AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
BY AND AMONG ▇▇▇▇▇▇▇▇.▇▇▇,
UBRANDIT ACQUISITION CORPORATION
AND MINDTRONICS CORPORATION
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated as of
January 12, 2001 (this "AMENDMENT"), is entered into by and among ▇▇▇▇▇▇▇▇.▇▇▇.,
a Nevada corporation ("BUYER"), UBRANDIT ACQUISITION CORPORATION, a Nevada
corporation ("ACQUISITION CORP."), and MINDTRONICS CORPORATION, a Nevada
corporation ("SELLER").
RECITALS
A. Buyer, Acquisition Corp. and Seller entered into that certain
Agreement and Plan of Merger, dated as of December 4, 2000 (the "MERGER
AGREEMENT").
B. SECTION 9.11 of the Merger Agreement provides, generally, that the
Merger Agreement may be amended in writing by the parties thereto.
C. Buyer, Acquisition Corp. and Seller intend that certain sections and
provisions of the Merger Agreement be amended or amended and restated.
D. The respective Boards of Directors of Buyer, Acquisition Corp. and
Seller have approved this Amendment and deem it advisable and in the best
interests of each party hereto and its respective stockholders.
The parties agree as follows:
1. All references in the Merger Agreement to "▇▇▇▇▇▇▇▇.▇▇▇, Inc."
hereby are deleted and replaced with references to "▇▇▇▇▇▇▇▇.▇▇▇."
2. All references in the Merger Agreement to "Ubrandit Acquisition
Corp." hereby are deleted and replaced with references to "Ubrandit Acquisition
Corporation."
3. All references in the Merger Agreement to "M2HC, Inc." hereby are
deleted and replaced with references to "M2CH, Inc."
4. All references in the Merger Agreement to "Pillsbury Madison & Sutro
LLP" hereby are deleted and replaced with references to "Pillsbury Winthrop
LLP."
5. The first sentence of SECTION 1.1(c) of the Merger Agreement hereby
is amended and restated as follows:
(c) CLOSING; EFFECTIVE TIME. The closing of the transactions
contemplated by this Agreement (the "CLOSING") will take place as soon
as practicable after the satisfaction or waiver of each of the
conditions set forth in ARTICLE VI hereof but no later than May 1, 2001
(the "CLOSING DATE"); provided, however, that, in the event that Buyer
by May 1, 2001 for any reason whatsoever has not obtained approval of
this Agreement and the transactions contemplated hereby, including,
without limitation, the Merger by the holders of the requisite number
of then-outstanding shares of Buyer Common Stock, then the "CLOSING
DATE" shall be extended and be deemed and interpreted throughout this
Agreement for all purposes to mean September 1, 2001."
6. The last sentence of SECTION 1.1(e) of the Merger Agreement hereby
is deleted in its entirety and shall be of no further force or effect.
7. All references in SECTION 1.2(a) of the Merger Agreement and
appearing elsewhere in the Merger Agreement to the number "12,500,000" hereby
are deleted and replaced with references to the number "12,100,000."
8. The last sentence of SECTION 1.3(i) of the Merger Agreement hereby
is deleted in its entirety and shall be of no further force or effect.
9. The first sentence of SECTION 2.2(a) of the Merger Agreement hereby
is amended and restated as follows: "The authorized capital stock of Seller
consists of 100,000,000 shares of Common Stock. At the Closing Date, there will
be outstanding 10,132,860 shares of Common Stock."
10. The second sentence of SECTION 3.2 of the Merger Agreement hereby
is amended and restated as follows: "Provided that the Article Amendment (as
defined in SECTION 5.8 hereof) has been approved by the requisite vote of the
stockholders of Buyer as required by the Nevada Corporation Law, upon the filing
of the Article Amendment with the Nevada Secretary of State, the authorized
number of shares of Buyer Common Stock will be 100,000,000."
11. SECTION 3.4(a) of the Merger Agreement hereby is amended and
restated as follows: "(a) such filings as may be required under federal and
state securities laws."
12. SECTION 5.8 of the Merger Agreement hereby is amended and restated
in its entirety as follows:
"5.8 AMENDMENT OF ARTICLES OF INCORPORATION OF BUYER. Subject
to the approval of the stockholders of Buyer as required by the Nevada
Corporation Law, Buyer will use its commercially reasonable best
efforts to amend the Articles of Incorporation of Buyer before the
Effective Time to increase the authorized number of shares of Buyer
Common Stock from 25,000,000 to 100,000,000 (the "ARTICLE AMENDMENT");
provided, however, that Buyer makes no assurance, representation or
warranty to Seller that Buyer will be able to obtain such approval of
the stockholders of Buyer; and provided further that neither the
obtaining of such approval of the stockholders of Buyer nor the
effectiveness of the Article Amendment will be a condition to the
performance of Seller's obligations under this Agreement or to the
consummation of the transactions contemplated hereby, including,
without limitation, the Merger."
2
13. The parenthetical reference in SECTION 5.9 of the Merger Agreement
to "SECTION 5.9 HEREOF" hereby is deleted and replaced with a reference to
"SECTION 5.8 HEREOF."
14. SECTION 6.1(a) of the Merger Agreement hereby is amended and
restated in its entirety as follows:
"6.1(a) STOCKHOLDER APPROVALS. This Agreement, including the
appointment of the Representative as provided in SECTION 9.5 hereof,
must have been approved and adopted by the requisite affirmative vote
of the holders of Buyer Common Stock and by the affirmative vote of the
holders of not less than ninety five percent (95.0%) of the
then-outstanding shares of Seller Capital Stock in accordance with the
respective Articles of Incorporation of Buyer and Seller, the Nevada
Corporation Law (as applicable) and AMEX Rules (as applicable);
provided, however, that neither the obtaining of the approval by the
stockholders of Buyer of the Article Amendment nor the effectiveness of
the Article Amendment will be a condition to the performance of
Seller's obligations under this Agreement or to the consummation of the
transactions contemplated hereby, including, without limitation, the
Merger."
15. SECTION 6.1(b) of the Merger Agreement hereby is deleted in its
entirety and shall be of no further force or effect.
16. The reference in SECTION 7.1 of the Merger Agreement to the date
"March 1, 2001" hereby is deleted and replaced with a reference to the date "May
1, 2001."
17. SECTION 7.2 of the Merger Agreement hereby is amended and restated
in its entirety as follows:
"EFFECT OF TERMINATION; BREAK-UP FEE. If this Agreement is
terminated for any of the reasons set forth below, then Buyer will pay
to Seller a one-time break-up fee in the amount of Two Hundred Fifty
Thousand Dollars ($250,000) increased by Fifty Thousand Dollars
($50,000) on the first day of each calendar month commencing March 1,
2001 (the "BREAK-UP FEE"). The Break-Up Fee shall be automatically
offset against any debt owed by Seller to Buyer under the Loan and
Security Agreement referenced in SECTION 5.11. If the amount of the
Break-Up Fee exceeds the debt owed by Seller to Buyer, then Buyer shall
pay the difference in cash within 10 days after the termination.
The Break-Up Fee shall be due if and only if the Agreement is
terminated for any of the following reasons:
(a) Buyer is unable to consummate the Merger for any reason within
its direct control on or before September 1, 2001. For the
purposes of the foregoing, the failure of Buyer to obtain the
requisite approval of the stockholders of Buyer of this
Agreement and the Merger will be deemed to be within the
control of Buyer.
3
(b) Buyer terminates this Agreement, unless such termination
results from or relates to Seller's material breach of any of
its representations, warranties, agreements or covenants
contained in this Agreement or Seller's failure to fulfill any
conditions precedent required of Seller.
Upon Buyer's payment to Seller of the Break-Up Fee, Buyer will have no
further or additional liability whatsoever to Seller by reason of such
termination of this Agreement."
18. FULL FORCE AND EFFECT. Except as set forth herein, the Merger
Agreement is not otherwise amended, supplemented or modified, and the terms,
conditions and agreements set forth in the Merger Agreement hereby are ratified
and confirmed and shall continue in full force and effect.
19. GOVERNING LAW. This Amendment shall be construed in accordance with
and governed by the law of the State of Nevada, without regard to principles of
conflicts of law.
20. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. CAPITALIZED TERMS. Capitalized terms not defined in this Amendment
shall have the meanings defined in the Merger Agreement.
4
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed by its duly authorized officers to be effective as of
the day and year first written above.
▇▇▇▇▇▇▇▇.▇▇▇,
A Nevada corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
UBRANDIT ACQUISITION CORPORATION,
A Nevada corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
MINDTRONICS CORPORATION,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇. La Count
--------------------------------
Name: ▇▇▇▇ ▇. La Count
Its: Chief Executive Officer
5
