Contract
Exhibit
2.1
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”), is made
and entered into as of September 17, 2010, by and among Abtech Holdings, Inc.,
f/k/a Xxxxxx Resources, Inc., a Nevada corporation (“Parent”), Abtech
Merger Sub, Inc., a Nevada corporation and wholly owned subsidiary of Parent
(“Merger Sub”),
and AbTech Industries, Inc., a Delaware corporation (the “Company”).
WHEREAS,
the parties to this Amendment are parties to that certain Merger Agreement dated
July 17, 2010 (the “Merger Agreement”);
and
WHEREAS,
the parties hereto now desire to amend the Merger Agreement in the manner set
forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises and of the mutual
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Merger Agreement.
2. The
last sentence in Section 2.1(a) of the Merger Agreement is hereby amended and
restated as follows:
“Each
newly issued share shall thereafter constitute all of the issued and outstanding
common stock of the Surviving Corporation.”
3. The
first sentence of Section 2.1(b)(ii) of the Merger Agreement is hereby amended
and restated as follows:
“(ii) Each
issued and outstanding share of the Company Stock immediately prior to the
Effective Time (individually a “Share” and
collectively the “Shares”), including
any Shares issued upon the conversion of Preferred Stock of the Company, but
excluding (i) Shares held by the Company, and (ii) Shares held by
Parent, Merger Sub or any other Subsidiary or parent of Parent or Merger Sub, if
any, and (iii) Dissenting Shares, shall, by virtue of the Merger, be
converted automatically into approximately 5.3 shares of Common Stock of the
Parent (the “Merger
Consideration”).”
4. The
first sentence of Section 4.3(b) of the Merger Agreement is hereby amended and
restated as follows:
“(b) Immediately
prior to the Closing, the authorized capital stock of Merger Sub will consist of
12,000,000 shares of Merger Sub Common Stock, $0.001 par value, of which
6,724,558 shares of Merger Sub Common Stock will be issued and outstanding, and
no shares of Merger Sub Common Stock will be issuable upon the exercise of
outstanding warrants, convertible notes, options or otherwise.”
5. Section
9.3(l) of the Merger Agreement is hereby added:
“(l) Immediately
prior to the Effective Time, the authorized capital stock of Merger Sub shall
consist of 12,000,000 shares of Merger Sub Common Stock, of which 6,724,558
shares shall be issued and outstanding to Parent.”
6. The
“Capital Stock” table on Schedule 3.3 of the Company Disclosure Schedule is
hereby deleted and replaced with the following:
|
Capital
Stock
|
$
Amount
|
Common
Shares
|
Series
A Preferred
Shares
|
|
Current
Stockholders*
|
5,529,292
|
1,576,442
|
|
|
Convertible
Debt at $2.65 per share
|
$1,156,000
|
436,226
|
|
|
Convertible
Debt at $3.75 per share**
|
$4,046,000
|
1,078,933
|
*Includes
5,778 shares of Common Stock issuable for services prior to
Closing.
**Includes
$200,000 of notes that are convertible into Senior Convertible
Notes.
7. This
Amendment may be executed by the parties hereto in one or more counterparts,
each of which shall be deemed an original and all of which shall together
constitute one and the same instrument.
8. The
Merger Agreement, as amended hereby, shall remain in full force and
effect.
[Remainder of Page Intentionally Left
Blank; Signature Page to Follow]
IN
WITNESS WHEREOF, the parties have caused this Amendment No. 1 to Agreement and
Plan of Merger to be executed as of the date first written above by their
respective officers thereunto duly authorized.
| ABTECH HOLDINGS, INC., a Nevada corporation | |||
|
|
By:
|
/s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | |||
| Title: President | |||
| ABTECH MERGER SUB, INC., a Nevada corporation | |||
|
|
By:
|
/s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | |||
| Title: President | |||
|
ABTECH INDUSTRIES, INC.,
a Delaware
corporation
|
|||
|
|
By:
|
/s/ Xxxxx X. Xxxx | |
| Name: Xxxxx X. Xxxx | |||
| Title: President | |||
