EXHIBIT 2.1.2
SECOND AMENDMENT TO AGREEMENT
AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER ("Second
Amendment") is dated as of September 17, 2002 by and among O2WIRELESS SOLUTIONS,
INC., a Georgia corporation (the "Company"), XXXXX GROUP, LTD., a corporation
organized under the laws of Israel ("Parent") and XXXXX ACQUISITION SUB, INC., a
Georgia corporation and a direct wholly owned subsidiary of Parent ("Merger
Sub").
WHEREAS, the Company, Parent and Merger Sub are parties to an Agreement
and Plan of Merger dated as of June 5, 2002, and amended as of August 28, 2002
(the "Agreement");
WHEREAS, the parties have determined that it is in their respective
best interests and, as to the Company and Parent, their respective stockholders
to further amend the Agreement.
NOW, THEREFORE, in consideration of the covenants, representations and
warranties contained herein, the parties hereto intending to be legally bound
hereby, agree as follows:
1. CAPITALIZED TERMS. Capitalized terms within this Second
Amendment shall have the meanings assigned thereto in the Agreement.
2. AMENDMENT TO TERMINATION FEE. The Termination Fee set forth in
Section 8.5(b) of the Agreement is hereby amended to equal seven hundred
thousand dollars ($700,000) plus reasonable expenses incurred in connection with
the transactions contemplated by the Agreement
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to Parent and Merger Sub as follows:
(a) The Company has all necessary corporate power and
authority to execute this Second Amendment.
(b) No other corporate proceedings are necessary on
behalf of the Company to authorize this Second Amendment.
(c) This Second Amendment has been duly and validly
executed by the Company and constitutes a valid, legal and binding agreement
enforceable against the Company in accordance with its terms (other than to the
extent enforceability is limited by any provisions of the Agreement).
(d) The Board of Directors of the Company has authorized
the execution and delivery of this Second Amendment and has resolved,
notwithstanding the amendment to the Termination Fee, (i) that the Agreement and
the transactions contemplated thereby, including the Merger, remain advisable
and fair and in the best interests of the Company and its stockholders and (ii)
to recommend that the stockholders of the Company approve and adopt the
Agreement as amended by this Second Amendment.
4. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.
Parent and Merger Sub hereby represent and warrant to the Company as follows:
(a) Parent and Merger Sub have all necessary corporate
power and authority to execute this Second Amendment.
(b) No other corporate proceedings are necessary on
behalf of Parent or Merger Sub to authorize this Second Amendment.
(c) This Second Amendment has been duly and validly
executed by Parent and Merger Sub and constitutes a valid, legal and binding
agreement enforceable against each of them in accordance with its terms (other
than to the extent enforceability is limited by any provisions of the
Agreement).
5. NO WAIVERS OR RELEASES. No waiver or release of any right or
claim in favor of any party under the Agreement shall arise or be deemed to
arise as a result of such party's execution of this Second Amendment.
6. EFFECT ON AGREEMENT. Except as otherwise provided by this
Second Amendment, the Agreement shall remain in full force and effect in
accordance with its terms.
XXXXX GROUP, LTD.
By: /s/ Xxxx Xxx
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Xxxx Xxx
Chairman of the Board
XXXXX ACQUISITION SUB, INC.
By: /s/ Xxxx Xxx
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Xxxx Xxx, President
O2WIRELESS SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X.Rscoe, Chairman and
Co-CEO
O2WIRELESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President and
Co-CEO
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