EXHIBIT 10.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT (this "Amendment") is made as of October 20,
2000 to that certain Agreement And Plan of Merger (the "Merger Agreement") dated
as of April 11, 2000, by and among XXXXX CARIBE, INC., a Puerto Rico corporation
("Xxxxx"); ITRACT INC., a Delaware corporation ("Purchaser"); ITRACT ACQUISITION
COMPANY, LLC, a Delaware limited liability company and a wholly-owned subsidiary
of Purchaser ("Purchaser Subsidiary"); ITRACT, LLC, a Delaware limited liability
company ("itract"); and INTERNATIONAL COMMERCE EXCHANGE SYSTEMS, INC., a
Delaware corporation ("ICES").
W I T N E S S E T H:
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WHEREAS, the parties hereto have previously entered into the
Merger Agreement, pursuant to which, Purchaser Subsidiary agreed to merge with
and into itract (the "itract Merger") upon the terms and subject to the
conditions set forth therein;
WHEREAS, upon the terms and subject to the conditions set
forth herein, the parties to the Merger Agreement desire to amend the Merger
Agreement to (i) extend the Termination Date (as defined in the Merger
Agreement), (ii) provide for certain contingencies with respect to the exercise
by Xxxxx stockholders of dissenters' rights and (iii) provide for the payment by
itract of certain expenses incurred by Xxxxx and Purchaser in connection with
the transactions contemplated by the Merger Agreement.
WHEREAS, capitalized terms used but not defined herein shall
have the terms ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements hereinafter set
forth, the parties hereto do hereby agree as follows:
1. Extension of Termination Date. The Merger Agreement is hereby
amended to delete Subsections 10.1(b) and (c) in their entirety and replace them
with the following:
"(b) by Xxxxx or Purchaser, by notice to iTract, if (x)
satisfaction of any of the conditions to Purchaser's or
Purchaser Subsidiary's obligations set forth in Section 7
becomes impossible, and such condition has not been waived by
Xxxxx and Purchaser or (y) the Closing has not occurred by
December 31, 2000 (subject to up to a sixty (60) day extension
if the Registration Statement has not been declared effective
by the SEC and the Parties are using their best efforts to
cause such effectiveness), in either case other than as a
result of a material breach or
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default of Purchaser, Xxxxx or Xxxxxxx;
(c) by iTract, by notice to Xxxxx and Purchaser, if (x)
satisfaction of any of the conditions to itract's obligations
set forth in Section 8 becomes impossible, and such condition
has not been waived by itract or (y) the Closing has not
occurred by December 31, 2000 (subject to up to a sixty (60)
day extension if the Registration Statement has not been
declared effective by the SEC and the Parties are using their
best efforts to cause such effectiveness), in either case
other than as a result of a material breach or default by
itract;"
2. Dissenters' Rights. The Parties hereby agree that the
obligation to make any payments ("Appraisal Payments") required to be made
pursuant to Section 10.12 of the Puerto Rico General Corporations Law of 1995,
in the event any stockholder or stockholders of Xxxxx (each a "Dissenting
Holder") dissenting to the merger of Xxxxx with and into Purchaser seek to
exercise their appraisal rights, shall be borne solely by the Purchaser
following the Effective Time, and the payment or obligation to pay the Appraisal
Payments to any Dissenting Holder shall be deemed not to reduce the amount of
cash, or increase the amount of liabilities of Purchaser for purposes of Section
8.6 of the Merger Agreement, provided, however, that if Dissenting Holders
holding in excess of ten percent of Margo's Common Stock prior to the Effective
Time exercise their appraisal rights, itract shall not be obligated to effect
the itract Merger, and itract shall be entitled to terminate the Merger
Agreement without any liability or further obligation of any Party (other than
the obligations of the Parties under Sections 9.1 and 9.2).
3. Certain Expenses. The Merger Agreement is hereby amended to
delete Section 9.1 in its entirety and replace it with the following:
"9.1 Expenses. The Parties shall each bear their own
respective expenses incurred in connection with this Agreement
and the Contemplated Transactions, except as otherwise
specifically provided herein. If the itract Merger is
consummated, itract shall pay the legal and accounting fees
and expenses incurred by Xxxxx and Purchaser after July 1,
2000 in connection with this Agreement and the Contemplated
Transactions in an amount not to exceed $250,000 in the
aggregate (the "Assumed Expenses"), and for purposes of
Section 8.6(iv) of this Agreement, the Assumed Expenses shall
not be deemed to constitute liabilities of the Purchaser. In
addition, Xxxxx and Purchaser shall have the right to pay any
such Assumed Expenses prior to the Closing Date in which case
the amount of cash and cash equivalents required to be
possessed by the Purchaser on the Closing Date pursuant to
Section 8.6 of the Merger Agreement shall be reduced by an
amount equal to any such payment."
4. Miscellaneous.
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4.1 Section 6.9 of the Merger Agreement is hereby deleted in its
entirety.
4.2 Except as expressly amended hereby, the terms and conditions
of the Merger Agreement shall continue in full force and effect. This Amendment
is limited precisely as written and shall not be deemed to be an amendment to
any other term or condition of the Merger Agreement or any of the documents or
agreements referred to in the Merger Agreement, and any reference to the Merger
Agreement in any such documents or agreements shall be a reference to the Merger
Agreement as amended hereby.
4.3 This Amendment shall be governed by and construed in
accordance with the law of the State of New York applicable to agreements made
and to be performed therein without giving effect to conflicts of law
principles.
4.4 The section headings contained in this Amendment are solely
for the purpose of reference, are not part of the agreement of the Parties and
shall not in any way affect the meaning or interpretation of this Amendment.
4.5 This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
4.6 All claims, disputes or controversies arising under, out of
or in connection with this Amendment shall be resolved in accordance with
Section 11.10 of the Merger Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date and year first-above written.
XXXXX CARIBE, INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
ITRACT, LLC
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Manager
ITRACT ACQUISITION COMPANY, LLC
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Manager
ITRACT, INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: President
INTERNATIONAL COMMERCE EXCHANGE
SYSTEMS, INC.
By: /s/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Chairman
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