EXHIBIT 2.3
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This First Amendment ("Amendment") is to the Agreement and Plan of Merger
dated May 16, 2000 (the "Original Agreement") is dated May 17, 2000 by and
between Xxxxxxxx.xxx Group, Inc., a Delaware corporation (the "Buyer"), and
Segway Corp., a New Jersey corporation (the "Target"). The Buyer and the Target
are referred to collectively herein as the "Parties."
RECITALS
WHEREAS, the Original Agreement was entered by the parties on May 16, 2000;
and
WHEREAS, the parties wish to amend the consideration provisions of the
Original Agreement in order to effect certain business purposes,
NOW, THEREFORE, the parties hereby agree as follows:
1. The recital is hereby amended to read as follows:
This Agreement contemplates a merger of the Target with and into the
Buyer. The Target Stockholders will receive Five Thousand (5,000)
restricted shares of Buyer's common stock and cash in the aggregate amount
of One Hundred Seventy Five Thousand Dollars ($175,000) in exchange for all
of the capital stock in the Target. The Parties expect that the Merger will
further certain of their business objectives.
2. Section 2.3 is hereby amended to read as follows:
2.3 Actions at the Closing. At the Closing, (i) the Target will deliver
to the Buyer the various certificates, instruments, and documents referred
to in Section 6.1, (ii) the Buyer will deliver to the Target the various
certificates, instruments, and documents referred to in Section 6.2, (iii)
the Buyer and the Target will file with the Secretary of State of the
States of Delaware and New Jersey Certificate of Merger (the "Certificate
of Merger"), and (iv) the Buyer will deliver to the Exchange Agent in the
manner provided below in Section 2.6 the certificates representing the
shares and the sum of Twenty Five Thousand Dollars ($25,000) to be
distributed to the Target Shareholders. Within three (3) weeks of the
Effective Time, or when Buyer receives the funding from its recently closed
Ten Million Dollar ($10,000,000) financing, whichever occurs first, Buyer
will deliver to Exchange Agent an additional One Hundred Thousand Dollars
($100,000).
3. Section 2.6.1 is hereby amended to read as follows:
2.6.1 Immediately after the Effective Time, the Buyer will furnish to
Xxxxxxx X. Xxxxxx and Associates, counsel for Target, as Exchange Agent,
the sum of Twenty Five Thousand Dollars ($25,000). Target hereby
acknowledges the previous receipt of Fifty Thousand Dollars ($50,000) from
Buyer as a deposit paid in advance and anticipation of the Closing of this
Agreement. The Twenty Five Thousand Dollars ($25,000) paid at the Effective
Time and the previously paid Fifty Thousand Dollars ($50,000) shall
collectively be referred to herein as the "Deposit". Within three (3) weeks
of the Effective Time, or when Buyer receives the funding from its recently
closed Ten Million Dollar ($10,000,000) financing, whichever occurs first,
Buyer will deliver to Exchange Agent an additional One Hundred Thousand
Dollars ($100,000). Each shareholder of Target, shall receive the amount of
315/10,000 Dollars ($0.0315) per share. The Exchange Agent shall have the
obligation to make the payments called for by this Section 2.6.1 to the
shareholders of Target.
4. Section 8.1 is amended to read as follows:
8.1 Survival. Except for Target's and Exchange Agents to a submit an
application for a tax clearance certificate pursuant to Section 2.4,
Buyer's obligation to issue shares and make payments pursuant to Section
2.6, and Target's and Exchange Agent's obligation to pay Xxxxx pursuant to
Section 3.9, none of the representations, warranties, and covenants of the
Parties will survive the Effective Time.
5. All capitalized terms used in this Amendment not defined herein shall have
the meanings given them in the Original Agreement. References in this Amendment
and in the Original Agreement to "this Agreement", herein, hereto and words of
similar import shall mean the Original Agreement as amended by this Amendment.
6. This Amendment amends the Original Agreement. The Original Agreement, as
amended by this Amendment, is in full force and effect, and the parties hereto
hereby ratify and affirm the same.
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as
of the date first set forth above.
BUYER:
Xxxxxxxx.xxx Group, Inc.
/s/ Euburn Xxxxx
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By: Euburn Xxxxx
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Title: President
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TARGET:
Segway Corp.
/s/ Xxxxxxx Analow
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By: Xxxxxxx Xxxxxx
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Title: President
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