EXHIBIT 2.2
AMENDMENT NO. 1 TO
MERGER AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NO. 1 TO MERGER AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is entered into as of July 8, 1999, by and among STRATEGICUS
PARTNERS INC., an Oregon corporation ("Strategicus"), NETVALUE HOLDINGS, INC., a
Delaware corporation ("NVH") and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
On June 21, 1999, the parties executed and delivered a Merger Agreement and
Plan of Reorganization (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
-------------
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
------------------------
the terms, conditions, covenants and exhibits set forth in the Agreement remain
in full force and effect among the parties.
3. Consulting Agreement. The definition of "Consulting Agreement" set
--------------------
forth in Section 1.4 is hereby deleted and shall be replaced with the following:
The term "Consulting Agreement" means the Consulting Agreement
executed by and between NVH and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Consulting
Agreement by and between NVH and ▇▇▇▇ ▇▇▇▇, and the Consulting
Agreement by and between NVH and ▇▇▇▇▇ ▇▇▇▇▇▇.
4. Employment Agreement. The definition of "Employment Agreement" set
--------------------
forth in Section 1.5 is hereby deleted and shall be replaced with the following:
The term "Employment Agreement" means the Employment Agreement
executed by and between NVH and ▇▇▇▇▇▇▇ ▇▇▇▇▇, including all
amendments and modifications thereto.
5. Officers. The terms and conditions set forth in Section 2.6 of the
--------
Agreement are hereby deleted and shall be replaced with the following:
At the Effective Time, the officers of the Surviving Corporation will
be ▇▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board; ▇▇▇▇▇▇ ▇▇▇▇▇, President and
Chief Executive Officer; ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Technology Officer; and
▇▇▇▇ ▇▇▇▇, Executive Vice
President - Business Development, each to hold office in accordance
with the terms of the Certificate of Incorporation and Bylaws of the
Surviving Corporation until such officer's successor is duly elected
or appointed and qualified.
6. Conversion of Strategicus Stock. The terms and conditions set forth
-------------------------------
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
(the common stock and Series A Preferred Stock of the Surviving
Corporation may be collectively referred to as the "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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, issue and deliver to
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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. NVH shall, in exchange for the
Strategicus Stock owned by each of ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇, issue and deliver to each of ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇ the portion of the Merger Consideration as such person's
interest in NVH Shares vest pursuant to the vesting schedule set forth
in Section 3.2. NVH will deposit with a mutually satisfactory escrow
agent thirty-six (36) stock certificates for equal amounts of NVH
Stock representing an aggregate of total shares for each of ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, and the escrow agent shall deliver a
stock certificate to each of ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇ 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. Each stock certificate 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.
7. Vesting Schedule. The terms and conditions set forth in Section 3.2
----------------
of the Agreement are hereby deleted and shall be replaced with the following:
2
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
------------------------ ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ 30% of the NVH Stock to which ▇▇▇▇▇▇▇ ▇▇▇▇▇
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;
▇▇▇▇▇ ▇▇▇▇▇▇ 15% of the NVH Stock to which ▇▇▇▇▇ ▇▇▇▇▇▇ 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 36 months;
▇▇▇▇ ▇▇▇▇ 15% of the NVH Stock to which ▇▇▇▇ ▇▇▇▇ 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 36 months;
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 15% of the NVH Stock to which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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 36 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.
3
If the employment of ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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 of termination of
his consulting agreement. If the consulting agreement of ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
NVH: NETVALUE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
STRATEGICUS: STRATEGICUS PARTNERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
4
SCHEDULE 3.1
TO
MERGER AGREEMENT AND PLAN OF REORGANIZATION
NVH Stock to Strategicus Shareholders
-------------------------------------
Series A Preferred Stock Common Stock
------------------------ ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ 577,865 1,881,157
▇▇▇▇ ▇▇▇▇ 577,865 1,881,157
▇▇▇▇▇ ▇▇▇▇▇▇ 577,865 1,881,157
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 577,865 1,881,157
5
