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EXHIBIT 2.3
AMENDMENT AGREEMENT NO. 2
This AMENDMENT AGREEMENT NO. 2 ("Agreement"), dated as of
May 5, 2000, by and between PACIFIC LITHIUM LIMITED, a New Zealand corporation
(together with its successors is referred to herein as "PLL"), and LITHIUM
TECHNOLOGY CORPORATION, a Delaware corporation ("LTC").
RECITALS
WHEREAS, PLL and LTC have entered into an Agreement and Plan
of Merger dated as of January 19, 2000 ("Merger Agreement") and the Bridge Loan
Financing Agreements (as defined in the Merger Agreement) as amended by
Amendment Agreement No. 1 dated as of March 31, 2000, pursuant to which LTC is
required to hold a stockholders meeting to vote on the merger contemplated by
the Merger Agreement (the "Merger") by June 30, 2000 or such later date agreed
to in writing by PLL and LTC; and
WHEREAS, PLL and LTC desire to provide for an extension of the
LTC stockholder meeting date from June 30, 2000 to July 31, 2000 subject to the
terms and conditions of this Agreement; and
WHEREAS, PLL and LTC desire to amend Section 7.13(b) of the
Merger Agreement subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of these premises and the
mutual agreements contained in this Agreement, PLL and LTC agree as follows:
1. Each reference to action by the stockholders of LTC to approve the
Merger Agreement or the transactions contemplated therein on or before "June 30,
2000" in Section 9.1(a)(v) of the Merger Agreement, in Section 1 or 3(a) of each
promissory note which is a part of the Bridge Loan Financing Agreements or in
any other provision in any of such agreements or documents is hereby amended to
replace such date by the date "July 31, 2000" or such later date agreed to in
writing by PLL and LTC.
2. Section 7.13(b) of the Merger Agreement is amended and restated as
follows:
In the event that any holder of warrants or options issued by LTC
exercises such warrants or options prior to the Closing Date, LTC agrees to use
the proceeds from the exercise of the warrants and options (the "Exercise
Funds") as follows: (1) the first three hundred fifty thousand dollars
($350,000) shall be used by LTC to finance the operations of LTC in lieu of
obtaining financing under the Bridge Loan Financing Agreements and (2) the
second two hundred thousand dollars ($200,000) shall be used by LTC to pay a
portion of the accrued salary due and owing to Xx. Xxxxxxx.
Any Exercise Funds in excess of the foregoing five hundred fifty
thousand dollars ($550,000) (the "Excess Exercise Funds") shall be used by LTC
to pay LTC's Continuing Costs directly by LTC. To the extent LTC pays its
Continuing Costs through the Excess Exercise Funds rather than through Bridge
Loan Financing funds the Merger Securities to be distributed to the LTC
stockholders in the Merger shall be increased on the following basis: one share
of PLL Common Stock shall be added to the 3,500,000 Merger Securities set forth
in Section 3.3 of the Merger Agreement for every $2.25 of Excess Exercise Funds
received by LTC (the "Additional Merger Securities"). The Additional Merger
Securities shall be distributed to the LTC stockholders on the same basis as the
Merger Securities set forth in Section 3.3 of the Merger Agreement.
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(By way of example, if LTC receives $1,450,000 in Exercise Funds, (1)
LTC shall first use $350,000 to finance the operations of LTC in lieu of using
Bridge Loan Financing funds, (2) LTC shall use $200,000 to pay accrued salary
due and owing Xxxxxx Xxxxxxx, (3) LTC shall use the remaining $900,000 to pay
LTC's Continuing Costs and (4) the LTC stockholders shall receive in the Merger
400,000 additional Merger Securities.)
3. In all other respects, the Merger Agreement and the Bridge Loan
Financing Agreements are hereby ratified and affirmed in their entirety.
The parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
PACIFIC LITHIUM LIMITED
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
LITHIUM TECHNOLOGY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxx
Title: Chairman and Chief Executive Officer
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