AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.3
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
This
Amendment No. 1 to the Agreement
and Plan of Merger (this “Amendment”) made and entered into as of the 14th day of
January,
2008, by MetaSwarm, Inc. (f/k/a E-Auto Network, Inc. or “EANW”), a Florida
corporation, with principal executive offices located at 000 X. Xxxx Xxx. #000,
Xxxxxxxx, XX 00000 (the “Company”), and MetaSwarm Holdings, Inc., a Nevada
corporation with principal executive offices located at 000 X. Xxxx Xxx. #000,
Xxxxxxxx, XX 00000 (the “Subsidiary”).
WHEREAS,
the Company
and the Subsidiary entered into an Agreement and Plan of Merger (the “Merger
Agreement”), dated as of April 7, 2007, a copy of which is annexed as an Exhibit
hereto;
WHEREAS,
prior to the
closing of the Merger Agreement, EANW had an aggregate of 100,000 shares of
preferred stock issued and outstanding of which an aggregate of 24,000 shares
(the “Preferred Shares”) were intended by the parties to remain issued and
outstanding following the closing of the Merger Agreement;
WHEREAS,
the rights and preferences of the Preferred Shares were further intended to
be
amended to clarify that each such share was to be convertible into 375 shares
of
common stock of the EANW and entitled to 375 votes per share;
WHEREAS,
the Company and the Subsidiary now desire to amend the Merger Agreement to
correct certain information regarding the Preferred
Shares. Specifically the Merger Agreement is to be amended to
correctly reflect among other things, that (i) the Preferred Shares, as
contemplated to be amended, were intended to remain issued and outstanding,
and
(ii) the capitalization of the Company following the transaction was intended
to
reflect the foregoing information regarding the Preferred Shares;
NOW,
THEREFORE, in
consideration of and for the mutual promises and covenants contained herein,
and
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Merger Agreement is hereby amended as
follows:
ARTICLE
I
THE
MERGER
|
1.1
|
Section
1.2 (c)(2) of the Merger Agreement is hereby amended in its entirety
as
follows:
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(2)
Following the Closing, 24,000 shares of preferred stock of EANW shall remain
issued and outstanding. All other remaining shares of preferred stock
of EANW shall be cancelled at Closing.
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ARTICLE
II
THE
CLOSING
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1.2
|
Section
2.3 of the Merger Agreement is hereby amended in its entirety as
follows:
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Following
Closing there shall be a total of 93,381,508 common shares of EANW issued and
outstanding and 24,000 shares of preferred stock issued and
outstanding. Upon closing the rights and preferences of the EANW
preferred stock shall be amended to clarify that such shares shall be
convertible into 375 shares of common stock.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF EANW
|
1.3
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Section
3.1(h) is hereby amended in its entirety as
follows:
|
|
(h)
|
Shareholders. Schedule
H.1 is a complete list of all persons or entities holding capital
stock of
EANW. Except as provided on Schedule H.2, there are no
outstanding rights to subscribe for, acquire, or receive shares of
the
capital stock of EANW (whether warrants, calls, options, conversion
rights
or otherwise); Schedule H includes copies of all stock option
plans whether qualified or nonqualified, and other similar
agreements.
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1.4
|
Section 3.1(y) hereby amended in its entirety as follows: |
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(y)
|
Capitalization
of EANW. At the Effective Time, the authorized capital
stock of EANW will consist of 100,000,000 shares of EANW Common Stock,
$-0- par value, of which only 12,278,700 shares of EANW Common Stock
will
be issued and outstanding and 100,000 shares of EANW Preferred Stock,
$-0-
par value, of which 24,000 shares of EANW Preferred Stock will be
issued
and outstanding at the Effective Time, which shares were duly authorized,
validly issued and fully paid and nonassessable, and were issued
in
accordance with the registration provisions of the Securities Act
of 1933
(the “Securities Act”) and any relevant registration or qualification
provisions of state securities laws or pursuant to valid exemptions
therefrom. There are no preemptive rights with respect to any
of the EANW capital stock. There is no agreement or
understanding between any persons and/or entities, which affects
or
relates to the voting or giving of written consents with respect
to any
security or by a director of EANW.
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2
2. (A) This
Amendment shall be construed and interpreted in accordance with the laws of
the state of New York without giving effect to the conflict of laws rules
thereof or the actual domiciles of the parties.
(B) Except
as amended hereby, the terms and provisions of the Merger Agreement shall remain
in full force and effect, and the Merger Agreement is in all respects ratified
and confirmed. On and after the date of this agreement, each reference in the
Merger Agreement to the "Merger Agreement", "hereinafter", "herein",
"hereinafter", "hereunder", "hereof", or words of like import shall mean
and be a reference to the Merger Agreement as amended by this
agreement.
(C) This
Amendment may be executed in one or more counterparts, each of which shall
be deemed an original and all of which taken together shall constitute a single
Amendment.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have duly caused this Amendment to
be executed and delivered on the date first above written.
| THE COMPANY: | THE SUBSIDIARY: | |||
| MetaSwarm, Inc | MetaSwarm Holdings, Inc. | |||
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/s/
Xxxxxx
Xxxxxxx
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/s/
Xxxxxx
Xxxxxxx
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|||
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Xxxxxx
Xxxxxxx
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Xxxxxx
Xxxxxxx
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|||
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Chief
Executive Officer
|
Chief
Executive Officer
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