EXHIBIT 2.2
CONFORMED COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 ("Amendment") dated as of February 20, 1998
among Erols Internet, Inc., a Delaware corporation ("Erols"), ENET Holding,
Inc., a Delaware corporation ("ENET"), Xxxx Xxxxxx, Gold & Xxxxx Transfer,
S.A. , a British Virgin Islands corporation ("Gold & Xxxxx") and RCN
Corporation, a Delaware corporation ("RCN").
W I T N E S S E T H :
WHEREAS, Erols, ENET, Xxxx Xxxxxx, Gold & Xxxxx and RCN
(collectively, the "Parties") have entered into an Agreement and Plan of Merger
dated as of January 21, 1998 (the "Merger Agreement"); and
WHEREAS, the Parties desire to enter into this Amendment.
NOW THEREFORE, the Parties hereby agree as follows:
SECTION 1. Section 1.05(b) of the Merger Agreement is hereby
amended and restated to read as follows:
"(b) The number of shares of Buyer Stock subject to the
Substitute Options and the exercise price or prices thereunder shall be computed
as follows: (i) the number of shares of Buyer Stock that may be purchased upon
exercise of any given Substitute Option shall be equal to the product of (A) the
number Shares that could have been purchased upon exercise of the related
Employee Option times (B) .35 and (ii) the exercise price per share of Buyer
Stock for any given Substitute Option shall be equal to the quotient obtained by
dividing the exercise price per Share of the related Employee Option by .35. To
the extent possible, such computation shall be made in compliance with the
requirements of Section 424(a) of the Code (as defined below) and each
Substitute Option shall be subject to substantially all of the other terms and
conditions of the original Employee Option or Employee Options to which it
relates. For the avoidance of doubt, the Substitute Options will have the same
vesting schedule as the Employee Options to which they relate and no Employee
Options shall vest as a result of the Merger or the transactions contemplated
hereby. The cancellation of the Employee Options and the issuance in exchange
therefor of Substitute Options shall be done in a manner that will not result in
such transactions being a taxable event to the holders of Employee Options. For
purposes of this Agreement the term "Code" means the Internal Revenue Code of
1986, as amended."
SECTION 2. Section 3.05 of the Merger Agreement is hereby
amended by adding the following at the end thereof:
"The only Shares that will be outstanding immediately prior to the Effective
Time will be the Cash Election Shares and the Stock Election Shares. The number
of Shares issuable upon exercise of the Non-Employee Options that will be
canceled under Section 1.05(c) is 33,072 and the amount that the Company will
pay under such Section 1.05(c) is $359,539.94. Immediately prior to the
Effective Time, there will be outstanding Employee Options to purchase an
aggregate of 999,991 Shares with an average exercise price of $2.40 per Share."
SECTION 3. Section 7.05 of the Merger Agreement is hereby
amended by replacing the reference to "4,240" with a reference to "14,134" and
by replacing the reference to "$59,360" with a reference to "$197,876".
SECTION 4. Section 9.03(a) of the Merger Agreement is hereby
amended by adding the reference "Maryland," between the references
"Pennsylvania," and "Delaware" on line eight.
SECTION 5. Section 10.03 of the Merger Agreement is hereby
amended by replacing the text thereof with the following reference:
"[intentionally omitted]".
SECTION 6. Section 12.02(f) of the Merger Agreement is hereby amended
by replacing the reference "Exhibit D" with the reference "Exhibit C" on line
two.
SECTION 7. Section 12.03(e) of the Merger Agreement is hereby amended
by deleting the reference "15.03," on line four.
SECTION 8. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of laws rules of such state.
SECTION 9. This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
SECTION 10. Except as expressly amended by this Amendment, the Merger
Agreement will remain in full force and effect.
SECTION 11. Capitalized terms used in this Amendment and not otherwise
defined herein are used herein as defined in the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
caused this Amendment to be duly executed, by their respective authorized
officers, as of the date first above written.
EROLS INTERNET, INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President and Chief
Executive Officer
XXXX XXXXXX
/s/ Xxxx Xxxxxx
GOLD & XXXXX TRANSFER, S.A.
Page-2
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney-in-fact
RCN CORPORATION
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Executive Vice President
ENET HOLDING, INC.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Executive Vice President
Page-3