SECOND AMENDMENT TO STOCK PURCHASE AND SALE AGREEMENT
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO STOCK PURCHASE AND SALE AGREEMENT (“Second Amendment”) is
executed as of the 2nd day of September, 2008, by Voyager Gas Holdings, L.P., a
Texas limited partnership (“Seller”), Voyager Gas
Corporation, a Delaware corporation (the “Company”), and ABC
Funding, Inc., a Nevada corporation (“Buyer”).
RECITALS
WHEREAS,
Seller, the Company, and Buyer are parties to a Stock Purchase and Sale
Agreement dated as of May 22, 2008, as amended by First Amendment to Stock
Purchase and Sale Agreement dated as of August 15, 2008 (as so amended, the
“Amended Purchase
Agreement”), pursuant to which Seller agreed to sell and transfer, and
Buyer agreed to purchase and pay for, all of the issued and outstanding shares
of common stock, par value $0.01 per share, of the Company (terms defined in the
Purchase Agreement shall have the same meanings when used herein, unless
expressly provided otherwise); and
WHEREAS,
Seller, the Company, and Buyer desire further to amend the Amended Purchase
Agreement in several respects.
NOW,
THEREFORE, for and in consideration of the mutual promises contained in the
Amended Purchase Agreement, the benefits to be derived by each Party thereunder
and hereunder, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller, the Company, and Buyer
agree as follows:
1. Amendments. The
Amended Purchase Agreement is amended, effective as of May 22, 2008, as
follows:
(a) Section
2.2 of the Amended Purchase Agreement is amended by deleting subsection (a)
thereof in its entirety and by substituting the following provision
therefor:
(a) The
base consideration (the “Base Consideration”)
for all of the Shares shall be FORTY-TWO MILLION AND NO/100 DOLLARS
($42,000,000.00). The Base Consideration shall be payable as
follows: (i) THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000.00)
in cash (the “Cash
Portion”), plus or minus the adjustments provided for in Section 2.4, and
(ii) 10,000 shares of Buyer’s Series “D” Preferred Stock, par value $0.001
per share (the “Consideration
Shares”), having an agreed upon value of SEVEN MILLION AND NO/100 DOLLARS
($7,000,000.00), and having the rights and preferences set forth in the
Certificate of Designation attached to this Agreement as Exhibit C.
(b) Section
2.5 of the Amended Purchase Agreement is deleted in its entirety, and the
following provision is substituted therefor:
2.5 Unregistered Shares;
Legends; Registration. The Consideration Shares to be issued
to Seller as contemplated in Section 2.2(a),
together with the corresponding shares of common stock of Buyer into which the
Consideration Shares may be converted in accordance with Exhibit C, will
not be registered under the Securities Act or registered or qualified for sale
under any state securities Law and cannot be resold without registration or an
exemption under the Securities Act. Such shares will therefore be
“restricted securities” as defined in Rule 144 under the Securities
Act. Each certificate representing the Consideration Shares, and each
certificate representing shares of the common stock of Buyer underlying the
Consideration Shares, shall bear a restrictive legend referencing the Securities
Act. At the Closing, Seller and Buyer will execute the Registration
Rights Agreement relating to the Consideration Shares.
(c) Section 4.1(j) of the
Amended Purchase Agreement is amended by deleting subsections (i) and (ii)
thereof in their entirety, and by substituting the following provisions
therefor:
(i) On
the date of this Agreement, the authorized capital stock of Buyer consists of
24,000,000 shares of common stock, par value $0.001 per share, and 1,000,000
shares of preferred stock, par value $0.001 per share.
(ii) All of the issued and
outstanding shares of common stock and preferred stock of Buyer have been and,
as of the Closing Date, will have been, duly authorized and validly issued, are
and, as of the Closing Date, will be fully paid and non-assessable, and are and,
as of the Closing Date, will have been issued free of preemptive rights and in
compliance with all applicable securities Laws.
Subsections (iii), (iv),
(v), (vi), and (vii) of Section 4.1 of the Amended Purchase Agreement are
unchanged.
(d) Section 6.16 of the Amended
Purchase Agreement is amended by deleting the phrase “the date hereof” from the
second line thereof, and by substituting therefor the phrase “the Closing
Date”.
(e) Section 7.1 of the Amended
Purchase Agreement is amended by deleting subsection (f) thereof in its
entirety.
(f) Schedule 4.1(j)(iii) of the
Amended Purchase Agreement is deleted in its entirety, and the revised version
of such Schedule attached to this Second Amendment as Appendix I is
substituted therefor.
(g) Schedule
8.3(j) of the Amended Purchase Agreement is deleted in its entirety, and the
revised version of such Schedule attached to this Second Amendment as Appendix II is
substituted therefor.
(h) The
Amended Purchase Agreement is amended by adding as Exhibit C the
“Certificate of Designation of Series D Preferred Stock, Par Value $.001, of ABC
Funding, Inc.” attached to this Second Amendment as Appendix
III.
2. Ratification. Seller,
the Company, and Buyer do hereby ADOPT, RATIFY, and CONFIRM the Amended Purchase
Agreement and all of its terms and provisions, as further amended hereby, and
declare the Amended Purchase Agreement to be in full force and effect, effective
as of the date of this Second Amendment.
3. GOVERNING LAW; JURISDICTION;
VENUE. THIS SECOND AMENDMENT AND THE LEGAL RELATIONS AMONG THE
PARTIES SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF TEXAS, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REFER
CONSTRUCTION OF SUCH PROVISIONS TO THE LAWS OF ANOTHER
JURISDICTION. ALL OF THE PARTIES CONSENT TO THE EXERCISE OF
JURISDICTION IN PERSONAM BY THE COURTS OF THE STATE OF TEXAS FOR ANY ACTION
ARISING OUT OF THIS SECOND AMENDMENT. ALL ACTIONS OR PROCEEDINGS WITH
RESPECT TO, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED
TO, OR FROM THIS SECOND AMENDMENT SHALL BE LITIGATED IN COURTS HAVING SITUS IN
HOUSTON, XXXXXX COUNTY, TEXAS.
4. Miscellaneous. This
Second Amendment may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all of such
counterparts shall constitute for all purposes one agreement. At the
Parties’ election, this Second Amendment may be executed by the Parties in
different locations and shall become binding upon both Parties upon the exchange
by the Parties of executed signature pages by facsimile. In the event
of such a facsimile execution, the Parties shall execute and deliver each to the
other a fully executed original counterpart of this Second Amendment within
thirty (30) days after such facsimile execution hereof; provided, however, that
the failure of the Parties to execute such an original counterpart of this
Second Amendment shall not affect or impair the binding character or
enforceability of this Second Amendment. This Second Amendment shall
inure to the benefit of, and be binding on, the Parties and their respective
successors and assigns.
IN
WITNESS WHEREOF, Seller, the Company, and Buyer have executed this Second
Amendment as of the date first above written, to be effective as provided
herein.
[SIGNATURE
PAGES FOLLOW]
SELLER:
VOYAGER
GAS HOLDINGS, L.P.
By: VGH
GP, L.L.C., its General
Partner
By: /s/ Xxxxxxxxxxx
Xxx
Name: Xxxxxxxxxxx
Xxx
Title: Vice
President
COMPANY:
VOYAGER GAS
CORPORATION
By: /s/ Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: President
BUYER:
By: /s/ Xxxxxx X.
Xxxx
Xxxxxx X. Xxxx
President
