Exhibit 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 ("Amendment No. 1") TO AGREEMENT AND PLAN OF
MERGER is entered into as of May 13, 2004, by and among Veridicom International,
Inc. (formerly Alpha Virtual, Inc.), a Delaware corporation ("Veridicom" or
"Parent") and Cavio Corporation, a Washington corporation ("Cavio" or the
"Company"). Capitalized terms used herein and not defined shall have the
meanings given to them in the Agreement and Plan of Merger dated as of January
16, 2004 (the "Agreement").
RECITALS
WHEREAS, Veridicom and Cavio desire to amend certain provisions of the
Agreement pertaining to the Merger Consideration;
WHEREAS, Section 7.02 of the Agreement authorizes an amendment upon the
consent of the Board of Directors of each of the Parent, Sub and Company; and
WHEREAS, Sub ceased to exist as of the Effective Date of the Merger.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements herein contained and for other good and valuable
consideration, Veridicom and Cavio agree as follows:
1. Section 2.01(c) of the Agreement. Section 2.01(c) of the Agreement
shall be deleted in its entirety and replaced with the following:
"Conversion of Company Common Stock. Except as otherwise provided
herein, each issued and outstanding share of Company Common Stock
shall be converted into fully paid and nonassessable shares of
Parent Common Stock in accordance with the Exchange Ratio described
in Section 2.02 (the "Merger Consideration"). Five Million One
Hundred Nineteen Thousand Four Hundred Ten (5,119,410) shares shall
constitute the Merger Consideration."
2. Section 2.02 of the Agreement. Section 2.02 of the Agreement shall
be deleted in its entirety and replaced with the following:
"The "Exchange Ratio" is as follows:
Each share of Company Common Stock shall be converted into 0.277454
of a share of Parent Common Stock in the Merger, an Exchange Ratio
of 1:0.277454 so that in no case shall more than Five Million One
Hundred Nineteen Thousand Four Hundred Ten (5,119,410) shares of
Parent Common Stock be issued in the Merger. No fractional Parent
Common Stock shall be issued in the Merger. If the product of the
number of shares a Company shareholder holds immediately prior to
the Closing multiplied by the exchange ratio would result in the
issuance of a fractional share of Parent Common Stock, that product
will be rounded down to the nearest whole number of shares of Parent
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Common Stock if it is equal to or less than the fraction of one-half
(.5) of one Parent Common Stock or round up to the nearest whole
number of shares of Parent Common Stock if the said product is
greater than the fraction of one-half (.5) of one Parent Common
Stock."
3. Effective Date of Amendment No. 1. The terms set forth in this
Amendment No. 1 shall be effective as of January 16, 2004.
4. Conflicts. To the extent there is any conflict between the terms of
the Agreement and the terms hereof, the terms of this Amendment No.
1 take precedence.
5. Confirmation of Agreement. The parties hereto hereby confirm that
the Agreement, as amended by this Amendment No. 1, remains in full
force and effect.
6. Miscellaneous. All the provisions of Article VIII of the Agreement
are herein incorporated by this reference, including, but not
limited to, the sections regarding Governing Law and Counterparts.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO.
1 as of the date set forth in the first paragraph hereof.
PARENT:
VERIDICOM INTERNATIONAL, INC.
By: /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title:President
COMPANY:
CAVIO CORPORATION
By: /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title:President
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