SECOND AMENDMENT TO MERGER AGREEMENT
SECOND
AMENDMENT TO MERGER AGREEMENT
This
Second Amendment to Merger Agreement (this "Amendment") is entered into on April
__ , 2010, by
and among Tedom Capital, Inc. ("Tedom"), Tedom Acquisition Corporation ("Merger
Sub"),
and eLayaway, Inc. ("eLayaway") with reference to the following facts and
circumstances:
A. Tedom,
Merger Sub and eLayaway have previously entered into a Merger Agreement
dated
March 19, 2010 (the "Agreement"). Capitalized terms used and not otherwise
defined herein have the
meanings set forth in the Agreement.
B. Tedom,
Merger Sub and eLayaway now desire to amend the Agreement, as set forth
below.
NOW,
THEREFORE, in consideration of their respective promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Tedom, Merger Sub and eLayaway agree as
follows:
1. Amendment to Recitals of the
Agreement. Recitals A and B of the Agreement is hereby amended by
removing Recitals A and B in their entirety and replacing them with the
following Recitals A and B in lieu thereof:
“A. eLayaway
currently has issued and outstanding (i) 9,221,517 shares of no par
value common stock (the “eLayaway Common Stock”), (ii) 1,854,013 shares of
$0.719 par value Series A Convertible Preferred Stock (the “eLayaway Series A”),
(iii) 2,788,368 shares of $0.705 par value Series B Convertible Preferred Stock
(the “eLayaway Series B”), (iv) 3,142,452 shares of $1.15 par value Series C
Convertible Preferred Stock (the “eLayaway Series C”), (iv) 186,243 shares of
$1.588 par value Series D Convertible Preferred Stock (the “eLayaway Series
D”) and (vi) warrants to purchase up to 2,265,945 shares of
eLayaway’s common stock (the “eLayaway Warrants;” and collectively with the
eLayaway Common Stock, the eLayaway Series A, the eLayaway Series B, the
eLayaway Series C and the eLayaway Series D, the “eLayaway
Securities”).
B. Pursuant
to the provisions of this Agreement, the Parties now desire to effect a reverse
triangular merger (the “Merger”) as a result of which (i) Merger Sub shall merge
with and into eLayaway, (ii) the holders of the eLayaway Securities, as listed
on the attached Exhibit A (the “eLayaway Security Holders”), shall collectively
receive (or, in the case of the eLayaway Warrants, have the right to receive) an
aggregate of 18,325,566 shares of Tedom (subject to reduction for any Dissenting
Shares) in exchange for their eLayaway Securities (as described in more detail
below) and (iii) eLayaway shall become a wholly-owned subsidiary of
Tedom.”
2. Amendment to Section D.(3)
of the Agreement. Section D.(3) of the Agreement is hereby
amended by removing each of the par values referenced in
Section D.(3) and replacing them with a par value of
$0.001.
3. Ratification of Remaining
Terms. Except as expressly amended hereby, all of the terms and
provisions of the Agreement shall remain in full force and effect.
4. Multiple
Counterparts. This Amendment may be signed in one or more
counterparts which, each of which shall be deemed to be an original and all of
which when taken together shall constitute a single instrument.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
by their respective authorized persons on the date first above
written.
TEDOM:
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By:
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Its:
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MERGER
SUB:
TEDOM
ACQUISITION CORPORATION
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By:
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Its:
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eLAYAWAY:
eLAYAWAY,
INC.
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By:
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Its:
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