Capitalized terms not defined herein shall have the meanings
attributed to them in the Merger Agreement.
2. Section 1.7 (c) of the Merger Agreement is hereby amended by
amending the first sentence thereof to read in its entirety as follows:
"Subject to Section 1.9 hereof and other than shares to be
canceled in accordance with Section 1.7(b) above, each share of
Common Stock of HCCI (the "HCCI Common Stock") issued and
outstanding immediately prior to the Effective Time shall cease
to be outstanding and from and after the Effective Time shall be
converted into the right to receive the number of shares of
fully paid and non assessable common stock of NGTH equal to
4,500,000 divided by the number of shares of HCCI Common Stock
issued and outstanding immediately prior to the Effective Time
(the "Consideration")."
3. Section 2.3 of the Merger Agreement is hereby amended by amending
the second sentence thereof to read in its entirety as follows:
"As soon as practicable after the Effective Time, NGTH shall
deliver to the Escrow Agent pursuant to the terms of the Escrow
Agreement a certificate evidencing one-half of the shares of
NGTH Common Stock issued to Xxxx Xxxxxxxx in respect of all of
his shares of HCCI Common Stock as a result of the Merger and a
certificate evidencing one-half of the shares of NGTH Common
Stock issued to Xxxx Xxxxx in respect of all of his shares of
HCCI Common Stock as a result of the Merger (the "Escrow
Account")."
4. Section 12.9(b) of the Merger Agreement is hereby amended to
delete therefrom the line reading "Effective Date Section 10.5(b)".
5. Schedule 3.2 to the Merger Agreement is hereby amended to read in
its entirety as set forth on Schedule 3.2 to this Amendment No. 1.
6. Exhibit C to the Merger Agreement is hereby amended to read in
its entirety as set forth on Exhibit C to this Amendment No. 1.
7. Except as modified hereby, the Merger Agreement shall remain in
full force and effect. In the event that any term of this Amendment No. 1 is
inconsistent with any term of the Merger Agreement, this Amendment No. 1 shall
control.
8. This Amendment No. 1 may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No.
1 to the Merger Agreement as of the date first written above.
NEXT GENERATION TECHNOLOGY HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President, C.E.O.
NEXT GENERATION ACQUISITION, CORP.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President, C.E.O.
XXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
/s/ Xxxx Xxxxxxxx
---------------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxx
---------------------------------------------
Xxxx Xxxxx
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Schedule 3.2 - Authorized and Issued Stock of HCCI
HCCI had 40,000,000 authorized shares of Common Stock and 1,000,000
shares of preferred stock, as of the date of the Agreement.
HCCI had 35,098,123 shares of common stock outstanding on the date
of the Agreement and no warrants or options other than those issued to NGTH.
HCCI has subsequent to the date of the Merger Agreement agreed to
amend their Certificate of Incorporation to increase the authorized capital
stock to 44,000,000 shares of Common Stock.
HCCI has subsequent to the date of the Merger agreed to issue up to
an additional 8,848,200 shares of Common Stock under certain circumstances.
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