AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger (this "Amendment") is
made and entered into as of July 23, 1999 by and among Intellicell Corp., a
Delaware Corporation ("Intellicell"), Intellicell Merger Sub, Inc., a
Delaware corporation ("Merger Sub"), Cellular Wholesalers, Inc., an Illinois
corporation ("CWI"), and Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx,
and Xxxx Xxxxxx (the "Principal CWI Stockholders") with reference to the
following facts and subject to the condition that Xxxx Xxxxxx will only
continue for purposes of this Amendment to be one of the Principal CWI
Stockholders if he is a shareholder of CWI at the time of the merger of CWI
into the Merger Sub:
Whereas, the parties to this Amendment entered into an Agreement and
Plan of Merger, dated as of July 23, 1999 (the "Agreement"); and
Whereas, the parties to this Amendment desire to amend Section 1.7 of
the Agreement to increase the Share Value (as defined in Section 1.7 of the
Agreement) and to correspondingly increase the Base Consideration (as defined
in Section 1.7 of the Agreement);
Now, therefore, in consideration of the premises and the mutual
agreements contained herein, the parties agree as follows:
1. AMENDMENT TO SECTION 1.7 Section 1.7 of the Agreement is hereby
amended to read in full as follows:
"1.7 CONVERSION OF CWI SHARES. The total consideration to
be received by the shareholders of CWI in connection with
the conversion of all of the then outstanding capital stock
of CWI in connection with the Merger shall be $14,000,000
(the "BASE CONSIDERATION"), plus an additional amount (the
"ADDITIONAL CONSIDERATION") in the event the total
stockholders' equity of CWI as of the Closing Date (the
"Closing Date Equity") exceeds $177,667. The Base
Consideration shall consist of $5,000,000 in cash and
$9,000,000 of shares of Intellicell common stock, $.01 par
value per share (the "INTELLICELL COMMON STOCK"), valued as
hereinafter described (the $9,000,000 of shares of
Intellicell Common Stock being hereinafter referred to as
the "BASE SHARES"). For purposes of this Agreement, the
shares of Intellicell Common Stock shall have a value (the
"SHARE VALUE") equal to $4 per share. The Additional
Consideration, if any, shall consist of an additional number
of shares of Intellicell Common Stock (the "ADDITIONAL SHARES")
as equals (i) the amount by which the Closing Date Equity exceeds
$177,667, divided by (ii) $4. Notwithstanding the foregoing, the
cash portion of the Base Consideration will be reduced by the amount,
if any, by which the Closing Date Equity is less than
$1,177,667, although Additional Shares will then be issued
in an amount equal to (i) the amount, if any, by which the
Closing Date Equity exceeds $177,667, divided by (ii) $4.
The Closing Date Equity shall be determined within 30 days
following the Closing Date by Intellicell's and CWI's
independent certified public accountants in accordance with
generally accepted accounting principles, using assumptions
that are mutually acceptable to such accountants and
including a reserve
against accounts receivable that is acceptable to Intellicell and
CWI, and such determination shall be binding on all of the parties
to this Agreement. At the Effective Time, all of the issued and
outstanding shares of capital stock of CWI ("CWI STOCK") shall, by
virtue of the Merger and without any action on the part of the
holders thereof, be converted pro rata into and thereafter
represent the number of Base Shares described above ($9,000,000
divided by the Share Value) and the holders of such shares shall
concurrently receive the Base Shares on a pro rata basis (unless
directed otherwise as described below) and shall concurrently
receive on a pro rata basis (unless directed otherwise as described
below) $4,500,000 of the cash portion of the Base Consideration.
The Additional Shares and, subject to Section 1.8, the remaining
cash portion of the Base Consideration, if any, will be distributed
pro rata (unless directed otherwise as described below) to the
holders of the Base Shares as of the Closing Date within 15 days
following the determination of the Closing Date Equity.
Notwithstanding the foregoing, the Base Shares, Additional Shares
and cash portion of the Base Consideration will be allocated among
the CWI stockholders in accordance with a written allocation
agreement signed by all of the CWI stockholders, provided that a
copy of this allocation agreement is delivered to Intellicell at
least three business days prior to the Closing. Fractional shares
shall not be issued, and in lieu thereof Intellicell shall pay cash
in an amount equal to the Share Value times the applicable fraction
of a share."
2. AGREEMENT IN FULL FORCE AND EFFECT. The Agreement, as modified
pursuant to Section 1 above, shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
INTELLICELL CORP.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
INTELLICELL MERGER SUB, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
CELLULAR WHOLESALERS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
