AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit 10.1
AMENDMENT NO. 1
TO
This
AMENDMENT NO. 1 TO AGREEMENT AND
PLAN OF MERGER (this "Amendment"), effective as of April 21,
2021, by and among Mobcrush Streaming, Inc., a Delaware corporation
(the "Company"), Super
League Gaming, Inc., a Delaware corporation ("Parent"), and SLG Merger Sub II, Inc., a
Delaware corporation and a wholly-owned Subsidiary of Parent
("Merger Sub"). The Company,
Parent, and Merger Sub are sometimes hereinafter collectively
referred to as the "Parties" and each individually as a "Party".
Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in that certain Agreement and
Plan of Merger dated March 9, 2021, by and between the Company,
Parent, and Merger Sub (the "Merger
Agreement").
RECITALS
WHEREAS, the Parties entered into the
Merger Agreement on March 9, 2021 regarding the merger of Mobcrush
with and into Merger Sub, with Mobcrush being the surviving
corporation; and
WHEREAS, the Parties now desire to amend
the Merger Agreement to reflect certain agreements reached between
the Parties after the execution of the Merger Agreement, as more
specifically set forth in this Amendment.
1.
Section 2.07(a)(i) of the
Agreement is amended in its entirety to read as
follows:
"(i) Company Stock Options. At the
Effective Time, each equity award granting such recipient a right
to acquire shares of Company Common Stock (each, a "Company Stock Option") that is
outstanding and unexercised immediately prior to the Effective
Time, whether vested or unvested, shall, by virtue of the Merger,
be cancelled and forfeited without any action on the part of
Parent, Merger Sub, the Company, the Option holder or any other
Person. For the avoidance of doubt, as required by Sections 5.10(a) and
5.10(b) of this
Agreement, Parent shall deliver to each Company Continuing Employee
those certain Offer Letters containing the terms of each such
Continuing Company Employee’s Purchaser Awards. The Company
shall use reasonable best efforts to cause each Option holder who
holds vested Company Stock Options immediately prior to the
Effective Time to exercise such vested Company Stock Options prior
to the Effective Time."
2.
Section 2.07(a)(ii) of the
Agreement is deleted in its entirety and replaced with:
"[RESERVED]."
3.
Section 2.07(b) of the
Agreement is deleted in its entirety and replaced with:
"[RESERVED]."
4.
Section 2.07(c) of the
Agreement is amended in its entirety to read as
follows:
"(c) Resolutions and Other Company
Actions. At or prior to the Effective Time, the Company, the
Company Board and the compensation committee of the Company Board,
as applicable and to the extent necessary, shall adopt any
resolutions and take any actions necessary to (i) effectuate the
provisions of Section
2.07(a) and (ii) cause the Company Stock Option Plan to
terminate at or prior to the Effective Time, it being understood
that the intention of the parties is that from and after the
Effective Time no holder of any Options shall have any right
thereunder to acquire any capital stock of the Company. In the
event any holder of Company Stock Options has exercised any
unvested Company Stock Option pursuant to the Company Stock Option
Plan, the Company shall cause each such Company Stock Option
holder's then-current account balance for such exercised but
unvested Company Stock Options to be distributed in cash to such
employee at the time of plan termination."
5.
Section 5.10(b) of the
Agreement is amended in its entirety to read as
follows:
"(b)
Immediately following the Closing, Parent shall grant equity awards
under the Parent Stock Plan (the “Purchaser Awards”) to each
Company Continuing Employee in an amount and under terms that are
customary for new Parent employees with similar roles and
responsibilities, as outlined in each Company Continuing
Employee’s Offer Letter. The terms of such Purchaser Awards
shall be set forth in the Offer Letters delivered by Parent to the
Company, and submitted to the Company Continuing Employee in
accordance with in Section
5.10(a), above."
6.
Section 5.10(c) of the
Agreement is amended in its entirety to read as
follows:
"(c) With
respect to any "employee benefit plan" as defined in Section 3(3)
of ERISA maintained by Parent or any of its Subsidiaries, excluding
any retiree healthcare plans or programs maintained by Parent or
any of its Subsidiaries, any defined benefit retirement plans or
programs maintained by Parent or any of its Subsidiaries, and any
equity compensation arrangements maintained by Parent or any of its
Subsidiaries (collectively, "Parent
Benefit Plans") in which any Company Continuing Employees
will participate effective as of the Effective Time, Parent shall,
or shall cause the Surviving Corporation to, credit all service of
the Company Continuing Employees with the Company or any of its
Subsidiaries, as the case may be as if such service were with
Parent, for purposes of eligibility to participate (but not for
purposes of vesting or benefit accrual, except for vacation, if
applicable) for full or partial years of service in any Parent
Benefit Plan in which such Company Continuing Employees may be
eligible to participate after the Effective Time; provided, that such service shall not
be credited to the extent that: (i) such crediting would result in
a duplication of benefits; and (ii) such service was not credited
under the corresponding Company Employee Plan."
7.
Section 6.01(f) of the
Merger Agreement is deleted in its entirety and replaced with:
"[RESERVED]."
8.
Section 6.03(f) of the
Merger Agreement is deleted in its entirely and replaced with:
"[RESERVED]."
9.
Section 7.02(a) of the
Merger Agreement is amended in its entirety to read as
follows:
"(a) if
the Merger has not been consummated on or before 11:59 P.M.,
Pacific Time, on June 30, 2021 (the "End Date"); provided, however, that the right to
terminate this Agreement pursuant to this Section 7.02(a) shall not be
available to any party whose breach of any representation,
warranty, covenant, or agreement set forth in this Agreement has
been the cause of, or resulted in, the failure of the Merger to be
consummated on or before the End Date;"
10.
Amendment to Merger Agreement.
The Merger Agreement is hereby amended so that any reference to the
Merger Agreement in the Transaction Documents shall mean the Merger
Agreement as amended by this Amendment.
11.
Event of Conflict. The
provisions of the Merger Agreement, as modified in this Amendment,
shall remain in full force and effect in accordance with their
terms and are hereby ratified and confirmed. In the event of any
conflict between the terms and conditions of this Amendment and the
terms and conditions set forth in the Merger Agreement, the terms
and conditions set forth herein shall control. This Amendment shall
be governed by and construed in accordance with the laws of the
State of Delaware.
12.
Counterparts; Electronic
Execution. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall
constitute but one and the same Agreement. Delivery of an executed
counterpart of this Amendment by telefacsimile or other electronic
method of transmission (including without limitation a PDF
attachment) shall be equally as effective as delivery of an
original executed counterpart of this Amendment.
[Signature Page
Follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto
duly authorized.
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COMPANY
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By /s/ Xxxxxxx Xxxx
Name: Xxxxxxx
Xxxx
Title:
President & CEO
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PARENT
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By /s/ Xxx Xxxx
Name: Xxx
Xxxx
Title:
President & CEO
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MERGER
SUB
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By /s/ Xxx Xxxx
Name: Xxx
Xxxx
Title:
President & CEO
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