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EXHIBIT 2.2
AMENDMENT NUMBER ONE
THIS AMENDMENT NUMBER ONE (this "Amendment") to the Agreement
and Plan of Reorganization, dated November 8, 1999, by and among Orius Corp., a
Florida corporation ("Orius"), LISN Holdings, Inc., an Ohio corporation
("LISN"), Orius Merger Sub., Inc., an Ohio corporation, and (by joinder) the
other parties named therein (the "Reorganization Agreement") is entered into as
of January 13, 2000, and effective as of November 8, 1999, by and among Orius,
LISN, the Orius Stockholders Representative, the LISN Shareholders
Representative, and the Investor Representative (as such terms are defined in
the Reorganization Agreement).
Each of the undersigned desires to amend the Reorganization
Agreement in certain aspects in order to clarify certain agreements and
understandings among the parties as of the Closing. Capitalized terms used and
not defined herein have the meanings set forth in the Reorganization Agreement.
NOW, THEREFORE, the undersigned hereby amends the
Reorganization Agreement pursuant to Section 10D thereto as follows:
1. Amendment to Reorganization Agreement.
a. Section 1E(i)(a) shall be amended as
follows: the phrase "Within 10 business days
after the Closing Date, Orius will prepare,
and deliver" shall be deleted and replaced
with the phrase "By January 10, 2000, Orius
will prepare and deliver";
b. Section 1A(ii)(a) shall be amended as
follows: the phrase "par value $.01 per
share ("LISN Common")" shall be deleted and
replaced with the phrase "no par value
("LISN Common")";
c. Section 1A(ix) shall be amended as follows:
the phrase "par value $.01 per share (the
"LISN Class C Common")" shall be deleted and
replaced with the phrase "no par value (the
"LISN Class C Common")";
d. Section 1B(iii)(b)(1) shall be amended as
follows: immediately following the phrase
"LISN Junior Notes" and immediately prior to
the phrase "in the aggregate", the phrase
"to Orius" shall be deleted;
e. Section 1B(iii)(c) shall be amended as
follows: immediately following the phrase
"opposite such Person's name on" and
immediately prior to the phrase "hereto
pursuant to the Note Exchange", the phrase
"Exhibit B(i)" shall be deleted and replaced
with the phrase "Exhibit B(ii)";
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f. Section 1B(iv) shall be amended as follows:
immediately following the phrase
"outstanding shares of Orius Common" and
immediately prior to the phrase "set forth
opposite" shall be inserted the word
"Stock";
g. Section 1B(v) shall be amended as follows:
the phrase "[Language to come from A&S or
W&W re: escrow deposit]" shall be deleted;
h. Section 1B(vi) shall be amended as follows:
in the penultimate line, the word
"Stockholders" shall be deleted and replaced
with the word "Warrantholders";
i. Section 1B(vi)(b) shall be amended as
follows: in the first paragraph, the phrase
"such person's name on the Orius
Stockholders Schedule" shall be deleted and
replaced with the phrase "such Person's name
on the Orius Warrantholders Schedule"; in
the second paragraph, subsection (z), the
phrase "such person's name on the Orius
Stockholders Schedule" shall be deleted and
replaced with the phrase "such Person's name
on the Orius Warrantholders Schedule";
j. Section 1B(viii) shall be amended as
follows: the phrase "set forth in Schedule
1E." shall be deleted and replaced with the
phrase "set forth in Section 1E.";
k. Section 1B(ix) shall be amended as follows:
the heading "HIG Call Agreement." shall be
deleted and replaced with the heading "HIG
Put/Call Agreement.";
l. Section 1D(i) shall be amended as follows:
the word "persons" shall be deleted and
replaced with the word "Persons";
m. Section 1D(ii) shall be amended as follows:
the word "persons" shall be deleted and
replaced with the word "Persons";
n. Section 1D(iv)(a) shall be amended as
follows: the amount "$57.55" shall be
deleted and replaced with the amount
"$57.57";
o. Section 1E(ii)(a) shall be amended as
follows: the amount "$57.55" shall be
deleted and replaced with the amount
"$57.57";
p. Section 2S shall be amended as follows: the
phrase "Xxxxx & Xxxxxxx" shall be deleted
and replaced with the phrase "Holland &
Knight LLP";
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q. Section 3B shall be amended as follows: the
phrase "(an "Orius Put Agreement" and each
Orius Put Agreement executed by an Orius
Stockholder," shall be deleted and replaced
with the phrase "(an "Orius Put Agreement"
and all Orius Put Agreements executed by
Orius Stockholders,"; further, in the last
line, the phrase "Orius Stockholders'" shall
be deleted and replaced with the phrase
"Orius Stockholder's";
r. Section 3K(ii) shall be amended as follows:
the phrase "HIG and HIG Cable West, Inc."
shall be deleted and replaced with the
phrase "HIG West and HIG Cable";
s. Section 4E(i) shall be amended as follows:
the phrases "Section 5M" and "Section 6M"
shall be deleted and replaced with the
phrases "Section 5K" and "Section 6K",
respectively;
t. Section 5K shall be amended as follows: the
phrase "issued new stock certificates to any
Orius Stockholder to reflect the number of
shares of Orius Common Stock which such
Orius Stockholder owns as a result of the
10.36091139-for-one stock split which
occurred on September 23, 1999; or" shall be
inserted as Section 5K(xx) of the
Reorganization Agreement; further the phrase
"agreed, whether orally or in writing, to do
any of the foregoing." shall be deleted as
Section 5K(xx) and instead renumbered as
5K(xxi);
u. Section 8 shall be amended as follows:
i. the phrase ""Closing LISN Investor
Value" has the meaning set forth in
Section 1D" shall be deleted and
replaced with the phrase ""Closing
LISN Investor Value" has the meaning
set forth in Section 1E(ii)(b)";
ii. the phrase ""Closing Orius Investor
Value" has the meaning set forth in
Section 1D" shall be deleted and
replaced with the phrase ""Closing
Orius Investor Value" has the
meaning set forth in Section
1E(ii)(a)";
iii. the phrase ""Escrow Amount Per
Share" means $5,000,000 divided by
22,789,683.77" shall be deleted and
replaced with the phrase ""Escrow
Amount Per Share" means $5,000,000
divided by 22,548,209.24";
iv. within the definition of "Existing
Orius Option", the phrase "person
listed on the Orius Optionholders
Schedule hereto,
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which option is exercisable for up
to the number of shares set forth
opposite such person's name at the
exercise per share set forth
opposite such person's name on such
Exhibit" shall be deleted and
replaced with the phrase "Person
listed on the Orius Optionholders
Schedule hereto, which option is
exercisable for up to the number of
shares set forth opposite such
Person's name at the exercise price
per share set forth opposite such
Person's name on such Schedule";
v. within the definition of
"Indebtedness", the phrase "set
forth on the "Orius Bonus Schedule""
shall be deleted and replaced with
the phrase "set forth on the "Orius
Payment Schedule"";
vi. immediately following the definition
for "New LISN Notes" and immediately
prior to the definition for "Note
Exchange", the phrase ""New Stock
Option Agreement" has the meaning
set forth in Section ." shall be
deleted;
vii. within the definition of "Orius
Continuing Stockholder" or "Orius
Continuing Stockholders", the phrase
"listed on Exhibit D," shall be
deleted and replaced with the phrase
"listed on the Orius Stockholders
Schedule,";
viii. within the definition of "Orius
Warrant", the phrase "exercise per
share set forth opposite such
person's name on such Exhibit" shall
be deleted and replaced with the
phrase "exercise price per share set
forth opposite such Person's name on
such Schedule"; further, the word
"Stockholders" shall be deleted and
replaced with the word
"Warrantholders";
ix. immediately following the definition
for "Purchase Transaction" and
immediately prior to the definition
for "Qualifying Waiver", the phrase
""Purchaser" has the meaning set
forth in the Preamble." shall be
inserted;
x. immediately following the definition
for "Share Number" and immediately
prior to the definition for
"Subsidiary", the phrase ""Stock
Option Agreement" means the
agreement set forth as Exhibit P
hereto." shall be inserted;
v. Section 10N(iii) shall be amended as
follows: the phrase "THE INVESTMENT
AGREEMENT, AT THE ADDRESS PROVIDED IN
EXHIBIT D OF THIS AGREEMENT" shall be
deleted and replaced with the phrase "THE
INVESTMENT AGREEMENT, TO
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THE ADDRESS PROVIDED IN SUCH PERSON'S ORIUS
JUNIOR NOTE, OR OTHERWISE ON RECORD AT
ORIUS,"; and
w. The "TABLE OF CONTENTS" and the "EXHIBITS
AND SCHEDULES" shall be amended to
correspond with the contents of the
Reorganization Agreement.
2. Continuing Effect. Except as provided in the
foregoing Section 1, this Amendment shall not
constitute an amendment or waiver of any provision of
the Reorganization Agreement, which shall continue
and remain in full force and effect in accordance
with its terms.
3. Counterparts. This Amendment may be executed
simultaneously in counterparts (including by means of
telecopied signature pages), any one of which need
not contain the signatures of more than one Party,
but all such counterparts taken together shall
constitute one and the same Amendment.
4. Governing Law. All questions concerning the
construction, validity and interpretation of this
Amendment shall be governed by and construed in
accordance with the terms and provisions of Section
10N of the Reorganization Agreement.
5. Descriptive Headings. The descriptive headings of
this Amendment are inserted for convenience only and
do not constitute a part of this Amendment.
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IN WITNESS WHEREOF, this Amendment Number One has been entered
into as of the date first written above, and effective as of November 8, 1999.
ORIUS CORP.
By: /s/ XXXXXXX X. XXXXXXXX
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Its:
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LISN HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
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Its:
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ORIUS STOCKHOLDERS REPRESENTATIVE:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
LISN SHAREHOLDERS REPRESENTATIVE:
XXXXXX XXXXX & PARTNERS II, L.P.
By: Xxxxxx Xxxxx & Partners Management II, L.P.
Its: General Partner
By: Xxxxxx Xxxxx & Partners Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director
[Signature Page to the Amendment Number One Continues]
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INVESTOR REPRESENTATIVE:
XXXXXX XXXXX & PARTNERS II, L.P.
By: Xxxxxx Xxxxx & Partners Management II, L.P.
Its: General Partner
By: Xxxxxx Xxxxx & Partners Management II, L.L.C.
Its: General Partner
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director
[End of Signature Page to the Amendment Number One]
