Exhibit 2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
AMONG
BROADBAND MARITIME INC.,
PRIME RESOURCE, INC. AND
PRIME ACQUISITION, INC.
FIRST AMENDMENT, dated as of February 13, 2007 ("Amendment"), by and
among BROADBAND MARITIME INC., a Delaware corporation (the "Company"), PRIME
RESOURCE, INC., a Utah corporation ("Parent"), and PRIME ACQUISITION, INC., a
Utah corporation and a wholly owned subsidiary of Parent ("Merger Sub," the
Company, Parent, and Merger Sub together are referred to as the "Constituent
Corporations").
WHEREAS, the Constituent Corporations have previously entered into an
Agreement and Plan of Merger (the "Merger Agreement"), dated as of January 15,
2007 (the "Signing Date"), and capitalized terms used in this Amendment but not
defined shall have the meaning set forth in the Merger Agreement;
WHEREAS, the Merger Agreement provides that the parties may amend such
agreement at any time by written agreement of each party; and
WHEREAS, the Parties now mutually desire to amend the Merger Agreement
to, among other things, (1) change the Closing Date to March 16, 2007, (2)
change the deadline by which the Company must raise additional capital and (3)
clarify and correct certain other provisions.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties agree as follows:
1. Amendment to Section 1.2 of Merger Agreement.
Section 1.2 to the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"Closing. Unless otherwise mutually agreed in writing between
the Company and Parent, the closing of the Merger (the
"Closing") shall take place (i) at the offices of Broadband
Maritime Inc., 00 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, at
10:00 a.m. (Eastern Time) on March 16, 2007 (the "Closing
Date") or at such other location or on such other date as the
parties shall mutually agree."
2. Amendment to Section 7.1(c) of the Merger
Agreement. Section 7.1(c) of the Merger Agreement is hereby
deleted in its entirety and replaced with the following:
"Private Equity Financing. On or before March 13, 2007, the
Company shall have, in private offerings of its capital stock,
since October 31, 2006, sold or entered into binding
subscriptions for the sale by it contemporaneously with the
Closing, shares of its capital stock in an amount that will
result in gross proceeds to the Company of at least four
million five hundred thousand dollars ($4,500,000)."
3. Amendment to Schedule 4.1(a) of the Merger
Agreement. Schedule 4.1(a) of the Merger Agreement is hereby
deleted in its entirety and replaced with the Schedule 4.1(a)
attached to this Amendment.
4. Miscellaneous.
a. Except as specifically provided for
in this Amendment, the terms of the Merger Agreement
shall be unmodified and shall remain in full force
and effect. For purposes of determining the accuracy
of, or the occurrence of a breach of, a Party's
representations and warranties in the Merger
Agreement as of the Signing Date, only those
representations and warranties set forth in the
Merger Agreement in its form as of the Signing Date
shall apply and the modifications or supplements set
forth in the Amendment shall have no effect. For
purposes of determining the accuracy of a Party's
representations and warranties in the Merger
Agreement as of the Closing Date, only those
representations and warranties set forth in the
Merger Agreement in its form as of the Closing Date
shall apply. For purposes of determining the
compliance with, or the occurrence of a breach of, a
Party's covenants in the Merger Agreement prior to
the date of this Amendment, only those covenants set
forth in the Merger Agreement in its form as of the
Signing Date shall apply and the modifications or
supplements set forth in this Amendment shall have no
effect. For purposes of determining the compliance
with, or the occurrence of a breach of, a Party's
covenants in the Merger Agreement after the date of
this Amendment, only those covenants set forth in the
Merger Agreement in its form as after being amended
by this Amendment shall apply.
b. This Amendment shall be binding upon
and shall inure to the benefit of the Parties and
their respective successors and permitted assigns,
except that neither this Amendment nor any rights or
obligations hereunder shall be assigned or delegated
by either Party except in connection with an
assignment of the Merger Agreement in accordance with
the terms thereof. Any purported assignment in
violation of this provision is void.
c. This Amendment is not intended to
confer upon any person or entity other than the
Parties and their permitted assigns any rights or
remedies.
d. This Amendment may be amended only
by a written instrument signed by each of the
Parties.
e. This Amendment may be executed in
counterparts, each of which when so executed shall be
deemed to be an original, and such counterparts shall
together constitute one and the same instrument.
f. THIS AGREEMENT SHALL BE DEEMED TO BE
MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE
LAW OF THE STATE OF DELAWARE.
[Remainder of page intentionally left blank; signature
page follows.]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
written above.
BROADBAND MARITIME, INC.
By: /s/ Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx Xxxxxx, President
PRIME RESOURCE, INC.
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx, President
PRIME ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx, President
[Signature page to the First Amendment to the Agreement and
Plan of Merger.]
