AMENDED AGREEMENT AND PLAN OF REORGANIZATION
Agreement made as of the 31st day of December, 1997 by and among Touch
Tone America, Inc., a California corporation, ("Buyer"), ORIX Global
Communications, Inc., a Nevada corporation (the "Company" or "Seller") and
the Shareholders of the Company whose names and addresses are set forth on
the signature page hereof, (the "Shareholders"). Buyer, Seller, Company and
Shareholders are sometimes referred to as "party" or "parties."
The parties entered into an Agreement and Plan of Reorganization dated
August 11, 1997 , which was subsequently amended on November 7, 1997 and
December 18, 1997 (the "Agreement") to condition the Agreement on new terms
and conditions and to afford the Seller and the Shareholders additional
consideration for the acquisition of the Shares in light of certain material
events which include the financial condition of the Buyer and its subsidiary,
the Buyer's common stock being delisted from the NASDAQ SmallCap Market on
December 17, 1997 and the structure and conditions attaching to that certain
private placement by a foreign institutional investor in convertible
securities of the Buyer closing concurrently with the execution of this
amendment.
As a result of, the parties agreed to amend Agreement as provided below.
NOW THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. Section 1.2 of the November 7, 1997 Agreement is modified to read
henceforth as follows:
"1.02. SHARES BEING EXCHANGED. Subject to the terms and
conditions of this Agreement, at the Closing, provided for
in Section 2.01 hereof (the "Closing"), Shareholders are
assigning and delivering to Buyer the Shares and Buyer is
acquiring such Shares, free and clear of all liens, claims,
options, charges and encumbrances whatsoever in exchange for
such number of Common Shares of the Buyer's Common Stock to
represent after issuance 80% of all issued and outstanding
shares of the Buyer's Common Stock after giving effect to
all options, warrants or other rights calling for issuances
of Common Shares of the Buyer's Common Stock (except for
issuances pursuant to a Securities Purchase Agreement and an
Option Agreement with certain offshaore investment funds
dated on even date hereof (the "Contemperaneous Issuances").
As of the date hereof, 4,561,245 shares of Buyer's Common
Stock are issued and outstanding, and options, warrants or
other rights calling for issuances of 3,865,000 Common
Shares of the Buyer's Common Stock are outstanding,
except for the Contemperaneous Issuances.
Accordingly, as of the date hereof, and before giving effect
to any adjustments contemplated under Paragraph 1.04 below,
the number of Common Shares of the Buyer's Common stock
which represent, after issuance, 80% of all issued and
outstanding shares of the Buyer's Common Stock after giving
effect to all options, warrants or other rights calling for
issuances of Common Shares of the Company currently
outstanding, is 33,732,9800, except for the Contemperaneous
Issuances."
2. Upon Closing, Buyer agrees to execute the Stock Pledge Agreement and remit
to Infinity Investors Limited, under the Stock Pledge Agreement the Shares,
who will hold the Shares in accordance with the terms of such Stock Pledge
Agreement.
3. The parties agree that Section 11.1(d) of the Agreement is amended to make
such condition precedent a condition subsequent to performance under the
Agreement. As a result Section 11.1(d) of the Agreement is purged and the
Agreement is further amended by adding a new Section 11.2(b) which would
read as follows:
Proper and legal approval of the shareholders of Touch Tone
America, Inc., as required and necessary in conformity with
all requirements of the By-Laws of Touch Tone America, Inc.,
and the Corporation Law of the State of California of the
transaction contemplated under this Agreement as well as all
other matters necessary to give effect to this transaction
determined in the sole discretion of Orix Global
Communications, Inc. This approval must be by June 30,1998
unless mutually extended, or this Agreement is null and
void. All expenses relating to seeking and obtaining
Shareholder approval are to be borne by Touch Tone America,
Inc., whether such approval is successful or not.
4. Buyer and Orix hereby covenant and agree to operate the Buyer and Orix
preceding the consummation of the Shareholders ratification as if the
Reorganization has occurred, provided however, the separate corporate
existence of Orix shall be maintained, and Buyer will not commingle the
assets and liabilities of Orix with the assets and liabilities of Buyer or
any other subsidiary.
5. Section 11.1(g) and 11.2 of the Agreement are hereby modified by
substituting all references to listing obligations with the NASDAQ
SmallCap Market to "the electronic quotation medium known as the OTC
Bulletin Board". The additional proviso will be added to Section 11.1(g)
and 11.2 of the Agreement, namely: "Buyer will take all actions necessary
such that the Buyer's Common Stock will be eligible for quotation on the
OTC Market and "active" securities (as such term is defined by NASD
regulations) satisfying the frequency of quotation requirement and traded
on the OTC market. "Section 11.2 of the Agreement will henceforth be
referred to as Section 11.2(a).
6. Section 11.3 of the Agreement is hereby modified by prefacing said Section
with the following
"Subject to the Stock Pledge Agreement,"
7. The Shareholders agree that they shall not sell, transfer or otherwise
dispose of any of the shares of Common Stock of the Corporation received by
them under the Agreement or otherwise prior to January 1, 1999, unless such
sale, transfer or other disposition occurs as a selling shareholder
pursuant to an underwriter offering of no less than $2.5 million by the
Corporation of its Common Stock.
8. All other provisions of the Agreement remain in effect and binding on the
parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
TOUCH TONE AMERICA, INC.
By: /s/ Xx. Xxxxxx X. Xxxxx
---------------------------------
Acting President
ORIX GLOBAL COMMUNICATIONS,
INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
President
