EXHIBIT 10 (iii)
AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Amendment ("Amendment") to the Agreement and Plan of Merger by and
among Imojo, Inc. ("Imojo"), IMA Acquisition, Inc. ("IMA") and Skygivers, Inc.
("Skygivers") dated March 15, 2001 (the "Merger Agreement") is entered into as
of this 11th day of April 2001. Capitalized terms used, but not defined, herein
shall have the meanings ascribed to such terms in the Merger Agreement.
W I T N E S S E T H
WHEREAS, the parties desire to amend the Merger Agreement to reflect a
change in the Merger Consideration.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties, intending to be legally bound, do
hereby agree as follows:
1. AMENDMENT TO MERGER AGREEMENT. Section 1.7 of the Merger
Agreement is hereby amended and restated in its entirety to read as follows:
SECTION 1.7 MERGER CONSIDERATION. At the Effective Time, IMOJO Shares,
other than IMOJO Shares held in treasury (which shall be cancelled
pursuant to Section 1.6(b) above), by virtue of the Merger and without
any action on the part of the stockholders of IMOJO (the "IMOJO
Stockholders"), automatically shall be canceled and extinguished and
converted into the right to receive an aggregate of 600,000,000 Shares
(as herein defined) (comprised of 79,900,000 shares of Common Stock of
SkyGivers (the "Common Shares") and 520,100 shares of Preferred Stock
having such name as shall be designated by SkyGivers Board of Directors
(the "Preferred Shares") Each Preferred Share shall have the rights and
privileges equal in all respects to 1,000 shares of Common
Stock. The Merger Consideration may be allocated and distributed to the
IMOJO Stockholders, in accordance with their relative interests
therein, in such combinations of Shares (Common Shares and/or Preferred
Shares) as IMOJO may determine in its sole discretion. As used herein,
a "Share" shall mean a Common Share or common share equivalent. Any
reference herein to a quantity of Shares shall refer to that number of
Common Shares or a number of Preferred Shares and/or Common Shares (in
any combination) having the rights of an equivalent number of Common
Shares.
2. ENTIRE AGREEMENT. Except as specifically amended by the terms
of this Amendment, the terms of the Merger Agreement shall remain in full force
and effect.
3. GOVERNING LAW. This Amendment shall be construed in accordance
with the laws of the State of New York as applied to contracts that are executed
and performed entirely in New York. The parties hereto agree that any action,
suit, arbitration or other proceeding arising out of or related to this
Amendment shall be brought, maintained and conducted only in New York, and each
party hereby irrevocably consents and submits to the personal jurisdiction of an
venue in the United States District Court for the Eastern District of New York
and the New York State Courts located in Nassau County, New York in any such
proceeding.
4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands to
this Amendment on the day and year first above written.
SKYGIVERS, INC. IMOJO, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx, President Name: Xxxxx Xxxxxxxx, President
IMA ACQUISITION, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx, President
