EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is made and entered into this 23rd day of March, 2004, by and among GLOBAL
DIVERSIFIED ACQUISITION CORP., a Nevada corporation ("ACQUIROR"), GD ACQUISITION
CORP., a Delaware corporation and wholly-owned subsidiary of Acquiror ("SUB"),
MK SECURE SOLUTIONS LTD., a British Virgin Islands private limited company
("MAILKEY"), and WESTVALE CONSULTANTS, LTD, a principal shareholder of MailKey
(the "SHAREHOLDER") for the purpose of amending the Agreement and Plan of Merger
(the "MERGER AGREEMENT") dated February 20, 2004, by and among Acquiror, Sub,
MailKey, and the Shareholder. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Merger Agreement.
RECITALS
WHEREAS, the parties hereto desire to amend certain provisions of the
Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. The first sentence of Section 1.2(c) is hereby deleted in its
entirety and replaced with the following sentence:
As of the date of this Agreement, as set forth on SCHEDULE
1.3(B), there are currently outstanding warrants to purchase an
aggregate of 39,070.6 MailKey Ordinary Shares (collectively, the
"MAILKEY WARRANTS").
2. The first sentence of Section 1.2(d) is hereby deleted in its
entirety and replaced with the following sentence:
As of the date of this Agreement, as set forth on SCHEDULE
1.3(B), there are currently outstanding options to purchase an aggregate
of 34,650 MailKey Ordinary Shares (collectively, the "MAILKEY OPTIONS").
3. The first sentence of Section 1.2(e) is hereby deleted in its
entirety and replaced with the following sentence:
As of the date of this Agreement, as set forth on SCHEDULE
1.3(B), there are currently outstanding loan units convertible into an
aggregate of 6,500 MailKey Ordinary Shares (collectively, the "MAILKEY
LOAN UNITS").
4. Section 1.3(a) is hereby deleted in its entirety and replaced
with the following provision:
(a) Subject to the provisions of Section 1.4 hereafter, the
Merger Consideration, consisting of the total purchase price payable to
the holders of one hundred percent (100%) of the outstanding MailKey
Capital Stock (collectively, the "MAILKEY SHAREHOLDERS") in connection
with the acquisition of MailKey by the Merger, shall consist of
26,246,000 newly issued shares of Acquiror Common Stock.
5. Section 2.2(b)(i) is hereby deleted in its entirety and replaced
with the following provision:
(i) Acquiror shall deliver or shall cause to be delivered to
the MailKey Shareholders certificates evidencing 26,246,000 shares of
Acquiror Common Stock in payment of the Merger Consideration in
accordance with Section 1.3(b).
6. The third sentence of Section 4.1(d) is hereby deleted in its
entirety and replaced with the following sentence:
There are currently 99,825.85 MailKey Ordinary Shares
outstanding, 94,387 MailKey Preferred A Shares outstanding, and
68,247.15 MailKey Preferred B Shares outstanding, all of which are owned
by the shareholders identified on SCHEDULE 1.3(B).
7. The second, third and forth sentences of Section 4.2(d) are
hereby deleted in their entirety and replaced with the following sentences:
The outstanding capital stock of the Acquiror consists solely of
518,018 shares of common stock. All shares of capital stock of Acquiror
outstanding have been duly authorized and validly issued, are fully paid
and nonassessable and are free of preemptive rights. There are currently
5,010,000 shares of Acquiror Common Stock approved for issuance under
Acquiror's 2001 Employee Stock Compensation Plan, which shares were
registered under the Securities Act pursuant to a Registration Statement
on Form S-8, registration no. 333-109067, filed with the SEC on
September 24, 2003 (the "Form S-8 Registration Statement"), of which
5,000,000 shares of Acquiror Common Stock are currently available for
issuance (the "S-8 Shares").
8. Section 4.2(m) is hereby deleted in its entirety and replaced
with the following provision:
(m) ADVISORY FEES.
There is no investment banker, broker, finder or other advisor
which has been retained by, or is authorized by Acquiror or Sub to act
on its or their behalf,
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who might be entitled to any fee or commission from MailKey, Acquiror,
Sub or any of their respective Affiliates upon consummation of this
Merger, except that Legend Advisory Corporation shall be entitled to a
finder's fee in connection with the Merger as provided in SCHEDULE
4.2(M).
9. Section 5.11 is hereby deleted in its entirety and replaced with
the following provision:
5.11 ISSUANCE OF COMMON STOCK.
On or before the Closing, Acquiror shall take all necessary
action to authorize the issuance of 1,325,000 S-8 Shares and 300,000
shares of Acquiror Common Stock to the persons set forth on SCHEDULE
5.11, and shall issue such S-8 Shares and shares of Acquiror Common
Stock to such persons immediately after Closing. Such S-8 Shares and
shares of Acquiror Common Stock shall be allocated among such persons as
set forth on SCHEDULE 5.11.
10. Section 5.13 is hereby deleted in its entirety and replaced with
the following provision:
5.13 BOARD OF DIRECTORS.
On or before the Closing: (i) Acquiror shall obtain a letter of
resignation from Xxxxxx X. Xxxxx as a member of its board of directors,
such resignation to be effective at 12:00 noon eastern standard time on
the first Business Day after the Closing, (ii) Acquiror shall obtain
letters of resignation from Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx,
constituting all of the remaining members of Acquiror's board of
directors on the date hereof, such resignations to be effective on such
date and at such time as Xxx Xxxx-Xxxxx and Xxxxxx Xxxxxx-Xxxxxxx shall
decide in their sole discretion, and (iii) Acquiror shall take all
necessary corporate action, including amending Acquiror's bylaws if
necessary, to appoint Xxx Xxxx-Xxxxx and Xxxxxx Xxxxxx-Xxxxxxx to serve
as directors of Acquiror, such appointments to be effective immediately
upon Closing. Acquiror shall supply MailKey with all information, and be
solely responsible for such information, with respect to the officers
and directors of Acquiror as they exist immediately prior to Closing to
the extent MailKey may be wish to provide such information to Acquiror's
shareholders pursuant to Section 14(f) of the Exchange Act and Rule
14f-1 promulgated thereunder in connection with any decision by MailKey
to appoint new directors to the Board of Directors of Acquiror
subsequent to Closing. Commencing upon Closing and continuing until the
date and time Xxxxxx X. Xxxxx'x resignation from Acquiror's board of
directors becomes effective as provided in this Section 5.13, Acquiror
shall not take any action, or fail to take any action, that would be
reasonably likely to result in any of its representations and warranties
set forth in this Agreement to become untrue in any material respect if
such representations and warrants were made at the time any such action
is taken.
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11. Section 5.15 is hereby deleted in its entirety and replaced with
the following provision:
5.15. MAILKEY FINANCIAL STATEMENTS.
Prior to Closing, MailKey shall provide to Acquiror a letter
prepared by X X Xxxxxxxxx Associates ("X X Xxxxxxxxx") stating that: (i)
providing X X Xxxxxxxxx receives full cooperation from the management of
MailKey in the assistance of the audit of the MailKey financial
statements, and (ii) barring any unforeseen and extraordinary problems,
in Soldinger's judgment, an audit of the MailKey financial statements
can be completed within sixty (60) days after the Closing in accordance
with applicable SEC rules and regulations.
12. The last sentence of Section 5.16 is hereby deleted in its
entirety.
13. Section 6.2(i) is hereby deleted in its entirety.
14. EXHIBIT 4.2(D)(I) is hereby deleted in its entirety.
15. SCHEDULE 1.3(B) is hereby deleted in its entirety and replaced
with the schedule attached hereto as EXHIBIT A.
16. SCHEDULE 2.2(A)(II)(X) is hereby deleted in its entirety and
replaced with the schedule attached hereto as EXHIBIT B.
17. SCHEDULE 2.2(A)(II)(Y) is hereby deleted in its entirety and
replaced with the schedule attached hereto as EXHIBIT C.
18. SCHEDULE 4.2(M) is hereby made a part of the Merger Agreement as
attached hereto as EXHIBIT D.
19. SCHEDULE 5.11 is hereby deleted in its entirety and replaced
with the schedule attached hereto as EXHIBIT E.
20. Except as expressly provided herein, the Merger Agreement shall
remain in full force and effect.
21. This Amendment may be executed in two or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement.
22. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, Parent, Sub, the Company and the Shareholder have
caused this Amendment to be signed by their respective officers hereunto duly
authorized, all as of the date first written above.
GLOBAL DIVERSIFIED ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Chief Financial Officer
GD ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
President
MK SECURE SOLUTIONS, LTD.
By: /s/ Xxx Xxxx-Xxxxx
-----------------------------------
Xxx Xxxx-Xxxxx
Chief Executive Officer
WESTVALE CONSULTANTS, LTD.
By: /s/ Xxx Xxxx-Xxxxx
-----------------------------------
Xxx Xxxx-Xxxxx
Director
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Omitted Exhibits
----------------
The following exhibits to the Agreement and Plan of Merger have been
omitted:
Exhibit Exhibit Description
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A MailKey Shareholders and Allocation of
Merger Consideration
B U.S. MailKey Security Holders
C Non-U.S. MailKey Security Holders
D Advisory Fees
E Issuances of S-8 Shares
The Company agrees to furnish supplementally a copy of the foregoing
omitted exhibits and schedules to the Securities and Exchange Commission upon
request.
