Exhibit 10.9
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This First Amendment (the "Amendment") to the Agreement and Plan of Merger,
dated as of June 11, 2005, by and among Mediamax Technology Corporation, a
Nevada corporation ("Buyer"), MMXT Sub, Inc. a Nevada corporation and a direct,
wholly-owned subsidiary of Buyer ("Sub"), and SunnComm International, Inc., a
Nevada Corporation ("Seller"), (the "Merger Agreement"), is entered into this
2nd day of November, 2005 by and among the Buyer, the Sub and the Seller.
Capitalized terms not otherwise defined herein, shall have the meanings ascribed
to such terms in the Agreement.
WHEREAS, the parties to this Amendment originally executed the Merger
Agreement on June 11, 2005;
WHEREAS, Section 1.04(a) of the Merger Agreement provides that, prior to
the Effective Time, Buyer shall (i) increase the number of the members of the
Board of Directors of Buyer to five and (ii) take such action as may be
necessary such that Xxxxx X. Xxxxxx and Xxxx Xxxxxxxxxxx shall have been elected
to the Board of Directors of Buyer as of the Effective Time.
WHEREAS, Section 1.04(a) of the Merger Agreement provides that Xxxxx X.
Xxxxxx will, at or prior to the Effective Time, be appointed by the Board of
Directors to serve as the Chief Executive Officer of the Buyer;
WHEREAS, Section 1.04(a) of the Merger Agreement also provides that, in the
event that Buyer or Seller engages in an equity financing prior to the Effective
Time, and, pursuant to the terms of such financing, the investors in such
financing are entitled to designate one or more individuals to serve on the
Board of Directors of Buyer, Buyer and Seller shall amend Section 1.04 (a)
accordingly;
WHEREAS, with the assistance of Buyer, Seller has engaged in an equity
financing with Granite Capital Investments, Inc. (the "Investor");
WHEREAS, the Investor desires to change the composition of the Board of
Directors and bring in an industry specialist to serve as Chief Executive
Officer of the Surviving Corporation;
WHEREAS, therefore, Buyer, Seller and Sub wish to amend Section 1.04(a) of
the Merger Agreement to comport with the management changes desired by Investor;
WHEREAS, Section 8.04 of the Merger Agreement provides that the Merger
Agreement may be amended by the parties thereto, by action taken or authorized
by their respective Boards of Directors, but that the Merger Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties thereto; and
WHEREAS, this Amendment to the Merger Agreement has been authorized by the
respective Boards of Directors of Buyer, Seller and Sub;
1
WHEREAS, each party to this Amendment has determined that this Amendment is
in the best interests of such party and its stockholders;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Buyer, Seller and Sub hereby agree
as follows:
SECTION 1. Section 1.04 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"Section 1.04 Management of Buyer and Surviving Corporation.
"(a) On or prior to November 21, 2005, Xxxxxxx Xxxxxxxx shall
have resigned as Chief Executive Officer and President of the Buyer
and Buyer's Board of Directors shall have taken action to elect Xxxxx
Xxxxxxx to serve as the Chief Executive Officer and President of the
Buyer and as a member of the Board of Directors of Buyer. Prior to the
Effective Time, the Board of Directors of the Buyer shall (i) increase
the number of members of the Board of Directors to six (6); (ii) take
such action as may be necessary to recommend to stockholders the
election of three designees of the Seller, including Xxxxx X. Xxxxxx
and two other designees (such three designees, the "Seller Designees")
to the Board of Directors of Buyer as of the Effective Time; (iii)
take such action as may be necessary to recommend to stockholders the
election of Xxxxx Xxxxxxx to the Board of Directors of Buyer as of the
Effective Time; and (iv) take such action as may be necessary to
recommend to stockholders the election of two designees of Granite
Associates, Inc., as investors representative, to the Board of
Directors of Buyer (the "Investor Designees"). At the Effective Time.
Xx. Xxxxxx shall be elected to serve as the non-executive Chairman of
the Board of Directors of Buyer.
"(b) The directors of Buyer elected pursuant to Section 1.04(a)
shall hold their positions until their resignation or removal or the
election or appointment of their successors in the manner provided by
Buyer's charter documents and applicable law.
"(c) As of the Effective Time, the Board of Directors of the
Buyer immediately prior to the Effective Time shall be the Board of
Directors of the Surviving Corporation, provided, however, that if,
prior to the Effective Date, any of such designees shall decline or be
unable to serve, the party whose designee is unable to serve shall
designate another person to server in such person's stead."
SECTION 2. Except as amended hereby, the Merger Agreement shall remain in
full force and effect.
SECTION 3. This Amendment shall be governed by, and construed and enforced
in accordance with, the substantive laws of the State of Nevada without regard
to its principles of conflicts of laws.
SECTION 4. This Amendment may be executed in one or more counterparts, each
of which shall for all purposes be deemed to be an original and all of which
shall constitute the same document.
2
IN WITNESS WHEREOF, the parties have duly executed this Amendment under
seal as of the day and year first above written.
MEDIAMAX TECHNOLOGY
CORPORATION
By: ______________________________
Name:
Title:
MMXT SUB, INC.
By: ______________________________
Name:
Title:
SUNNCOMM INTERNATIONAL, INC.
By: ______________________________
Name:
Title:
3
